KOSOVO: The ICJ on a Declaration of Independence

Zana Berisha and Kutjesa Nezaj, both 2010 graduates of the Pitt Law LL.M. program, are Kosovar citizens and write about the International Court of Justice's recent decision on their country's Declaration of Independence...



When the International Court of Justice (ICJ) rendered its decision on the legality of Kosovo's Declaration of Independence on July 22, 2010, we had already returned to our home country of Kosovo after a wonderful year spent obtaining our LL.M. degrees at the University of Pittsburgh School of Law. Despite being happy to be home after a long time away, we felt anxious because the ICJ was deciding on the Declaration of Independence undertaken by us, the people of Kosovo.

To give context to the ICJ's July 22 opinion, we must discuss the events that led up to it. On February 17, 2008, the Kosovo Assembly approved the Declaration of Independence [PDF], which declared Kosovo an independent and sovereign state. The Declaration of Independence reflects the will of Kosovo's people for an independent, sovereign, democratic, secular, and multi-ethnic republic, guided by the principles of non-discrimination and equal protection under the law. Notably, it is also in full accord with the recommendations of UN Special Envoy Martti Ahtisaari and his Comprehensive Proposal for the Kosovo Status Settlement [PDF].

In response to Kosovo's Declaration of Independence, Serbia filed a request [PDF] for an ICJ advisory opinion at the United Nations on August 15, 2008 on the question: "Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?" On September 30, 2008, the United Nations General Assembly granted the Serbian request. All UN member states then had the right to submit written statements to the ICJ in which they provided their position on the legality of the approval of the Unilateral Declaration of Independence (UDI) by the Kosovo Assembly. By the submission deadline of April 17, 2009, 35 UN member states had submitted written statements. Public hearings in the ICJ began on December 1, 2009, and those states that had submitted written statements were permitted to orally present their positions. Kosovo and Serbia also submitted their statements and presented their oral arguments.

Oral proceedings ended on December 11, 2009, and until the issuance of the ICJ advisory opinion on July 22, 2010, no one was sure of what the court's opinion would be. Naturally, each involved party, particularly Kosovo and Serbia, hoped that the ICJ opinion would be in its favor. Based on previous ICJ rulings, however, most observers believed that this particular question would be decided neutrally, with the ICJ trying to satisfy the interests of both parties.

As a result, when ICJ President, Justice Hisashi Owada, read the Court's opinion [PDF] holding that the UDI does not violate international law, the involved parties were surprised that the Court ruled firmly in favor of Kosovo. For Kosovo, the ICJ opinion acknowledges that its declaration of independence is in accord with international norms. It is also symbolic of what Kosovo's people believe is a just and proper world opinion regarding their long struggle for freedom and independence. States that had already recognized Kosovo's independence welcomed the decision and called on other states to recognize her, as well. States that have withheld recognition now have legal justification to recognize Kosovo as an independent and sovereign state. After achieving the necessary number of recognitions, Kosovo will become a UN member state, and be eligible to join the European Union. To Kosovars, it was particularly important that the Justices upheld the UDI with 10 votes in favor and 4 against, representing more than a simple majority of the justices. The 10-4 decision represents a strong endorsement of Kosovo's legal right to independence from the highest international court.

Not all reactions to the ICJ's opinion were positive. States that had opposed Kosovo's independence maintained their position on non-recognition, arguing that the opinion is narrowly drawn and speaks only to the legality of the UDI rather than to its legal consequences, such as the creation of the new state. Serbian representatives at the ICJ appeared to be disappointed with the opinion's support of Kosovo's position, particularly given its specificity, and declared that Serbia will continue its current policy of treating Kosovo as Serbian territory.

For states that have not yet recognized Kosovo's independence, the ICJ's decision raises the troubling question of whether the case of Kosovo can be used as precedent for other regions seeking independence. However, the drafters of Kosovo's Declaration of Independence foresaw this concern, and the preamble of the UDI contains a provision stating that, due to the circumstances in which it found itself during the dissolution of Yugoslavia, Kosovo is a special case and should not serve as precedent for other peoples. Furthermore, Kosovo has been treated differently by the rest of the international community since the beginning of Yugoslavia's collapse and especially during the Kosovo conflict in 1998-1999.

As part of the former Yugoslav Federation (until 1989), Kosovo was a constituent part of Yugoslavia and had the right to self-determination and declaration of independence. In 1990, Serbia adopted a new constitution that fully abolished the autonomy of two Yugoslav provinces, Kosovo and Vojvodina, and as early as 1992, the Organization for Security and Cooperation in Europe (OSCE) verification mission in Kosovo voiced deep concern about escalating violence and human rights violations in that province. After the Federal Republic of Yugoslavia (SFRY) declined to give its consent to an extension of the OSCE mission's mandate, the United Nations Security Council expressed deep concern in Resolution 855 (1993) about the SFRY's position and called upon it to reconsider. Finally in March 1999, NATO became actively involved in attacking Serbian military targets in order to end the ongoing humanitarian crisis in Kosovo. We believe that these actions by the international community, and particularly NATO's involvement, give Kosovo the status of a special case. Moreover, it is our opinion that the ICJ will decide the legality of future declarations of indepence by taking into consideration the entire body of facts particular to each case.

We are of a similar opinion to Marko Attila Hoare, the Section Director for the European Neighborhood of the Henry Jackson Society, who argued that democratic societies should not fear "separatism," and that only those states aware of their non-democratic nature should fear that people living under their rule may wish to separate. For now we can only wait to observe how the world will react to future declarations of independence elsewhere. It is simply unpredictable.

As for Kosovo and its citizens, the day of the ICJ ruling will remain the day when Kosovo's people made a mark on international history. On July 22, 2010, the right of Kosovo's people to independence became internationally validated. Next to the Declaration of Independence on February 17, 2008, Kosovars will celebrate the day of the ICJ's ruling as the second most important day in Kosovo's history.

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