Serbia had not officially lost the ICJ case yet and it had the diplomatic corps ready to reinterpret the case. But make no mistake, it lost it badly and anyone who has read the case can see this clearly.
The court titled the case this way: “Accordance with international law of the unilateral declaration of independence in respect of Kosovo (advisory opinion)”
Serbia through the United Nations asked this question:
“Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?”
The court’s general 10-4 conclusion?
“The Court has concluded that the adoption of the declaration of independence of 17 February 2008 did not violate general international law, Security Council resolution 1244 (1999) or the Constitutional Framework. Consequently the adoption of that declaration did not violate any applicable rule of international law.” And in 40-plus pages the answer to that question was yes. It didn’t say anything about the effects of that declaration; it didn’t say anything about further recognitions. All it answered was the question – was whether the declaration is in accordance with international law.
Ouch! That’s gotta hurt. And it did lead Serbs to believe once again that they were fighting against the whole world, just like in the good old days.
Serbia asked a relatively narrow but heavily leading question and got a thorough, exact answer to its question. This despite what Serbia might want to say. Serbia’s trap was in the “Provisional Institutions of Self-Government”, themselves a creation of Resolution 1244.
The Court, however, looked beyond this and concluded that independence was not declared by the same institutions. “The authors of the declaration of independence . . . did not act as one of the Provisional Institutions of Self-Government within the Constitutional Framework, but rather as persons who acted together in their capacity as representatives of the people of Kosovo outside the framework of the interim administration". The Court notes that the object and purpose of the resolution 1244 “is the establishment of an interim administration for Kosovo, without making any definitive determination on final status issues”. Accordingly, the Court states that “the authors of the declaration of independence were not bound by the framework of powers and responsibilities established to govern the conduct of the Provisional Institutions of Self-Government”, and finds that “the declaration of independence did not violate the Constitutional Framework”. The Court notes that “under the terms of resolution 1244 (1999) the Security Council did not reserve for itself the final determination of the situation in Kosovo and remained silent on the conditions for the final status of Kosovo”. It finds that resolution 1244 (1999) “thus does not preclude the issuance of the declaration of independence of 17 February 2008 because the two instruments operate on a different level: unlike resolution 1244 (1999), the declaration of independence is an attempt to determine finally the status of Kosovo”. Ouch!
Furthermore, it concluded that no applicable international law bans declaration of independence. This question was exactly what Serbia had asked the UN General Assembly to support five months after this declaration. We can safely assume that Serbia thought it had put the court into a corner by asking such a narrow, “technical” question.
Yet, this did not stop Serb diplomacy from wondering, as the Serb civic leader Vesna Pešic put it jokingly, “Where is the answer to the question we didn’t ask?”
We should not forget that the independence itself is a fact on the ground, not a question of legality, already defined by international law by the ability to carry out the duties of the state. This is why Serbia avoided it.
A 10-4 victory across the political lines of the judges’ respective state is proof of the independent action of this court. Does the court create legal precedent? Hardly. But if the respective countries that have looked at this case with much trepidation about what it could mean for their own sovereignty have doubts, they should fire their foreign ministers. Fire them immediately for taking such disastrous stances that could not have led to better conclusions. If they had recognized Kosovo and moved on, this would not have happened. On the other hand, Serbia’s Jeremic can stay, he’s such a tool to new Kosovo and may certainly continue to ask the court more questions, just in case one of them turns positive for him.
Moreover, the case indirectly concluded that UN Resolution 1244 and any other international institution derived from it is finished. UNMIK – ditto; NATO’s KFOR – time for Status of Forces Agreement with a sovereign government, boys; EULEX – are you sure you’re still status neutral?; OSCE – you get the idea.
While opposition parties, media, and civil society in Serbia admit that ICJ gave a clear answer to its stated question, its government is now engulfed in the fight to save itself due to this major national blunder.
Serbia lost militarily – the 1999 war; politically – the status talks and the 2008 declaration of independence; and legally – the ICJ case. Now the fight gets diplomatic. Kosovar Minister Hyseni, it’s your turn to challenge the lying liars and the lies they tell. It shouldn’t be too hard.
