European Forum

ICJ opinion on Kosovo on 22 July

The International Court of Justice (ICJ) has officially announced that it will give its opinion on the legality of Kosovo's declaration of independence on 22 July. The opinion was requested by the UN General Assembly on the initiative of Serbia. Both Serbia and Kosovo expect the opinion to be in their favour. Kosovo declared independence on 17 February 2008 and has so far been recognised by 69 countries, including the US and 22 EU member states. The ICJ's opinion is of an advisory nature and will not be legally binding for any country.

Possible opinion
In an analysis professor Judith Batt, associate researcher at European Think Thank for Global Action FRIDE, argues that ICJ has four options. Firstly, the Court may decline to issue any opinion and throw the matter back to the UN member states to resolve. According to Batt it is unlikely that this will happen. Secondly, ICJ could take a narrow and conservative approach, meaning that it will not overturn the traditional emphasis on the principle of territorial unity and integrity. This is what Serbia hopes for. Thirdly, ICJ could frame its opinion in terms so convoluted and arcane as to be open to multiple interpretations if not incomprehensible. Kosovo hopes this will be the ruling. Finally, the Court may well conclude that international law gives no clear guidance on the matter of Kosovo’s unilateral declaration of independence, which could be argued to be a matter of domestic jurisdiction.

Belgrade
Serbia hopes that the ICJ will say that Kosovo declaration of independence is not in accordance with international law. “This is going to be a moment of truth, a warning to Pristina that with unilateral acts they can not change international law,” Serbia's foreign Minister Vuk Jeremic said. Jeremic expects — something which has been argued by many legal experts as well— that the ruling will in any case not say that the unilateral declaration of Kosovo was legally correct. After this ruling the UN General Assembly will bring both parties back at the table to find a solution that is a compromise and not one sided, he said. Jeremić stated that after the ruling it will be impossible for other countries to recognise Kosovo and something will have to be offered to Serbia in the renewed talks in order for Serbia to be able to accept something.

Pristina
Kosovo President Fatmir Sejdiu has said that the ICJ can not give an opinion which would go against the will of Kosovo people for independence. Skender Hyseni, Kosovo foreign minister said he expects many countries around the world to recognise Kosovo independence after the ICJ gives its opinion. Hyseni does not see any possibility that the opinion of the ICJ will be in favour of Serbia: “Because I don’t see how ICJ can declare against the freedom of one nation. And the declaration in favour of Serbia would be essentially against the will of a nation”, Hyseni said.

EU
Any fresh debate in the UN General Assembly on Kosovo independence is seen as another risk that EU countries will show disunity on an important common foreign and security policy issue. The EU is preparing how to react after the ICJ opinion is issued. It is expected that Kosovo and the ICJ opinion will be discussed at the EU foreign ministers meeting on Monday 26 July and that the EU will support renewed dialogue between Kosovo and Serbia, but not any new status negotiations. Even on this point there seems to be no consensus among EU member states, however. The European Parliament in a resolution on Kosovo adopted last week asked those EU member states that have not done so to recognise Kosovo as independent country.

What difference will it make?
According to Batt states can, just as in past, easily disregard ICJ’s opinion, which is non-binding and advisory, if it goes against their own political interests. Even if the judgement is rather negative for Kosovo, a small wave of recognitions can be expected soon after the publication of the opinion, whatever the content. Batt continues by arguing that states fundamentally opposed to Kosovo’s independence will not recognise it, whatever the ICJ has to say. Serbia’s foreign minister Vuk Jeremic has recently stated that Serbia will not recognise Kosovo even if the Court finds its declaration of independence lawful.

The full article of Professor Batt, “ICJ's Forthcoming Opinion On Kosovo: What Difference Will It Make?” can be red here.

Source: Waz. EUobserver and FRIDE