by Bledar Feta and Apostolis Karabairis
The Decision of the International Court of Justice
The curtain rose on the latest act of Balkan diplomacy: the advisory opinion of the International Court of Justice (ICJ) on the legality of Kosovo’s proclamation of independence in 2008 was announced at 15:00 CET on Thursday, July 22. Contrary to what had many expected, the Court did not come up with a Solomon’s judgment that might prove equally (un)satisfactory for both sides; rather, it produced a clear winner and a loser.
In its ruling the ICJ stated that the February 2008 declaration of independence by the Kosovo Assembly violated neither the international legal order nor the United Nation Security Council Resolution 1244. In September 2008 the Court was asked by the United Nations General Assembly to give its advice on a question put forth by Serbia, which inquired “whether the declaration of independence by the provisional self-ruling institutions of Kosovo was in line with international law.” Resorting to the ICJ was a shrewd diplomatic stroke by Belgrade, through which it bought time and slowed international momentum toward recognition of Kosovo for over two years. Pristina and Belgrade are engaged in a battle on the world stage to draw countries into their respective camps. Ultimately, Serbia’s attempt to outmaneuver Kosovo through the ICJ laid in ruins, leading to one of the most important victories of Kosovar Albanians in the international arena.
The President of ICJ Hisashi Owada read the decision according to which Kosovo’s declaration of independence does not violate international law in principle, since the latter contains no prohibition of such kind. In this light, he pointed to around 100 similar declarations throughout world history, whose legality has not been questioned. Further, the Court’s decision read that the UN Charter principle of territorial integrity applies to inter-state relations, not secessions. With regard to UN Security Council Resolution 1244, the Court argued that it did not preclude any sort of final status outcome, including independence. The judgment did not mention whether Kosovo’s secession was legal, or whether other states could legally recognize its independence. Rather, all it did was to rule that international law does not prohibit the declaration of independence. The ICJ opinion can be summarized in three main points:
1. Kosovo’s Declaration of independence does not violate international law
2. Kosovo’s declaration of independence does not violate UN Security Council Resolution 1244
3. Independence does not violate the Constitutional Framework for Provisional Self-Government
Although not binding, the ICJ’s advisory opinion bears significant political weight and forms a turning point in the long-debated Kosovo issue, as it can be seen from the reactions that it provoked both throughout the region, as well as globally. Reactions of the two parties concerned are indicative of their attitudes and their future intentions. Additionally, since each side is not made up of one single subject, it is crucial to examine all basic actors that exercise a larger or smaller influence within each side.
Reactions from Serbia
The advisory opinion of the ICJ came as a slap in the face to the Serbian side. Optimist statements of their leaders in the previous days notwithstanding, Serbs were very disappointed to see that their own initiative backfired, although it had initially been experienced as a victory, when pro-Albanian countries at the UN General Assembly in September 2008 failed to block the Serbian proposal from proceeding to the ICJ.
Serbian president Boris Tadić described the decision as harsh, but nevertheless tried to downplay its impact by pointing out to the rather vague distinction that ICJ itself had made between the unilateral declaration of independence and the right to secede, claiming that the Court concentrated on the technical nature of the former, while it avoided to take positions on the latter, which is of most substance. This distinction, as well as the Court’s omission to rule on the legal implication of the independence declaration (as, for example, on whether it produces statehood), has appeared in the statements of other Serb officials, too, and generated a debate about whether the question to the ICJ was properly formulated by the legal expert team. The government, on its part, reaffirmed its resolution never to recognize an independent Kosovar state and reiterated its commitment to continue fighting by political means. Furthermore, it announced an extraordinary session to examine its next steps, above all seeking the adoption of a favorable resolution at the UN General Assembly.
Government parties came up with calls for unity and renewed efforts but were also supportive of the government and the President, despite the debacle. On the contrary, opposition parties were highly critical: DSS president Koštunica called for resignations, while Nikolić’s SNS and Šešelj’s SRS demanded a harder line in the Kosovo issue, since the current policy of concessions and partnership with the West proved, as they claimed, to be detrimental to Serbian national interests. On the other side, Jovanović and Drašković, leaders of LDP and SPO respectively who had previously endorsed the idea of Serbia’s recognizing Kosovo as a sovereign state, each applying their own rationale, found new grounds to support their stance and invited more political parties in the country to join them.
All the same, such revisionist approaches remained marginal in the political spectrum, while gaining only little support among the circles of domestic liberal thinkers. The prevailing mainstream opinion reads that the official state policy vis-à-vis Kosovo should remain generally the same. This is, after all, what the Kosovo Serb local leadership had asked for immediately after the announcement of the ICJ opinion. The head of the Kosovska Mitrovica periphery Radenko Nedeljković called Belgrade not to give up fighting against the recognition of the Kosovar state and his fellow Serbs in Kosovo to continue their boycott of Kosovar institutions and retain their own parallel ones.
Non-party actors’ reactions were less visible in Serbia. No massive demonstrations were observed either in Serbia proper or in Kosovo. Even in Kosovska Mitrovica the crowd remained quiet, unlike previous times. High security measures taken by KFOR were thus rendered needless. Obviously the prevailing feeling was disappointment rather than indignation, hence no one burst out in dynamic actions.
