The trouble with independence

With proceedings at the international court of justice (ICJ) now firmly under way, the legality of Kosovo's unilateral declaration of independence is once again under the spotlight. With an advisory opinion expected within the next six months, the outcome of the case will have an important impact on Kosovo's status.

Should the judgment favour Serbia, the impetus for further negotiations will continue to grow. Should it affirm the legality of Kosovo's declaration, however, the currently stalled process of recognition will be revitalised.

Whatever the outcome, it must, for the sake of international law, be respected by all parties and all talk by Kosovo Albanians of potential instability in the event of an unfavourable opinion must immediately cease.

The significance of the case, meanwhile, as demonstrated by the unprecedented number of countries presenting their opinions to the ICJ, stretches far beyond the western Balkans to UN peacekeeping missions and other ethnic groups seeking independence.

In his opening address to the ICJ, Skënder Hyseni, Kosovo's foreign minister and head of the "authors of the unilateral declaration of independence" delegation, warned that pursuing further negotiations "would be highly disruptive, and could even spark new conflict in the region"; adding that "independence is irreversible and that will remain the case, not only for the sake of Kosovo, but also for the sake of sustainable regional peace and security, to which Kosovo's independence has so greatly contributed". Implicit in Hyseni's words is a threat of renewed violence and volatility should the ICJ's verdict not be to Pristina's liking. The international community, particularly after the March 2004 riots, has long appeased such forebodings; which have often been used by Kosovo Albanians as a negotiating and momentum-building tool to pressure the international community into, for instance, abolishing its own "standards before status" policy out of fear of provoking further unrest.

Indeed, the much-vaunted insistence that an independent Kosovo contributes to regional peace and stability actually betrays various heated debates currently taking place throughout the western Balkans. Resurfacing discussions about possible exchanges of territory - of the overwhelmingly ethnic Serb north of Kosovo in return for the predominantly ethnic Albanian Preševo Valley in southern Serbia, for instance - are an alarming prospect, which would have severe ramifications elsewhere, especially in Bosnia and Herzegovina and the Former Yugoslav Republic of Macedonia. Independence for Republika Srpska, meanwhile, has recently been described as inevitable by Matthew Parish, a former chief legal adviser to the international supervisor of Brcko District in Bosnia and Herzegovina. Such possibilities would have been inconceivable were it not for the engineering and recognition of Kosovo's unilateral declaration of independence.

In a region where competing claims to national self-determination have long resulted in violent inter-ethnic conflict and fragmentation, transferring such questions from the political to the legal domain constitutes a positive development that deserves closer scrutiny and possible replication. As Vuk Jeremić Serbia's foreign minister, reaffirmed, in pursuing its case through the ICJ, "Serbia had created a new model for solving ethnic conflicts in the 21st century by choosing a peaceful and non-confrontational approach".

The ICJ's ruling will also have profound implications for UN peacekeeping missions around the world. Andreas Zimmermann, a professor of public international law at the University of Potsdam, speaking about countries whose agreement is required before the UN can deploy, has cautioned that "it would be a dangerous precedent if these countries, after the Kosovo experience, concluded that the arrival of peacekeeping forces represented the first step in the secession of a crisis region which seeks independence". Zimmermann's concerns are such that he described the proceedings currently before the ICJ as being of the "utmost relevance for the functioning of the overall system of the United Nations and its ability to maintain and restore international peace and security".

Though the ICJ's advisory opinion will be non-binding, it will have important implications not only for Kosovo and the western Balkans, but also for the UN's capacity to maintain international peace and security elsewhere. In threatening further instability in the event of an unfavourable outcome, Hyseni's words before the ICJ are intended to deter consideration of possible alternative solutions to the Kosovo question. As recurrent debates about territorial exchanges and further declarations of independence illustrate, however, only a solution to the Kosovo status issue that is mutually acceptable to all sides will be capable of fostering long-term peace and stability in the western Balkans and further afield.

http://www.guardian.co.uk/commentisfree/2009/dec/07/independence-kosovo-international-criminal-court