Saturday, July 24, 2010

The ICJ verdict

The ICJ has spoken: Kosovo's declaration of independence does not violate international law. I haven't read the whole thing, but some parts of it. Some impressions:

- In comparing the Kosovo question with the question of Quebec in 1998 the court says (in point 56): The question put to the Supreme Court of Canada inquired whether there was a right to “effect secession”, and whether there was a rule of international law which conferred a positive entitlement on any of the organs named. By contrast, the General Assembly has asked whether the declaration of independence was “in accordance with” international law. The answer to that question turns on whether or not the applicable international law prohibited the declaration of independence.
In article 79 it talks about the many colonies who declared themselves independent and concludes: There were, however, also instances of declarations of independence outside this context. The practice of States in these latter cases does not point to the emergence in international law of a new rule prohibiting the making of a declaration of independence in such cases.. In article 82/83 they go on to say that the question whether Kosovo's independence can be justified as a matter of self-determination is beyond the requested opinion. Doing this they try to evade creating a precedent for other minorities.

- the Rambouillet "Accords" are repeatedly mentioned. The judges notice that these are mentioned in two places in resolution 1244 and draw the conclusion that resolution 1244 supports Rambouillet. This is a rather murky aspect of 1244 and I don't understand why Russia agreed to their inclusion: Rambouillet is not even an "accord" as not all sides agreed to it. The court seems to consider the reference to Rambouillet - with its reference to the "will of the people" - more important than the text of 1244 itself - with its reference to Serbia's territorial integrity. But as everywhere with this verdict: they only suggest it; the never say it in clear language.

This is the dangerous part: by explaining the "will of the people" as meaning the right to independence the ICJ sets the door wide open for other minorities worldwide.

- the verdict is written as an extensive history lesson. All the famous lies about "extensive negotiations" and "minority rights" are there. It looks like the judges have restricted themselves in this respect to their papers and didn't bother to have a look at how things really are.

- the verdict pays a lot of attention to how the declaration of independence was done. It notes that it was done by the parliamentarians and some others like the president, but that they were not in their function as members of Kosovo's provisional institutions and as such they were not subject of the UN regulations that govern Kosovo.

- the last part they try to explain away 1244. According to the text the resolution was meant for an interim situation. They notice that the resolution nowhere explicitly forbids Kosovo's Albanians to declare independence while in the past there have been other resolutions that did forbid so (for example for Bosnia's Republika Srpska and Northern Cyprus). If this sounds rather sophisticated, it is: the RS resolution stresses the territorial integrity of Bosnia just like 1244 stresses that of Serbia.

The verdict left me with the feeling that it was a political verdict. It discusses lots of details and it looks like it agrees every time with the Albanian view - often with convoluted arguments. But it never draws any conclusion from it - other than the empty statement that there is nothing in international law that forbids Kosovo to declare independence. The consequence is that everybody can read into it what it wants. And that applies also to separatists all over the world. The US will be happy with such a verdict. It allows them to keep up their "might makes right" policies.

But not saying something is telling too. Given the pro-Albanian bent in the verdict the absence of any clear words about the legality of Kosovo's independence can only be explained as that the court believes it is not legal. If the court had believed it was legal it would not have kept silent about it.

Postscript: According to Louis Bernard, a strategist for the Quebecan nationalists, the Hague ruling on Kosovo [is a] boost for Quebec. According to the article:
Louis Bernard, noting the 1998 Supreme Court of Canada ruling that if there is a clear vote in a clear referendum, Canada must negotiate with Quebec, said that the World Court decision strengthens Quebec's hand.

If those negotiations are going nowhere, he explained, "It is possible for Quebec to declare its independence unilaterally."

Postscript 2: Serbia's foreign minister Jeremic wrote in an opinion piece for the Wall Street Journal:
After many months of deliberation, the court delivered its findings. It neither endorsed the view that this unilateral declaration of independence was a unique case, nor Pristina's claim that Kosovo is a state. Moreover, the court failed to approve the province's avowed right of secession from Serbia, or any purported right to self-determination for Kosovo's Albanians.

Instead, the court chose to narrowly examine the language of the unilateral declaration of independence. This strictly technical approach made it possible to say that the text of the declaration itself did not violate international law.

Postscript 3: Professor Tibor Varady, a member of the Hague Permanent Court of Arbitration and formerly the chief legal representative of Serbia gave an elaborate interview to EurActiv about the verdict.

Postscript 4: For the lovers of judicial matters is here an article by Marko Milanovic, a former advisor of the Serbian government. It was written before the verdict, but it is worth reading as it is lengthy article that gives an overview of the arguments.

Postscript 5: Here the view of Gideon Rachman at the Financial Times. He thinks the court opinion is politically convenient, avoiding to decide anything sensitive.

Postcript 6: Also interesting is the blog of Nebosja Malic. His article contains quotes from the dissenting judges.


Anonymous said...

Meanwhile, Kosovo remains separate from its larger long-term enemy, with chances of Serbia re-colonizing it growing dimmer and dimmer.

Stories said...

Always surprised how Wim I-know-everything-on-earth discredits all those who do not agree with him. I thought you were a socialantropologist, not a international law expert.