More on Possible Serbian ICJ Claim Concerning Kosovo

Regarding Julian’s post on a possible Serbian suit in the ICJ over Kosovo, see also the following from AP and from AFP. According to these reports, the Serbs may seek a request by the Security Council of an advisory opinion from the ICJ concerning the status of Kosovo. They seem to want the Council to take up the question as to whether or not to ask for an advisory opinion at the Council’s December 19th meeting on Kosovo.

The AP piece notes that this action was “apparent[ly] coordinated” with the Russians. Given Russian support for separatists in other conflicts (Abkhazia, Transnistria, etc.) and their seeming reluctance to use international law as a framework in those cases, it is a bold move to seek the “legalization” of dispute resolution in Kosovo after the breakdown of the troika mediation process.

Moreover, in the Reuters report to which Julian had linked, there is mention of Serbia possibly also pursuing suits before US and European domestic courts. I am not sure what such a suit would look like. I think that any attempt at a case before a US court concerning a decision to recognize Kosovo would probably fail based on the political question doctrine.

What effect could all this have? As mentioned in a previous post, any Kosovar declaration of independence and coordinated declarations of recognition by the EU and US are probably months, rather than days, away. However, the start of an ICJ advisory opinion proceeding could lengthen the road to independence (or set up a road block…). As mentioned before, commentators have argued that it is important for Kosovo to time any declaration of independence based on when the EU is ready to recognize it as a state. Thus, simply the prospect of an ongoing ICJ proceeding may become a bargaining chip for Serbia, regardless as to what the judges find in the end.

But the situation is so fluid, it is hard to tell exactly what the state of play is.

All in all, a fascinating example of the interrelation of law and politics.