UN is sending Kosovo case to ICJ

Article published on Oct. 9, 2008
community published
Article published on Oct. 9, 2008
The UN General Assembly is backing Serbia’s draft to request an advisory opinion of the International Court of Justice (ICJ) about the legality of the unilaterally declared independence of Kosovo.
October 8th UNGA, by a recorded vote of 77 in favour to 6 against (Albania, Marshall Islands, Federated States of Micronesia, Nauru, Palau, United States), with 74 abstentions, adopted a resolution drafted by Serbia.

The resolution

In initiating the resolution, Serbia had responded to Kosovo’s unilateral declaration of independence on 17 February with “maximal restraint”, said Serbian Minister for Foreign Affairs Vuk Jeremi?, as he introduced the text. The resolution was asking the 192-member Assembly to convey its request to the Court - the United Nations' highest judicial body - for an advisory opinion, in line with its powers under the Organization’s Charter. Sending the question to the Court “would prevent the Kosovo crisis from serving as a deeply problematic precedent in any part of the globe where secessionist ambitions are harboured”, he explained. An advisory opinion would provide politically neutral and judicially authoritative guidance to many countries still deliberating how to approach such unilateral declarations. “Support of this resolution would reaffirm a fundamental principal: the right of any Member State … to pose a simple, basic question--on a matter it considers vitally important, to the international court,” he said, adding that a vote against the text would deny the right of any country–-now or in the future-–to seek judicial recourse through the United Nations system. “The question posed is amply clear and refrains from taking political positions on the Kosovo issue.”

The vote

With that, the draft received support from a geographic mix of countries, including Europe, Africa, South America and the Caribbean and the Middle East, with delegates backing the measure out of respect for international law, the United Nations Charter, States’ right to request an advisory opinion-–particularly on sovereignty matters-–and the Court’s position as the appropriate judicial body for ruling on such highly complex matters. Algeria’s representative also underscored that the draft contained no political or controversial elements.

Six country voted against (Albania, Marshall Islands, Federated States of Micronesia, Nauru, Palau, United States), 77 favoured the draft and 74 countries abstained. The European Union member countries did not have a united stand on the issue, with Slovakia, Greece, Cyprus, Spain and Romania voted in favour, while the rest abstained.

The conclusions

My conclusions about the vote, procedure and discussions in UN General Assembly are following:

The Spanish representative really hit the nail on the head when he said that “his government considered the respect of international law was a principle which must be applied to all fields of international relations”. He added that “it at the same time highlights the importance of the functioning of the UN institutions”. So the big question is to restore some authority of UN as the main forum of international relations and to recognise ICJ’s role as highest judicial body of UN. The US vote against resolution was not surprise. USA has always during modern times been against International Court forbidding e.g. hearings of its war crimes there. USA has also frequently broke international law and underestimated UN/UNSC when needed for own tactical reasons. The European Union showed again that its speech about common ESDP, foreign policy etc.are fairy tales useful only for statements and real politic is something else. Those EU member states who have not made Kosovo recognition were also in this UN vote favour to ask ICJ ruling. The amount of abstained votes shows that in principle ICJ is respected because many countries were afraid how to act if ICJ rules their hesitated actions (recognition of Kosovo independence) wrong. The timing of this resolution is right. Even all those who supported Kosovo independence said that Kosovo was unique case and not precedent thousands of ethnical or separatist movements around the world made other conclusion – Kosovo really opened the “Pandora box”. To limit the degree of damage it is time to restore international forums and law.

Source of UNGA meeting and vote: UN News Service/GA/10764/8th October 2008; more about Kosovo case in my BlogArchive