Dec 9th 2008

A Kosovo Update – Where to with the ICJ?

by Binoy Kampmark

Binoy Kampmark was a Commonwealth Scholar at Selwyn College, University of Cambridge and history lecturer at the University of Queensland

Never say never in an assertion of international law. One state's legal claim is another's contention for illegality, and this has proven to be little different in the context of Kosovo's unilateral declaration of independence which took place on February 17 this year.

In hindsight, this declaration has not merely caused grief within Europe, but has become the pretext for other geopolitical moves and mutterings. Countries which find themselves in powder kegs of nationalist ferment have been open about not recognizing the move by Kosovo. Armenia, remembering the flames of Nagorno-Karabakh, made it clear that it could not recognize the move. Nostalgia-ridden Argentina, seeing the continuing need to settle the old conflict over the Falkland Islands with Britain, thought that recognizing the move by Kosovo would set a 'dangerous' precedent. Many countries that have desisted in recognizing Kosovo have referred back to the framework of negotiations set out by UN Security Council Resolution 1244, which makes the case for participation by all parties and notes various supervisory requirements of the region.

Russia has made ample and conspicuous use of the precedent, backing the autonomous regions of Abkhazia and South Ossetia, most notably after the security measures taken by Georgia. After all, so went the argument, these regional areas were equally inured by a fierce sense of identity. Officially, Moscow considers the act on the part of Kosovo to be illegal, despite employing it, less than deftly, in resolving its own strategic dilemmas.

The latest development in this saga is an attempt by Serbia, using the channels of international law, to subject Kosovo's claim to legal scrutiny. The UN General Assembly resolved in October to have the unilateral declaration of independence made by Kosovo looked at by the International Court of Justice. That just goes to show, argues Stavri Kalopsidiotu, jurist and member of Cyprus' Progressive Party of Working People (AKEL) in the European Parliament, that discussions of 'a defeat for "established law" and the weakening of principle of sovereignty and political and territorial integrity of countries' was premature.

Nevertheless, others simply think that Serbia is going through the legal motions, hoping to marginalize a Kosovo it sees as moving well beyond its orbit of influence. For one thing, the procedure it has decided to adopt is non-binding under Article 65 of the court's charter. The ICJ will only offer an advisory opinion. No more.

What can Serbia really gain then? According to Milazim Krasniqi of the press department at Pristina University, the move 'aims to isolate Kosovo and eventually achieve Serbia's goal of dividing the province between the Albanian majority and Serb minority.' That all of this seems somewhat redundant is another message that is coming through. 'It's quite clear for all countries, including Serbia, that Kosovo has become an independent state,' claims Bekim Sejdiu, Kosovo's ambassador to Turkey. 53 countries have gone on to recognize the fledgling state, a state of affairs that bodes ill for the Serbian claim.

And what of the advisory decision? Legal punters will be out in numbers, and they are likely to be in for a long wait. For one thing, such advisory decisions can take several years. While the court is never deluged with cases, it often behaves like it is.

As for the case itself, the court, presuming it will assume jurisdiction over the case, is likely to find Kosovo's case a strong one. Customary international law posits the following categories for the recognition of a sovereign state. First, the entity must have a defined territory with a permanent population. Second, it must be under stable control of its government. Finally, it must have the means of engaging in formal relations with other similar entities.

The only issue that might be contentious here is that of control, given the supervisory issues that arise under UNSCR 1244 and the Ahtisaari Plan of 2007. A country that is subordinate in its governance to other entities is not likely to be seen as independent. But the outline of the Ahtisaari Plan did much to imply an embryonic statehood, a state of affairs that riled both Serbia and Russia.

Whatever the legal arguments, Kosovo cannot afford to wait for the deliberations of judges. Investment opportunities must be made. Engagement with international bodies must continue apace. The Serbian minority must be won over. When the time comes for the ICJ to actually entertain the merits of the case, it may find an even stronger candidate for statehood than it does now. And even now, the candidacy, however strong the opposing arguments, seem strong.

If you wish to comment on this article, you can do so on-line.