The reaction of the usually talkative Serb Patriarch Irinej was in the same wavelength. He called the flock to join a special service and pray for Kosovo. Carefully chosen words made up a statement, which, although partial, did not convey intolerance or xenophobia.
In conclusion, initial Serb reactions to ICJ’s decision show that no major shift is expected to take place on Serbian policy as far as the Kosovo issue is concerned. And this is due to the salience attributed to it by the right-wing parties and because advocating a revised approach has become a taboo for almost every Serb politician. Therefore, albeit with a weakened arsenal, Serbia seems intent to remain on the same track. What is most likely to change is the people that occupy some key positions. There has been increasing pressure that Serb Minister of Foreign Affairs Vuk Jeremić is removed from office, because he has been the champion of, and directly responsible for the ICJ venture, but also because he most objects to any policy update. In a broader aspect, the whole government, along with the President of the Republic, has been held responsible for the heavy defeat. Fortunately for them, the governmental coalition has remained united, which is not given in such cases, but still their image has been suffered and opposition has got a chance to morally discredit them in front of the electorate on this all-important issue.
As a consequence, many are those who fear that Serbia again risks turning isolationist and putting its European integration perspective at stake, not only because this perceived national debacle is attributed to the pro-Western block, but also because Serbian citizens largely got disillusioned by the international community, and especially Western nations, most of which stood against their country with no serious reservation.
Reactions from Kosovo
The advisory opinion of the ICJ drew immediate reactions from Kosovo and Albanian-inhabited countries. Scattered across Kosovo, Serbia, FYR of Macedonia and Montenegro, Albanians followed intently what was happening miles away in The Hague. The decision has been interpreted as a historical victory for the Albanian nation, and also an argument that will add many more recognizing states to the current list of 69. Kosovars celebrated the verdict on the streets of Pristina by hugging each other, blowing the horns of their cars and waving Kosovo’s flag, considering the decision a resounding reaffirmation of the legitimacy of their cause.
Kosovo officials described the long-awaited opinion as a great victory in their country’s struggle to be recognized as a full and legitimate state, as the Court stated clearly and explicitly in favor of Kosovo, an unexpected outcome for the majority of the Albanian population. Kosovo Prime Minister Hashim Thaci reaffirmed his government’s willingness for talks with Serbia over technical issues. According to him the “decision on the declaration of independence has been reconfirmed, legalized, and re-legitimized by the ICJ’s opinion, offering an opportunity to all countries that hesitated to recognize Kosovo, to do so, as all the dilemmas have been resolved”. The Minister of Foreign Affairs Skender Hyseni made clear that any discussion with Serbia on practical matters of mutual interest must be on an equal footing and on a state-to-state basis. Kosovo leaders desire engaging in negotiations that aim to leave Kosovo an independent state with its Serb-populated northern region part of it. Diplomatic sources claim that discussion between the two countries on decentralization, cultural heritage and the northern part of Kosovo can start later this year. July 22 was another blessed day for the Republic of Kosovo and all her people, stated the country’s President Fatmir Sejdiu. The Kosovo President called for more international recognitions, as the ruling eventually removes all the doubts that countries that have not recognized Kosovo yet may have had.
There is now more optimism in Pristina that the nonbinding verdict, which comes two years after the UN General Assembly requested the opinion, will set the stage for a renewed Kosovo push for more international recognitions. The government in Pristina desires to expand the current total of 69 recognitions to more than 100, thus demonstrating the country’s legitimacy through the majority of United Nation members. This could provide a new impetus to Kosovo’s regional cooperation and integration into international organizations. It should, however, be noted that the increased number of recognitions does not necessarily open the way for Kosovo’s UN membership given the opposition by China and Russia, two veto-wielding members in the United Nation Security Council. Kosovo is expected to apply for United Nations’ membership in 2011.
Kosovo Assembly has adopted a declaration in support of the advisory opinion, stating that the historical decision will contribute to peace and stability not only of the Republic of Kosovo, but the whole region. Considering the Court’s decision to be professional and impartial, respecting at the same time Kosovo citizen’s willingness for independence the declaration call the European Union to find a modus vivendi on Kosovo issue while demands from the reluctant countries to recognize the new state. In clear contrast to Serbian views, Kosovo officials believe that Kosovo does not constitute a precedent in any other case in the world. The Court’s opinion was closely tailored to the unique circumstances of Kosovo; it was not about other regions or states. Furthermore, as far as the statements of Kosovo officials are concerned, it has been clear that nothing in the opinion given by the Court casts any doubt on the statehood of the Republic of Kosovo, which is an established fact.
