23 July 2010

I can’t help feeling that sometimes international lawyers are their own worst enemies. (Unless, of course, you wish to follow the perhaps apocryphal example of the Labour party politician Ernest Bevin, who on being told that Herbert Morrison was his own worst enemy, is said to have retorted: “Not while I'm alive, he ain't.”)

The judges who sit on the International Court of Justice in The Hague have just given us the benefit of their opinion on the legality or otherwise of Kosovo’s declaration of independence from Serbia in February 2008.

You need to read those words very carefully. They have given their opinion on the legality of the declaration. Not the legality of the secession, or the legality of the self-declared independent state of Kosovo. What the judges were concerned with was the declaration, not the act.

You may wonder how useful that is. Not our problem, say the judges. We were asked for our opinion on a declaration – which is true, since the UN General Assembly, at Serbia’s request, did ask specifically for just that – so that is what we have given.

Is Kosovo a legally constituted state? No answer. Was its secession from a legally constituted UN member state (ie Serbia) in accordance with international law? Again, no answer.

There are two fundamental principles in international law: one is that all legally constituted states are entitled in law to have their territorial integrity protected, in other words, no one can come along and bite a chunk out of the country without its consent.

The second is that all peoples have the right to self-determination, to decide of their own free will how, and by whom, they wish to be governed.

Sometimes, as in Serbia/Kosovo, these principles come into conflict. On the one hand, Serbia is entitled to its territorial integrity; on the other, the people of Kosovo are entitled to self-determination.

But if you were hoping that the International Court of Justice might help find a formula to reconcile these two principles, you will have been sorely disappointed.

First, it ducked on territorial integrity. Yes, it says, “this principle … is an important part of the international legal order and is enshrined in the Charter of the United Nations.” But what the Charter says (Article 2, paragraph 4) is that “all members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State.”

Therefore, says the Court, “the scope of the principle of territorial integrity is confined to the sphere of relations between States.”

Now, I’m no lawyer – never have been, never will be – but what I understand this to mean is that if, for example, Albania had annexed Kosovo by force, that would have infringed Serbia’s territorial integrity. But a unilateral secession does not come into the same category.

(What the Court thinks about NATO’s intervention, without UN approval, in 1999 remains unclear – I imagine it wouldn’t be too difficult to argue that it was the “use of force against the territorial integrity” of Serbia, although admittedly it was never overt NATO policy to dismember Serbia.)

So what about self-determination? Again, the Court ducked. According to the helpful press release in which it summarises its findings: “Turning to the arguments put forward … concerning the right of self-determination … the Court considers that the debates on these points ‘concern the right to separate from a State … That issue is beyond the scope of the question posed by the General Assembly …’ The Court concludes that ‘general international law contains no applicable prohibition of declarations of independence.’”

So, let’s put all the legal niceties to one side. What does it add up to in the real world? First, whatever the legalese small print might say, this is a big political win for Kosovo, and a big defeat for Serbia, who, after all, asked the Court for its opinion in the first place. It will encourage other secessionist movements – in South Ossetia, Abkhazia, Somaliland, even northern Cyprus – and it will probably encourage more countries to recognise Kosovo as an independent state. (So far, only 69 countries do, including the United States and 22 of the 27 members of the European Union.)

It will complicate Serbia’s attempts to join the EU; it will encourage those Serbs who believe the world is irredeemably prejudiced against them; and, at least in the short term, it will probably increase local tensions, especially in the north of Kosovo, where Serbs are still the majority.

And it will do nothing to bring an agreement on Kosovo’s status any closer. But when all’s said and done, you may think that’s a job for politicians, not judges.

That’s certainly the view from Washington – a US official was quoted yesterday as saying: “We do not believe that declarations of independence are legal acts whose legality is affirmed or denied by this international court. They are political facts that have to be established through political realities.”

What do you think?