Should you wish to publish your own article on the Facts & Arts website, please contact us at info@factsandarts.com. Please note that Facts & Arts shares its advertising revenue with those who have contributed material and have signed an agreement with us.

Browse articles by author

More Current Affairs

California Briefly Runs on 97% Renewable Energy, Showing a Future in which Oil and Gas Dictators like Putin are defunded
by Juan Cole
Apr 24th 2022
EXTRACT: "Although the milestone lasted only for a brief time, it points to a future in which California runs on 100% wind, solar, hydro and batteries, a future that will certainly arrive even faster than the state plans. As it is, California is ahead of its green energy goals." ...... "A world of 100% green energy and electric cars is not only a healthier and more comfortable world, it is a world where oil and gas dictators like Vladimir Putin are defunded."
Ukraine conflict: Kazakhstan’s difficult balancing act between need for Russian support and popular opposition to the war
by Bhavna Dave
Apr 17th 2022
EXTRACT: "Kazakhstan’s authorities have also showed uncharacteristic leniency in allowing public rallies in support of Ukraine. Thousands of protesters holding banners reading “Russians, leave Ukraine”, “Long Live Ukraine” and “Bring Putin to trial” marched across the capital, Almaty, wrapping monuments to Lenin and other Soviet-era figures with yellow and blue balloons symbolising the Ukrainian flag."
Putin’s Russia: people increasingly identify with the Soviet Union – here’s what that means
by Stephen Whitefield and Paul Chaisty
Apr 15th 2022
EXTRACT: "People’s identification with the Soviet Union appears to have a clear and growing basis in Russian public opinion. Surveys we have conducted throughout the Putin period show that Soviet identification among the general population – something that had been steadily declining after the collapse of the Soviet Union in 1991 – began to increase in 2014, when the Russian government annexed Crimea and supported rebellions in the Ukrainian regions of Luhansk and Donetsk. By 2021, almost 50% of those surveyed identified with the Soviet Union rather than the Russian Federation."
The Treason of the Conservatives 
by Jan-Werner Mueller
Apr 13th 2022
EXTRACT: "Worse yet, the Hungarian government has effectively been helping Putin by prohibiting the shipment of weapons to Ukraine across its borders. Hungarian public TV spreads Russian disinformation day and night. The day before the election, an assembly of ordinary people expressing solidarity with Ukraine was framed on state television as a “pro-war rally.” "
Ukraine: the battle for Donbas will be protracted and bloody – military expert
by Frank Ledwidge
Apr 13th 2022
EXTRACT: "It may well be that the Russian army’s fate has already been sealed in what is likely to be a long war. The single qualification to this may be that Russia could default to escalation using “weapons of mass destruction” of one form or another – whether tactical nuclear warheads or chemical weapons."
Ukraine produced a lot of grain – can farmers elsewhere replace the crops lost to war?
by Hana Trollman
Apr 13th 2022
EXTRACTS" "Ukraine and Russia produce a substantial amount of grain and other food for export. Ukraine alone produces a whopping 6% of all food calories traded in the international market. At least it used to, before it was invaded by the world’s largest nuclear power." ...... "When it comes to cereals like wheat, corn, rice and barley, the big players talk about millions of metric tonnes, or MMTs. A single MMT of wheat contains about 3.4 trillion food calories,." ....."Ukraine produced about 80 MMT of grain (a category that includes wheat, corn and barley) in 2021, and is expected to harvest less than half of that this year. A shortfall of 40 MMT is enough missing calories that a country like the UK could only make it up by having everyone stop eating for three years. That’s the thing about tonnes of grain: a million here and a million there and pretty soon you’ve got a real issue on your plate."
A gang rape in Ukraine
by Alexander J. Motyl
Apr 11th 2022
EXTRACT: "I don’t even know the little girl’s name. All I do know is what a friend of a friend wrote on Viber: that her relative, a senior nurse in one of Kyiv’s hospitals, “saw in the morgue a child with 20 varieties of sperm on her small body.” Since this information was conveyed in a private conversation, there is no reason to doubt its veracity."
Putin's Failed State 
