Freitag, 23. Juli 2010

Kosovo: ICJ Opinion Leaves the Political Issues Unsettled

20 July 2010 | By Florian Bieber

Florian Bieber
Florian Bieber
Court’s advice will not be a ‘golden bullet’ for either Kosovo or Serbia; it will merely highlight the need for dialogue between the two sides on ways out of the current deadlock. Since October 2008, the International Court of Justice, ICJ, has taken centre stage in the future of Kosovo. Following a UN General Assembly request to the ICJ to provide an advisory opinion on Kosovo’s declaration of independence, the court has deliberated over one of its most important decisions.

While its findings are often ignored and only take the form of an “opinion”, this advisory opinion will have a significant impact on the evolution of Kosovo’s independence and on regional politics in the Balkans.

Scenario 1: Independence Does not Break International Law:
A clear or relatively clear rejection of the claim that Kosovo’s independence broke international law would be a major victory for Kosovo and for the countries that recognised it. The short-term impact is likely to be more countries recognising Kosovo, including some in the EU that have withheld recognition, such as Greece and perhaps Slovakia.

But while many countries may have withheld recognition in anticipation of the ICJ ruling, a huge wave of recognitions is improbable, as many countries will maintain their reservations over the fact that Kosovo’s independence was unilateral.

Whether the number of new recognitions will enable Kosovo to reach the threshold needed for membership of key international organisations also remains uncertain. Similarly, it might facilitate accession to the EU but will by no means remove all obstacles to membership.

Finally, Serbia is unlikely to shift its position fundamentally after such a decision, as its Foreign Minister has already stated.
At this point, Kosovo would be well advised to avoid any show of triumphalism.

Scenario 2: An “Undecided” Decision:
If the court offers an “either or” or “neither nor” opinion, which does not take a clear line, interpretation of the opinion in the media will have increased importance. In essence, such a decision would preserve the status quo. It would not trigger a major increase in recognitions but is likely to result in a continued slow trickle.  Simultaneously, it will not force Serbia’s hand to the same degree as an opinion along the lines of Scenario 1, and it would be unlikely to shift dynamics in international organisations, including the EU. It is likely to lead to a gradual consolidation of international recognitions but also help delay consolidation of statehood for Kosovo.

Scenario 3: The Declaration was Illegal:
If the court suggests Kosovo’s declaration of independence was illegal, this will significantly strengthen Serbia’s position. But it will not lead to the withdrawal of the recognitions given to date, nor mean the undoing of Kosovo’s independence.  The support of the US and of key EU member states is too strong. But it will mean that the gradualist approach to fully recognised independence has failed and highlight the need for further negotiations. .....

Kosovo: ICJ Opinion Leaves the Political Issues Unsettled

The ICJ opinion released on July 22 is most notable for having left unanswered the core political questions raised by the 2008 declaration of Kosovo independence. The ICJ answered the request of the General Assembly concerning the legality of the declaration in the most narrow manner possible. It found nothing in international law that addresses such declarations as they are essentially political acts concerning the relations between sovereign states. It also found nothing contrary to UNSCR 1244 because the declaration itself took place outside the ambit of the Resolution and the provisional institutions created by UNMIK. 

Kosovo: ICJ Decision Resolves Nothing

Although it will be important to read the entire decision when the ICJ website finally allows access, the press reports so far suggest a narrow judgment that settles little. The ICJ apparently found that international law does not address the issue of declarations of independence and therefore has nothing to say either way about Pristina's declaration. For a preliminary evaluation see TransConflict.

Regional Implications, Concern for Bosnia
There have been mixed opinions in recent weeks as to whether the ICJ opinion will have an impact on Bosnia, where officials of one the two entities that make up the state, Serb majority Republika Srpska, have indicated in the past that the entity might consider seceding from the country.
Politicians in Bosnia were quick to react to the court's decision on Thursday.
The Croat member of Bosnia’s tripartite presidency, Zeljko Komsic, said that the ICJ’s ruling was “expected”.

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