Post by Fender on Jul 29, 2010 22:58:10 GMT -5
Kosovo Ruling Reveals World Court’s Darker Side
| 28 July 2010 | By Matthew Parish
Matthew ParishThe Judges’ opinion will fuel suspicions that power, not law, is the fundamental factor behind the success or failure of secessionist movements.
International law concerning state secession may be complex: James Crawford’s flagship textbook, The Creation of States under International Law, though 870 pages long, contains few certain conclusions.
But one of the strangest features of the ruling of the International Court of Justice, ICJ, on 22 July in its Advisory Opinion on Kosovo’s Declaration of Independence is the pretence that the subject is not a part of international law at all.
The judges’ majority opinion breezily declares that international law has nothing to say on declarations of independence. To many lawyers, this will appear threadbare.
While at face value the Court’s opinion is voluminous, at 252 pages, the greater part of it consists of French translation, dissenting opinions and the recital of background facts. There is little or no significant, credible, legal analysis.
The issue for the Court, as framed by the UN General Assembly, was whether the declaration of independence by Kosovo’s interim self-governing institutions of 17 February 2008 was consistent with UN Resolution 1244.
This was the Resolution that authorised the creation of UNMIK, the UN agency that administered Kosovo from 1999 to its independence in 2008, and which in theory, if not in practice, still does so.
The Court faced the argument that the declaration contradicts the Resolution as this explicitly refers to preserving the territorial integrity of the then Federal Republic of Yugoslavia.
The self-governing institutions of Kosovo, including its Assembly, were created by orders of the head of UNMIK, acting pursuant to executive and legislative authority given to him by 1244. By law, everything UNMIK did had to be consistent with Resolution 1244.
Thus, UNMIK was not entitled to do anything to prejudice Yugoslavia’s territorial integrity. From this it is a small step to conclude that no institution created by UNMIK could do anything to prejudice Serbia’s territorial integrity either. Thus, Kosovo’s assembly, which UNMIK created, could not legally declare independence from Serbia.
This logic looked so persuasive that Serbia clearly felt confident of the outcome of the case. The issue would never have reached the ICJ but for Serbia’s lobbying of the UN General Assembly, which then referred the issue to the Court. How then did the ICJ escape the straightjacket of this apparently unanswerable legal argument?
The answer is that the Court exhibited a judicial ingenuity of which Balkan politicians would be proud, opining that the General Assembly had asked the wrong question.
It was not the interim self-governing institutions of Kosovo that had declared independence on 17 February 2008 but “persons who acted together in their capacity as representatives of the people of Kosovo outside the framework of the interim administration”.
This logic is very stretched. The President and the Prime Minister of Kosovo, both positions created by Kosovo’s interim constitution, enacted by UNMIK, invited the Kosovo Assembly - another institution created by UNMIK - to adopt a declaration of independence.
But none of these institutions, the Court declares, acted in their official capacities; instead they were representing the people of Kosovo in an abstract role, outside the formal governing institutions of Kosovo, even though the Declaration of Independence was tabled as a resolution of the Assembly.
The political implications of this reasoning are striking. Acting on this logic, the Prime Minister of the Bosnian Serb entity, the Republika Srpska, RS, could call a meeting of the RS National Assembly, which then declares independence from Bosnia acting as representative of the people of Republika Srpska rather than as an institution established under the 1995 Dayton peace accords.
It appears that representatives of the people who act “outside the framework of the administration” are not bound by the legal obligations imposed upon those administrations - even when those representatives are one and the same people as the administration.
Not within the scope of international law?
The other limb of the ICJ’s argument amounts to an assertion that issues of state secession are not within the scope of international law at all. By this reasoning, the declarations of independence of South Ossetia, Abkhazia, Transdniestr and every other autonomous territory emerging from “frozen conflicts” are also consistent with the law of nations.
Furthermore, it does not seem to matter who makes a declaration of independence. Even if not made by the proper institutions of the territory but, on the Court’s reasoning, by a group representing the people of the region, a declaration of independence can still be legitimate as a matter of international law.
The more one reflects on this, the more absurd it seems. International law has as its subject the relationships between states. A fundamental question within this discipline must be when states are created, and thus when it is proper to extend to them diplomatic recognition and membership of international organisations. To pretend international law has nothing to say on this topic is to denude the discipline of much of its normative force.
