The ICJ Opinion on Kosovo

Reposted from Nationalities Blog.

The ruling has been far more favorable towards Kosovo than most observers have expected. Striking is not only the clear verdict, but also the fact that it was supported by a majority of the judges which give the opinion additional weight. It has been clear since the hearing in late 2009 that supporters of Kosovo’s independence argued on the narrow premise of the legality of the declaration of independence (which is also the scope of the question under consideration), while its opponents sought to widen the opinion to consider the question of secession at large. In its opinion the ICJ has accepted the narrow decision which follows the logic of the court: On one side, it does not want to change international law, especially on the controversial topic of secession, and on the other hand it does not want to offer an opinion out of place with reality, such as declaring the independence illegal when it is clear that it is irreversible. The ruling is far from revolutionary and does not set a precedent in international law: It is clear that declarations of independence are not illegal–their relevance arises from recognition. Whether or not recognition of declarations of independence break international law appears to be a question to be answered another time.

In terms of the implications for Kosovo and Serbia, the opinion strengthens the hand of Kosovo. Probably a number of countries which have been sitting on the fence since the UN General Assembly requested the ICJ opinion just under two years ago are now likely to recognize Kosovo–most importantly they might include one or the other EU member state. However, more significantly neither Russia nor China are likely to recognize Kosovo. As a result Kosovo will be a winner but will have few tangible gains from the decision as UN and EU membership will not be closer. The ICJ opinion does not appear to state that independence of Kosovo is legal thus countries that refrained from recognizing Kosovo due to their own secessionist conflicts are unlikely to change their mind.

Thus, the greatest risk of the ICJ opinion is that as a result there is likely to be little willingness in Kosovo for new talks with Serbia, while hoping that time will play into Kosovo’s hands. And yes, time plays in Kosovo’s hands and Serbia has to clearly define a new policy towards Kosovo, but time without talks with Serbia will not resolve the causes for the deadlock of Kosovo’s state-building project.  However, now there is an opportunity for talks between Kosovo and Serbia: Serbia has exhausted its alternatives and has to come to terms with the reality of Kosovo as an independent country and Kosovo will need to realize that it will not move forward without some kind of settlement with Serbia. Such a settlement would need to include a water-tight promise by Serbia not to impede Kosovo’s UN and EU membership, some face-saving trade-off for Serbia in terms of a role in Northern Kosovo (including border adjustments, although the opinion has weakened Serbia’s argument) and kick-starting Kosovo’s EU integration process. The key challenge will be for Kosovo not to overplay the hand it has been dealt by the ICJ opinion and end up with little more than before.