It’s been two years, almost to the day, since the advisory opinion of the International Court of Justice on Kosovo was delivered, and roughly two more years since Kosovo’s independence was declared in February 2008. The case was perhaps one of the most high-profile ones in the Court’s recent history, and now – with the opinion nicely situated almost halfway between the original declaration of independence and today – it’s time to ask the question: what has been its impact?
International reactions to the unilateral declaration of independence (UDI) were mixed from the beginning, with some states recognizing Kosovo immediately and others condemning the declaration as illegal. Most states simply stayed silent on the issue though, either because they were expressing their opinion through non-recognition or because they were taking a wait-and-see position.
The next time the UN General Assembly met (in the fall of 2008), Serbia convinced the Assembly to request an advisory opinion on the legality of the declaration, believing that it had a strong case against the UDI.
The advisory opinions of the Court are, of course, just that: advisory – they are not binding on states, nor on the organs or organizations requesting them. Nonetheless, they are considered authoritative statements on the law as it stands, and as such, their impact is of no less interest than if they were indeed binding. And if the Court had found that the declaration was illegal, then the recognitions could similarly have been considered illegal.
At the time, therefore, it was widely expected that the flow of recognitions would slow down following the request for the advisory opinion – based on the underlying assumption that the Court would likely find the declaration of independence illegal, or that in any case, it’s better to wait until it gives the green light rather than recognize Kosovo prematurely and thereby risk violating international law.
After the advisory opinion was delivered by the Court – stating that the declaration of independence did not violate international law – many expected that the pace of recognitions would pick up again, based on the same logic: now that this uncertainty has been removed, it’s okay to go ahead and recognize Kosovo.
Yet, an examination of the growth of recognitions reveals that neither prediction came true. Quite the contrary: states remained completely unperturbed by both the request for the advisory opinion as well as the opinion itself.
What the numbers do tell us, is that following the initial peak (35 recognitions in the first two months), there has been a slow, but steady trickle of recognitions, standing at 91 as of today.
Interestingly enough, it is the states actively denouncing the UDI who have coached their objections in legal terms, as pointed out by Cedric Ryngaert and Sven Sobrie. But as they also note, even then the underlying reasons can usually be traced back to domestic politics, more specifically the existence of a significant minority or secessionist group in the territory of these states.
As to the reasons why states recognize Kosovo – since the ICJ seems to have so little to do with it – this study by Grace Bolton and Gezim Visoka may provide some insight. Their examination of recognition documents shows that states most commonly refer to the imperatives of regional peace and security, the exhaustion of negotiations with Serbia on Kosovo’s final status, and Kosovo’s acceptance of the ‘supervised independence’ plan put forward by UN Special Envoy Martti Ahtisaari.
All this is of course not to criticize the above-mentioned predictions – after all, it’s easy to talk with the benefit of hindsight. But they do reveal an optimistic belief in the power of the International Court of Justice (and international law in general) that may, sadly, be misplaced.