THE ECONOMIST

Kosovo and Serbia

A legal separation?

Kosovo’s independence from Serbia is scrutinised in the international court

SAY “Battle of Kosovo” and those who live in the Balkans will instantly recall Serbia’s defeat at the hands of the Ottoman Turks in 1389. So it is clearly no accident that Serbia’s leaders have taken to talking about a new “diplomatic” battle of Kosovo. That fight moved to the UN’s International Court of Justice in The Hague on Tuesday December 1st, which has begun hearing submissions on whether Kosovo’s declaration of independence from Serbia in February 2008 was legal or not.

What the 15 judges have to say will be of keen interest from Catalonia to Tibet and indeed wherever the argument about a people’s right to self-determination appears to clash with a state’s right to preserve its territorial integrity.

Kosovo has a population of over 2m people. The overwhelming majority are ethnic Albanians. Unlike the six republics of the old Yugoslavia which became states, Kosovo was a province of Serbia but it had many of the attributes of a republic, including an assembly, a government and a seat on Yugoslavia’s rotating presidency.

After the Kosovo war, which culminated in NATO’s 11-week bombing of Serbia in 1999, the Serbian administration in Kosovo was replaced by a UN body, which in turn gradually gave way to Kosovo’s own elected institutions. Serbia argues that Kosovo’s assembly did not have the right to declare independence and that the UN’s representative in Kosovo was legally bound to nullify the declaration. The Kosovars answer that this was a constitutional issue and not an international legal matter and besides they had as much right to declare independence as the other parts of Yugoslavia.

To date 63 countries have recognised Kosovo, including America and 22 of the 27 EU states. But China, Russia and many other important countries have not—including Spain, which will hold the EU’s presidency from January. As well as Serbia and Kosovo, 29 countries will give their views in court. After that the judges will deliver a non-binding advisory opinion at some point in the next 12 months.

International law on self-determination and secession is unclear. Most Western countries recognise Kosovo but not Abkhazia or South Ossetia which have broken away from Georgia. However Russia and Venezuela, who will both argue for Serbia at the ICJ, have recognised the two breakaway regions. If the judges could steel themselves to offer clarity on the issue that would be widely welcomed.

In fact their opinion on Kosovo’s status is likely to be ambiguous. But, if it is a draw, argues Remzi Lani, a commentator from Albania, then that will constitute “a defeat for Serbia”, because slowly but surely, countries will continue to recognise Kosovo. However, opposition from Russia and China means Kosovo will never be allowed to join the UN or any other body where they have the power to prevent it.

Even if the court finds in favour of Serbia it is unlikely to make much difference as it is inconceivable that Serbia could ever rule Kosovo again. But that may not be the point at issue here. What Serbia may offer Kosovo in the future is an exchange of the Serb-inhabited north of Kosovo for an Albanian-inhabited bulge into Serbia called the Presevo Valley.

It is noteworthy that the opening of the ICJ case is not the main news in either Kosovo or Serbia. Serbia is celebrating a decision confirmed on Monday to abolish visas for the EU’s Schengen countries for Serbs, Macedonians and Montenegrins. A cartoon in one paper shows Serbia’s president, Boris Tadic, cheerfully carting off a man-sized carrot, a gift from the EU, on his shoulders.

Kosovars have nothing to celebrate. Their news is full of the story of the arrest by the EU’s police mission in the country of a man who claims to have taken part in some 17 murders, attempted murders or beatings on behalf of a murky intelligence service which was previously linked with the PDK, the party of Hashim Thaci, the prime minister. The victims were apparently members of another party, now in coalition with Mr Thaci. The PDK Tdeny the accusations, saying they are politically motivated smears. Mr Thaci says that whoever is responsible must be brought to justice. Although nothing to do with the case before the ICJ such allegations, true or not, do not help Kosovo’s cause.