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After the ICJ Opinion: Ways Out of Deadlock July 20, 2010

Posted by Yilan in Kosovo, Serbia.
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Since October 2008, the International Court of Justice, ICJ, has taken centre stage in the future of Kosovo. Following a UN General Assembly request to the ICJ to provide an advisory opinion on Kosovo’s declaration of independence, the court has deliberated over one of its most important decisions.

While its findings are often ignored and only take the form of an “opinion”, this advisory opinion will have a significant impact on the evolution of Kosovo’s independence and on regional politics in the Balkans.

Scenario 1: Independence Does not Break International Law:
A clear or relatively clear rejection of the claim that Kosovo’s independence broke international law would be a major victory for Kosovo and for the countries that recognised it. The short-term impact is likely to be more countries recognising Kosovo, including some in the EU that have withheld recognition, such as Greece and perhaps Slovakia.

But while many countries may have withheld recognition in anticipation of the ICJ ruling, a huge wave of recognitions is improbable, as many countries will maintain their reservations over the fact that Kosovo’s independence was unilateral.

Whether the number of new recognitions will enable Kosovo to reach the threshold needed for membership of key international organisations also remains uncertain. Similarly, it might facilitate accession to the EU but will by no means remove all obstacles to membership.

Finally, Serbia is unlikely to shift its position fundamentally after such a decision, as its Foreign Minister has already stated.
At this point, Kosovo would be well advised to avoid any show of triumphalism.

Scenario 2: An “Undecided” Decision:
If the court offers an “either or” or “neither nor” opinion, which does not take a clear line, interpretation of the opinion in the media will have increased importance. In essence, such a decision would preserve the status quo. It would not trigger a major increase in recognitions but is likely to result in a continued slow trickle. Simultaneously, it will not force Serbia’s hand to the same degree as an opinion along the lines of Scenario 1, and it would be unlikely to shift dynamics in international organisations, including the EU. It is likely to lead to a gradual consolidation of international recognitions but also help delay consolidation of statehood for Kosovo.

Scenario 3: The Declaration was Illegal:
If the court suggests Kosovo’s declaration of independence was illegal, this will significantly strengthen Serbia’s position. But it will not lead to the withdrawal of the recognitions given to date, nor mean the undoing of Kosovo’s independence. The support of the US and of key EU member states is too strong. But it will mean that the gradualist approach to fully recognised independence has failed and highlight the need for further negotiations.

As these three scenarios suggest, none of the outcomes is likely to dramatically alter Kosovo’s current status. Instead, they will provide for different incentives and opportunities to the key actors. From Kosovo’s perspective, the scenarios need to be examined from a two-fold perspective: The international acceleration of recognition in order to pave the way for membership of key international organizations and of the EU; domestically, the consolidation of the state is important, in particular in regard to competing state-authorities on its territory.

Both trajectories are not uniform processes and depend on a number of actors. Internationally, it is not just the number of recognitions that matters but also recognitions by key EU member states in order to unlock the EU accession process.

In order either to use the opportunities of the ICJ decision, or avoid an ensuing crisis, a response needs to include Kosovo-Serbia dialogue. Whether or not the ICJ recommends such a process is as yet unclear. Why is there a need for dialogue, when positions even about talks are far apart? The reasons differ, depending on the direction of the ICJ opinion, but rest on an assumption that the court’s decision will not “unlock” the contestation of Kosovo’s statehood.

If the ICJ opinion largely follows the arguments of Kosovo and its supporters, Serbia’s bargaining position will be weakened as it has relied extensively on arguments drawn from international law to oppose independence. It is in the interest of Kosovo and of regional stability to ensure Serbia is given an “exit strategy” from defeat of its interpretation. As Serbia is unlikely to fundamentally change its position after an ICJ decision, it would be useful to encourage relative moderation to avoid a backlash that might lead to a hardening of policies in Kosovo itself.

If the ICJ opinion does not clearly follow Kosovo’s arguments, the need for dialogue becomes even more important. EU membership and full international recognition will remain remote and there will be few strong arguments against Serbia’s support for parallel institutions.

Finally, if the ICJ opinion follows Serbia’s argument, pressure on Kosovo to agree to dialogue will become significant.
Even some supporters of Kosovo’s independence are likely to become uncomfortable with the current arrangement and will see dialogue with Serbia as the only way out. The status quo will become untenable.

In essence, the ICJ decision, no matter the outcome, will highlight key weakness of the unilateral implementation of the Ahtisaari plan. While it has had some successes in providing incentives for Kosovo Serbs to participate in Kosovo’s institutions, evidenced by the high turnout in June of more than 65 per cent in the newly created Serb-majority Partes municipality, it has provided no incentives for Serbia to comply with it. Unilateral implementation of the plan thus provides no incentives for Serbia to recognise Kosovo.

The ICJ opinion, depending on the findings, might help legitimise Serbia’s policies in Kosovo. Even if the ICJ deems those policies de facto illegal, by accepting the legality of Kosovo’s independence, the court’s opinion is unlikely to result in the undoing of the parallel structures. The most promising option out of the deadlock, which the ICJ opinion is likely to shed light on, is dialogue between Serbia and Kosovo.

Such a dialogue will only succeed if conducted by Serbia and Kosovo as equals and with international support, not with international intervention or imposition. While it is unlikely that such a dialogue will yield immediate results, such a forum is needed to arrive at a formula that can break the deadlock.

In addition to the “technical issues” that have been on the table during the status process, there is a need for a broader agenda. The topics under discussion need to include territorial adjustments between Kosovo and Serbia, whether the north of Kosovo might formally obtain autonomy, the role of Serbia in regard to Kosovo Serbs and the form of Kosovo-Serbia relations, given that Serbia will not recognise Kosovo.

The most important question for a dialogue is whether or not territorial adjustments between Serbia and Kosovo are possible and how to ensure that these have no negative repercussions on the Serbs in southern Kosovo, Albanians in Serbia and on regional borders between Macedonia and Kosovo and on the borders of Bosnia and Herzegovina.

Border adjustments are controversial, not just in Kosovo and Serbia but also among many governments in the region and elsewhere that fear a knock-on effect. It is thus important to stress that any such changes would only be acceptable if they were freely negotiated by Kosovo and Serbia as a change of a border between two countries and thus in line with OSCE and UN principles, closing the door to any unilateral border changes or partitions. In Kosovo, such an approach is likely to give rise to challenges to the remainder of the Ahtisaari package, including the Serb minority’s protection and the prohibition on union with Albania.

The key to the success of any such package would be ensuring that Kosovo faces no further obstacles towards international recognition, especially in regard to EU and UN membership, and that such an agreement is based on a broad consensus in Pristina to avoid spoilers that might not only derail any such agreement but threaten the broader state-building process.

Here, the EU can help to provide both Serbia and Kosovo a lifeline for controversial negotiations, by offering an accelerated process of EU accession as the European Council on Foreign Relations recently outlined.

This is not to suggest that such border adjustments (widely, but wrongly termed “partition”) are a desirable outcome, merely that they need to be considered, even if they are eventually dismissed, as an option to unlock the stalemate.

The ICJ opinion is unlikely to be a “golden bullet” either for Kosovo or for Serbia. Instead, it will highlight the need to think about alternative strategies in pursuit of state-building in Kosovo.

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