Untold Facts

Kosovo: A new surfaced Hot Spot

Kosovo’s unilateral declaration of independence (UDI) in February 2008 piercingly separated international view. On the one side, the US and several top members of the EU argued that there was no choice but to let Kosovo to go its own means. Regional stability in the Balkans required nothing less than the acknowledgment that Kosovo symbolized, for improved or for worse, a exclusive case under international law.
In disparity with, Russia and China,backed by the mainstream of the world’s states, argued that Kosovo could not be regarded as sui generis. If it could declare independence then the way would be open for others to follow. It was in this context that Serbia managed to secure a resolution putting the very question of the legality of the declaration of independence before the international court of justice.
Accordance with International Law of the Unilateral Declaration of Independence In Respect of Kosovo was a request for an advisory opinion referred to the International Court of Justice by the UN General Assembly regarding the 2008 unilateral declaration of independence of Kosovo. The territory of Kosovo is the subject of a dispute between Serbia and the Provisional Institutions of Self-Government of Kosovo, the latter being the authors of the declaration of independence. This was the first case regarding a unilateral declaration of independence to be brought before the World Court.
The court delivered its advisory opinion on 22 July 2010, opining by a vote of 10 to 4 that “the declaration of independence of the 17th of February 2008 did not violate general international law.
The President of ICJ Hisashi Owada read the decision according to which Kosovo’s declaration of independence does not violate international law in principle, since the latter contains no prohibition of such kind. In this light, he pointed to around 100 similar declarations throughout world history, whose legality has not been questioned. Further, the Court’s decision read that the UN Charter principle of territorial integrity applies to inter-state relations, not secessions. With regard to UN Security Council Resolution 1244, the Court argued that it did not preclude any sort of final status outcome, including independence.
Key considerations for the court – arising from submissions by UN members and Kosovo’s leadership – included issues of sovereignty, the slim volume of precedent in international law, and how former large states such as the Soviet Union broke up along administrative borders.

The judgment did not mention whether Kosovo’s secession was legal, or whether other states could legally recognize its independence. Rather, all it did was to rule that international law does not prohibit the declaration of independence. The ICJ opinion can be summarized in three main points:

1. Kosovo’s Declaration of independence does not violate international law
2. Kosovo’s declaration of independence does not violate UN Security Council Resolution 1244
3. Independence does not violate the Constitutional Framework for Provisional Self-Government

Although not binding, the ICJ’s advisory opinion bears significant political weight and forms a turning point in the long-debated Kosovo issue, as it can be seen from the reactions that it provoked both throughout the region, as well as globally. Reactions of the two parties concerned are indicative of their attitudes and their future intentions. Additionally, since each side is not made up of one single subject, it is crucial to examine all basic actors that exercise a larger or smaller influence within each side.

Reaction from Serbia
The advisory opinion of the ICJ came as a slap in the face to the Serbian side. Optimist statements of their leaders in the previous days notwithstanding, Serbs were very disappointed to see that their own initiative backfired, although it had initially been experienced as a victory, when pro-Albanian countries at the UN General Assembly in September 2008 failed to block the Serbian proposal from proceeding to the ICJ.
Serbian president Boris Tadić described the decision as harsh, but nevertheless tried to downplay its impact by pointing out to the rather vague distinction that ICJ itself had made between the unilateral declaration of independence and the right to secede, claiming that the Court concentrated on the technical nature of the former, while it avoided to take positions on the latter, which is of most substance. This distinction, as well as the Court’s omission to rule on the legal implication of the independence declaration (as, for example, on whether it produces statehood), has appeared in the statements of other Serb officials, too, and generated a debate about whether the question to the ICJ was properly formulated by the legal expert team. The government, on its part, reaffirmed its resolution never to recognize an independent Kosovar state and reiterated its commitment to continue fighting by political means. Furthermore, it announced an extraordinary session to examine its next steps, above all seeking the adoption of a favorable resolution at the UN General Assembly.
In conclusion, initial Serb reactions to ICJ’s decision show that no major shift is expected to take place on Serbian policy as far as the Kosovo issue is concerned.

As a consequence, many are those who fear that Serbia again risks turning isolationist and putting its European integration perspective at stake, not only because this perceived national debacle is attributed to the pro-Western block, but also because Serbian citizens largely got disillusioned by the international community, and especially Western nations, most of which stood against their country with no serious reservation.

Reaction from Kosovo
The advisory opinion of the ICJ drew immediate reactions from Kosovo and Albanian-inhabited countries. Scattered across Kosovo, Serbia, FYR of Macedonia and Montenegro, Albanians followed intently what was happening miles away in The Hague. The decision has been interpreted as a historical victory for the Albanian nation, and also an argument that will add many more recognizing states to the current list of 69. Kosovars celebrated the verdict on the streets of Pristina by hugging each other, blowing the horns of their cars and waving Kosovo’s flag, considering the decision a resounding reaffirmation of the legitimacy of their cause.

Kosovo Assembly has adopted a declaration in support of the advisory opinion, stating that the historical decision will contribute to peace and stability not only of the Republic of Kosovo, but the whole region. Considering the Court’s decision to be professional and impartial, respecting at the same time Kosovo citizen’s willingness for independence the declaration call the European Union to find a modus vivendi on Kosovo issue while demands from the reluctant countries to recognize the new state. In clear contrast to Serbian views, Kosovo officials believe that Kosovo does not constitute a precedent in any other case in the world. The Court’s opinion was closely tailored to the unique circumstances of Kosovo; it was not about other regions or states. Furthermore, as far as the statements of Kosovo officials are concerned, it has been clear that nothing in the opinion given by the Court casts any doubt on the statehood of the Republic of Kosovo, which is an established fact.

