Kosovo and the Impact of the ICJ's Opinion

After a decade of tumultuous struggle, Kosovo’s bid to secede from Serbia received a glimmer of hope on July 22. The International Court of Justice, delivering an advisory opinion, stated that Kosovo’s declaration of independence is not in violation of international law. While, in some quarters it is believed that the decision will provide steam to Kosovo’s desire for independence, the notion seems unrealistic, considering that some countries, particularly, China, Russia and Spain, are inimical to the notion.

The ICJ, which was expected to sit on the fence, to the shock of many, in particular the concerned parties, unequivocally stated that Kosovo’s declaration did not impinge international law. Yet as landmark a moment as the opinion may mark, its significance isn’t as far-reaching as it’s made out to be.

The advisory opinion is not binding on States and was rendered at the request of the United Nations General Assembly. The circumstances surrounding Kosovo’s independence remains unchanged. No doubt, the decision is being hailed in Pristina, supported ardently by the United States and some of Europe, but Belgrade remains unmoved, having vehemently rejected the opinion. “Serbia will never recognise the unilaterally proclaimed independence of Kosovo,” said Serbian President Boris Tadic.

The decision though, marks a seminal moment in Kosovo’s history. In spite of having adopted its own constitution, national anthem and created its own army, its status has remained imprecise. The opinion may not directly help drive a move among other states to recognise Kosovo – only 69 states have so far done so – but it certainly renders a bit of legal sanctity to Kosovo’s claims. “I expect Serbia to turn and come to us, to talk with us on so many issues of mutual interest of mutual importance. But such talks can only take place as talks between sovereign states, between two neighbouring states.” said Skender Hyseni, Kosovo’s foreign minister.

Yet the reasoning behind the decision apart, it’s difficult to be anything but incredulous towards it. Self-determination as a concept, as Antonio Cassese, noted international jurist, says, is emblematic of international law. But to derive consistent state practice is quite complicated. Canada, for instance, has come out in support of the ICJ’s opinion, while qualifying that the principles espoused will be inapplicable to Quebec. Russia, on the contrary, says that recognising Kosovo’s sovereignty will impede Serbia’s territorial integrity – yet it continues to recognise South Ossetia and Abkhazia, two secessionist regions of Georgia. China and Spain have been similarly dismissive, concerned no doubt about Taiwan and Tibet, and the Basque and Catalan regions respectively.

What is evident from the practice of states over a sustained period of time is that the right to self-determination is founded upon three basic premises. First, whether the secessionists are a ‘people’, in the ethnographic sense; second, whether the state from which they seek secession has seriously violated their human rights and finally whether secession is the only available, effective legal remedy.

Kosovars may, possibly, represent a ‘people’, having inhabited the region for centuries, but in general, the Kosovar Albanians are not perceived to constitute a separate nation. But, what constitutes a ‘people’ remains flexible and hence, it could be forcefully argued that the Kosovars do in fact constitute an ethnographically distinct people.

The human rights violations in the region, though, as has been well documented, are unquestionable. The Security Council’s Resolution No. 1244, which observes a “grave humanitarian situation” and “a threat to international peace and security” in the region, lends undeniable support to Kosovo’s claims.

The issue of whether secession is the only available and efficacious remedy is however, more prickly. Considering the extent of the human right perpetrations, prior to the North Atlantic Treaty Organisation’s invasion, it seemed impossible that the differences could be settled peacefully. At the time, a separate Kosovo appeared the only solution, especially with Slobodan Milosevic intent on creating an all-conquering Serbia. Much has changed in the region, but constructive and peaceful negotiations between the Kosovars and Serbia seem unlikely. Yet, the question remains: will secession satisfy the concerns of the Serbian minority in Kosovo?

The Balkans is a highly polarised region, with varying sects of people congregated in a small area of land. To accord recognition to the avowed sovereignty of Kosovo, some believe will lead to others – including the Republika Srpska (the Bosnian Serb republic) – to seek secession. However, it must be noted that the ICJ’s opinion does not endorse secession, but merely recognises the right of a region to claim independence. Yet, merely by using the argument that Kosovo represents a unique case will not help prevent the opening of a Pandora’s box of claims and counter-claims – a phenomenon that could have drastic consequences upon the hallowed principles of sovereign equality and inviolability of international borders.