The Court tries to evade this implication by drawing another technical distinction. It avers that it is not ruling on whether Kosovo has actually seceded from Serbia, but only on whether the Declaration of Independence was consistent with international law. However, such a distinction will be lost upon the people of the Balkans, who perceive the ICJ’s opinion as a hands-down win for Kosovar Albanians and a debacle for Serbia.
Imagine a court ruling that a declaration of marriage was lawful, but adding that it made no pronouncement on whether the individuals in question were actually married as a result. Such a result would be incomprehensible to anyone but lawyers. The world sees the ICJ as vindicating Kosovo’s statehood, and this attempt to dodge the issue cannot succeed.
A political ruling:
The ruling will confirm suspicions that the Court arrives at judgments on political grounds, while the threadbare legal reasoning will enable anyone who wishes to reject the decision as political theatre comfortably to do so.
Significantly, of the ten judges who voted in Kosovo’s favour, eight came from nations that had recognized Kosovo while one was from Mexico, which has not taken a position. Only one was from a country opposed to Kosovo’s independence, Brazil. All four dissenting judges who supported Serbia were from countries that have not recognised Kosovo. The way the Court divided along lines of national interest thereby undermined claims to impartiality.
It may be that international law has so little to say about this subject because, ultimately, the success or otherwise of declarations of independence turns not upon the ruling of a judicial institution but on the military and economic strength of the seceding territory, and on the support, or lack of it, of the Great Powers.
Transdniestr, South Ossetia and Abkhazia all survive thanks to Russian support, while Kosovo survives with EU and US support. Kurdistan - and Republika Srpska - have not achieved independence from the countries of which they reluctantly form a part because the Great Powers in their regions oppose their attempts to do so. Power, not law, appears to remain the fundamental causal dynamic in the success or failure of secessionist movements.
Viewed through this lens, the independence of Kosovo might be accepted as a settled political fact. While it sets a regrettable precedent, it was certainly a fait accompli long before the Declaration of Independence. Anyone travelling to Kosovo in recent years could see it had for all intents and purposes separated itself from Serbia. Under UNMIK’s guise, it had created a different legal system, currency, immigration rules and car licence plates and its own passport regime, taxes and administration.
For good or ill, meanwhile, acting in flat contravention of its own mandate, which was to preserve the territorial integrity of Yugoslavia, UNMIK instead pursued a covertly partitionist agenda, the logical consequence of which came to fruition in 2008. In 1999, Slobodan Milosevic had predicted the independence of Kosovo were NATO permitted to occupy the territory; in this, at least, his instincts were right.
It must not be forgotten that the ICJ case was brought at the request of Serbia, which thought it had a watertight legal case. Instead, the Court hijacked Serbia’s goal of vindicating its legal position, and used the ruling to validate the positions of the prime movers in the international community who had pushed for the independence of Kosovo, including the US, Britain, France and Germany, all of whom have judges on the court.
These countries, occupying Kosovo through the medium of UNMIK and faced with the mutual hostility between Serbs and Kosovar Albanians, could not devise an exit strategy. They had no desire to spend years repressing the Albanian insurgency that would have erupted had UNMIK determined to hand Kosovo back to Serbia. Nor did Serbia have the military resources to suppress the territory. The independence of Kosovo was probably the least bad option available as of 2008.
But this decision will make no difference to the relationship between Serbia and Kosovo. Serbia knows Kosovo’s independence is a political fact that cannot be challenged for the foreseeable future lest it jeopardise the country’s EU accession negotiations. Moreover, Serbia has neither the resources nor the inclination to use force to take back control of the rebellious territory.
However, Serbia will continue to refuse to recognise Kosovo, and its rejection of the ICJ ruling will be sustained by attacks upon the poor quality of the Court’s reasoning. The ICJ ruling may cause a few more countries to recognise Kosovo. But the Court will not sway the likes of Russia, Romania and Slovakia, which still strongly oppose its independence.
A boost to separatism everywhere:
Where the ruling may make a more important difference, however, is in other countries with secessionist movements. It may turn out to be a matter of regret that the ICJ did not accord that consideration greater weight in its deliberations.
