Last month’s advisory opinion issued by the International Court of Justice (ICJ) in support of Kosovo’s unilateral declaration of independence from Serbia was marked as an historic event in Kosovo. The government hailed the decision as a clear victory in its two year long battle with Serbia over the legitimacy of the territory’s secession. But elsewhere the court’s decision is still under discussion.

By Petrit Qollaku

In a much anticipated decision, the ICJ stated on July 22rd that Kosovo’s declaration of independence did not violate international law or United Nations resolution 1244 for Kosovo. The opinion of the highest UN court was backed by ten judges, with four against and one abstention.

The ruling is non-binding and does not have legal force but it gives important acknowledgment of Kosovo’s efforts to gain diplomatic recognition worldwide, particularly from those countries that have been awaiting the ICJ’s opinion.

The Assembly of Kosovo declared independence from Serbia on February 17, 2008, renaming itself the Republic of Kosovo.

Kosovo’s foreign minister Skender Hyseni attented the court’s session in The Hague and found the opinion to be clear. “There is no dilemma in the court’s opinion on Kosovo’s statehood. It’s now an uncontested reality,” Hyseni told journalists.

But Serbia doesn’t see it that way and its UN delegation quickly submitted a draft resolution to the General Assembly stating that their country will never recognise Kosovo’s statehood. The resolution calls for "peaceful dialogue" as a means of finding mutually acceptable solutions "for all open issues."

Kosovo’s government prepared some 120 letters to send to those countries that have not yet recognized its independence and announced that it expected 35 recognitions in the near future. So far, Kosovo has been recognized by 69 countries worldwide.

The day after the announcement of the court’s decision, Kosovo’s parliament convened and approved a declaration supporting the opinion claiming that the ICJ’s historical opinion is beneficial not only for Kosovo but for the entire region.

“We express our sincere readiness to create a good relationship with the Republic of Serbia for the benefit of our two nations,” Kosovo’s parliamentary speaker Jakup Krasniqi told members of parliament.

But while Pristina was celebrating, the Serb community in Northern Kosovo protested. Police reported that some 600 to 700 Serbs gathered in the centre of Mitrovica but soon dispersed quietly with no incidents reported.

On the same day, the Serbian parliament declared that Serbia would continue to fight for Kosovo when negotiations begin at the forthcoming meeting of the UN General Assembly.

Serb President Boris Tadic said that the ICJ’s opinion has hit Serbia hard, but stressed that “Serbia will never recognise Kosovo.”

In the meantime, the Serbian government is preparing defensive diplomatic tours in 55 countries and another 40 countries will be visited by Serbian ambassadors to block any further recognition of Kosovo.

One argument that’s being voiced against the ICJ’s opinion is that, by endorsing Kosovo’s unilateral declaration of independence, the court has opened the way for all separatist movements in the world to do the same.

But Kosovo’s government spokesperson, Memli Krasniqi, says his country’s case cannot be compared to other situations.
“The ICJ’s opinion has stated clearly that the declaration of Kosovo’s has not violated any international law. Therefore, this document cannot be used by some other conflicting areas,” Krasniqi told Radio Netherlands. “This argument is mainly used by Serbia and its allies just to delay Kosovo’s legitimacy,” he said.

What next?

On the day of the ICJ’s ruling, the European Union’s head of foreign affairs, Catherine Ashton, said that the EU welcomes the publication of the advisory opinion and is ready to facilitate a process of dialogue between Pristina and Belgrade.

“This dialogue would be to promote cooperation, achieve progress on the path to Europe and improve the lives of the people. The process of dialogue in itself would be a factor for peace, security and stability in the region," she said.

A few days later, all EU foreign ministers met to discuss future implications for Kosovo. The Union is split on Kosovo’s status with five EU member states - Spain, Greece, Cyprus, Romania and Slovakia – still refusing to recognise its independence.

Ashton asked the governments of Kosovo and Serbia to engage in direct dialogue as prospective future members of the EU and offered to mediate the talks between the parties in Brussels.

The International Steering Group (ISG) which is made up of states that support Kosovo’s independence, stated that the ICJ’s opinion is an opportunity for Kosovo and Serbia to open a new phase in their relations.

“The ISG hopes for a sincere, respectful and constructive dialogue between Serbia and Kosovo, as independent and sovereign states, to identify and resolve practical issues of mutual interest to the benefit of the people of both countries,” the organisation said in a press release.

In September, the UN is expected to adopt a resolution on Kosovo also calling for dialogue with Serbia.
Several EU countries are working with the US to ensure that the text of the UN resolution does not include any call for talks on Kosovo’s final status, claiming that that issue has been settled.

Kosovo’s government, however, has repeatedly rejected any UN involvement in future talks since the mandate of the UN mission in Kosovo has expired. It’s hoping instead that any future talks will be negotiated by the US and the EU.

Regardless of who mediates the talks, they won’t be easy given some of the unofficial scenarios pursued by Belgrade.

The first scenario is a territorial exchange between Kosovo and Serbia in which Kosovo would exchange the predominantly Serbian enclave of Northern Kosovo, for the mainly Albanian Presevo valley in Southern Serbia.

Alternatively, Serbia could demand special autonomy for the Northern Kosovo.

Both scenarios have been rejected by Kosovo, which has made it clear that there will be no discussion on the special autonomy of Northern Kosovo and will only agree to discuss technical issues and refused to address any legal status issues.

“Kosovo’s government is working on securing the rule of law in the North and is also working to expand Kosovo’s constitution everywhere in the region,” parliamentary speaker Jakup Krasniqi said.

Following the ICJ’s opinion there is no reason for any country in the world not to recognise Kosovo’s independence, particularly the five EU member countries which have yet to recognize Kosovo as a state, he added.

“After the ICJ’s opinion, in the very near future we expect a more unified stance from the EU regarding Kosovo’s integration process.”

Afrim Hoti, professor of international law at Pristina University says the international community is not interested in changing Kosovo’s borders.

“I don’t believe that any of the scenarios will be applied in Kosovo. It is a small country and therefore we cannot apply a different legal status to the Northern part of Kosovo,” Hoti told Radio Netherlands.

If Kosovo agreed to exchange land, he said, Albanians in Macedonia would also demand a land swap which would include Western Macedonia.

The North is an integral part of Kosovo and the Serb majority there continues to refuse to accept Pristina’s authority due to Belgrade’s pressure, Hoti explained

“The Ahtisaari plan foresees great advantages for the minority communities in Kosovo and there this gives a special treatment for the North as well.”

Kosovo’s government is doing its best to secure additional recognition of its independence before the autumn session of the UN General Assembly.