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Kosovo, law and politics

The International Court of Justice ruling on Kosovo’s independence offers the European Union a vital opportunity to lead the process that must follow, says Engjellushe Morina in Pristina.
Engjellushe Morina
30 July 2010

The long-awaited decision by the International Court of Justice (ICJ) on 22 July 2010 came as good news for the people of Kosova (Kosovo). In offering its non-binding opinion in a case that had been brought by Serbia following the Kosova parliament’s declaration of independence on 17 February 2008, the ICJ stipulated that Kosova’s declaration did not violate international law or breach United Nations Security Council Resolution 1244 (passed at the end of the war of 1999 which had removed Serbian military forces from Kosova). In effect, the world court ruled that Kosovars had done nothing wrong - that the Republic of Kosova was a legal entity.

This positive opinion for Kosova came as a surprise to many observers, for the majority expectation was of a more ambiguous result. But in a longer perspective, the decision was a belated acceptance of a reality that should already have been accepted by the international community two decades ago - when the wars of ex-Yugoslavia were about to begin in earnest (see Goran Fejic, "Midnight in Belgrade, dusk in Brussels", 12 July 2010).

In August 1991, the Arbitration Commission of the Conference on Yugoslavia (named after its chair, the French politician Robert Badinter) was tasked by the European Union with advising it on the legal aspects of Yugoslavia’s prospective break-up. The mistake it made was completely to ignore Kosova, failing to treat it alongside other constituent republics and instead regarding it as nothing but a part of Serbia - even though the Yugoslav constitution of 1974 had established Kosovo’s effective equality with the seven other constituents of the Yugoslav federation (Bosnia-Herzegovina, Croatia, Macedonia, Montenegro, Serbia, Slovenia and Vojvodina). This meant that it fulfilled all the constitutional prerequisites of a state according to international law.

But if Kosova was a unit of Yugoslavia with a large degree of autonomy (and even took its turn in holding the rotating state presidency), it was also tied to Serbia. This dual constitutional reality meant that its power to chart its own future was in practice limited. In 1989 the autonomy that Kosova had been guaranteed under the 1974 constitution was revoked by the then president of Serbia, Slobodan Milosevic.

The failure of the international community to take Kosova’s full reality into account continued with the Dayton accords of 1995 that ended the Bosnian war, and thus became part of the spiral that led to the war of 1999. In this longer timescale, the ICJ’s “advisory opinion” both lifts a weight that has prevented the region from moving on and opens the way to new opportunities.

The reactions

It is natural that the most joyful reactions to the ICJ verdict came from inside Kosova. The country’s president, Fatmir Sejdiu, said that the opinion removes the dilemmas faced by states that have not yet recognised the Republic of Kosova: the prime minister Hashim Thaci and the foreign minister Skender Hyseni said that the court had acted rightfully; the deputy prime minister Hajredin Kuqi described the ruling as a victory for Kosova and the region alike. 

This view was echoed across the political and media spectrum. Blerim Shala, vice-president of the opposition AAK party, commented that the clear and precise ruling created a new political and diplomatic reality. The activist Shkelzen Gashi argued that the road to Kosova’s membership of the United Nations is open, assuming that (as required) the Security Council will unanimously recommend this course to the general assembly, and two-thirds of the assembly will then vote in support.

The leading United States and European politicians also approved the ruling, with the US secretary of state Hillary Clinton urging Kosovo and Serbia to put differences aside and move forward towards their future as part of Europe. The European Union’s top diplomat  Catherine Ashton also emphasised that  “the focus should now be on the future”, reflecting the foundations on which the EU is built - good neighbourly relations, regional cooperation and dialogue.

In Serbia, the negative overall reaction was reflected in the foreign minister Vuk Jeremic’s statement that Serbia would maintain its position and never recognise Kosovo's independence. Jeremic expressed confidence that the opinion was technical only, and that any political decision taken at the UN general assembly would go Serbia’s way. An emergency session of the Serbian parliament adopted a resolution on 26 July supporting the government’s line by a large majority. But some analysts see the prospect that Serbia’s thinking about Kosova will gradually shift towards an acceptance of the ICJ opinion’s implications (see Florian Bieber, “Kosovo, Serbia and Bosnia: after the ICJ”, 28 July 2010).

The future

But there is a contrast between the view of high politics and the reality on the ground, where much more than the ICJ opinion will be needed before Kosova can move forward. The Republic of Kosova has been recognised by sixty-nine countries to date, and any substantial increase from this number will take time.

Even less straightforward will be how Kosova emerges to full effective independence, when the country still has several international missions with (in some cases) overlapping mandates and competing interests. This puts Kosova’s authorities in a bind, where their need to negotiate and manage a complex set of relationships is in tension with their search for a clear, independent international profile.

The issues of recognition and administrative independence are closely linked. A crucial part of Kosova’s workload is to lobby hard for more global recognition - starting with the five European Union member-states that have withheld recognition (Romania, Spain, Greece, Slovakia and Cyprus). A successful outcome here would spur a contractual relationship with the European commission, and speed the process of UN membership.

In turn this would help Kosovo clarify a muddled governance system, with its five competing authorities:

* UNMIK, the United Nations Interim Administration Mission in Kosovo

* ICO/EUSR, the International Civilian Office/European Union Special Representative (tasked to oversee implementation of the Martti Ahtisaari plan on Kosovo's future status, and support Kosovo's European integration)

* EULEX, the European Union Rule-of-Law Mission

* the government of Kosova

* Serbian parallel structures operating in some Serb-majority areas, such as Mitrovica in the north

Amid this confusion and the condition of “supervised independence” that it reflects, a European Union perspective for Kosovo remains distant. The country cannot move towards EU integration without implementation of the Ahtisaari plan and recognition from all EU member-states; the Ahtisaari plan cannot be implemented without the cooperation of local Serbs and the Serbian government. Whether Serbia will now contribute to this process or continue to want it all (both EU membership and Kosovo) will be unclear for some time. So despite the International Court of Justice ruling, Kosova’s situation is still stalemated.

If the European Union had taken Kosova more seriously back in 1991, at the outset of the dissolution of Yugoslavia, many Kosovar (and other) lives and huge amounts of money (mainly European taxpayers’) would have been saved. Now, Europe needs to learn the lessons of this history, of its own disunity, of the ICJ opinion - and play a leading role in the vital political decisions that lie ahead.

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