People's Democracy

(Weekly Organ of the Communist Party of India (Marxist)


No. 35

August 29, 2010


ICJ Kosovo Ruling: Dangerous Precedent


Yohannan Chemerapally



THE advisory opinion of the International Court of Justice (ICJ) on July 22 which endorsed the “independence” of Kosovo has come as a shock, not only to Serbia but also to a host of countries around the world which are battling secessionist and divisive forces. The learned judges of the international apex court ruled in a majority decision (10-4) that the unilateral declaration of independence (UDI) by Kosovo on February, 2008 was valid under international law. The ICJ has however been careful to clarify that its ruling only pertained to Kosovo’s declaration of independence, not on its status as an independent state. Hisashi Owada, the head of the ICJ said that international law contained “no prohibitions on the declaration of independence” and therefore Kosovo’s declaration of independence did not violate international law. Serbia had asked the ICJ through the auspices of the UN General Assembly to rule on the legality of UDI by Kosovo.  


The advisory decision of the ICJ was immediately welcomed in many western capitals, especially in Washington, London, Paris and Berlin. The governments there had played an important role in the break-up of Yugoslavia. Kosovo hosts one of the biggest NATO bases in the region. The US state department spokesman was quick to endorse the ICJ’s verdict. The US secretary of state, Hillary Clinton, called on the international community “to move beyond the issue of Kosovo’s status” and recognise its statehood. Currently only 69 countries have extended recognition to Kosovo. The ICJ’s landmark ruling could help Kosovo cross the magic figure of 100 which would then let it qualify for formal UN membership. Kosovo’s prime minister, Fatmir Sejdiu, said that the ICJ’s decision “finally removes all doubts that countries that don’t recognise Kosovo still have”.


The Serbian president, Boris Tadic, on the other hand said that his country would never accept the non-binding verdict of the ICJ. He said that the ICJ opinion was “difficult” but Serbia would “never accept the unilateral declaration of independence by Kosovo”. Most Serbs consider Kosovo as their spiritual heartland. The Serb minority in Kosovo have virtually established an autonomous enclave in the tiny breakaway country. The ICJ’s decision may embolden Kosovo to use military means to establish control over the Serb minority in the north. There have already been clashes there. The Serbs have stocked up on weapons to prepare for any eventuality.


Serbia has offered “enhanced autonomy”, bordering on virtual independence to Kosovo. Belgrade wants the UN general assembly to vote on the issue when it meets in September. Serbia had argued in the ICJ that Kosovo’s UDI challenged its sovereignty and undermined international law. Washington and the major EU powers seem to be confident that Belgrade’s desire to join the EU would make it eventually accept the reality of an independent Kosovo. The Serbian president has said that a confrontation with the West on the issue would be counter-productive for the country’s plans to integrate with the EU.


Russia too said that the ICJ’s decision would have no influence over its policy on Kosovo. The Russian foreign office spokesman said that the solution of the (Kosovo) issue was only possible through dialogue between Belgrade and Pristina (the capital of Kosovo). The Russian envoy to NATO, Dmitry Rogozin said that there was no question of Moscow accepting the splitting of a country that is a UN member. Chechen rebels are still carrying out hit and run attacks in the Caucasus and have not given up their dreams of secession. Till recently they had the implicit support of many western and West Asian countries.  


China said that it continues to “respect the sovereignty and territorial integrity of Serbia”. Beijing also stressed “that respect for sovereignty and territorial integrity is the basic principle of international law and the basis of today’s global legal system”. The reaction was an implicit criticism of the ICJ’s position on Kosovo’s UDI which has provided succour to the separatists in Tibet and Xingjian. New Delhi’s response has generally been low key, unlike Moscow and Beijing, on the issue as it does not want to unnecessarily anger its close strategic ally ---the US. The Indian foreign ministry spokesman said that the government was still studying the ICJ’s ruling and that there was no change in the government’s position. New Delhi has not recognised Kosovo’s UDI.


Five EU members, which are themselves battling secessionist forces, have refused to recognise Kosovo’s independence. Spain is facing challenges to its unity from the Basque and Catalan regions. Cyprus has been unilaterally partitioned with the Turkish Cypriots claiming the northern half of the island. Greece, Slovakia and Romania are also facing challenges from restive minorities.  Important global powers like Russia, China and India fear that the ICJ’s ruling will set up a dangerous precedent. China had in fact had for the first time since the sixties had made an oral presentation at the ICJ arguing against recognition being granted for an independent Kosovo. Breakaway regions like Nagorno-Karabakh, an Armenian dominated enclave inside Azerbaijan are now preparing to follow suit and declare independence.


The leaders of many breakaway regions in the world are viewing the ICJ’s ruling as green signal to declare formal independence. The leaders of Abkhazia and Southern Ossetia have said that the ICJ ruling has given them the right to seek self-determination too.  These two regions had broken away from Georgia with Moscow’s military help. Kosovo too was created by US and NATO troops masquerading as peace keepers during the last Balkan war, eleven years ago. After bombing Yugoslavia into submission, Kosovo was declared a UN protectorate. In reality it was a NATO protectorate created on the basis of false propaganda that the Yugoslav government under Slobodan Milosevic had perpetrated acts of genocide there.


The EU then put in motion the “process of supervised independence” for the protectorate. During the conflict in Kosovo, the Canadian government had sponsored an International Commission on Intervention and State Sovereignty, known as R2P. This concept has been wholeheartedly endorsed by the West. This doctrine maintains that if a state is unwilling or unable to uphold its duty of protection to its people, then this duty falls upon the international community.  Russia too justified its intervention in Abkhazia and Southern Ossetia in 2008 on the basis of “humanitarian intervention” to protect the enclaves from ethnic cleansing by Georgia. Moscow showed to the West that it too can play a similar game. The West is using the R2P rationale to interfere in Darfur and other parts of the world.


The ICJ’s opinion should be seen in this context. The Serbian foreign minister, Vuk Jeremic recently warned that there are about 50 Kosovos waiting to happen on the African continent alone. The Pandora Box has been well and truly opened. The ICJ had taken a clear position on the issues of self determination and territorial integrity, for the first time in more than forty years. The ICJ stated that international law recognises “a right to self determination for the people of non-self governing territories” and that the “principles of territorial integrity applies only to the sphere of relations between states”. Edwin Bakker an expert on international law at the Clingendael Netherlands University told the Financial Times that the ruling will strengthen separatists round the globe. “Cases that have been confronted with very brutal repression may feel that their chances for an independent state have increased”. Bakker also noted that it was for the first time since the break-up of Pakistan in the early seventies, that a country has become independent, despite the strong opposition from the state it is separating from.


Observers are of the view that the strong language in the ICJ ruling will give additional legal ammunition to separatist and independence movements. The ruling is sure to provide a fillip to long running struggles, like the one in Western Sahara, which the African Union views as an unfinished agenda of the decolonisation struggle. The other gainers will no doubt be those groups whose struggle for independence have been given the status of an “international dispute” like the long drawn out Kashmir dispute. Already some western commentators are drawing parallels between Kashmir and Kosovo. Edwin Bakker said that the cases comparable to Kosovo are the conflicts in Burma (Karen, Shan), Iraq (Kurdistan) and India (Kashmir).