Why the opinion of the International Court of Justice did not put a seal on Kosovo’s independence

Foto: FPN

By Milos Hrnjaz

On this very day back in 2010, the International Court of Justice issued an Advisory Opinion on Kosovo’s Declaration of Independence. This serves as another reason for different interpretations of the legal and political scope of this Advisory Opinion – not only among the Kosovan and Serbian political elite, but also within Serbia, which is wandering around in an attempt to establish and defend its national interests.

This text offers an answer to the question of whether the ICJ Advisory Opinion on Kosovo’s Declaration of Independence (the terms ‘Kosovo’ and ‘Kosovo and Metohija’ are both used in the text) really placed a stamp on Kosovo’s independence – something which can frequently be heard in the media. The text also offers an answer as to whether the opinion represented, at the time, a Serbian foreign policy victory or defeat. The answer is simple, although the explanation 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.

The Declaration of Independence of Kosovo was adopted on February 17th, 2008. This event represented the culmination of a long historical process whose beginning is not easy to recognize, but one that is also subject to different historical interpretations. At that point, Serbia had two main foreign policy goals: EU membership and maintaining the status of Kosovo and Metohija as part of Serbia (at least some of the key political actors in Serbia might have been informally ready for some kind of compromise regarding the status of Kosovo and Metohija, however, it was not the case officially). A logical question arose – what foreign policy means are available to Serbia in order for it to achieve the goal of keeping Kosovo and Metohija as part of Serbia. There were great challenges along the way. One of them is the fact that by the end of February 2008, 22 countries had already recognized Kosovo. An additional 23 countries had done the same by October 8th of the same year. Another, even more significant, challenge was the fact that some of the most powerful countries in the world were openly trying to get as many countries as possible to recognize Kosovo. To complicate matters even further, the most powerful EU member states were among them – on whom the realization of Serbia’s second foreign policy priority – EU membership – largely depended on. Finally, there were serious political factors in Serbia at that time that prejudged any “creative solutions” regarding the compromise status process of Kosovo.

In the described situation, it was clear that the possible space for new negotiations regarding the status of Kosovo and Metohija would exist only if the further recognition process is in some way stopped, or at least slowed down. Namely, although today it is believed that the declarative theory regarding the legal effect of recognition (an entity is a state if it has a territory, population and sovereign power and recognition has nothing to do with it) has an advantage over the constitutive theory (recognition is a constitutive element in the state creation process), the greatest international legal authorities in this field often insist that the practice takes place in the space between these two theories. In other words, if the vast majority of countries decided to recognize Kosovo, Serbia would find itself in a completely hopeless situation.

Serbia’s fight to stop the wave of recognitions was completely unequal. The foreign policy resources available to Serbia and, for example, the United States of America in the fight for the (non)recognition of Kosovo were not equal. The area in which there is, at least, formal equality of unequal actors is (was) the area of international law. Serbia needed convincing evidence that the (attempt) of the secession of Kosovo and Metohija was illegal. That was just one of the arguments used, however it was also important in the described unequal fight. There is no better evidence that something in international law is illegal than an ICJ decision. But how can one come to such a decision?

There were two lines of reasoning represented by the two political parties at the time – either to file a lawsuit against the states that recognized Kosovo as an independent state or to go for an advisory opinion. For various reasons, the prevailing view was that it is better to choose the advisory opinion route. Two UN institutions can request an opinion on any legal issue from the ICJ: the Security Council and the General Assembly. Bearing in mind the difference in opinion within the UNSC, it was clear that the institution would go through with that this time either. Therefore, it was necessary to seek the support of the UNGA.

A major diplomatic initiative was launched in order to secure support for Serbia’s idea. This idea, however, could have been subversive for Serbia’s allies in this process. For example, if one looks at the case of China, it is clear that a possible opinion of the court going in the direction of legalizing secessionist aspirations could be hazardous for its interests. In other words, Serbia’s allies in this process cared about which question would go before the UNGA, i.e. it can probably be assumed that the wording of the question to be submitted to the UNGA had to be harmonized with them (one of the immediate actors, such as Vuk Jeremic or Boris Tadic, could probably testify this first hand).

