If Serbia had been totally honest the question for the ICJ would have been something like: "is it right that a coalition of countries occupies a part of your country and then let it claim independence - in spite of an UN resolution?". But that would have been too insulting for the tender nerves of EU and US diplomats.
Now with the Serbian resolution for the UN General Assembly we see the same dilemma. The resolution says that unilateral secession is not an acceptable way to solve territorial issues. Again the fact that it is a foreign supported secession is not mentioned.
In fact this is the real issue: the Latin-Americanization of the Balkans. The same freedom of action the US has allowed itself in Latin America it applies now also in the Balkans. The destabilizing effect of such actions results then in a chaotic situation that serves as an excuse for yet more intervention. Sure, sometimes they have good intentions and sometimes these work out well, but often not.
6 comments:
Hello Wim,
I hope you had great summer holidays!
Some months ago you said you supported independence for Kosovo, now you try to portray the Kosovar institutions as occupiers. I understand that Serbia-supporters received a huge blow with the ICJ-verdict, but remember that it was Serbia who initiated the process that ended with this auto-goal.
Your question would have received the same answer since your question ask for the same as Serbia, there is absolutely no material difference between your question and the Serbian question. I think you are underrating Serbs a bit by implying they did not ask the proper question. Tens of international law experts were involved in their team.
Hi Stories,
I hope you had good holidays too.
The problem with the ICJ verdict is that they evaded the real question ("under which conditions has a province the right to secede?") and made it a simple question of freedom of speech.
And you have to admit that Serbia had not only legal aspects to consider but also diplomatic aspects. The US and Brussels might have taken offense if they had formulated it like: did the US, the UK, France and Germany violate
international law when they recognized Kosovo? That would not only have offended those countries - with possible negative economic consequences for Serbia - , but it would would also have decreased Serbia's chances of getting the resolution accepted.
I don't see where I call Kosovo's institutions occupiers.
I think your question would still receive the same answer. The recognition of states is a unregulated issue(this is rather the rule than the exception in international law with very little being regulated) in international law and when this is the case, country's are left to decide themselves whether they want to recognize a country or not.
Although recognition gives a moral support, it is not needed in order to ascertain the existence of a country in international law. A country can exist without being recognized.
Slovakia was against the independence of Kosovo and said it was awaiting a decision from ICJ before it decided whether to recognize or not. The decision came but they still refuse to recognize and they do not say anymore that they think Kosovo's independence is in breach of int law, but that they simply don't want to do so. They are completely eligible to have this position since sovereign countries are not subject to any authority above them.
You have several principles that apply:
- respect for borders of other countries and the non-interference principle
- principles when a new state should be recognized.
- human rights aspects.
Individual countries are not completely free in these aspects. There are many international treaties, including the UN Charter and the Helsinki Declaration in which countries have bound themselves to behave in a certain way.
According international law Kosovo's independence declaration was an internal matter of Serbia. That was the reason why there is no applicable international law. You could discuss whether Serbia's law was still applicable to Kosovo, but that discussion was evaded by the court.
Wim: According international law Kosovo's independence declaration was an internal matter of Serbia. That was the reason why there is no applicable international law.
----
This is as wrong at it can be. This is not the argument used by ICJ and I am sure that there is no applicable international law that says this.
The present defintion that the most competent international law experts accept is:
A state as a person in international law if it meets the following criteria: 1) a defined territory; 2) a permanent population; 3) a government and 4) a capacity to enter into relations with other states. According to declarative theory, an entity's statehood is independent of its recognition by other states. The declarative model was most famously expressed in the 1933 Montevideo Convention. (Wiki, usually not good source but this is only what Montevideo Convention says)
"Wim: According international law Kosovo's independence declaration was an internal matter of Serbia. That was the reason why there is no applicable international law.
----
This is as wrong at it can be. This is not the argument used by ICJ and I am sure that there is no applicable international law that says this."
I am amazed at your indignation. Many countries (including Yugoslavia and Canada) have in their constitution written under which conditions secession is allowed. As long as a secession is not finished the seceding area is part of the "mother country" and subject to its laws.
If you read my blogpost post well you will see that I conclude that in Kosovo, Abkhazia and South Ossetia the modern interpretation of the Montevideo Convention has become an argument for harsh treatment of ethnic minorities.
Post a Comment