by Anders Åslund
Apr 8th 2022
EXTRACT: "Russian society has so far failed to stop Putin, just as German society failed to stop Hitler. And so, like a poisoned chalice, that task has fallen to the West, as it did in 1939. The West must now treat Putin and his regime the same way that Winston Churchill treated Hitler: Don’t talk to him, just defeat him. Dead-enders such as Putin are too fanatical and desperate to be reliable negotiating partners."
Ukraine will not be like Korea – dogged resistance will turn it into Putin’s ‘bleeding ulcer’
by Frank Ledwidge
Apr 3rd 2022
EXTRACT: "From 1807 to 1814 on the Iberian peninsula, Napoleon had to fight Spanish, Portuguese and British armies while beset by ubiquitous, ferocious insurgents. He described this war as his “bleeding ulcer”, draining him of men and equipment. It is the west’s aim to make Ukraine for Putin what Spain was for Napoleon. In the absence of a negotiated settlement, Ukraine and Nato will continue to grind away at Russia’s army, digging away at that bleeding ulcer and prolonging Russia’s agony on the military front, as the west continues its parallel assault on its economy. If Putin’s plan is to proceed with the Korea model, he will fail. There is a strong possibility that Putin has only a limited idea of how badly his army is faring. So be it – he’ll find out soon enough that there is now no path for him to military victory."
Germany's Energy Fiasco 
by Hans-Werner Sinn
Apr 1st 2022
EXTRACTS: "Policymakers expected that the country would be able to secure its energy supply entirely from renewable sources, so they resolved to phase out coal and nuclear energy simultaneously. The last three of Germany’s 17 nuclear power plants are set to be shut down this year." ---- ".... the share of wind and solar power in Germany’s total final energy consumption, which includes heating, industrial processing, and traffic, was a meager 6.7%. And while wind and solar generated 29% of the country’s electricity output, electricity itself accounted for only about a fifth of its final energy consumption." ----- "If Germany suddenly halted Russian gas imports, gas-based residential heating systems – on which half the German population, approximately 40 million people, rely – and industrial processes that rely heavily on gas imports would break down....."
Putin's War Will Destroy Russia
by Nina L. Khrushcheva
Apr 1st 2022
EXTRACT: "For Putin, the past that matters most is the one the dissident author and Nobel laureate Aleksandr Solzhenitsyn exalted: the time when the Slavic peoples were united within the Orthodox Christian kingdom of Kievan Rus’. Kyiv formed its heart, making Ukraine central to Putin’s pan-Slavic vision. ---- But, for Putin, the Ukraine war is about preserving Russia, not just expanding it. As Russian Foreign Minister Sergei Lavrov recently made clear, Russia’s leaders believe that their country is locked in a “life-and-death battle to exist on the world’s geopolitical map.” That worldview reflects Putin’s longstanding obsession with works of other Russian emigrant philosophers, such as Ivan Ilyin and Nikolai Berdyaev, who described a struggle for the Eurasian (Russian) soul against the Atlanticists (the West) who would destroy it. ---- Yet Putin and his neo-Eurasianists seem to believe that the key to victory is to create the kind of regime those anti-Bolshevik philosophers most detested: one run by the security forces. A police state would fulfill the vision of another of Putin’s heroes: the KGB chief turned Soviet General Secretary Yuri Andropov."
Famines: what 20th century food crises tell us about how to cope with the Ukraine fallout
by Eoin McLaughlin, Chris Colvin and Matthias Blum
Apr 1st 2022
EXTRACTS: "Ukraine, known as the breadbasket of Europe, is struggling to export last year’s harvest, and may be unable to produce much this year either. In addition, the war has caused a global fertiliser shortage, which will push up food prices around the world too. Coming at a time when the global pandemic had already increased food insecurity and depleted resources around the world, many countries may not be resilient to a major food crisis brought on by the war. Back-to-back global catastrophic events like this have not happened for close to 100 years." ----- "Another useful analogue is the case of Germany during the first world war. When war broke out in 1914, the German authorities had anticipated a short conflict – not too dissimilar to Russian assumptions a few weeks ago. Just like in Ukraine now, the first world war severely disrupted German farming."