Boris Tadic said in one of the interviews that the question that eventually went before the UNGA was formed by the greatest legal experts in the country. As far as I know – but I may be wrong, some extremely well-known foreign experts were also consulted. But experts do not make decisions. Politicians do. That is probably why Boris Tadic said that politicians bear responsibility.

In any case, after a long process of harmonizing positions and a broad diplomatic initiative, at a UNGA session, the then Minister of Foreign Affairs of the Republic of Serbia, Vuk Jeremic insisted that the draft resolution containing the question “Is a unilateral declaration of independence of provisional institutions of self-government in Kosovo in accordance with international law?” should remain unchanged. Jeremic noted that the question is “clear and restrained when it comes to the issue of political views of the Kosovo issue.”

Ultimately, 77 countries voted in favor of this proposal, 6 voted against (including the USA) and 74 countries abstained (such as the vast majority of EU member states). This vote showed a strong division among member states over the resolution of the Kosovo issue. One of the main points of conflict was related to the countries of the Global North, which were mainly in favor of Kosovo’s independence, and the countries of the Global South, which generally refused to recognize Kosovo and which were in favor of the ICJ declaring its opinion on this issue.

In the end, 36 states decided to submit, in accordance with the procedure, a written brief to the court. The court decided to allow the authors of the declaration to do the same. 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.

Contrary to the dominant public opinion, even the opinion of the professional public in Serbia, in my estimation, the court did the completely right thing. The General Assembly (this is very important: Serbia did not pose the question, UNGA did!) could have decided to pose a different question, but it did not! Why would the court change the question posed by the UNGA? It has the right to do so if the question is unclear or if the court assesses that there is another question behind it. The court, however, correctly concluded that this is not the case. It is not as if UNGA wanted to ask another question, and that it accidentally asked this one, but this question was supported at the UNGA session. No one can be sure that another question would receive the necessary support in this body.

From this key point, one could easily sense the rest of the opinion. No one dealing with international law will tell you that there is a general ban on the adoption of declarations of independence as legal acts in general international law or Resolution 1244. As a rule, international law does not deal with this at all, although there are some exceptions that did not apply to this case.

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.

What are the legal consequences of such a conclusion? 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 – 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. However!

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. Despite the intentions of the then leadership headed by Boris Tadic, this process was not halted by the opinion of the court. That is why it was a defeat for Serbia. The states were left with the space to choose whether to recognize Kosovo as a state or not, while in that sense the bargaining power of the United States and some other states was much greater than the bargaining power of Serbia.

Now what?

In international law and international relations, Kosovo’s current status can most accurately be called contested statehood. In order to remove any doubts and obscurities regarding the statehood of Kosovo, the consent of Serbia is needed, which may or may not be in the form of de jure recognition, (possibly) a new UNSC resolution and Kosovo’s membership in the UN. Although the court’s opinion did not put a stamp on Kosovo’s independence – as the current Serbian president has repeatedly claimed, Serbia has practically exhausted the international law resources to obtain an authoritative interpretation of its norms according to which Kosovo is still part of Serbia – which makes its position much more difficult.

No one can formally force Serbia to accept Kosovo’s independence, but more subtle methods of persuasion can be employed. It is up to the leadership of Serbia, but also to its citizens, to assess whether it is in the national interest of Serbia and make concrete decisions accordingly. It is up to the citizens of Serbia to evaluate those specific decisions. But it is not true that “there is no alternative.” It is not true that the choice is reduced to a binary-frozen conflict that should ultimately lead to domination over the Albanians or “delimitation” on ethnic grounds.

Milos Hrnjaz is an associate professor in the field of international law at the Faculty of Political Sciences, University of Belgrade. Hrnjaz teaches several courses in the field of international law in the undergraduate and postgraduate programs. His main research fields include the International Court of Justice, the prohibition of threat of force and use of force in international law, international humanitarian law, and people’s right to self-determination.

The text is based on the author’s blog.

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