In support of the Kosovar Albanians, it is tempting to adopt a reluctant advocacy of ethnic partition in the Western Balkans. Where secession and division of territory between warring ethnic groups has taken place, it has ushered in peace and political stability. Formerly hostile groups, each in possession of a new sense of nationhood, have found reconciliation through common economic and political interests, as can be seen in the recent renaissance in diplomatic relations between Serbia and Croatia.
By contrast, where different peoples who harbour animosity to one another are forced into the confines of a unified state, political stability is undermined. Power sharing becomes impossible in the face of mutual suspicion. Thus we witness the perennial paralysis inherent in Bosnian and indeed Belgian politics.
But the challenge facing international diplomacy is that legitimising this message creates hazards: affirmation of one secessionist act may trigger nationalist movements across the world that might otherwise have lain dormant.
For this reason, it would have been better had those in charge of international institutions that confer legitimacy, such as the ICJ, not lent their moral authority to what has taken place in Kosovo. Alas, the judges of the ICJ, being lawyers rather than diplomats or politicians, may not have had in mind the practical consequences of their abstract declarations. Lawyers do not make good policymakers. It was open to the ICJ not to rule on the issue at all. Five of the fourteen Judges thought the Court should have declined to provide an opinion. That would have been the more prudent course.
The enormity of the legal precedent being set by Kosovo’s independence cannot be overlooked. In Kosovo a consortium of foreign powers, acting initially without a United Nations mandate, intervened using force in a sovereign state to resolve that country’s ethnic conflict. They then occupied part of the country and oversaw its secession over a nine-year period. It is not clear that the ICJ should have lent its imprimatur to such an exceptional event. Whatever one’s view of Kosovo’s independence, it must be conceded that the events that led to UNMIK’s occupation and separation of the province from the rest of Serbia were unique.
To have lent these events a cloak of legal support may be to suggest that other disputed territories have a similar 'right' to secede, potentially fuelling ethnic civil wars elsewhere in the world.
The author, an international lawyer based in Geneva, formerly worked as Chief Legal Adviser to the International Supervisor of Brcko. His book on post-war Bosnia, A Free City in the Balkans: Reconstructing a Divided Society in Bosnia, is published by I.B.Tauris. www.matthewparish.com
| 28 July 2010 | By Matthew Parish
Matthew ParishThe Judges’ opinion will fuel suspicions that power, not law, is the fundamental factor behind the success or failure of secessionist movements.
International law concerning state secession may be complex: James Crawford’s flagship textbook, The Creation of States under International Law, though 870 pages long, contains few certain conclusions.
But one of the strangest features of the ruling of the International Court of Justice, ICJ, on 22 July in its Advisory Opinion on Kosovo’s Declaration of Independence is the pretence that the subject is not a part of international law at all.
The judges’ majority opinion breezily declares that international law has nothing to say on declarations of independence. To many lawyers, this will appear threadbare.
While at face value the Court’s opinion is voluminous, at 252 pages, the greater part of it consists of French translation, dissenting opinions and the recital of background facts. There is little or no significant, credible, legal analysis.
The issue for the Court, as framed by the UN General Assembly, was whether the declaration of independence by Kosovo’s interim self-governing institutions of 17 February 2008 was consistent with UN Resolution 1244.
This was the Resolution that authorised the creation of UNMIK, the UN agency that administered Kosovo from 1999 to its independence in 2008, and which in theory, if not in practice, still does so.
The Court faced the argument that the declaration contradicts the Resolution as this explicitly refers to preserving the territorial integrity of the then Federal Republic of Yugoslavia.
The self-governing institutions of Kosovo, including its Assembly, were created by orders of the head of UNMIK, acting pursuant to executive and legislative authority given to him by 1244. By law, everything UNMIK did had to be consistent with Resolution 1244.
Thus, UNMIK was not entitled to do anything to prejudice Yugoslavia’s territorial integrity. From this it is a small step to conclude that no institution created by UNMIK could do anything to prejudice Serbia’s territorial integrity either. Thus, Kosovo’s assembly, which UNMIK created, could not legally declare independence from Serbia.
This logic looked so persuasive that Serbia clearly felt confident of the outcome of the case. The issue would never have reached the ICJ but for Serbia’s lobbying of the UN General Assembly, which then referred the issue to the Court. How then did the ICJ escape the straightjacket of this apparently unanswerable legal argument?