The War in Ukraine Is a Battle of Principles 
by Shamil Ibragimov
Mar 31st 2022
EXTRACT: "The horrors of World War II – the death camps, slave labor, and inhumane experiments on people – produced a global commitment never to permit such crimes to be repeated. This began a transformation of international politics whereby appreciation of the value of every person’s life and dignity ensured that even most authoritarian governments at least paid lip service to human rights.  ----- But the Soviet Union and many of its successor states, particularly Russia, never internalized this change. More than three decades after the USSR collapsed, most post-Soviet countries are still governed according to the old “imperial” paradigm. So, it should come as no surprise that we are now witnessing a clash between fundamentally different sets of values and ultimate goals for statehood."
Ukraine war: people are fighting and dying for Vladimir Putin’s flawed version of history
by Félix Krawatzek and George Soroka
Mar 26th 2022
EXTRACT: "Referencing past legacies as a justification for present-day political decisions is often effective – such appeals trigger emotional reflexes and contribute to thinking about politics in terms of rivalry and defence. The irony within the tragedy of the current situation is that Putin will assuredly go down in history as the figure that did more to unite the Ukrainian people (albeit against Russia) than any other in recent memory."
Why Ukrainians Think They Will Win
by Alexander J. Motyl
Mar 24th 2022
EXTRACT: " Despite the death and destruction that Russia rains down daily on them, the vast majority of Ukrainians are bullish about the future: 77% believe the country is moving in the right direction, 93% think they can beat back Russia, and 47% expect to win in the next few weeks.  Ukrainian policymakers are no less bullish, driving a hard bargain in negotiations with the Russians. Several factors account for this remarkable optimism."
Ukraine: why China is not yet bailing out Russia
by Aglaya Snetkov and Marc Lanteigne
Mar 21st 2022
EXTRACT: "As Russia’s war in Ukraine continues, China’s role has been thrown into sharp relief. Prior to the war, some commentators suggested that China would openly side with Russia or seek to act as a mediator – so far Beijing appears to have resisted doing either. As Qin Gang, China’s ambassador to the US, wrote recently in the Washington Post, Beijing has nothing to gain from this war, arguing “wielding the baton of sanctions at Chinese companies while seeking China’s support and cooperation simply won’t work”. Ambassador Qin also stressed that Beijing had no prior knowledge of the conflict,...."
Russia Is Too Small to Win
by Paul De Grauwe
Mar 17th 2022
EXTRACT: "The second source of Russian power is of course the world’s largest nuclear arsenal. Nuclear weapons would not deliver victory in a conventional war, but they could destroy a country in the blink of an eye. This brings us to a terrifying question: What will Putin do when he realizes that he cannot win his war in Ukraine by conventional means?"
Xi Jinping's Choice 
by Chris Patten
Mar 17th 2022
EXTRACT: "An influential Shanghai-based academic commentator on international affairs, Hu Wei, recently advanced a cautionary argument that has been circulated widely in Chinese-language publications. In his commentary, which is unlikely to have been published without the approval of some of Xi’s senior courtiers, Hu wondered how Chinese communists would react if the war escalated beyond Ukraine, or if Russia was clearly defeated." ------- "For Hu, the answer for China’s leaders is simple. They should wash their hands of the relationship with Putin, ....."
Vladimir Putin and the Risk of World War III 
by George Soros
Mar 12th 2022
EXTRACT: "Meanwhile, Xi seems to have realized that Putin has gone rogue. On March 8, one day after Chinese Foreign Minister Wang Yi had insisted that the friendship between China and Russia remained “rock solid,” Xi called French President Emmanuel Macron and German Chancellor Olaf Scholz to say that he supported their peacemaking efforts."
Only China Can Stop Russia 
by Stephen S. Roach
Mar 7th 2022
EXTRACTS: "........Russia has been isolated by draconian Western sanctions that could devastate its economy for decades,...." ---- "Russia’s prospects are bleak, at best; without China, it has none at all. China holds the trump card in the ultimate survival of Putin’s Russia."