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ICJ determines that Kosovo’s unilateral declaration of independence was lawful

  Serbias Foreign Minister Vuk Jeremic (C ) answers questions from the international media on the steps of the International Court of Justice in The Hague July 22, 2010.  Credit: Reuters/Jerry Lampen/Files

Serbia's Foreign Minister Vuk Jeremic (C ) answers questions from the international media on the steps of the International Court of Justice in The Hague July 22, 2010. Credit: Reuters/Jerry Lampen/Files

The International Court of Justice issued its advisory opinion on the lawfulness of Kosovo’s unilateral declaration of independence today. The New York Times reports:

Kosovo’s unilateral declaration of independence from Serbia in 2008 did not violate international law, the United Nations’ highest court said Thursday in a ruling that Kosovo heralded as a victory but that legal experts warned could spur separatist movements around the world.

Legal experts emphasized that while the court had ruled that Kosovo’s declaration of independence was legal, it had scrupulously avoided saying that the state of Kosovo was legal under international law, a narrow and carefully calibrated compromise that they said could allow both sides to declare victory in a dispute that remains raw even 11 years after the war there.

Political analysts said the advisory opinion, passed in a 10-to-4 vote by the court judges, is likely to spur other countries to recognize Kosovo’s independence. Of the 192 countries in the United Nations General Assembly, so far only 69, including the United States and a majority of European Union nations, have recognized Kosovo.

Reading the nonbinding opinion, whose political consequences could reverberate far beyond Kosovo, Hisashi Owada, president of the International Court of Justice, said that international law contained no “prohibition on declarations of independence” and consequently that Kosovo’s declaration “did not violate international law.”

Kosovo’s ethnic Albanian leadership welcomed the court’s decision.

“This is a great day for Kosovo, and my message to the government of Serbia is ‘Come and talk to us,’ ” Kosovo’s foreign minister, Skender Hyseni, said after leaving the court, The Associated Press reported.

But Serbia was adamant it would never recognize what it had previously called a false state, while Russia, one of its staunchest allies, insisted the court’s decision did not provide a legal basis for Kosovo’s independence.

The Serbian foreign minister, Vuk Jeremic, said the ruling could encourage separatist movements elsewhere that would now be “tempted to write declarations of independence.”

The United States State Department said the ruling was “a judgment we support,” according to The Associated Press. “Now it is time for Europe to unite behind a common future.”

James Ker-Lindsay, a Balkan expert at the London School of Economics, said the court had trod carefully in weighing the right of a people to self-determination over the right of a sovereign state to territorial integrity, and had decided to sidestep the issue altogether.

“It has essentially said that Kosovo’s legitimacy will be conferred by the countries that recognize it rather than by the court,” he said.

Kosovo’s declaration of independence from Serbia on Feb. 17, 2008, marked the culmination of a showdown between Serbia and the West in which the United States and a majority of European nations argued that Serbia’s violent repression of Kosovo’s majority ethnic Albanians under the former Serbian president, Slobodan Milosevic, had forfeited Serbia’s moral and legal right to rule the territory.

Serbia and its ally Russia countered that the declaration of independence by Kosovo was a reckless breach of international law that would inspire separatists everywhere. Last year, the United Nation’s General Assembly, at Serbia’s urging, referred Kosovo’s declaration to the court, based in The Hague. Hearings began in December.

Analysts said that the legal legitimacy conferred on the independence declaration by the court could have profound consequences for global geopolitics by potentially being seized upon by secessionist movements in places as diverse as northern Cyprus, Somaliland, Nagorno-Karabakh, South Ossetia, Abkhazia and Transnistria.

But legal experts stressed that the court’s studious avoidance of ruling on the legal status of Kosovo as a state had been calculated to avoid encouraging nationalist movements and left the issue of a territory’s independence at the discretion of the countries that chose to recognize it.

“The court invariably is very prudent and avoids making political decisions,” said Bert Barnhoorn, an expert at the Asser Institute for International Law, a policy organization in The Hague.

The judges on the panel — split almost evenly between countries that have recognized Kosovo’s independence and those that have not — have a history of narrow and conservative judgments.

Major European powers and the United States have been at pains to characterize Kosovo as a special case that should not serve as a precedent for other groups hoping to declare independence. But in hearings last December in The Hague, Spain, Russia and China — all of which face secessionist movements in their own borders — argued forcefully that Kosovo should remain a part of Serbia. China was so impassioned that it made its first oral pleading to the court since the 1960s.

“If the I.C.J. opinion establishes a new principle, an entire process of creating new states would open throughout the world, something that would destabilize many regions of the world,” President Boris Tadic of Serbia told the Tanjug news agency before the ruling.

Mr. Milosevic, the former Serbian leader, revoked Kosovo’s autonomy in 1989 and fiercely repressed ethnic Albanians, who make up most of its population. Some turned to armed rebellion. NATO intervened in 1999 to halt Mr. Milosevic’s violent response to the rebels. After the war ended, the United Nations administered Kosovo for eight years, during which time it lingered in a legal limbo. After the failure of a negotiated settlement, Kosovo unilaterally declared independence in February 2008.

At present, the ICJ website seems to be down– probably due to heavy traffic– but I will post a link to the full decision as soon as possible.

Previously, I have gone on record as arguing that the unilateral declaration was likely not lawful. My friend, Dr. Charles E. Pirtle, had made these comments.

Needless to say, I have not yet had a chance to read the decision, but will attempt to do just that and provide an assessment soon.

(HT: Robert J. Beck)

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Welcome! Who am I?

Anthony Clark Arend is Professor of Government and Foreign Service at Georgetown University and the Director of the Master of Science in Foreign Service in the Walsh School of Foreign Service.

Commentary and analysis at the intersection of international law and politics.