Kosovo: waiting for the ICJ

So Kosovo and Serbia are now waiting for the International Court of Justice to rule on whether Kosovo is independent or not.

Except, not really.

Back in October 2008, the new Government of Serbia asked the ICJ to rule on whether Kosovo’s unilateral declaration of independence (“UDI”) in March 2008 was legal. This was clever in several ways. Internally, the new, relatively liberal and pro-Western Serbian governmnent shored up its flank against certain sorts of nationalist attack. Externally, it showed Serbia being a good, reasonable international citizen by submitting its problem to the highest body of international justice. And tactically, it invited the Court to rule on a narrow issue — was the UDI, done in that way at that time, legal? — rather than the much broader and more fraught question of whether Kosovar independence itself could be legal.

The case went before the Court for several days in December of 2009, with 25 countries submitting oral or written testimony. A decision is expected in summer.

But here’s the thing:the ICJ is very unlikely to deliver a clear opinion.

Think about it. On the broad issue of independence… well, a strong decision either way would be very, very disruptive. And the ICJ historically has not shown itself an agent of disruption. (Yes, there are a couple of exceptions. But they’re just that: exceptions.) An opinion saying clearly that Kosovo could or could not secede would have immediate knock-on effects in a dozen places around the world: Somaliland, Abkhazia, South Ossetia, North Cyprus, Transnistria, Nagorno-Karabakh, you name it. There aren’t a lot of issues more potentially explosive than ethnic self-determination, and that’s what Kosovo is all about.

It is theoretically possible that the Court could come up with a clear and strong opinion while trying to restrict it to the unique facts of this particular case. I don’t think that’s likely, but I don’t think it’s quite impossible either. Let’s say there’s one chance in twenty for that.

So what to expect? Well, I’m not an expert on the ICJ. But my best guess would be

1) a long, rambling, weasel-worded decision that does not arrive at a clear conclusion;


2) a statement that the UDI of March 2008 was defective on procedural grounds, without stating whether a UDI could ever be effective or not.

— I’d actually be sympathetic to (1), because I think the Court is in a really tough situation here. (2) would be stupid and dangerous. It would be telling the Kosovar Albanians to go back and start over after two+ years of handling their own affairs, which is unlikely to go down well. Meanwhile it would invite the Serbs to bring the same issue back to the Court again after the inevitable second UDI. So, no more than a delaying tactic, and a costly one. I hope they don’t go there.

I note in passing that of the fifteen judges on the Court, seven are from countries that have recognized Kosovo and eight are from countries that have not.

— Speaking of which: the current recognition-count for Kosovo stands at 65. That’s a bit more than I thought they’d get (I predicted “between 50 and 60”). New recognitions have slowed down to around one every month or two. If the ICJ opinion is very mushy, Kosovo might pick up a handful of fence-sitters this summer. If it’s strong against them — unlikely but possible — they might lose a few. It’s hard and embarrassing to reverse a recognition, though, so even with a strong opinion that number is not likely to be large.

There are 192 members in the UN, so Kosovo is now just past the one-third mark. The next landmark would be 92 recognitions, a majority. But I think that’s very unlikely for a long time to come.

114 thoughts on “Kosovo: waiting for the ICJ

  1. Yea, and whoever was there first is the autochtonous. It’s not slippery at all. All those examples you mentioned, if those people moved to those places and displaced the locals, then theyre not autochtonous. I don’t understand the complexity of the term.

  2. By that standard, nobody in Europe is “autochthonous” except for Icelanders.

    Doug M.

  3. I’m saying, where is the problem? If most europeans are not, then theyre not. There’s no shame in admitting it.
    Hispanics in south america know theyre not autochtonous, and they differentiate between themselves and the indigenous (natives).

