Post by Fender on Jul 29, 2010 23:53:27 GMT -5
Expert: Court ruling on Kosovo gave 'no answer' on real issues
Published: 28 July 2010 | Updated: 29 July 2010 In its ruling on the status of Kosovo, the International Court of Justice (ICJ) chose such a narrow and technical focus that it did not respond to the real issues – Kosovo's right to self-determination and the territorial integrity of the Serbian state, Professor Tibor Varady, a member of the Hague Permanent Court of Arbitration, told EurActiv Germany in an interview.
Tibor Varady is a professor in the Legal Studies Department of the Central European University in Budapest. He is a member of the Hague Permanent Court of Arbitration and was formerly the chief legal representative of Serbia.
He was speaking to EurActiv Germany’s Daniel Tost.
To read a shortened version of this interview, please click here.
What is your opinion on the recent advisory opinion of the International Court of Justice (ICJ) concerning Kosovo's status? How dissatisfied are you?
Professionally, I am somewhat dissatisfied. I believe that the court majority found a very subtle focus, which is more narrow than the actual problem. Let me explain: one of the key arguments made, particularly by the Kosovo party, was the right to self-determination. Opposed to that was Serbia's point of the territorial integrity of the state. These are the two juxtaposed main arguments.
The court found that it would not consider these issues as relevant. Instead it focused simply on the text of the declaration. This is a little bit difficult because the text itself has no meaning without a context. The context cannot simply be perceived without considering self-determination, without considering territorial integrity.
The court also stated explicitly that it would not consider the issue of whether such a declaration may produce statehood. But the purpose of the declaration is to produce statehood. Probably in order to find a majority in a very difficult situation, the focus of the court was narrowed so radically that I'm afraid that no answer was given to the real issues.
Let me mention that the problem I am talking about was recognised in most unequivocal terms in the Declaration of Judge Bruno Simma. He voted with the majority, but stated that by ''unduly limiting the scope of its analysis, the Court has not answered the question put before it in a satisfactory manner''.
Judge Simma also stressed that the narrow interpretation of the question ''[also] excludes from the Court's analysis any consideration of the important question whether international law may specifically permit or even foresee an entitlement to declare independence when certain conditions are met''.
German Foreign Minister Guido Westerwelle stated that the advisory opinion backs Germany's view that territorial integrity is a fact. Is this not true then?
The territorial integrity argument was a key Serbian argument. I wonder whether this is what Minister Westerwelle had in mind. The Kosovo counter argument was the right to self-determination. But essentially the court made it really clear that self-determination is outside the focus of its consideration. It also made clear that it would not consider whether such a declaration may produce statehood.
But these were the main juxtaposed arguments. This very subtle decision managed to avoid difficulties but also managed to avoid the main issue.
There were media reports of you speaking of manipulation.
This is a word I would not use. I don't know how the advisory opinion was rendered and I would like to maintain a very positive image of the court, which I have acquired during many years. I don't think one could speak of manipulation. What I can imagine is that there was a month-long effort to come down to some agreement. Finally, at the point where they found an agreement, it was so formal and so narrow that it really didn't answer the essence of the question, which was put before the court.
What next steps will Serbia take, especially considering its ambition to get a UN resolution?
It's quite clear that this advisory opinion offers a better strategic point of reliance to Kosovo than to Serbia. There is no question about that. Yet the narrowness of the focus offers Serbia room for manoeuvre as well.
I also believe that there will be a contest in interpreting the opinion. Given the fact that the court decided to narrow its focus so much, I think it is logical that there will be a conflict in views regarding the interpretation. I suppose that Serbia will come up with some initiative before the United Nations.
Is a resolution concerning the discussion about Kosovo's status likely?
That's something you would have to ask politicians. I'm just saying that such an initiative is likely. I really have no opinion on whether it is likely that such an initiative is accepted.
Could the opinion lead to more states recognising Kosovo?
I think the initiative and the question posed by the General Assembly certainly slowed down the pace of recognition. The number of countries recognising Kosovo is still considerably under 50% of the member states of the United Nations. If this opinion has any effect, it will probably have an effect on the increase of recognition. Serbia will start some diplomatic initiatives and we will see if this can have some neutralising effect.
The advisory opinion itself is certainly more pro-recognition than it is against recognition. But at the same time, countries might argue that the real question was not answered. Romania already declared that it will not recognise the statehood of Kosovo, explaining that the opinion avoided taking a position regarding the question whether the declaration did or did not yield a new state.
In a broader context, let me mention one thing I really fail to understand: if there was a concept of having an independent Kosovo, it is really odd that Kosovo was not taken away from Miloševiæ. This is difficult for me to understand, because that would have created a completely different situation on the Balkans. Instead, the burden was shifted to the new, still fragile, post-Miloševiæ governments. They were expected to contribute towards the creation of an independent Kosovo. This is politically clearly impossible.
