The International Court of Justice decision on Kosovo, 2010

The International Court of Justice decision on Kosovo, 2010

The International Court of Justice (ICJ) based in The Hague in the Netherlands has 15 judges elected by the United Nations General Assembly with a majority of votes and ratified by an unanimous vote of the five permanent Security Council members. The International Court is a judicial body of the UN. Its decisions are not imposed but nor can they be contested in terms of legitimacy based on the international law.

Many people were surprised when The Hague International Court of Justice announced its decision on Kosovo on 22 July 2010.  Belgrade, Moscow and those who had opposed NATO’s intervention to resolve the conflict, expected The Hague would decide in favour of Serbia’s request; in September 2008 Serbia had asked for the Court’s opinion on the legitimacy of Kosovo’s declaration of independence. With ten votes in favour, three abstentions and one vote against, the ICJ announced its decision according to which the independence of Kosovo was legitimate and based upon Security Council Resolution 1244 of 10 June 1999.

By 22 July 2010, Kosovo had been recognised by 69 countries. After that, the tempo of independence recognitions increased. Belgrade and Moscow, opposed to Kosovo independence, responded nervously, stating that the ICJ’s opinion on Kosovo would cause a chain reaction in all countries where minorities demanded separation. Serbian President, Boris Tadic, and the Minister of Foreign Affairs, Vuk Jeremic, reiterated those views. Conversely, Kosovo President, Fatmir Sejdiu, stated that the Court had removed all the doubts regarding irregularities related to the independence declaration. On the other hand, the US Secretary of State, Hillary Clinton, evaluated The Hague’s decision as crucial for the future of Kosovo.

The Court’s decision regarding Kosovo was made only after it had been given the case for consideration following a request by the UN General Assembly in September 2008, because the General Assembly only examines disagreements between two countries. As Kosovo was not a UN member, Serbia could not present a case on the grounds that it was not an inter-state conflict. Critics stress the Court possesses no mechanism to compel parties to comply with the decisions. This means the ICJ’s decision on Kosovo has an advisory and confirmatory character, but does not serve as means to force Serbia to recognise Kosovo as an independent and sovereign state. The ICJ’s opinion helped Prishtina’s authorities and institutions to persevere in their right to reject any attempt to reinstate discussion on Kosovo’s status.

Enver Bytyçi. Diplomacia imponuese e NATO-s në Kosovë. (Tiranë, Instituti i Studimeve të Evropës Jublindore, 2012), 259-265.

This document (the decision of the International Court of Justice) shows that international law is not static, and it does not merely belong to the decolonisation process. The International Court supported the legitimacy of the independence of Kosovo on the grounds that it was declared by legitimate representatives elected by the people. Kosovo independence was a logical flow of the dissolution of Yugoslavia and it respected peoples’ right for self-determination. It is not a secessionist move but an act resulting from the international coordination for resolving the conflict between Kosovo and Serbia. It is, moreover, a logical domino-effect action related to Rambouillet, Resolution 1244, the 2001 Constitutional Framework, and Ahtisaari Package preceding the independence declaration.

Reshat Nurboja. Çështja e Kosovës dhe diplomacia ndërkombëtare 1990-2010. (Tiranë, Universiteti i Tiranës, 2018), 114-115.  (Doctoral thesis)

Initiated by Serbia, on 8 October 2008, based upon Article 96 of the UN Charter and Article 65 of the ICJ’s Statute, the UN General Assembly approved the Resolution 63/3 by which it requested the former to give an advisory opinion regarding the question: “Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?”

On 8 June 2009, the Court informed the UN and all its member states that the oral session for the judgement of the issue would be opened on 1 December of that year. It affirmed they could participate at this stage of the judgement regardless of whether they presented an opinion or written comment.

In the oral session that began in December 2009, 29 countries offered opinions and comments. For Kosovo, opinions and comments for the case’s essential issues were consulted with the renowned German professor, Jochen Frowein, Emeritus director of the Institute Max-Planck for the Constitutional and International Right in Heidelberg of Germany, as well as professor Terry Gill of the University of Amsterdam. It is interesting to note that all ICJ judges (15) took part in the oral session but later, on 28 May 2010, the judge Shi resigned from the court. Therefore, 14 judges were present in the Court’s final decision.

The International Court of Justice presented its advisory opinion on 22 July 2010, declaring with ten votes in favour and 4 against that “The Declaration of independence of Kosovo of 17 February 2008 does not violate the norms of the international law.”

Firstly, the Court emphasised that in particular during the second half of the 20th century, “the international law of self-determination developed in such a way that it even recognised the right to independence to peoples of non-self-governing territories and peoples subject to alien subjugation” and that “many states have come into existence as a result of the exercise of this right.”  Nonetheless, it noted there were other examples of declarations of independence outside this context and that “countries practice has not initiated the emergence of a new norm in international law prohibiting the declaration of independence in such cases.” Through interpretation of Resolution 1244, it then stressed that the object and purpose of the Resolution was to establish a special and temporary judicial regime which, except to the extent that it expressly retained, superseded Serbian legal order. The judicial regime’s aim was Kosovo’s stabilisation during the interim period.

