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The Kosovo Precedent

  • Ahto Lobjakas

With its ruling on Kosovo, has the International Court of Justice opened Pandora's box?

With its ruling on Kosovo, has the International Court of Justice opened Pandora's box?

The British science fiction writer Douglas Adams tells the story of a supercomputer called Deep Thought. Asked what is the meaning of "life, the universe, and everything," Deep Thought cogitated for 7.5 million years before pronouncing, "with infinite calm and majesty," its response: "42."

Something reminiscent of Adams' story took place on July 22 in The Hague when the International Court of Justice (ICJ) announced after months of deliberation that Kosovo's unilateral declaration of independence in February 2008 had not violated international law -- because no applicable international law exists.

Unlike Deep Thought, the ICJ refrained from prefacing its verdict with the obvious, "You aren't going to like it." Strictly speaking, the ruling did please Kosovo's government, but even Pristina must have expected vindication rather than evasion from the court.

What the rest of the world most certainly expected was something which could at least begin to address the question, "What now?" In this, it was disappointed.

'Who's Next?'

In a very narrow sense, the ICJ ruling may be interpreted as buttressing the status quo in the western Balkans. The French daily "Le Figaro" observed in an editorial on July 23 that the ruling provides "the best among bad solutions" to the Balkan wars.

But that is hardly saying anything new. Kosovo has been an international protectorate for the past 10 years, secured by NATO and already recognized by the United States and most of the European Union: No conceivable force is going to take it back into Serbia against the will of the majority of its people.

The real issue, which the French editorialist wittingly or unwittingly sidestepped, has to do with the precedent it may now set. Kosovo, as observers were unanimous to observe in the wake of the ICJ pronouncement, forms the tip of the iceberg of global separatism, and the ruling may well have opened Pandora's box.

Most immediate European reactions focused on the question, "Who is next?"

"Die Welt" accompanied its story on July 23 with little blow-up maps of Northern Cyprus, Transdniester, Somaliland, Nagorno-Karabakh, Abkhazia, and South Ossetia. "Financial Times Deutschland," on the same day, gave its imagination far freer rein, putting Flanders, Greenland, and Catalonia at the top of its secessionist rankings, with Chechnya and Tibet getting honorable mentions.

In other words, these are no marginal daydreams. A number of EU member states have stakes in the precedent game, not to mention two permanent members of the UN Security Council.

The Blair Doctrine

The ICJ, in its ruling, effectively abdicated all responsibility for international law as it may (or may not) relate to the emergence of a new state from the carcass of an unwilling former sovereign. Where the law is silent, everything can be said. Those pondering the precedent set by Kosovo must look elsewhere.

It seems likely that they will, first and foremost, look to the motivation of Kosovo's supporters and the argumentation used by them for analogies.

Kosovo's story has its roots in what has become known as the "Blair Doctrine," after former British Prime Minister Tony Blair (although equally significant contributions were made to the doctrine by U.S. Presidents Bill Clinton and George W. Bush). Elaborated in the late 1990s, the Blair Doctrine holds that the international community is justified to intervene militarily in the affairs of sovereign governments whose populations are suffering serious harm through government action or inaction.

In practice, this "responsibility to protect" has been applied highly selectively and carried out, as a rule, by coalitions of the willing. In Kosovo, NATO intervened in 1999 without UN Security Council backing after Serbian forces had killed thousands of Albanians.

NATO's case was based on the perception that Belgrade had lost the moral right to claim Kosovo. That case was accepted by the UN Security Council in Resolution 1244 of June 10, 1999, reaffirming Yugoslavia's territorial integrity, but also deploying "international civil and security presences."

The stripping of sovereignty from Belgrade by the United Nations, however temporarily intended, was in retrospect the thin edge of the wedge. Apart from seeking open conflict with existing authorities, securing an international (preferably UN) presence will from now on be a must in every separatist handbook. The undermining of a sovereign's moral right to a territory will eventually, by means of a sustained international presence, undermine its perceived legal rights. That is what will remain when the dust around Kosovo settles. Everything else -- size, population, previous status, sustainability, etc. -- is secondary.

On this view, Kosovo's status has nothing to do with the juxtaposition of the abstract principles of self-determination and territorial integrity. This confrontation will remain abstract and sterile without the outside support of a coalition of the willing laying claim to a global consensus and mandate.

Political Solutions

The greatest weakness of the ICJ ruling is that it allows treating Kosovo as a precedent set by a coalition of the willing. The particular coalition of the willing behind Kosovo may have right and morality on its side, but it's in the nature of all balances of power to be mutable, transitory.

There can be no better example of the dangerous inadequacy of the ICJ verdict than the breakaway Georgian region of Abkhazia (and South Ossetia, although in this case less so). Quite independently of the merits of its case for independence, the ruling does nothing to permit an authoritative and objective evaluation of the Abkhazia case in the light of the precedent of Kosovo. The argument that Kosovo is sui generis is not a legal argument, but a political one. Like Kosovo's, Abkhazia's independence remains a function of outside backing -- though unlike Kosovo, Abkhazia could be said to have the "wrong" friends.

What does set Kosovo apart from most other secessionist hopefuls is its eventual guaranteed absorption into the EU. Although the EU itself is neutral on the status of Kosovo, with Spain, Greece, Cyprus, Romania, and Slovakia refusing to recognize it, the bloc has committed itself to absorbing the entire western Balkan region.

Assuming this will happen, there are grounds for hope that given enough time, the differences between Belgrade and Pristina can eventually be moderated and, perhaps, disappear altogether.

But it is equally possible that the EU's political process could see its progress checked or reversed, for whatever reason. Then, any Brussels-inspired rapprochement that does not build on a genuinely local give-and-take could have disastrous consequences once it collapses, leaving the two sides with little or no experience of compromise and a lot of fire under the embers.

Ahto Lobjakas is RFE/RL's Brussels correspondent. The views expressed in this commentary are the author's own, and do not necessarily reflect those of RFE/RL

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