The answer is that the Court exhibited a judicial ingenuity of which Balkan politicians would be proud, opining that the General Assembly had asked the wrong question.
It was not the interim self-governing institutions of Kosovo that had declared independence on 17 February 2008 but “persons who acted together in their capacity as representatives of the people of Kosovo outside the framework of the interim administration”.
This logic is very stretched. The President and the Prime Minister of Kosovo, both positions created by Kosovo’s interim constitution, enacted by UNMIK, invited the Kosovo Assembly - another institution created by UNMIK - to adopt a declaration of independence.
But none of these institutions, the Court declares, acted in their official capacities; instead they were representing the people of Kosovo in an abstract role, outside the formal governing institutions of Kosovo, even though the Declaration of Independence was tabled as a resolution of the Assembly.
The political implications of this reasoning are striking. Acting on this logic, the Prime Minister of the Bosnian Serb entity, the Republika Srpska, RS, could call a meeting of the RS National Assembly, which then declares independence from Bosnia acting as representative of the people of Republika Srpska rather than as an institution established under the 1995 Dayton peace accords.
It appears that representatives of the people who act “outside the framework of the administration” are not bound by the legal obligations imposed upon those administrations - even when those representatives are one and the same people as the administration.
Not within the scope of international law?
The other limb of the ICJ’s argument amounts to an assertion that issues of state secession are not within the scope of international law at all. By this reasoning, the declarations of independence of South Ossetia, Abkhazia, Transdniestr and every other autonomous territory emerging from “frozen conflicts” are also consistent with the law of nations.
Furthermore, it does not seem to matter who makes a declaration of independence. Even if not made by the proper institutions of the territory but, on the Court’s reasoning, by a group representing the people of the region, a declaration of independence can still be legitimate as a matter of international law.
The more one reflects on this, the more absurd it seems. International law has as its subject the relationships between states. A fundamental question within this discipline must be when states are created, and thus when it is proper to extend to them diplomatic recognition and membership of international organisations. To pretend international law has nothing to say on this topic is to denude the discipline of much of its normative force.
The Court tries to evade this implication by drawing another technical distinction. It avers that it is not ruling on whether Kosovo has actually seceded from Serbia, but only on whether the Declaration of Independence was consistent with international law. However, such a distinction will be lost upon the people of the Balkans, who perceive the ICJ’s opinion as a hands-down win for Kosovar Albanians and a debacle for Serbia.
Imagine a court ruling that a declaration of marriage was lawful, but adding that it made no pronouncement on whether the individuals in question were actually married as a result. Such a result would be incomprehensible to anyone but lawyers. The world sees the ICJ as vindicating Kosovo’s statehood, and this attempt to dodge the issue cannot succeed.
A political ruling:
The ruling will confirm suspicions that the Court arrives at judgments on political grounds, while the threadbare legal reasoning will enable anyone who wishes to reject the decision as political theatre comfortably to do so.
Significantly, of the ten judges who voted in Kosovo’s favour, eight came from nations that had recognized Kosovo while one was from Mexico, which has not taken a position. Only one was from a country opposed to Kosovo’s independence, Brazil. All four dissenting judges who supported Serbia were from countries that have not recognised Kosovo. The way the Court divided along lines of national interest thereby undermined claims to impartiality.
It may be that international law has so little to say about this subject because, ultimately, the success or otherwise of declarations of independence turns not upon the ruling of a judicial institution but on the military and economic strength of the seceding territory, and on the support, or lack of it, of the Great Powers.
Transdniestr, South Ossetia and Abkhazia all survive thanks to Russian support, while Kosovo survives with EU and US support. Kurdistan - and Republika Srpska - have not achieved independence from the countries of which they reluctantly form a part because the Great Powers in their regions oppose their attempts to do so. Power, not law, appears to remain the fundamental causal dynamic in the success or failure of secessionist movements.
Viewed through this lens, the independence of Kosovo might be accepted as a settled political fact. While it sets a regrettable precedent, it was certainly a fait accompli long before the Declaration of Independence. Anyone travelling to Kosovo in recent years could see it had for all intents and purposes separated itself from Serbia. Under UNMIK’s guise, it had created a different legal system, currency, immigration rules and car licence plates and its own passport regime, taxes and administration.
