A new worldmap

7 december 2009

The International Court of Justice has some unusual guests these days. A state that is not a state. The five permanent members of the Security Council. Thirty five countries that want to argue their case before the court. For the first time in its history, the International Court of Justice will consider the legality of unilateral secession of territory. Though formally not binding, the advisory opinion of the World Court will have ramifications for the world map. The case before the Court concerns Kosovo's declaration of independence. This unilateral declaration, declaring Kosovo independent from Serbia, was issued by the so-called Provisional Institutions of Self-Government of Kosovo (PISG) in February 2008. Subsequently, almost one third of the states, among which most European member states, have recognized Kosovo's independence. This leaves Kosovo in a state of limbo: de facto independent but not a UN member state.

The question whether Kosovo's unilateral declaration is in accordance with international law was referred for an advisory opinion to the Court by the UN General Assembly, with 77 votes in favor, 6 against and 74 abstentions. Two permanent members of the UN Security Council were in favor (China and Russia), one against (United States) and 2 abstained (France and the UK). Many African, Asian and Latin American countries voted in favor, while western countries voted against the referral. What are the arguments? Kosovo (in the proceedings referred as the "authors of the unilateral independence declaration") argues that Kosovo has a right to independence because Serbia has violated the human rights of Kosovo Albanians and thus forfeited its rights to the territory. Serbia did not negotiate in earnest and diplomatic means to find a mutually agreeable solution were exhausted. Resolution 1244, which established the UN interim administration in Kosovo after the NATO bombing campaign in 1999 and reiterates Serbia's sovereignty over Kosovo, permits independence as the final outcome, they maintain. Opponents of Kosovo's unilateral independence declaration argue that international law prohibits unilateral secession and that accepting Kosovo's independence sets a dangerous precedent for other separatist movements around the world. Cyprus submitted a list to the Court of territories in Europe that will be inspired to do the same. Following Kosovo's declaration of independence, Russia, which opposed Kosovo’s independence, recognized the independence of two break-away regions of Georgia: South Ossetia and Abkhazia. China argues that resolution 1244 mandated the Parties to reach a negotiated solution on Kosovo’s future status unless there would be a new resolution of the Council stating otherwise. Russia argues that Kosovo's final status cannot take the form of a unilateral decision and should be endorsed by the Security Council.

The Security Council neither endorsed nor rejected the plan which negotiator and Nobel Peace prize winner Ahtisaari put on the table in 2007. He concluded that "the only viable option for Kosovo is independence". The Security Council, nor the UN Secretary General, nor the head of the UN interim administration in Kosovo, annulled the unilateral declaration of independence. Are these signs of tacit acquiescence? The head of the UN interim administration of Kosovo had the power to annul acts of the Provisional Kosovar authorities. In 2005, for instance, he annulled a draft resolution of the Kosovo Assembly that referred to an independent Kosovo. The secession of Kosovo sets a dangerous precedent not because Kosovo gained independence but because it isn't clear why. Is it because Serbia had violated the rights of Kosovo Albanians to such an extent that Kosovo deserves independence? There are other territories that meet that requirement. Or is it because after two and a half years, political negotiations were at loggerheads? Negotiations are known to take much longer than that. Or is it because we were fed up after almost 10 years of administering Kosovo and getting nowhere? These arguments are not convincing. But other territories will be inspired to fight for independence. The Court would do justice by providing a roadmap for changing the world's map.