The Court subsequently commented on whether the 1244 Resolution (1999), or measures adopted later, based upon its implementation, explicitly prohibited any declaration of independence. It, thereby, emphasised it had to firstly define who exactly declared independence in this specific case. When trying to precisely specify the identity of the authors of the declaration of independence of 17 February 2008, it had to be clarified if this act was sanctioned by Kosovo Assembly as one of the temporary self-government institutions within the Constitutional Framework or as people who acted together with diverse competences. For this case, the Court quickly concluded that “the authors of the declaration of independence…did not act on behalf of temporary self-government institutions within the Constitutional Framework, but as people who acted together as representatives of the people of Kosovo, outside the temporary administration.”

After this statement, the Court considered whether the authors of the independence declaration had acted contrary to Security Council 1244 Resolution (1999). This was in fact one of the most debatable problems during the written and oral sessions. Consequently, the Court presented in detail in the decision respective provisions of the 1244 Resolution (1999) in order to assess later if it had circumscribed the authors of the declaration of independence of 17 February 2008 in their declaration of independence from the Republic of Serbia. It initially underlined that the Resolution did not contain any provision about Kosovo’s final status or conditions regarding its definition. The Court noted that in contemporaneous practice the Security Council shows that when “the Security Council has set restrictive conditions on the definitive status of a territory, these restrictions are expressively mentioned in the respective resolution… Therefore, in this concrete case, relative to the definition of the 1244 Resolution (1999), it is plainly evaluated that the Security Council has not reserved the right of resolving the final determination of the situation in Kosovo, and also being silent concerning conditions for defining Kosovo’s final status.” The Court thus concludes that 1244 Resolution (1999) “does not prohibit the declaration of independence of 17 February 2008 because these two acts are on different levels: unlike the 1244 Resolution (1999), the declaration of independence is an attempt to finally determine Kosovo’s status.”

At the end of their statement, the International Court of Justice summarily emphasises “…the adoption of the declaration of independence of 17 February 2008 does not violate general international law, Security Council resolution 1244 (1999) or the Constitutional Framework. Consequently the adoption of that declaration did not violate any applicable rule of international law.”  Issues regarding the right for self-determination and the existence of a right for “final secession” are outside the question posed to the Court by the General Assembly; The general international law does not possess any disposition that prohibits the declaration of independence; The declaration of independence of 17 February 2008 does not breach general international law

Xhezair Zagonjori. Mendimi Këshillimor i GJND-së për Deklaratën e Pavarësisë së Kosovës 22 korrik 2010.
https://studioligjore.wordpress.com/2012/03/20/mendimi-keshillimor-i-gjnd-se-per-deklaraten-e-panvaresise-se-kosoves-22-korrik-2010/

Political decision of the International Court of Justice

The ICJ’s decision will be celebrated during the night with fireworks in the (Prishtina) city center. Otherwise, several hundred Serbs from northern Kosmet gathered in Šumadija Square in Kosovska Mitrovica to send the message that “Serbs remain in Kosmet on their own and within Serbia as the only state they recognize.” However, it was noticeable that they were dispirited and after a few sentences, silence prevailed among the gathered.

At the same time, Orthodox believers gathered in monasteries and churches in Kosovo where a prayer service was served and where the words of the Serbian patriarch Irinej were conveyed, urging the Serbian people to remain focused and unified and to contribute unanimously to the efforts of Serbia in the peaceful defence of Kosovo and Metohija. According to the official data from the Kosovo Police Service, no incidents were reported. The KFOR command reiterated a statement saying that soldiers were present on the ground and would remain visible in order to prevent any form of violence. “We do not want to threaten, but we warn that KFOR will prevent all incidents,” KFOR Commander Markus Bentler said.

Blic, 23/07/2010
https://www.blic.rs/vesti/politika/politicka-odluka-suda-pravde/xt965je

The Serbian Assembly adopted the Government’s decision

Tadić: Deprive Serbia of national conflicts

In the Serbian Parliament,  Serbian President Boris Tadić said his intention, as President of the Republic, was to deprive Serbia of national conflicts in which it had been submerged for decades not only with its neighbours but also with great powers.

“This is not a time for great patriotism, it is a time for great deeds,” Tadić said at the end of the twelve-hour debate at the extraordinary session on Kosovo.

“Serbia, whatever it might be like and whoever may lead it, must have the best possible relations with the great powers because any other policy leads Serbia directly into ruin and its citizens into new poverty,” Tadić said.

