What does the ICJ ruling mean for Kosovo and the rest of the world?

Serbia reacted to the ruling by claiming that the court had only considered the legality of the independence declaration itself, and not the wider context - namely the Albanians right to secede.  In other words, do Kosovo Albanians have a legitimate right to self-determination?  As Albanians already have a state of their own outside Serbia, the question is whether this would actually preclude those in Kosovo from legally declaring themselves independent.  The actual rules governing self-determination are far from clear cut.

Although the right to self-determination is well recognised, there is another established principle relevant to secession.  That principle is contained in both the United Nations Charter and the Helsinki Final Act, and stipulates that a new state cannot be created on the territory of an existing state unless that state agrees.  Thus according to this principle, as Kosovo is (or was) part of Serbia, it cannot declare itself independent unless Serbia gives its consent.  It would therefore follow that if this principle was strictly applied, Kosovo's independence would be deemed illegal because Serbia did not agree to a new state being created on its territory.

It is clear that the question given to the Court was much too narrow.  Although the independence of Kosovo is not illegal in itself, the fact that it was declared unilaterally apparently is - at least according to the above legislation.  Then what about the right to self-determination?  Although a unilateral declaration may be illegal, don't Kosovo Albanians as an ethnic group have a right to self-determination?  The Court should therefore have been given a much broader remit, and have been asked to consider the right to self-determination against the legal implications of a unilateral declaration.

 Instead, after lengthy hearings and months of deliberation, Serbia (and the rest of the world) is no closer to knowing the answer it seeks.  The Court's verdict does not tell anyone anything they did not know already - Kosovo's independence is not illegal.  It is the rights of the Albanians and the actual nature of the independence which need to be examined.  It is therefore hardly surprising that those countries which have refused to recognise Kosovo so far are still refusing to do so.  United Nations Security Council Resolution 1244 left the question of status open-ended, and would even have allowed Kosovo to become independent - thus even according to this legislation independence is not illegal - but as the sovereignty and territorial integrity are reaffirmed by the Resolution, Serbia's consent would probably have been required.

The ICJ ruling has achieved nothing and its impact upon Serbia and Kosovo will be negligible.  However, of more significance are the potential consequences for the rest of the world in regions where there are separatist tendencies.  There is likelihood that the separatists in these regions will interpret the ICJ ruling as legitimising the act of declaring independence unilaterally, and will try to follow suit.  With hindsight it can be concluded that Serbia and the United Nations General Assembly l made an error in asking the Court to consider the legality of Kosovo's declaration of independence in isolation.  It would have been wiser instead to have asked it to consider this question in its wider context as outlined above.  The position for Serbia, Kosovo and the rest of the world would then have been clarified without the risk of destabilisation.  Now the uncertainty will be prolonged until the wider issue is examined and a definite conclusion reached.

Frances Maria Peacock

August 2010