On Wednesday of this week, the General Assembly of the United Nations is scheduled to debate—and probably to vote on—Serbia’s proposal that the legality of Kosovo’s independence be referred to the International Court of Justice (ICJ).

The ICJ was established by Article 92 of the UN Charter, which authorizes it to function in accordance with its "statute." A case can reach the ICJ through two distinct avenues.  The first avenue involves “contentious cases”--disputes arising between two state entities, under Article 34 of the Statute of the ICJ. Only states are eligible to be parties in contentious-case litigation, and the states involved must consent to the jurisdiction of the ICJ.  Serbia has avoided the “contentious case” procedure. ICJ recognition of jurisdiction over Kosovo would automatically validate Kosovo’s sovereignty.

Instead, on 23 September 2008, Serbian President Boris Tadic sought a General Assembly resolution to seek an advisory opinion from the ICJ, calling Kosovo’s declaration of sovereignty a “fundamental violation of international law.” The advisory-opinion process is the second means of reaching the ICJ.  Article 96 of the Charter authorizes the UN General Assembly or the Security Council to request the ICJ to give an advisory opinion on any legal question.  Advisory opinions are non-binding, under Article 65 of the Statute of the ICJ.

Now that a resolution is on the General Assembly’s agenda, a simple majority vote will send the matter to the ICJ.   If Serbia is successful in securing a resolution requesting an advisory opinion on the status of Kosovo, the Court may nevertheless decline to exercise jurisdiction, although it rarely has done so. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 2004 I.C.J. 136  13, 44 (noting that exercise of jurisdiction to give advisory opinions is discretionary with the Court).

There are four possible outcomes of this latest Serbian gambit to frustrate Kosovo’s independence: (1) The resolution could fail in the General Assembly; (2) the resolution could pass, but the ICJ could decline to exercise jurisdiction; (3) the ICJ could find that Kosovo’s independence is legal; or (4) the ICJ could find that Kosovo’s independence violates international law. Kosovo’s case in favor of the legality of its independence is strong.  Customary international law recognizes a sovereign state as, (1) an entity that has a defined territory and a permanent population, (2) under the control of its own government, and (3) that engages in, or has the capacity to engage in, formal relations with other such entities.  Kosovo easily satisfies the first and third requirements.  There is little dispute that Kosovo has a well-defined territory with a permanent population.  Kosovo also satisfies the third requirement because it has engaged in formal relations with other state actors, including the 50 that have so far recognized it as an independent state.  An issue may exist with respect to the second requirement, whether Kosovo is completely in control of its own government, under the terms of international supervision of its sovereignty under the Ahtisaari Plan and Security Council Resolution 1244. 

We will know more on Wednesday about which of these four outcomes is most probable. I predict that the General Assembly will approve the request to the ICJ. It is hard to construct a persuasive argument that a legal issue as hard-fought as the question of Kosovo’s independence should not be put to a judicial body. If the resolution passes, the ICJ likely will decide to exercise its jurisdiction. Then the arguments on the merits will begin.

 

But the point is not the merits of the case; the point is that an ICJ decision on Kosovo’s independence will take years. A case involving the genocide convention between Serbia and Croatia was filed in 1999 and has not been decided yet. The protracted nature of the ICJ process will give Serbia and Russia exactly what they want: more uncertainty.

Investors and Kosovars will use uncertainty as an excuse for sluggish investment in Kosovo. It will be like before 17 February, when Kosovo’s friends said, “foreign investment is discouraged by uncertainty about Kosovo’s status.” Now, they will say, “foreign investment is discouraged by uncertainty over the outcome of the ICJ case.”

Kosovo’s political leaders cannot do much about the ICJ case. But they can do something about the other factors that do more to discourage investors than uncertainty over Kosovo’s status or the legality of its independence. If they succeed in these endeavors, Kosovo’s success as an independent state will be undeniable by the time the ICJ rules and no one will care what the ICJ says. If they fail, victory for Kosovo in the ICJ will make little difference in the lives of its peoples or to international attitudes toward Kosovo.

They can get construction of Kosovo C started, which will create thousands of jobs, and mark a path toward more reliable electricity supply. No one in his right mind will invest in a plant in Kosovo if he cannot count on reliable electricity.

They can accelerate construction of Kosovo’s segment of the road to Durres. Albania is doing its part but Kosovo is lagging. This road, more than any other, assures Kosovo’s trade links to the outside world

They can appoint credible ambassadors to foreign embassies. Appointing only chargé d’affaires, some of whom have been rejected by host countries, makes the Kosovo government appear ineffective.

They can take aggressive steps to reform Kosovo’s weak and declining public education system, the failures of which are slowly squandering Kosovo’s greatest asset—talented and energetic young people.

These represent difficult challenges but they can be done. Far less of a challenge, but inexplicably neglected, is Kosovo’s primary face to the outside world: the Internet’s World Wide Web. I checked the Kosovo Government’s website on 30 September 2008 at about 1830 Chicago time. The Ministry of Foreign Affairs section had a photograph and biography of Foreign Affairs Minister Skender Hyseni, but the link to “Diplomatic Missions” produced a blank page. The link the “Tourism and Cultural Heritage” produced a “coming soon” message. The link to “Investments in Kosovo” produced a blank page. The link to “Deputy Ministers” produced a blank page.

This is a disgrace. It is an acute embarrassment to those, like me, who argue that Kosovo is a functioning state, and well-prepared to assume the responsibilities of statehood. This could be fixed in 24 hours, but it has been 130 days, and Kosovo’s international web image is largely blank or, at best, “coming soon.” Foreign Minister Hyseni should be ashamed to have his face appear on an otherwise blank page.

The challenge is not only one for the Thaçi Government; it also is one for the opposition, and for its personification, Ramush Haradinaj. Where are Ramush’s concrete plans for job creation, his plan for energy, for transport, for education, for tourism? Sniping at the Government for what happens in Mitrovica is cheap, but what happens in Mitrovica is beyond the Government’s control. What would Ramush do differently if he were Prime Minister on the things the Government of Kosovo can control? Could the Opposition do a better job in building bridges to Kosovo’s Serb communities? It could prove its capacity in this regard by aggressively trying to build political coalition with Kosovo Serb parties.

The citizens of Kosovo should insist that their Government product results on these critical matters and that the Opposition explain—and demonstrate--what it would do differently.

Otherwise, Kosovo is destined to live out the nightmare portrayed by Serb propaganda—that of a failed state. It won’t make any difference what the ICJ decides.

Mr. Perritt is Professor of Law at the Chicago-Kent College of Law. His research assistant, Christopher Bailey-Woon, provided valuable assistance in support of this column. You can find more about their work in Kosovo at operationkosovo.kentlaw.edu