The reaction from the political parties was in the same wavelength. The IJC opinion was considered from both government and opposition parties as the best answer that has been given thus far on the Kosovo’s right as a legitimate, legal, consolidated and functional state. Generally, there was a consensus between them that the decision is righteous international historical response to historical injustice that has been made to Kosovo. In contrast to Kosovo’s officials, the Vetevendosje (self-determination) movement, a popular nationalist civil society group, does not share the same views. They accuse Kosovo government and politicians of attributing more importance to the formal attributes of Kosovo independence and less to its territorial integrity and genuine sovereignty. Vetevendosje thinks that the government’s celebratory tones are not justified by the ICJ decision since the latter did not rule on the substance of Kosovo’s independence but rather on the fact that the declaration is not illegal. More have to be done for consolidating Kosovo independence. The movement’s leader Albin Kurti protests against the implementation of the Ahtisaari plan as it does not provide sovereignty to Kosovo but a ‘deepening partition’ giving Belgrade actually the opportunity through decentralization to control every Serbian populated territory.
Reactions from Banja Luka, Tirana, Tetovo and the Presevo Valley
Every development in the Kosovo issue unavoidably has an impact on Bosnian Serbs, since it is often linked to the future of Republika Srpska. With regards to ICJ’s advisory opinion, Bosnian Serb leaders once more aligned themselves with official Belgrade. They accused the court of bias and politically driven decision-making and reassured that Bosnia and Herzegovina will continue its policy of non-recognition with regard to Kosovo. To the question of whether the ICJ ruling will affect Republika Srpska’s status vis-à-vis the Bosnian state similar, Prime Minister Dodik made it clear that Republika Srpska remains an entity within Bosnia and Herzegovina according to the Dayton Agreement. However, Dodik did not dismiss the possibility of its self-determination in the long run. Apart from his intentions in the domestic scene, this statement indicated support to the Serbian cause but also served as a warning that insistence on Kosovo’s independence may have far-reaching spillover effects.
Swift was the reaction from Albania, which is seen as the “mother country”. Immediately after the decision the Albanian Prime Minister, Sali Berisha, welcomed the “historical” opinion. Berisha believes that the Hague verdict makes a major contribution toward fresh relations between the Serbs and the Albanians between, Tirana and Belgrade as well as to help in the relations between Pristina and Belgrade. There is no doubt that after the unilateral declaration of Kosovo’s independence Albania has increased its efforts to cooperate with region countries, especially with the Albanian inhabited ones. Furthermore, Albanians and Kosovars are against every attempt of bargaining with territories. According to him, The Hague definitely puts an end to this chapter and through Kosovo’s independence the fluidity of the Albanians in the Balkans comes to an end; it turns into a settled issue and, thus, gets consolidated. The Albanian Minister of Foreign Affairs described the decision as a reconfirmation of the unchangeable right of the citizens of Kosovo for self-determination, contributing to stability in Kosovo, the region and further. Albania expresses its full support for the further affirmation of Kosovo across the international arena. Opposition leader, Edi Rama expressed great satisfaction with the decision, stressing that Albanians are not divided when it comes to Kosovo issue. All political parties and institutions in Albania also welcomed the Court’s decision.
For more than two decades, Kosovo and the Kosovo issue have been in the center of attention of the political and scientific circles of the Albanian inhabited countries in the area. The Albanian political parties in the Former Yugoslav Republic of Macedonia have an unchanged position towards the Kosovo issue, which is: “Kosovo a sovereign and independent state and an important precondition for the stability of the region”. They do not see nor treat the resolution of the issue as a national problem of Albanians, but as something that surpasses the national boundaries and affects regional stability and progress. Thus, the Democratic Union for Integration, the largest Albanian political party in the country, considers the Court’s decision as a clear confirmation of the legality of the creation of the new state; in addition, it views its decision as endorsing the correctness of the FYROM government’s earlier decision to recognize Kosovo and to establish diplomatic relations. For the leader of the opposition Democratic Party of Albanians, Menduh Thaci, the ICJ’s opinion constitutes a fundamental act of the new historical era that begins in the region. For Thaci the decision is proof of the honorable Albanian struggles for freedom and independence, while at the same time constituting an extraordinary contribution to peace and stability in the region. Generally, Albanians in FYROM view the decision as serving the common good of the region and downplay the Albanian nationalist element in it.
The political elite of Presevo Valley, which is home to the largest Albanian community in Serbia, notice the great importance of the decision not only for Kosovo but also for its eastern side: Presevo, Bujanovac and Medvedja, “three municipalities that never given up the struggle for freedom and independence.” Radical and moderate political parties in the Valley published press releases on ICJ’s decision, congratulating the Kosovo authorities and the Albanian nation. Additionally, the Albanian diasporas around the world celebrated their personal contributions to this historical achievement. In all Albanian-inhabited territories, community leaders, activists, politicians, and intellectuals viewed the decision as a historical victory that belongs to the whole Albanian nation. Although Albanian political elites in the Balkans have a long history of mutual animosity as far as their own distinct problems and agendas is concerned, it should not be difficult to find common ground when it comes to the Kosovo issue.
Bledar Feta is Junior Researcher at the Hellenic Centre for European Studies.
Apostolis Karabairis is an expert on Balkan affairs.
The US-Greece Task Force: Transforming the Balkans is a Joint Policy Project of the Hellenic Centre for European Studies and the Center for Strategic and International Studies.