The reaction from the political parties was in the same wavelength. The IJC opinion was considered from both government and opposition parties as the best answer that has been given thus far on the Kosovo’s right as a legitimate, legal, consolidated and functional state. Generally, there was a consensus between them that the decision is righteous international historical response to historical injustice that has been made to Kosovo. In contrast to Kosovo’s officials, the Vetevendosje (self-determination) movement, a popular nationalist civil society group, does not share the same views. They accuse Kosovo government and politicians of attributing more importance to the formal attributes of Kosovo independence and less to its territorial integrity and genuine sovereignty. Vetevendosje thinks that the government’s celebratory tones are not justified by the ICJ decision since the latter did not rule on the substance of Kosovo’s independence but rather on the fact that the declaration is not illegal. More have to be done for consolidating Kosovo independence. The movement’s leader Albin Kurti protests against the implementation of the Ahtisaari plan as it does not provide sovereignty to Kosovo but a ‘deepening partition’ giving Belgrade actually the opportunity through decentralization to control every Serbian populated territory.

The proceedings themselves proved to be fascinating. While the countries that opposed the declaration of independence resorted to fairly standard arguments about the sanctity of state borders, the states that had recognised Kosovo used an array of approaches to justify Kosovo’s right to secede from Serbia. Perhaps the key argument made was that a declaration of independence has no legal meaning in itself. It is the act of recognition that counts, and this is a political decision that remains the sovereign prerogative of states. In other words, it was suggested that the court had been asked the wrong question.

Nationalism as the Root of the Conflict
The Kosovo conflict has its root causes in the clash of two distinct types of nationalism. The first is the Albanian both separate and emancipatory nationalism.
The separate nationalism is associated with the long-lasting goal of Kosovar Albanians to secede from Serbia. For Hobsbawm, this type of nationalism is characteristic of post-communist multinational/ federal states. In both of the multinational “real socialist” societies, Yugoslavia and the Soviet Union, it was officially claimed that the national question was successfully solved. It turned out that it was not. Old national conflicts appeared, at least temporarily, unresolved. Under the conditions of accelerated material growth and progressively improving standards of living, they assumed a latent form. They flared up soon after those societies had entered a period of serious economic and political crisis. The basis is that after democratic changes in communist federations, the formation of separate nationalism occurs in federal units when these units are based on national identities. This was a major explanation of the dissolution of Yugoslavia, Czechoslovakia and the USSR.
However, we cannot neglect the earlier history of Albanian nationalism, which starts at the end of the 19th century with the formation of national states in the Balkans. This nationalism was emancipatory, in terms of freeing oneself from the Ottoman Empire, and from Serbia respectively.

Kosovo split from Serbia in 2008 after a bloody war in 1998-99 and nearly a decade of international administration.
Triggered by a brutal crackdown by Serb forces against Kosovan separatists, the war saw about 10,000 ethnic Albanians die before ending with a 78-day Nato bombing campaign. Hundreds of Serbs were killed in retaliatory attacks.
Today Kosovo, itself divided, with a Serb enclave in the north around the town of Mitrovica, said Serbia should now deal with it as a sovereign state. “This is a great day for Kosovo, and my message to the government of Serbia is ‘come and talk to us,’” the foreign minister, Skender Hyseni, said outside court.
The ruling is expected to bolster demands for recognition by territories as diverse as Northern Cyprus, Somaliland, Nagorno-Karabakh, South Ossetia, Abkhazia and Transnistria.
The ruling is not expected to have an immediate impact in Mitrovica, where the Serb majority has broken away and deadlock sometimes erupts into violence. The ruling will reinforce Kosovan resistance to any kind of renegotiation, particularly over the status of Serb majority areas in the north where a small area with a Serb majority has split away itself around the north of the town of Mitrovica, which has about 100,000 residents .
This is undoubtedly a victory for Kosovo – but only of sorts. It could have been told that the UDI was illegal, which would have put all those states that recognised it in a very tight spot. However, the narrowness of the opinion means that the positive effects for Kosovo in the short- to medium-term are likely to be rather more limited than one might expect. States, such as Russia and China, that oppose Kosovo’s independence on the grounds that it is an illegal act of secession can hold to this position. The court did not, after all, issue an opinion on this point. They can argue that by actually recognising Kosovo they will be legitimising what they still believes is an illegal act of secession. This will prevent Kosovo from joining the UN and other international organisations. For this reason, it still seems that a mutually acceptable political solution will have to be found.
As for the wider picture, what sort of impact does this have for other secessionist entities seeking statehood? In short, not that much. It means that any group or territory can declare independence. What matters is whether they are recognised. This has always been the hard part, and will remain so.
To conclude, partition is not perfect; it is painful and it carries risks, but the current situation is shaky. The resulting deadlock has sometimes erupted into violence with Serbs and Kosovans running their own areas. It is better to move the border than people to be trapped by it. Partition is certainly not a universal solution. For this reason, it still seems that a mutually acceptable political solution will have to be found. When everything else has failed, we need to have the courage to have responsibility for the solution

Author: Mahmud Amin