Broader implications of last week's World Court decision on Kosovo

The ICJ decided that Kosovo's 2008 declaration of independence from Serbia "did not violate any applicable rule of international law."  Although the world media first headlined that the court had approved Kosovo's actual independence, the real result was much more limited.  The ICJ made it very clear it was merely providing an "advisory opinion" to answer the United Nations General Assembly's question whether Kosovo's declaration of independence was valid. 

Of course, it was Serbia that asked the General Assembly to seek an advisory opinion, and Serbia that drafted the wording of the question presented to the ICJ, thus ironically bringing on itself consequences which will be very difficult to handle.  Ambiguity and the dangers of abstract opinions were among several factors that led the U.S. Supreme Court to decide very early that it did not have power under the Constitution to issue advisory opinions.  The UN Charter's drafters should have followed the American example.

And indeed, the ICJ decision has not really clarified the situation in the Balkans.  While Kosovo's declaration of independence, according to the court, did not violate the applicable international law, the underlying, and far more important, issue is still unresolved:  is Kosovo legitimately independent or not? 

Serbia immediately rejected both the ICJ opinion and any broader conclusions about Kosovo's status.  Belgrade held firm to the views it has repeatedly expressed, particularly that Security Council Resolution 1244 of 1999 expressly reaffirmed "the commitment of all Member States to the sovereignty and territorial integrity" of former Yugoslavia .  Although Resolution 1244 established an interim international authority for Kosovo and required Serbia and the Kosovars to negotiate over Kosovo's futures, it did not decide the "final status" of the province.  Therefore, Serbia argued, Kosovo remains part of Serbia until and unless the parties to the dispute agree otherwise.    Serbia 's most important supporters, Russia and China , echoing Belgrade 's position, have consistently said that Resolution 1244 simply provided a political framework to allow the parties to reach their own conclusions. 

By contrast, the European Union and the United States welcomed the ICJ decision.  Unfortunately, however, Brussels and Washington have long held confused and inconsistent positions, simultaneously holding that Serbia and Kosovo should resolve the status issue by negotiation, while at every opportunity encouraging and assisting Kosovo's leaders to make their country independent.  Small wonder that Kosovo has never shown much inclination to negotiate.  With the kind of external political support it has received for unilateral independence, why should it compromise on anything less?

As a political reality, Kosovo's continued de facto sovereignty means it has achieved essentially what it sought through its declaration of independence.  Every day that a separate Kosovo exists increases the likelihood it will never again fall under Serbia .  But because Kosovo's independence was imposed on Serbia , rather than negotiated in a mutually acceptable way, there is a basis for yet another unresolved Balkan conflict that could later return to haunt us.  This underlines Serbia 's fundamental error in asking for the advisory opinion.  Serbia 's view all along was that the parties themselves had to reach agreement, and objected to any solution imposed from the outside, whether from the EU, or the United Nations.  Yet seeking an ICJ advisory opinion was itself an attempt to obtain a solution imposed by external forces, and one that badly backfired on Serbia itself.

The larger, global implications are even more troubling, despite the very limited nature of the ICJ's advisory opinion.  Even the Palestinian-Israeli conflict might be affected.  Separatist regions in Europe and around the world will draw their own conclusions from the decision, despite its carefully limited scope, thus precipitating unnecessary confrontations between separatists and central governments, but without any real guidance beyond the specifics of the Kosovo situation.  Concerns about these potential ramifications undoubtedly shaped the positions not only of Russia and China , but even those of European nations like Spain , which faces several regional separatist movements.  For the same reasons, five of the EU's 27 members have thus far refused to recognize Kosovo's independence. 

The real conclusion is that lasting, peaceful solutions to separatist conflicts ultimately can only emerge from agreements among the parties themselves.  Until and unless they find the means to do so (or to live with them until a better idea arises), they are only postponing the day of reckoning.  The blunt truth is that some will only be resolved by military conflict.  But as its Kosovo opinion makes clear, the artificial and inadequate ICJ is probably the least useful approach of all.

Versions of this article appeared in The Washington Examiner on July 30 and in the Rome-based newspaper Liberal (in Italian) on July 28.