On July 2, a Kosovar Serb was killed and ten others were injured after a grenade was thrown at protestors in Mitrovica, situated in the northern part of Kosovo, boasting a huge Serb population. The incident followed a protest by a group of 2000 Kosvar Serbs against the opening of a Government office in the region. Within Kosovo, opinions remain divided. The Serb minority, which has been heavily marginalised – an aspect that isn’t well documented by the world media – naturally remains loyal to Serbia. The Guardian’s Ian Bancroft – who has covered the issue in depth – believes that status neutrality is crucial to Kosovo, as anything else is likely to ignite tensions on the ground.

Having said that, it could be time for Serbia to move beyond petty differences and garner its act towards more meaningful dialogue that will promote solidarity in the region. There are already encouraging signs from Serbia, which even if fervently averse to the idea of an independent Kosovo, is looking increasingly more open to talks with Kosovo to find more mutually satisfactory solutions.

Britain's New Government and the Spirit of Democracy

This past week, the United Kingdom was ushered into a new era of politics, one involving a rule by a coalition government for the first time since the Second World War. Outwardly, the alliance between the Conservative Party and the Liberal Democrats couldn’t have represented a starker difference in ideology between partners, with the Conservative’s emphasis on traditionalism countered by the Lib-Dem’s belief in social liberalism. But ideology, although some may have you believe otherwise, has only ever played a bit-part role in politics.

Politics, at least the modern-day version, seems to be about finding the most convenient path to power. Countries around the world have seen the basic dogma of a political party shelved in the interests of attaining power. David Cameron, the leader of the Conservative Party and the new Prime Minister of Britain, and his deputy, Nick Clegg, the leader of the Lib-Dems, in their first press conference addressed this very notion. ‘Power’, though was substituted for ‘national interest’, which they said would receive preference to ‘party interest’, so as to give Britain a stable and good government and so as to rest the power back with the people. Noble ideals no doubt and the charming earnestness with which it was presented by the new leaders wouldn’t make you want to think otherwise.

After all, coalition politics, one where a party’s basic doctrine is at times compromised in the interest of pragmatism, should provide greater checks and balances against the potential of authoritarianism by the party in majority. But on the flip side, lies the utter chaos that often ensues from such a brand of government. Britain’s coalition does not contain the mathematical complications that alliances in countries like India have witnessed, wherein a multitude of political parties and individuals come together to form the government. A partnership of such a nature can lead to a situation, where the ruling government, isn’t a product of the mandate of the people, but merely of political alliances, which defeats the most basic tenet of democracy.

In India, with the mushrooming of regional parties, the stability of the single largest political party forming the government sans agreements with other parties has perhaps been consigned to the past. Bending to the needs of a coalition partner often takes precedence to good governance, a practice that is hardly symptomatic of a great democracy. As an Indian, it is natural to be sceptical about coalitions, but leaving aside the appalling experiences that India’s coalitions have offered, it must be said that it is quite conceivable that Britain’s new government may indeed deliver upon the promises of its fresh-faced leaders.

Notable in the emergence of a coalition government in Britain is the fact that the Conservatives and the Lib-Dems did indeed have a choice. They could have both gone it alone had they felt the need to, but as Cameron endearingly pointed out during the course of his press conference, it was an option that he and Clegg found uninspiring. Following brief talks, the coalition was formed on the bedrock of transparency, with the partners releasing a seven page draft of their power sharing agreement. Soon after, the cabinet was established swiftly and seamlessly with adequate representation granted to the Lib-Dems, including the appointment of Clegg as the Deputy Prime Minister. The early signs are certainly good, with both parties putting their differences aside and teaming up in their endeavour to provide Britain with a stable government, as showcased by the coalition agreement.

The mandate of the people in some respects also seems satisfied by this new breed of government. It was clear from the results that the people wanted the Labour Party and Gordon Brown ousted from power and the fact that the Conservatives were unable to secure an outright victory meant that a coalition between the Tories and the Lib-Dems, provides the government the legitimacy of representing the command of the people, thus satisfying one of the fundamental precepts of democracy.

As always the efficacy of Britain's new government can only be judged in time, but what is apparent from it's early days, is that the evil lies not in coalition as a form of government, which when formed for the right purposes can certainly embody true democratic spirit.