Had Kosovo been taken away from Miloševiæ, the new governments probably would have expressed deep dissatisfaction with the fait accompli, but this would have been it. But instead you had the Resolution 1244, which clearly poses Kosovo as an autonomous region within Serbia. It's really difficult to understand why such an approach was taken.
What do you think of Serbia's supposed plans of a territory trade-off with Kosovo?
I think that some negotiated solution would have been and would still be a good idea. A territory trade-off – or, more likely, a territorial division – could be one of the negotiated outcomes.
But I must remind you: the signal given to Serbia and Kosovo by the EU and the US was that there would be negotiations, but if they did not succeed they would recognise the independence of Kosovo anyway. This certainly wasn't an incentive to the Kosovo-Albanian party to negotiate because they knew that if the negotiations failed they would have a 100% victory.
It's a pity that there were never any real negotiations. It would certainly bring much more stability if a negotiation were to be successful. But I have to say it's probably much more difficult today than a couple of years ago when this opportunity was missed.
I recently spoke to a former UN diplomat who said he believed it was not very likely that Serbia would actually give up territory of its own…
I don't know any details about this. The point I want to make is that some sort of negotiated settlement, either based on territory or based on some other principle, would be healthy. But let me add that I think this is very difficult.
Serbs in Bosnia are now also threatening their secession. What is your take on this development?
I don't think that this would in itself yield changes, but it would certainly give a strong signal to those radicals in Bosnia who want secession. But much more so this would certainly give very strong encouragement to Abkhazia, Ossetia, the Basque region.
This argument that this is not a precedent is not a plausible argument. You cannot place the International Court of Justice outside the world of consistency. The ICJ is a major part of consistency.
There have always been endeavours to push unpleasant things outside of the borders of relevance. Sometimes this was done by displacing them geographically, which has happened in Guantanamo – and where we clearly have a violation of international law. This time there is an endeavour to displace things logically, and to say: it is not a precedent.
I think these things do not and cannot work. There is an international system of international law, which is becoming more and more global.
Serbia's foreign minister stated yesterday that no border in the world would be safe anymore.
I wouldn't go that far. But it's really difficult not to perceive this as an encouragement for similar situations. If you have a position taken by the ICJ (in spite of its technically narrow focus), the Kosovo-Albanians – and I’m sure not only them – will try to interpret that it has a much broader relevance.
How much justice or injustice will this support, how strong will this encouragement be? That's really difficult to guess. But for me, it is certain that it will yield some encouragement to secessionist endeavours.
Published: 28 July 2010 | Updated: 29 July 2010 In its ruling on the status of Kosovo, the International Court of Justice (ICJ) chose such a narrow and technical focus that it did not respond to the real issues – Kosovo's right to self-determination and the territorial integrity of the Serbian state, Professor Tibor Varady, a member of the Hague Permanent Court of Arbitration, told EurActiv Germany in an interview.
Tibor Varady is a professor in the Legal Studies Department of the Central European University in Budapest. He is a member of the Hague Permanent Court of Arbitration and was formerly the chief legal representative of Serbia.
He was speaking to EurActiv Germany’s Daniel Tost.
To read a shortened version of this interview, please click here.
What is your opinion on the recent advisory opinion of the International Court of Justice (ICJ) concerning Kosovo's status? How dissatisfied are you?
Professionally, I am somewhat dissatisfied. I believe that the court majority found a very subtle focus, which is more narrow than the actual problem. Let me explain: one of the key arguments made, particularly by the Kosovo party, was the right to self-determination. Opposed to that was Serbia's point of the territorial integrity of the state. These are the two juxtaposed main arguments.
The court found that it would not consider these issues as relevant. Instead it focused simply on the text of the declaration. This is a little bit difficult because the text itself has no meaning without a context. The context cannot simply be perceived without considering self-determination, without considering territorial integrity.
The court also stated explicitly that it would not consider the issue of whether such a declaration may produce statehood. But the purpose of the declaration is to produce statehood. Probably in order to find a majority in a very difficult situation, the focus of the court was narrowed so radically that I'm afraid that no answer was given to the real issues.
Let me mention that the problem I am talking about was recognised in most unequivocal terms in the Declaration of Judge Bruno Simma. He voted with the majority, but stated that by ''unduly limiting the scope of its analysis, the Court has not answered the question put before it in a satisfactory manner''.
Judge Simma also stressed that the narrow interpretation of the question ''[also] excludes from the Court's analysis any consideration of the important question whether international law may specifically permit or even foresee an entitlement to declare independence when certain conditions are met''.
German Foreign Minister Guido Westerwelle stated that the advisory opinion backs Germany's view that territorial integrity is a fact. Is this not true then?
The territorial integrity argument was a key Serbian argument. I wonder whether this is what Minister Westerwelle had in mind. The Kosovo counter argument was the right to self-determination. But essentially the court made it really clear that self-determination is outside the focus of its consideration. It also made clear that it would not consider whether such a declaration may produce statehood.
