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Legal Scholar Previews ICJ Ruling On Kosovo's Independence

Graffiti in the Kosovo town of Gnjilane expressing gratitude to NATO and countries that recognize the independence of Kosovo.

Graffiti in the Kosovo town of Gnjilane expressing gratitude to NATO and countries that recognize the independence of Kosovo.

The International Court of Justice at The Hague is due to issue an advisory ruling on the legality of Kosovo's 2008 declaration of independence on July 22. Dragan Stavljanin of RFE/RL's Balkan Service spoke to Marc Weller, a lecturer on International Law at Cambridge University, about what to expect and about the possible implications of the ICJ's conclusions.

RFE/RL: What are the possible rulings that might come out of the court on July 22?

Weller: The court has three options. First, it can decline to give the opinion, arguing that it is not appropriate to offer an answer; but I think that's unlikely. Secondly, the court can define the question in a very narrow sense, in which it strictly looks at the lawfulness otherwise of the unilateral declaration of independence of the Provisional Institution of Self Governance in Kosovo; there I think it would be unlikely that the court finds that these [acts] were overwhelmingly unlawful, but we have to see what the court says. And thirdly, the court could make broader pronouncements on the rights to independence and self determination more generally, and that would be the opportunity for the court to respond and clarify international law on that issue. However the court as a whole is perhaps unlikely to make such broad statements, although some individual judges might.

RFE/RL: A lot of observers are expecting a mixed decision that both Serbia and Kosovo can interpret as a victory. Do you think this is likely?

Weller: I think that the court normally does not like to offer opinions which it knows are not realistic, that do not conform to the realities of international life. I think it's probably unlikely that the court would very clearly determine that Kosovo obtained statehood unlawfully. On the other hand, the court may also not give a great deal of additional reasoning on broader arguments concerning self-determination and so forth. So it will probably be quite a finely balanced view of the court.

Marc Weller is a lecturer in international law and international relations at the University of Cambridge
In terms of the effects of this view, as you know, it is not a binding opinion it is merely a recommendation. So I think the situation on the ground will not dramatically change in consequence of the opinion.

RFE/RL: Serbia has indicated that this will not be the last step in the process and that they would push for a renegotiation of the Kosovo settlement. How realistic do you think Serbia's chances are to do this?

Weller: It depends on the outcome of the opinion. If the opinion were clearly against Kosovo, holding that it declared unlawful independence, Serbia might go back to the General Assembly and ask for a further opinion as to the consequences of this. But as I said, I think that is not entirely likely.

If the result, as many expect, is less clear, then I think there will be less patience with Serbia in the General Assembly. It's had its day in court as it were. And anything that is not a clear condemnation of Kosovo will be perceived, rightly or wrongly, as a vindication of Kosovo's claim to independence.

RFE/RL: So you don't see much chance for Kosovo's status to be renegotiated?

Weller: Obviously Serbia will not then give up its campaign to revisit the issues that were exhaustively addressed in the Ahtisaari process [a reference to Martti Ahtisaari, the UN envoy for the Kosovo status process]. And at least one issue remains to be solved, and that is the continued failure in Northern Kosovo to achieve the reestablishment of Pristina's control or governance over that area. And that is something that will have to be negotiated in some way. So I don't think that Kosovo's status could be renegotiated. But there are other issues where both sides do need to come together in discussion, and perhaps the outcome of this case will give an impetus towards that end.

RFE/RL: Do you think the ruling could lead to more states recognizing Kosovo?

Weller: It's unlikely that states like Russia will immediately recognize Kosovo whatever the outcome of the court case. But a number of other of states are likely [to recognize Kosovo]. There's an estimate that maybe up to 30 sates would be willing quite rapidly after there has been the opinion to recognize Kosovo, unless the opinion very clearly says that Kosovo obtained statehood illegally. And as I said, few expect that the court would come up with such a clear ruling.

So yes, the outcome of the case is likely to trigger a wave of further recognition. But the hardcore opponents of Kosovo's statehood are unlikely to be swayed. That includes Russia, Cyprus, and some others.

RFE/RL: And finally, do you think either broad autonomy for northern Kosovo or partition is possible in the aftermath of the ruling?

Weller: I don't detect any great appetite in favor of partitions, certainly on the Kosovo side. Serbia would of course be pleased to integrate Northern Kosovo into Serbia but I do not think that it has any appetite for losing territory of its own in exchange. So this option may in the end not turn out to be realistic.

Also some feel that exchange of territory in the modern age is not an appropriate solution at the international level, so there would be many obstacles to that. Instead what is needed is a round of discussions and negotiations about how gradually Kosovo can achieve reintegration of the North, taking into account the legitimate interest that Serbia has in relation to that territory. So presumably special links and other things will be negotiated in relation to it.

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