Friday, 23 July 2010

ICJ's 'clear' Kosovo ruling leaves plenty of scope for ambiguity.

Confounding expectations, the ICJ (whose website is creaking a bit under the strain) produced a clear determination on Kosovo’s declaration of independence.  Sort of.

Rather than consider the matter of the province’s statehood in  the round, it ruled merely on the narrow question which Serbia put to it.  ‘Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?’.  The court’s answer was ‘yes’.  There was nothing unlawful about the declaration of independence, as it was issued.

Considering the scope of the question, the ICJ noted ‘[it] is narrow and specific; it asks for the Court’s opinion on whether or not the declaration of independence is in accordance with international law … it does not ask about the legal consequences of that declaration’.

In other words no guidance was asked for, and none was given, on the legality of Kosovo’s statehood, its right to put independent government into practice following a declaration, or other administrations’ decisions to recognise part of sovereign Serbia as a separate state.

The court has merely decided that a declaration of independence is not, in and of itself, illegal.  It has also determined that the independence statement cannot be considered part of the process of provisional government, which was established by the UN.

The ICJ therefore did not find the declaration infringed UN resolution 1244, which endorsed an interim Assembly for Kosovo.

The issue of statehood has not been resolved, to anyone’s satisfaction.

Whether Serbia made an error or not, by asking the wrong question, is a matter for conjecture.  At blogoir, Charles Crawford suggests that the omission was deliberate.  Belgrade did not want to give the ICJ scope to explicitly endorse Kosovo Albanian independence.

Keith Ruffles, in contrast, has detected enough in the judgement to sustain separatists elsewhere.

The clearest message, from the court’s decision, is that the legitimacy of declarations of independence should be determined in the political arena, and not by international law.

Champions of Kosovo’s independence will seize upon the judgment as an endorsement.  The US has already done just that.

In fact, it is nothing of the sort.  Its significance will lie in the response of undecided members of the UN.  If it does not act as a pretext for further recognition, then the future of this part of Serbia will remain in doubt.

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