And nobody will be satisfied: Thoughts on the arguments at the ICJ over Kosovo

A few days ago was the deadline for Serbia and Kosovo to submit their arguments in the case at the ICJ over whether the declaration of Kosovo’s independence and the subsequent recognition are illegal. Here are some thoughts I shared with Koha Ditore on the argument, published in an article today:
It is likely that Serbia will base its argument on a conventional understanding of international law, which has taken a very restrictive approach to self-determiniation. Self-determiniation in the sense of international independence has only be granted to processes of decolonization and to cases of state dissolution. The ICJ has previously ruled on the principle of uti possidetis, i.e. the ICJ decided in 1986 in a border dispute between Mali and Burkina Faso that the border at the end of the colonial rule as definitive. Thus, this means a)  countries only can achieve independence by decolonization; b) state dissolution or c) mutual agreement. The argument of Serbia would likely rest on this practice with no country newly emerging since 1945 not following this pattern. Thus, Serbia is likely to emphasis that Kosovo has no right to self-determination in international law. There might be arguments about precedent or regional and global implications, but I think that these are less important at the ICJ than the international law.
There are three strategies for Kosovo, a) to argue that the massive human rights violations of Serbia in 1999 in Kosovo changed the status quo and could have given greater arguments for self-determination. This link between the state soverignty and the right to protect has been made by international lawyers, but remains contested. Thus the ICJ would significantly expand the interpretation of self-determiniation if it would follow this argument, which I think would be unlikely. b) Kosovo could argue that at the dissolution of Yugoslavia, Kosovo was one of the Federal units like the republics and had the same right to independence as the other units. While the Badinter Committee rejected this interpretation, this was not legally binding and never tested in court to my knowledge, so the argument could be made and this might be an easier way out, as it would not fundamentallly alter the global terms of self-determination. c) Kosovo could argue to claim that Kosovo’s declaration of independence was not indicating an aspiration, but an existing reality. Serbia has no authority over Kosovo and thus, Kosovo was de-facto independent before it claimed de-jure independence. This argument has its appeal, as it does not enter the question of whether independence or not it is justfied, but whether it exists of not. However, the ICJ might be reluctant to follow this argument, as other de-facto sovereign territory might make similar claims, such as Somaliland, not to mention Abkhazia or S. Ossetia.

I would be surprised if the ICJ would take a clear stance in favor of one argument. I would expect it to take a decision which will make nobody entirely happy, but which will essentially state that international recognition of countries is a matter or fact and a political decision rather than of international law. Of course any unclear decision is de facto in favor of Kosovo, as Serbia could only hope stopping international recognition if it were clearly found illegal. It most likely will emphasise that while Sebria retained formal sovereignty over Kosovo, it had no effective sovereignty over the territory. I would be surprised if countries recognizing Kosovo were found breaking international law, even if the court will most certainly shy away from any decision which would establish a new precedent in the domain of self-determination.


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