    P.S. I’d say the basque are pretty autochtonous. So were the celts and vikings (although theyre assimilated throughout europe now, theyre still there and they were very indigenous). So if people aren’t visible because theyre assimilated is a different story, but you can’t say no one in europe is autochtonous. There WAS someone who was native of it. Albanians are autochtonous in kosovo; no problem in admitting that. If anything since you believe no one is native, you should be thankful some of these people exist.

  4. @Balkanfever: Where did I say that the Serbs arrived first? All I am saying is that this is a very tricky principle and incompatible with another european principle, namely that all citizens have equal rights, whether they have roots in the country that date a few days(if they can get citizenship in a few days), or 20 centuries. If “autochonous” is a minority, then so be it. All I am saying is there is no good criterion for deciding when it is “just” for a region to separate. So the options are a)force, b) international agreement (like Helsinki) or c)
    a case-by case subjective assessment,as Doug favours, by an unspecified expert(NATO?)

  5. “I’d say the basque are pretty autochtonous.”

    There’s a fair amount of evidence that the Basque are the last intact survivors of a Neolithic expansion from the Middle East.

    Which is fine, except that this Neolithic expansion seems to have succeeded by… massacring the pre-existing Mesolithic population. The Linear Band Ceramic people used to populate most of Europe from France to the Ukraine, but they were wiped out of existence in a short period of time around 5,000 BC.

    “Analyses of ancient mtDNA from Linienbandkeramik sites in central Europe suggest that these populations — which indeed did not show clear evidence of Near Eastern ancestry — did not survive or did not get fully integrated into succeeding populations, a conclusion supported by a drastic population decline inferred from site density and the atypical exploitation system of the Linienbandkeramik which was not passed on to its successors [108,110,111].”

    So, the Basque may have gained their land through genocide — seven thousand years ago. Are they still “autochthonous”?

    It’s a stupid term. I don’t use it.

    Doug M.

  6. @Hans
    when you referd the albns as mexns of USA. The majorty of peole would see it as the Albanians are the out siders. And again you are trying to pass of the idea that the albns were the minority in Kosovo when in fact you know they weren’t. You wrote, If “autochonous” is a minority, then so be it. I allready wrote what I think happen to Kosovo in London 1915. An you continue to bring up helsinki. You know exactly why Helsinki should not apply in this case. When they didn’t even consider the Albanians in Kosovo. All and all Europe is makeing right what they did wrong so many years ago.

  7. Doug, theyre more so than the people ruling them (spanish/french)!

    I may be stupid, but I did not make the term. So don’t relate it to me 😉 I’m sure very well educated sociologists came up with the term.

  8. I’m not calling you stupid. As for the term, it may have had value once, but it’s become so misused as to be useless.

    Doug M.

  9. Balkanfever,
    I am not rying to push any idea.
    for whatever good it does, I agree Kossovo Albanians are mostly “autochonous”, whatever this means. Nevertheless, I see no difference legally even if they were not because it does not matter what your origins are if you are a citizen of the country. In most countries there is a thing called mobility. Why, after so many years is it unthinkable that a Croat or Slovene would end up in Kossovo and why would they be second class citizens?
    Another issue: The regions in Yugoslavia were drawn by Tito. What if Tito had made up a different region, including Kossovo,Montenegro,Macedonia and South Serbia, a region with a completely different name and where perhaps no group would have the majority.
    Would Kossovo have the right to independence then, or not?

  10. @chris
    You need to scroll these blogs. There you will find your answers. Do you think that 2mil Albanians should live under Serbian rule? There is a place in south Serbia were 200thousend Albanians live under Serb rule. If your not familure were that is just google new Serb army base. Get it? Your Tito refrence would make some sence if yugoslavia still exsited. Remember who destroys it? The same people who instead of protesting it’s goverment so to stop it’s murderus wars. They watied to see if there asperations of a greater Serbia would provail. Get it? An I think your confused about titos yugoslavia, it was his and his only. Not the peoples they were never happly united. Do you know what Yugoslavia means? It means land of the south Slav, Albanians are not Slav. Get it?

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