Kurti and Osmani: July 22nd sealed the legality of Kosovo’s independence; Hrnjaz: Why the opinion of the International Court of Justice did not put a seal on Kosovo’s independence

FOTO: Međunarodni sud pravde
FOTO: Međunarodni sud pravde

“Today marks 11 years since the International Court of Justice sealed the legality of Kosovo’s independence. Less than two months later, the UN adopted a resolution calling for a dialogue for peace and progress between Kosovo and Serbia,” the Prime Minister of Kosovo, Albin Kurti, recalled that on this day, July 22nd, 2010, the International Court of Justice issued its advisory opinion on Kosovo’s declaration of the independence after Serbia launched the procedure for the ICJ to state its opinion.

“The dialogue in Brussels is about the status of relations between two countries,” Kurti tweeted today.

Every July 22nd, the current Kosovo president, Vjosa Osmani-Sadriu, also reminds of the ICJ’s Advisory Opinion.

„Eleven years ago, the ICJ ruled that our independence did not violate international law. Time for countries that have not yet done so, to recognize this irreversible reality. The Republic of Kosovo is here to stay: sovereign, independent, democratic and peace-loving. It shall forever remain so,“ Osmani said.

This position has also been prevalent among other Kosovo politicians and the public for years now. Even the Serbian public, as well as the government led by President Aleksandar Vucic, share a similar opinion on the matter.

The Serbian side, on the other hand, also underscores this event as extremely poor news for Serbia, placing a special emphasis on those who “are to be blamed” for this – namely, the previous government and former Serbian Minister of Foreign Affairs Vuk Jeremic.

Milos Hrnjaz, an associate professor in the field of international law at the Faculty of Political Sciences, University of Belgrade, claimed otherwise in last year’s text for KoSSev. The text was based on his personal blog – „Why the opinion of the International Court of Justice did not put a seal Kosovo’s independence“.

The answer to the question of whether the ICJ Advisory Opinion on Kosovo’s Declaration of Independence really placed a stamp on Kosovo’s independence – something which can frequently be heard in the media, and whether the opinion represented, at the time, a Serbian foreign policy victory or defeat, is simple, Hrnjaz writes, adding that the explanation itself is complex:

“The Advisory Opinion did not put a stamp on Kosovo’s independence, but it does represent a defeat of Serbia’s foreign policy when it comes to preserving Kosovo and Metohija as part of Serbia.”

“There were two essences or two key points of the Advisory Opinion. The first was related to the issue of the question – if the court would strictly understand the question posed or even if it would answer the question of whether the secession (or attempted secession) of Kosovo was in accordance with international law, as well as whether the states that recognized Kosovo had thus violated norms of this legal system. The court decided to treat the question in a strict sense, i.e. to exclusively deal with the issue of the legality of the declaration as a legal act, and not the issue of the (possible) consequences of that act. The court explicitly stated that it will not address the issue of Kosovo’s statehood. Therefore, formally speaking, all those who claim that the court said that Kosovo’s independence is in accordance with international law are wrong. I will repeat once again, the court did not deal with that issue at all.”

“The second key point of the Advisory Opinion was related to the issue of the authors of the declaration. Namely, although the UNGA question states that the authors are provisional institutions of self-government in Kosovo, the court reached the conclusion that this was not the case. By using relatively complex legal gymnastics, the court came to the conclusion that the declaration was not adopted by the institutions operating under the auspices of the Constitutional Framework and Resolution 1244 – but by democratically elected leaders of the people of Kosovo. This is an important fact because it suggests that the decision was made outside the legal system established by the Constitutional Framework and Resolution 1244.”

He proceeded to explain that declarations of independence do not turn an entity into a state. This was confirmed by the court itself, while the international policy is clear on that issue – added Hrnjaz.

“Some declarations led to the founding of states, some did not. Therefore, the court did not conclude that the fact there is no ban on the Declaration of Independence from 2008 automatically leads to the establishment of the state of Kosovo. In that sense, neither the President of Serbia nor the representatives of the Kosovo Albanians are right,” Hrnjaz wrote.

He stressed, however, that the Declaration of Independence was the first symbolic step towards the establishment of such a state.

“With the support of certain states, the declaration can ultimately lead to the fulfillment and legal confirmation of the three elements of Kosovo’s statehood. We are all witnessing this process of easy legalization,” this associate professor emphasized.

On February 17th, 2008, Kosovo unilaterally declared independence by adopting a declaration in the Assembly.

Serbia has not formally recognized Kosovo, neither have five EU members and two world powers – the Russian Federation and China, along with several other countries. Kosovo’s independence is recognized by the majority of EU states, the world-leading powers led by the United States and other countries.

The one-year moratorium from the so-called Washington agreement on mutual lobbying campaigns is underway – for Serbia on lobbying for withdrawals of Kosovo’s recognition, and official Pristina on gaining new recognitions.

In the meantime, another item of the Washington agreement was fulfilled – Israel recognized Kosovo, whereby Kosovo gained a new recognition after a longer period of time, while Serbia was engaged in the diplomatic campaign to gain more withdrawals of the recognitions of Kosovo.

Currently, the Serbian and Kosovo authorities have not agreed on the number of states that have recognized Kosovo – Serbia claims that the number is below 100, about which the former Minister of Foreign Affairs, Ivica Dacic, who announced the news, boasted about. The Kosovo authorities, on the other hand, claim that a total of 117 have recognized their independence. Official Belgrade has been highlighting that as many as 19 countries withdrew their recognition.

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