James Ker-Lindsay
A matter of justice
Despite significant pressure
from the United States, Britain, France and Germany, in the six
months since it declared independence Kosovo has been recognised by
just 43 of the 192 members of the United Nations. While this tally
includes many of the world's most influential states – including 20
of the 27 members of the European Union, and other leading western
states such as Canada and Australia – support from elsewhere has
been marginal. Kosovo has been recognised by just six states from
south and central America and Africa. Asian endorsements stand at
Japan, South Korea, Afghanistan and a couple of Pacific microstates.
This low count reflects a
deep sense of concern over Kosovo's legal right to independence.
While those states that have recognised it argue that Kosovo
represents a unique case in international politics, most countries
evidently continue to harbour real doubts about recognising a move
that has not been accepted by Serbia (the state on whose territory
Kosovo has been created), or endorsed by the UN security council.
It is against this backdrop
that Serbia is now preparing to launch its most significant and
controversial diplomatic initiative to date. Boris Tadic, the
Serbian president, has just
confirmed that next month Belgrade intends to seek the UN
general assembly's support for an advisory opinion from the
international court of justice on
the legality of independence and on its recognition. To succeed,
it needs 96 votes. This is not an impossible target. Already it
appears to have the support of many leading non-western states, such
as Russia, China, India, South Africa, Indonesia and Brazil.
Meanwhile, faced with pressure from both sides, many other countries
would simply welcome impartial guidance on the matter.
Although any opinion would
be non-binding, if the court were to rule in Serbia's favour - and
many believe that there is a good chance that it would - it would
mark a severe setback for further efforts to legitimise Kosovo's
statehood. While some countries, such as the United States, might
just hold their ground on recognition regardless of the court's
opinion, many others would come under real pressure, domestically
and internationally, to rescind their decision. In the meantime, it
seems unlikely that Kosovo would receive any further recognition.
Under these circumstances,
Serbia is now coming under pressure to drop its plans to pursue the
case. Already, Washington has warned against such a move. So too
have leading members of the EU. A few weeks ago, Bernard Kouchner,
the French foreign minister,
called on Serbia to drop its plans. More recently, the British
ambassador in Belgrade also
urged the Serbian government to reconsider its plan. Calling the
move a "mistake", he argued that it represented a "direct challenge
to the EU" and suggested that it would make cooperation between the
EU and Serbia more difficult. Privately, some EU officials have
indicated that it could even damage Serbia's EU accession
prospects.
However, EU members must
avoid being seen to strong-arm Serbia into backing down on this
issue. Such moves will only reflect badly on the EU as a whole. For
a start, and most obviously, by trying to stop Serbia from going to
the ICJ it rather suggests that many states maintain real doubts
over the legality of their decision to recognise Kosovo. Second,
having taking an uncompromising stand on Serbia's full cooperation
with the ICTY as a precondition for membership, it would not look
good for EU members to demand that their own actions be exempt from
legal scrutiny on the grounds of political expediency.
But there are bigger issues
at stake. After insisting that the states of the Balkans must not
resort to armed force in managing their disputes, and having
explicitly warned Serbia not to do so in the case of Kosovo, it is
illogical, if not fundamentally wrong, now to try to close off the
most peaceful and legitimate methods of conflict resolution. Lastly,
and perhaps most importantly, at a time when EU members are
emphasising the importance of international law in global politics,
and are seeking to strengthen the institutions of international
justice, it sends out the message that they are unwilling to subject
they own actions to legal oversight.
It is understandable why
those countries that have supported independence are worried by the
prospect of an ICJ hearing on the matter. However, by pressuring
Serbia to drop its plan, they only serve to entrench doubts about
the legitimacy of Kosovo's declaration of independence, and, in the
case of EU members, undermine the European Union's wider foreign
policy goals in the Balkans and beyond
(Autor is senior research
fellow and Director of the MSc programmes in International Conflict
and International Relations at Kingston University)
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