But these were the main juxtaposed arguments. This very subtle decision managed to avoid difficulties but also managed to avoid the main issue.
There were media reports of you speaking of manipulation.
This is a word I would not use. I don't know how the advisory opinion was rendered and I would like to maintain a very positive image of the court, which I have acquired during many years. I don't think one could speak of manipulation. What I can imagine is that there was a month-long effort to come down to some agreement. Finally, at the point where they found an agreement, it was so formal and so narrow that it really didn't answer the essence of the question, which was put before the court.
What next steps will Serbia take, especially considering its ambition to get a UN resolution?
It's quite clear that this advisory opinion offers a better strategic point of reliance to Kosovo than to Serbia. There is no question about that. Yet the narrowness of the focus offers Serbia room for manoeuvre as well.
I also believe that there will be a contest in interpreting the opinion. Given the fact that the court decided to narrow its focus so much, I think it is logical that there will be a conflict in views regarding the interpretation. I suppose that Serbia will come up with some initiative before the United Nations.
Is a resolution concerning the discussion about Kosovo's status likely?
That's something you would have to ask politicians. I'm just saying that such an initiative is likely. I really have no opinion on whether it is likely that such an initiative is accepted.
Could the opinion lead to more states recognising Kosovo?
I think the initiative and the question posed by the General Assembly certainly slowed down the pace of recognition. The number of countries recognising Kosovo is still considerably under 50% of the member states of the United Nations. If this opinion has any effect, it will probably have an effect on the increase of recognition. Serbia will start some diplomatic initiatives and we will see if this can have some neutralising effect.
The advisory opinion itself is certainly more pro-recognition than it is against recognition. But at the same time, countries might argue that the real question was not answered. Romania already declared that it will not recognise the statehood of Kosovo, explaining that the opinion avoided taking a position regarding the question whether the declaration did or did not yield a new state.
In a broader context, let me mention one thing I really fail to understand: if there was a concept of having an independent Kosovo, it is really odd that Kosovo was not taken away from Miloševiæ. This is difficult for me to understand, because that would have created a completely different situation on the Balkans. Instead, the burden was shifted to the new, still fragile, post-Miloševiæ governments. They were expected to contribute towards the creation of an independent Kosovo. This is politically clearly impossible.
Had Kosovo been taken away from Miloševiæ, the new governments probably would have expressed deep dissatisfaction with the fait accompli, but this would have been it. But instead you had the Resolution 1244, which clearly poses Kosovo as an autonomous region within Serbia. It's really difficult to understand why such an approach was taken.
What do you think of Serbia's supposed plans of a territory trade-off with Kosovo?
I think that some negotiated solution would have been and would still be a good idea. A territory trade-off – or, more likely, a territorial division – could be one of the negotiated outcomes.
But I must remind you: the signal given to Serbia and Kosovo by the EU and the US was that there would be negotiations, but if they did not succeed they would recognise the independence of Kosovo anyway. This certainly wasn't an incentive to the Kosovo-Albanian party to negotiate because they knew that if the negotiations failed they would have a 100% victory.
It's a pity that there were never any real negotiations. It would certainly bring much more stability if a negotiation were to be successful. But I have to say it's probably much more difficult today than a couple of years ago when this opportunity was missed.
I recently spoke to a former UN diplomat who said he believed it was not very likely that Serbia would actually give up territory of its own…
I don't know any details about this. The point I want to make is that some sort of negotiated settlement, either based on territory or based on some other principle, would be healthy. But let me add that I think this is very difficult.
Serbs in Bosnia are now also threatening their secession. What is your take on this development?
I don't think that this would in itself yield changes, but it would certainly give a strong signal to those radicals in Bosnia who want secession. But much more so this would certainly give very strong encouragement to Abkhazia, Ossetia, the Basque region.
This argument that this is not a precedent is not a plausible argument. You cannot place the International Court of Justice outside the world of consistency. The ICJ is a major part of consistency.
There have always been endeavours to push unpleasant things outside of the borders of relevance. Sometimes this was done by displacing them geographically, which has happened in Guantanamo – and where we clearly have a violation of international law. This time there is an endeavour to displace things logically, and to say: it is not a precedent.
I think these things do not and cannot work. There is an international system of international law, which is becoming more and more global.
Serbia's foreign minister stated yesterday that no border in the world would be safe anymore.
I wouldn't go that far. But it's really difficult not to perceive this as an encouragement for similar situations. If you have a position taken by the ICJ (in spite of its technically narrow focus), the Kosovo-Albanians – and I’m sure not only them – will try to interpret that it has a much broader relevance.
How much justice or injustice will this support, how strong will this encouragement be? That's really difficult to guess. But for me, it is certain that it will yield some encouragement to secessionist endeavours.