“Persuing such a policy, would lead the citizens of Serbia into new destitution and we would not be able to protect our national interests,” the Serbian President said.

Tadić said the Kosovo issue was the “challenge of our generation” and that the Albanian national question was a legitimate and important topic for the Serbian national question.

Recalling that in the last 50 years, since 1968, there has been a weighty debate in the Serbian parliament without finding an answer on Kosovo and Metohija, Tadić stressed that it is important to reach the highest possible level of agreement on topics affecting Serbia – and Kosovo is certainly one of them.

RTS, July 26, 2010
https://www.rts.rs/page/stories/sr/story/9/politika/742536/skupstina-usvojila-odluku-vlade.html

Serbia and Kosovo should set aside differences: Clinton

WASHINGTON (Reuters) – Serbia and Kosovo should set aside their differences now that the World Court has found that Kosovo’s 2008 unilateral secession from Serbia did not violate international law, Secretary of State Hillary Clinton said on Thursday.

The International Court of Justice in The Hague issued the nonbinding ruling, a blow to Serbia, which lost control over Kosovo in 1999 when NATO bombed it to halt the killing of ethnic Albanians in a two-year counterinsurgency war.

“We call on all states to move beyond the issue of Kosovo’s status and engage constructively in support of peace and stability in the Balkans, and we call on those states that have not yet done so to recognize Kosovo,” Clinton said in a written statement.

Reuters, 22 July 2010
https://www.reuters.com/article/us-serbia-kosovo-clinton-idUSTRE66L4NZ20100722

TADIĆ: DIFFICULT DECISION BUT DEFENDING INTERESTS IN KOSOVO IS A STATE TASK FOR ALL.

BELGRADE, July 22 (Tanjug) President Tadić says the ICJ decision is “difficult for Serbia”, adding that it was clear that the court did not make a statement on the right to secession. Tadić said that the ICJ thus left the Kosovo issue to the UN General Assembly, stressing that Serbia will not recognize Kosovo’s independence and that it will continue to fight for its province in a legal and peaceful way. “Defending Serbia’s interests in Kosovo is a national and state task for all citizens and state institutions, as well as for all political parties and this should not be a daily political issue,” he stressed. Tadić said that Serbia has a clear plan of diplomatic activities and that as soon as the weekend, Serbia would send special envoys to 55 countries of the world, with a message from the President of Serbia to the presidents and prime ministers of those countries. He also said that if the court’s decision stipulated what was presented in Pristina, it would have “dangerous implications for secessionist movements everywhere in the world.” Speaking about that day’s advisory opinion of the ICJ, the President of Serbia said that the court had made a statement only on the “technical content of the declaration of independence” avoiding making a statement on the essential issue of secession. “The text of the declaration does not, in itself, violate international law, because it does not even touch it. The court left it to the UN General Assembly to draw a political conclusion, thus opening the possibility for Serbia to fight for the correctness of its policy at the UN autumn session,” he said. He added that Serbia would make every effort that the Serbian proposal for a resolution be adopted in the UN. “Serbia will never recognize Kosovo’s independence and we have a clear plan of diplomatic activities in the coming days,” he said. According to him, in the coming period there would be pressure on many countries to recognize Kosovo before the statement of the UN General Assembly, but Serbia would do everything to minimize such recognitions. According to his words, it was crucial to preserve peace and stability in Kosovo and Metohija. He urged citizens not to respond to any provocations, if they occur.
http://www.mfa.rs/Srpski/Bulletins/Srpski/b230710_s.html

The leader of Kosovan diplomacy, Skënder Hyseni, participated at hearing sessions of the International Court of Justice about the legitimacy of the declaration of independence of Kosovo; Hague, December 2009.
https://www.evropaelire.org/a/2102882.html

The Minister of Foreign Affairs of Kosovo, Skënder Hyseni (right) and the Minister of Foregin Affairs of Serbia, Vuk Jeremic (the second on the left), awaiting the decision of the International Court of Justice on the legitimacy of the declaration of independence of Kosovo; Hague, 22 July 2010.
https://www.rferl.org/a/UN_Court_Says_Kosovo_Independence_Did_Not_Violate_International_Law/2107090.html




Kosovo newspaper, Koha Ditore, articles and cartoons by Jeton Mikullovci, following The Hague decision.

Documents of the UN and EU responding to the Decision of the International Court at the Hague and the EU’s readiness to facilitate talks between Kosovo and Serbia

 

Declaration by High Representative Catherine Ashton on behalf of the European Union on the ICJ Advisory Opinion. She states that the dialogue would be to promote cooperation, achieve progress on the path to Europe and improve the lives of the people, 22 July 2010.

UN General Assembly Resolution welcoming talks EU-mediated between Kosovo and Serbia, 8 September 2010.

Serbs and Albanians awaiting ICJ ruling

Kosovo at the International Court of Justice

The decision of the International Court of Justice