More Signs that Serbia is Giving Up on Kosovo: It Plans to Seek an ICJ Opinion

by Julian Ku

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.

11 Responses

  1. 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).

  2. 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?

  3. 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 Serbia will be able to muster the diplomatic offensive necessary to obtain the needed votes, especially now that it is in the throes of yet another election, and at that an election which might end very, very badly. Yet, who knows – I might get surprised.

    (2) If the Court does issue an opinion, I find it hard to see how it could be framed in a way which would not decisively favor one side or the other. That of course depends a great deal on the question presented – if it is specifically about Kosovo, as is most likely, instead of a general question about self-determination, it would be difficult for the Court to equivocate. But again, the Court knows how to equivocate very, very well.

    (3) The likely outcome would depend a great deal on the litigation strategy of the parties. If Kosovo and its international backers persist with this Kosovo-is-a-unique-case argument (or the lack thereof), I’m inclined to say that the Court would favor Serbia. If, however, Kosovo and its supporters clearly articulate their argument in human rights terms, by saying that there is a rule of international law which disallows a state to invoke its sovereignty when it abused this sovereignty to brutalize a people and deny it internal self-determination, then the case for Kosovo’s independence might prevail.

    In any case, I think that the Court will be rather horribly split, which is something that the Judges really, really don’t like. But again, who knows, this is all just speculation in any event.

  4. 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…

  5. 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!

  6. 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?

  7. 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 think we would again be faced with a hard, borderline case, about which reasonable people could disagree. If Kosovo had declared independence in 1999 or 2000, while Milosevic was still in power in Serbia, I at least would be much favorably disposed towards its claim. Now, however, nine years have passed since the 1999 atrocities, while the likelihood of Serbia ever exerting such power in Kosovo is nil.

    As I’ve said already here at OJ, I think that the potentially fatal flaw of Kosovo’s claim to independence is that they are not clearly making this remedial SD argument. If I had to venture a guess as to why this is so, it would be because the US and the major European powers who are supporting Kosovo are not prepared to stand behind this remedial SD rule as a matter of principle. Take as examples the cases of Kurdistan in Iraq, which poses a similar temporal problem as Kosovo, or Tibet in China, where the abuses are still ongoing. Would the US and the EU be prepared to say that Tibet has the right to secede from China, not because of any dubious historical claim, but because China is oppressing the people of Tibet and denying them internal SD? I think not.

  8. Would the US and the EU be prepared to say that Tibet has the right to secede from China, not because of any dubious historical claim, but because China is oppressing the people of Tibet and denying them internal SD? I think not.

    No, they definitely would not — but they SHOULD be…

  9. 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.

  10. 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 debate one finds oneself, Serbia’s proposal to vest Kosovo with ‘more than autonomy, less than independence’ never seemed to gain traction within the greater part of the international community which was effectively arbitrating Kosovo’s fate. In fact, the forcible re-incorporation of 2 million hostile Kosovo Albanians into a 7.5 million-strong Serbian polity had always appeared as running against the latter’s true interests. What should we have made of Serbia’s own argument, that it was entitled to the protection of its territorial integrity under international law? Could one not lend credence to the Serbian government’s intention to invite its estranged Kosovo-Albanian cousins back into its state, based on equality and non-discrimination, and in recognition of their cultural identity and on the basis of full respect for their internal autonomous arrangements? Could the pre-requirements for the true need to secede have faded away with the evolution of events and the passage of time, as Marko insinuates? After all, NATO’s bombing campaign has relieved the Kosovo Albanian population from the threat of persecution and, possibly with it, weakened their claim to external self-determination.

    (3) Notwithstanding its stale references to the inviolability of its borders, Serbia has never sufficiently explained the audacity with which it required a population to be part of, and pay allegiance to, a state that has considered them an enemy. Beyond the reliance on the notion of remedial secession that may only tentatively reflect an international legal standard, Serbia’s argument was open to challenge on on grounds of its current constitutional choices. Had Serbia been serious in its intention to grant ‘Kosovo and Metohija’ the widest possible range of autonomous rights within its state, as announced by PM Koštunica in the wake of the status process, it could have entrenched them in its 2006 Constitution. Serbia did nothing of the sort. The new constitution (which was, BTW, subject to a referendum in which Kosovars were not able to participate) provides for the possibility of severe restriction of autonomous rights, through means of ordinary legislation, in the fields of territorial boundaries, human and minority rights, the management of provincial assets, kind and amount of direct revenues at a republican level, etc. Its contents further convinced the West that Serbia could not at this stage authentically commit to a pro-European policy. In an apparent tangent to the second Commission that addressed the Åland Island question in 1921, the Council of Europe’s Venice Commission opined in 2007 that Serbia’s Constitution “does not at all guarantee substantial autonomy for Kosovo, for it entirely depends on the willingness of the National Assembly of the Republic of Serbia whether self-government will be realised or not” (Opinion on the Constitution of Serbia (No. 405/2006), 70th Sess., Venice, 17-18 March 2007, at §8).

    For me, enough reason to conclude that the “elapsing time” argument isnt as convincing as it is sometimes presented…

  11. I do however think it is awesome that someone is using the login name “Nightstallion” on Opinio Juris.

    Maybe that’s a stupid question, but — why?

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