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Kosovo: International Court of Justice Opinion on Independence

By EUDO CITIZENSHIP/CITSEE expert Gezim Krasniqi

July 26, 2010

On 22 July 2010, in a much-anticipated opinion, the International Court of Justice (ICJ), found that Kosovo’s declaration of independence did not violate general international law. Kosovo declared its independence from Serbia on 17 February 2008 and up to July 2010 it had been recognised by 69 states. Serbia, which strongly opposes Kosovo’s independence, sponsored a draft-resolution at the General Assembly of the United Nations (UN) to request an advisory opinion from the ICJ on the legality of Kosovo’s declaration of independence. The question on which the advisory opinion of the Court was requested was put forth in Resolution 63/3 adopted by the General Assembly of the United Nations on 8 October 2008. The Court was requested to render an advisory opinion on the following question: ‘Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?’

Contrary to the general expectations, the Court delivered a unequivocal opinion, concluding that “the adoption of the declaration of independence of 17 February 2008 did not violate general international law, Security Council Resolution 1244 (1999) or the Constitutional Framework. Consequently the declaration did not violate any applicable rule of international law.” Such an opinion in favour of Kosovo is considered crucial for the new state in its efforts to strengthen its statehood and international subjectivity. In addition, it is expected to increase the pressure on many countries that have not recognised Kosovo (including 5 European Union Member States) to do so, and on the state of Serbia to moderate its policy toward Kosovo. A new round of negotiations between Kosovo and Serbia on many issues of common concern and interest is thus expected to commence soon.

This opinion will certainly affect the emerging citizenship regime in Kosovo in many ways. To begin with, a new wave of recognitions, predicted by many, will create new opportunities for Kosovo to join various international and regional political organizations, allowing Kosovo to adhere to crucial human rights instruments such as the European Convention on Human Rights. Second, the ICJ Opinion is expected to pave the way for new political dynamics within the European Union (EU) regarding its stance on Kosovo. EU’s eventual capacity to speak with one voice when it comes to Kosovo will help the former’s Rule and Law Mission in Kosovo (EULEX) to overcome its deadlock position (which is a consequence of the ‘status-neutral’ approach) and assist Kosovar institutions in exercising their authority throughout the territory of Kosovo. Finally, an eventual dialogue between Pristina and Belgrade may assist with solving troublesome issues such as customs in the northern Kosovo, travel documents, refugees, property, which are essential for the new state and its efforts to consolidate an autonomous citizenship regime.

Sources and further readings

ICJ Opinion
Legal commentary on the Opinion
EUDO Report on Kosovo