27 Mar More Signs that Serbia is Giving Up on Kosovo: It Plans to Seek an ICJ Opinion
27.03.08
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11 Comments
Serbia announced yesterday that it would seek an ICJ advisory opinion on the legality of Kosovo’s declaration of independence. This, to me, is further evidence that the Serbs have no real ability to alter the Kosovo outcome; the plan now is just to harass from a distance and hope Kosovo falls apart on its own. In order to get an ICJ advisory opinion, the Serbs need a majority of the General Assembly to vote for a referral (good luck!) and even if they win that, the ICJ would give them … an advisory opinion that might take years to produce.
Not so. Advisory opinions can be requested as a matter of priority, and the Court can be very quick to produce them. The Wall opinion took all of 7 months and a day from the request to the opinion. Try getting a domestic system to emulate that (bearing in mind you will want a supreme court judgment, to compare with the precedential value of an ICJ opinion).
Incidentally, though — what is the likely content of the advisory opinion? If I understand it correctly, there’s three possibilities:
1) The ICJ decides it does not have jurisdiction, or releases an opinion which is not really decisively in favour of either side.
2) The ICJ decides that territorial integrity trumps self-determination in general and in this case.
3) The ICJ decides that in this case, the DoI was legally valid due to the previous events.
How likely is each of those scenarios, and what would be the likely consequences?
Julian, I wouldn’t agree with your characterization that Serbia is giving up on Kosovo by seeking the ICJ’s opinion – though it certainly is true that it has very little ability to affect the final outcome, as you say. The problem is that Kosovo is now unfortunately THE issue in Serbian politics, which has been abused to an enormous extent. At any rate, though I don’t think it very likely that Serbia will draw any great benefit from pursuing a case before the ICJ, it is still better that the fighting is confined to a courtroom, instead of spreading to the streets of Kosovo. Anyway, as to Nightstallion’s question: (1) Though the Court will certainly be tempted to dismiss the request for an advisory opinion on jurisdictional grounds, I don’t think that’s going to happen. The Court is extremely reluctant to refuse a request by the GA, even if the issue is politically very contentious – the Wall case is a good example. The big question is, however, whether Serbia will be able to obtain enough votes in the GA for a request. I think it is more likely than not that it will fail. I simply cannot imagine that… Read more »
Thanks for the analysis!
BTW, PM Koštunica is actually against asking for an advisory opinion, precisely because he believes it takes too long — so if there’s an SRS-DSS coalition after the elections, they’ll try to sue Germany/UK/US/… individually…
Since the self-determination is not berried 6 feet under after the decolonization era, baring in mind the break up of Yugoslavia, I think this is a great chance for international lawyers, specially in countries that are concerned with this issue of self-determination as a potential treat to their territorial integrity to have a square definition of the right per se! But still, I got to agree with Marko Milanovic in all aspects! Interpreting the interpretation of the court on such an issue would be a great deal of controversy in itself!
Nice try for Serbia anyway!
Marko,
thanks for the comments, I agree with you on all points. I’d have one further thought/question in that direction.
If this question, by some miracle, indeed enters the Peace Palace premises, it would be interesting to see how the potential argument of remedial secession would be dealt with with regard to the questin of whether the denial of SD or other HR abuses should have taken place recently or would the prove of past abuse suffice? The answer might have important implications for any future claims of unilateral secession on this ground. Any thoughts on that?
Dominika, I think that the question you raise is of very great importance. Anything that the Court would say on the issue would certainly be breaking new ground. My current thinking on this is as follows: (1) This remedial type of self-determination must necessarily encompass a limiting temporal element. In other words, after some undefined period of time passes after the end of the HR or SD abuses, the affected people’s right to external self-determination would lapse, and revert to the regular right of internal self-determination. This is because practically every multi-ethnic state in the world has undergone times of internecine violence, and they would all unravel if suddenly every group that has been persecuted throughout history started to claim independence. (2) It is impossible to ascertain the duration of this time period in the abstract. Lapse of a SD claim would depend on a number of factors, such as the extensiveness of the abuses themselves, and the likelihood of any future abuses. Basically, the passage of time would serve the purpose of showing that the once-oppressed people have at least tacitly come to an arrangement with their erstwhile oppressors. (3) When it comes to the case of Kosovo, I… Read more »
No, they definitely would not — but they SHOULD be…
I have nothing to add to this discussion, really.
I do however think it is awesome that someone is using the login name “Nightstallion” on Opinio Juris.
Marko- I tend to disagree with two aspects of your argument: your claim that the international community is not supporting the remedial SD argument, and second, your insinuation that a people’s right to external self-determination – in this case the Kosovar’s right – would lapse following the end of a humanitarian emergency. (1) Kosovo’s statehood can indeed be seen as the first case confirming that, as part of the law on SD, the basis for maintaining sovereignty is increasingly shifting from an inviolable right to internal forms of governance based on international standards of democracy and human rights. The claim of a group would thus begin to outweigh the oppressor state’s claim to the preservation of its territorial integrity. In extremis, a claim to secession may thus acquire legitimacy in case participatory rights are trampled on in an irredeemable way. This nexus has been reinforced by Contact Group Ministers (incl. FM Lavrov, btw) who, in early 2006 – indeed, 7 years AFTER the end of the humanitarian catastrophe -, explicitly referred to the abuses of the Milošević regime in Kosovo and to the “people of Kosovo” to whom a settlement must be acceptable. (2) On whichever side of the status… Read more »
Maybe that’s a stupid question, but — why?