A Court Upholds Kosovo Independence: Now What?

Horns honked, flags waved and toasts were raised in Pristina on Thursday at the news that Kosovo's declaration of independence from Serbia in 2008 was upheld by the International Court of Justice (ICJ) in the Hague. The ICJ, the U.N.'s highest court — albeit limited to advisory powers — said that there was "no applicable prohibition" of a declaration of independence from a sovereign territory like that made by Kosovo in 2008, leading court president Hisashi Owada to rule that the move, "did not violate general international law." The decision was hailed as a vindication in Pristina, but in Belgrade, the capital of Serbia, it was forcefully rejected.

"This is a great day for Kosovo, and my message to the government of Serbia is, 'Come and talk to us,'" said Kosovo's Foreign Minister, Skender Hyseni, after leaving the court. But Serbia insists it will never recognize what it called a "unilateral declaration of independence of the ethnic-Albanian authorities of our southern province." Serbian Foreign Minister Vuk Jeremic had a different interpretation of the ruling, saying, "Today, in the courtroom, we did not hear that anyone had a right to secede."

The contrast in reactions was predictable: the tiny, landlocked Balkan territory of 2 million people has been a site of centuries-old tension between Serbs and Albanians, flaring up dramatically in 1999 when a NATO air campaign drove a rampaging Serbian army out of Kosovo. Although the territory was legally part of Serbia, its ethnic-Albanian majority had been agitating for independence, and the Serb authorities had responded with a campaign of ethnic cleansing. After the NATO intervention, Kosovo became a protectorate of first the U.N. and NATO, and then of the European Union.

Despite adopting its own constitution, passports and national anthem and creating its own army, Kosovo has been in a legal limbo since its declaration of independence. Only 69 countries — less than half the member states of the U.N. — have until now recognized Kosovo as a state, including the U.S. and 22 out of 27 members of the E.U. The holdouts — including Russia, China and Spain — have enough sway to ensure that Kosovo is barred from joining the U.N. and other international bodies (although it is a member of the IMF and the World Bank).

Will the ICJ ruling help Kosovo overcome international objections to its independence? The answer is not yet clear. The court's ruling was an advisory opinion not legally binding on U.N. member states, and it focused on the declaration of independence rather than the question of whether Kosovo is a proper state. It was historic, nonetheless, says Engjellushe Morina, head of the Kosovo Stability Initiative, a Pristina-based think tank. "It is enormously significant," she says. "Many countries were waiting for the court's opinion before expressing an opinion on Kosovo. While I don't think Kosovo will be recognized by Serbia anytime soon, the ruling should lead to other countries recognizing it."

The U.S. reacted by urging Europe to "unite" behind the U.N. court ruling. Shortly before the verdict, Vice President Joe Biden telephoned Serbian President Boris Tadic and stressed Washington's "unwavering commitment to Kosovo's sovereignty and territorial integrity." (Biden had also made clear before the ruling that the U.S. would support Kosovo's independence regardless of the court's decision.) But the E.U., which maintains a 2,800-strong police and justice mission in Kosovo, has a more complicated position. European Foreign Ministers are expected to meet in Brussels on July 26 to debate a common response to the ruling, but are likely to merely push for renewed dialogue between Kosovo and Serbia, both of whom are seeking E.U. membership. Key E.U. members such as the U.K., France, Germany and the Netherlands have drawn an implicit link between Serbia's membership prospects and its stance on Kosovo. And early this month, the European Parliament adopted a resolution, by 455 votes to 150, calling upon the remaining five E.U. member states to recognize Kosovo's independence. Of the five, Spain, Romania and Slovakia refuse to recognize Kosovo because of fears about their own minority populations, while for Cyprus and Greece it is because of a sense of Slavic kinship.

Ilir Dugolli, Kosovo's ambassador to Belgium and informal envoy to the E.U., says Serbia's long-term plan to join the European mainstream will compel it to drop its objections. "A neighborly prerequisite is essential for E.U. integration," he says. "It's self-evident that if Serbia obstructs another country that aspires to independence, that would halt its E.U. aspiration. Eventually, Serbia will have to choose between the E.U. and Kosovo."

Any solution will also have to resolve the conundrum of northern Kosovo's Serb community. The rugged sliver of territory above the Ibar River and the town of Mitrovica is contiguous with Serbia proper, and remains outside the effective control of the government in Pristina, and even the E.U. has limited access. One proposal for resolving the issue is to swap this territory for the Presevo Valley, a predominantly Albanian part of southern Serbia contiguous with Kosovo. "For decades, Western diplomats have rejected this sort of partition as unacceptable, as they fear it would spark calls for similar land swaps in other Balkan regions, and indeed the rest of Europe," says Richard Gowan, associate director at New York University's Center on International Cooperation. "But on the ground people say it's not merely acceptable, but logical, and it's the price to pay for a Kosovar state."

However, Gerard Gallucci, the former U.N. regional representative in Mitrovica, says a territory swap remains unlikely and that a more plausible solution would be to give "special status" for Mitrovica North and its surrounding Serb enclave, allowing both Pristina and Belgrade to continue claiming sovereignty. "It may be messy," he says. "It may only freeze the Kosovo situation and not resolve it. But it might be the only way to reach an accommodation between the two sides."

So the ICJ ruling may turn out to be just a step along Kosovo's slow path toward independence. Still, it's a step the flag wavers who celebrated on Thursday are more than happy to take.