What to Expect from the ICJ Advisory Opinion on Kosovo

0 36

By Prof. Stefan Wolff | 17 July 2010


Flag_of_Kosovo420_300.svgMore than two years ago, in February 2008, the Provisional Institutions of Self-Government of Kosovo unilaterally declared Kosovo’s independence from Serbia. This was the culmination of an almost ten-year process of contested international administration of this region by the United Nations that followed NATO’s controversial intervention in the conflict between ethnic Serbs and ethnic Albanians in 1999 (which itself had been ongoing for over two decades and seen significant violent escalation after 1996).
Despite intense international efforts by the UN and subsequently by a troika of US, EU and Russian mediators to achieve agreement between Kosovo Albanians and Serbia over Kosovo’s future status, no consensus was reached either in the negotiations or on a resolution in the UN Security Council. Kosovo’s declaration of independence was followed by partial international recognition (to date 50+ states, including all but 5 EU member states and the US) as well as strong condemnation from Serbia and Russia in particular, with many other states expressing serious concern.

Given the clear and wide-ranging implications of Kosovo’s declaration of independence, its partial international recognition, and the equally persisting opposition to such recognition, the UN General Assembly adopted a resolution on 8 October 2008, requesting an advisory opinion from the International Court of Justice on whether Kosovo’s unilateral declaration of independence was in accordance with international law.
On 22 July 2010, the International Court of Justice will publish its advisory opinion on this matter. This is one of the most significant cases that the court has dealt with in recent years, and the publication of its opinion follows lengthy deliberations, including written submissions by 37 UN member states and the Provisional Institutions of Self-Government of Kosovo, and oral statements by 28 UN member states and representatives from Kosovo during public hearings in December 2009.
While the Court’s opinion is not binding on any of the UN member states, there is a wide consensus that the Court’s ruling, like the declaration of independence itself, will have a significant impact on questions of ethnic conflict and self-determination far beyond Kosovo and the Western Balkans.
The much disputed ‘Kosovo precedent’ and the ICJ’s advisory opinion will have potential ramifications in several ways:
For other de-facto states: in terms of increasing or decreasing their chances of obtaining broader international recognition of their self-declared independence (for example, Northern Cyprus, Nagorno-Karabakh, South Ossetia, Abkhazia, Transnistria, Somaliland).
For future settlement negotiations and settlements: in terms weakening or strengthening the position of states facing self-determination movements.
For the UN: in terms of its ability to manage ethnic conflicts, especially qua transitional administration of disputed territories.
For the EU: in terms of its role in Kosovo now and for the existing divisions within the EU over the recognition of Kosovo’s independence.
A negative opinion of the Court on Kosovo (i.e., that the Unilateral Declaration of Independence by the Provisional Institutions of Self-Government of Kosovo was NOT in accordance with international law) is unlikely to reverse the state of affairs as it now exists with more than 50 states having recognised Kosovo’s independence. Such an opinion would affirm conservative interpretations of international law favouring the principles of sovereignty and territorial integrity of existing states. It would not rule out negotiated secessions (such as the ‘velvet divorce’ of Czechoslovakia in 1992/3 or the agreement of conflict parties to accept the outcome of referenda on independence such as in East Timor in 1999, or in the future in Sudan or Bougainville).
By the same token, a positive opinion of the Court (i.e., that the Unilateral Declaration of Independence by the Provisional Institutions of Self-Government of Kosovo WAS in accordance with international law) would not necessarily open the floodgates of secession elsewhere in the world. UN member states would not be compelled by such an opinion of the Court to recognise other self-declared independent states (such as Abkhazia or South Ossetia) nor would the case of such entities under international law necessarily be strengthened—Kosovo would more likely continue to be seen as a sui generis case, not a precedent for others, no matter how similar they may appear on the surface.
No matter how the Court finds, its opinion will be as contested as the case on which it was asked to pronounce itself. Nor is it likely that the Court’s opinion will be able to resolve either the issue of Kosovo or the wider underlying questions that arise in cases of contested self-determination claims.
Stefan Wolff is Professor of International Security at the University of Birmingham, England, UK. A political scientist by background, he specialises in the management of contemporary international security challenges, especially in the prevention, management and settlement of ethnic conflicts and in post-conflict stabilisation and state-building in deeply divided and war-torn societies. He has extensive expertise in Northern Ireland, the Balkans, and the former Soviet Union, and has also worked on a wide range of other conflicts elsewhere, including the Middle East, Africa, and Central, South and Southeast Asia. Bridging the divide between academia and policy-making, he has been involved in various phases of conflict settlement processes, including in Iraq, Sudan, Moldova, Sri Lanka, and Kosovo.

About the author / 


Leave a reply

You must be logged in to post a comment.

This site uses Akismet to reduce spam. Learn how your comment data is processed.


  • 24th Issue is Online Now!

    Vol. VI | No. III – July-August-September 2020 To Download the Magazine Click Here… CONTENTS 05-14….. World News by Ebru Birinci 17-24….. Preparedness for an Uncertain Future “The Only Thing We Have to Fear is Fear Itself” by Professor Mark Meirowitz 25-39….. EU LAW vs UK LAW The Primacy of EU Law over National Law:…

  • IEPAS2020 is Going Virtual!

    Dear Friends and Colleagues, IEPAS2020 is Going Virtual! Due to the COVID19 pandemic, we are holding our entire conference virtually by streaming all of the live sessions. You may participate in all of our virtual networking events. In case of missing a session, you may get full access to the replays of every session since all…

  • The 13th issue of JCTS (Journal of Conflict Transformation & Security) is out now…

    The 13th issue of JCTS (Journal of Conflict Transformation & Security) is out now… Vol. 8 | No. 1 | 2020 Click here to Download the Entire Issue   TABLE OF CONTENTS Editor’s Note By David Curran Introduction By Nergis Canefe Research Articles Statelessness as a Permanent State: Challenges to the Human Security Paradigm By…

  • The 19th Issue of The Rest: Journal of Politics and Development is Out Now!

    The 19th issue of the rest: journal of politics and development is out now. Download the issue here… TABLE OF CONTENTS Research Articles Turkish AK Parti’s Posture towards the 2003 War in Iraq: The Impact of Religion amid Security Concerns By Alberto Gasparetto Nigeria and the Great Powers: The Impacts of the Boko Haram Terrorism on…

  • CESRAN International Named again amongst the Top Think Tanks in the World

    CESRAN International is pleased to announce that it has been named again amongst the world’s best think tanks. The 2019 Global Go To Think Tank Index ranked CESRAN International 141st among the World’s “Top Think Tanks in Western Europe” 75th among the World’s “Top Environment Policy Think Tanks” 153rd among the World’s “Top Foreign Policy…


    The 18th issue of the rest: journal of politics and development is out now. Download the issue here… TABLE OF CONTENTS Research Articles The Foreign Policy Decision Making Approaches and Their Applications Case Study: Bush, Obama and Trump’s Decision Making towards Afghanistan and the Region By Sharifullah Dorani Evaluating the Explanatory Power of Social Identity Theory,…