Dec 9th 2008

A Kosovo Update – Where to with the ICJ?

by Binoy Kampmark

Binoy Kampmark was a Commonwealth Scholar at Selwyn College, University of Cambridge and history lecturer at the University of Queensland

Never say never in an assertion of international law. One state's legal claim is another's contention for illegality, and this has proven to be little different in the context of Kosovo's unilateral declaration of independence which took place on February 17 this year.

In hindsight, this declaration has not merely caused grief within Europe, but has become the pretext for other geopolitical moves and mutterings. Countries which find themselves in powder kegs of nationalist ferment have been open about not recognizing the move by Kosovo. Armenia, remembering the flames of Nagorno-Karabakh, made it clear that it could not recognize the move. Nostalgia-ridden Argentina, seeing the continuing need to settle the old conflict over the Falkland Islands with Britain, thought that recognizing the move by Kosovo would set a 'dangerous' precedent. Many countries that have desisted in recognizing Kosovo have referred back to the framework of negotiations set out by UN Security Council Resolution 1244, which makes the case for participation by all parties and notes various supervisory requirements of the region.

Russia has made ample and conspicuous use of the precedent, backing the autonomous regions of Abkhazia and South Ossetia, most notably after the security measures taken by Georgia. After all, so went the argument, these regional areas were equally inured by a fierce sense of identity. Officially, Moscow considers the act on the part of Kosovo to be illegal, despite employing it, less than deftly, in resolving its own strategic dilemmas.

The latest development in this saga is an attempt by Serbia, using the channels of international law, to subject Kosovo's claim to legal scrutiny. The UN General Assembly resolved in October to have the unilateral declaration of independence made by Kosovo looked at by the International Court of Justice. That just goes to show, argues Stavri Kalopsidiotu, jurist and member of Cyprus' Progressive Party of Working People (AKEL) in the European Parliament, that discussions of 'a defeat for "established law" and the weakening of principle of sovereignty and political and territorial integrity of countries' was premature.

Nevertheless, others simply think that Serbia is going through the legal motions, hoping to marginalize a Kosovo it sees as moving well beyond its orbit of influence. For one thing, the procedure it has decided to adopt is non-binding under Article 65 of the court's charter. The ICJ will only offer an advisory opinion. No more.

What can Serbia really gain then? According to Milazim Krasniqi of the press department at Pristina University, the move 'aims to isolate Kosovo and eventually achieve Serbia's goal of dividing the province between the Albanian majority and Serb minority.' That all of this seems somewhat redundant is another message that is coming through. 'It's quite clear for all countries, including Serbia, that Kosovo has become an independent state,' claims Bekim Sejdiu, Kosovo's ambassador to Turkey. 53 countries have gone on to recognize the fledgling state, a state of affairs that bodes ill for the Serbian claim.

And what of the advisory decision? Legal punters will be out in numbers, and they are likely to be in for a long wait. For one thing, such advisory decisions can take several years. While the court is never deluged with cases, it often behaves like it is.

As for the case itself, the court, presuming it will assume jurisdiction over the case, is likely to find Kosovo's case a strong one. Customary international law posits the following categories for the recognition of a sovereign state. First, the entity must have a defined territory with a permanent population. Second, it must be under stable control of its government. Finally, it must have the means of engaging in formal relations with other similar entities.

The only issue that might be contentious here is that of control, given the supervisory issues that arise under UNSCR 1244 and the Ahtisaari Plan of 2007. A country that is subordinate in its governance to other entities is not likely to be seen as independent. But the outline of the Ahtisaari Plan did much to imply an embryonic statehood, a state of affairs that riled both Serbia and Russia.

Whatever the legal arguments, Kosovo cannot afford to wait for the deliberations of judges. Investment opportunities must be made. Engagement with international bodies must continue apace. The Serbian minority must be won over. When the time comes for the ICJ to actually entertain the merits of the case, it may find an even stronger candidate for statehood than it does now. And even now, the candidacy, however strong the opposing arguments, seem strong.

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