For good or ill, meanwhile, acting in flat contravention of its own mandate, which was to preserve the territorial integrity of Yugoslavia, UNMIK instead pursued a covertly partitionist agenda, the logical consequence of which came to fruition in 2008. In 1999, Slobodan Milosevic had predicted the independence of Kosovo were NATO permitted to occupy the territory; in this, at least, his instincts were right.
It must not be forgotten that the ICJ case was brought at the request of Serbia, which thought it had a watertight legal case. Instead, the Court hijacked Serbia’s goal of vindicating its legal position, and used the ruling to validate the positions of the prime movers in the international community who had pushed for the independence of Kosovo, including the US, Britain, France and Germany, all of whom have judges on the court.
These countries, occupying Kosovo through the medium of UNMIK and faced with the mutual hostility between Serbs and Kosovar Albanians, could not devise an exit strategy. They had no desire to spend years repressing the Albanian insurgency that would have erupted had UNMIK determined to hand Kosovo back to Serbia. Nor did Serbia have the military resources to suppress the territory. The independence of Kosovo was probably the least bad option available as of 2008.
But this decision will make no difference to the relationship between Serbia and Kosovo. Serbia knows Kosovo’s independence is a political fact that cannot be challenged for the foreseeable future lest it jeopardise the country’s EU accession negotiations. Moreover, Serbia has neither the resources nor the inclination to use force to take back control of the rebellious territory.
However, Serbia will continue to refuse to recognise Kosovo, and its rejection of the ICJ ruling will be sustained by attacks upon the poor quality of the Court’s reasoning. The ICJ ruling may cause a few more countries to recognise Kosovo. But the Court will not sway the likes of Russia, Romania and Slovakia, which still strongly oppose its independence.
A boost to separatism everywhere:
Where the ruling may make a more important difference, however, is in other countries with secessionist movements. It may turn out to be a matter of regret that the ICJ did not accord that consideration greater weight in its deliberations.
In support of the Kosovar Albanians, it is tempting to adopt a reluctant advocacy of ethnic partition in the Western Balkans. Where secession and division of territory between warring ethnic groups has taken place, it has ushered in peace and political stability. Formerly hostile groups, each in possession of a new sense of nationhood, have found reconciliation through common economic and political interests, as can be seen in the recent renaissance in diplomatic relations between Serbia and Croatia.
By contrast, where different peoples who harbour animosity to one another are forced into the confines of a unified state, political stability is undermined. Power sharing becomes impossible in the face of mutual suspicion. Thus we witness the perennial paralysis inherent in Bosnian and indeed Belgian politics.
But the challenge facing international diplomacy is that legitimising this message creates hazards: affirmation of one secessionist act may trigger nationalist movements across the world that might otherwise have lain dormant.
For this reason, it would have been better had those in charge of international institutions that confer legitimacy, such as the ICJ, not lent their moral authority to what has taken place in Kosovo. Alas, the judges of the ICJ, being lawyers rather than diplomats or politicians, may not have had in mind the practical consequences of their abstract declarations. Lawyers do not make good policymakers. It was open to the ICJ not to rule on the issue at all. Five of the fourteen Judges thought the Court should have declined to provide an opinion. That would have been the more prudent course.
The enormity of the legal precedent being set by Kosovo’s independence cannot be overlooked. In Kosovo a consortium of foreign powers, acting initially without a United Nations mandate, intervened using force in a sovereign state to resolve that country’s ethnic conflict. They then occupied part of the country and oversaw its secession over a nine-year period. It is not clear that the ICJ should have lent its imprimatur to such an exceptional event. Whatever one’s view of Kosovo’s independence, it must be conceded that the events that led to UNMIK’s occupation and separation of the province from the rest of Serbia were unique.
To have lent these events a cloak of legal support may be to suggest that other disputed territories have a similar 'right' to secede, potentially fuelling ethnic civil wars elsewhere in the world.
The author, an international lawyer based in Geneva, formerly worked as Chief Legal Adviser to the International Supervisor of Brcko. His book on post-war Bosnia, A Free City in the Balkans: Reconstructing a Divided Society in Bosnia, is published by I.B.Tauris. www.matthewparish.com