Those who followed the debate before the International Court of Justice would have known exactly what was being asked and what the answer would be. Especially clear was then given by Professor James Crawford, whose opinion the Court largely accepted. Should the Serbian politicians and lawyers have known this? The answer is positive. Did they know it? In a democratic state this would be made evident at the appropriate place, because a self-respecting government and public opinion would undoubtedly wish to establish the question of responsibility. But not in Serbia. The response of both the Serbian government and Serbian public opinion has largely been that this is all irrelevant, that it is business as usual. This is bound to turn out badly.
The state president informed the country in the following manner: ‘The Court has avoided giving its opinion on the essential question, and left it to the UN’s highest body, the General Assembly, to discuss this and its political implications.’ One of the legal experts, Tibor Varady, said he was disappointed that the Court had failed to deal with ‘the essential question’. But if you were to read the debate which took place before the Court last December, you would know that the Serbian side was being warned at the time that Serbia had formulated the question in a manner that was both too narrow and rather meaningless. At that time, Serbian public opinion was being assured that this was indeed a wise and – as is usually suggested – cunning move by Serbia’s politicians and legal experts. It was said that the Court could not find the declaration of independence to be in conformity with international law, and that this would then be taken to mean also that Kosovo’s independence itself was contrary to international law. This was clever, they insisted, because otherwise – i.e. if the question of the right to secession or self-determination had been posed directly – the Court might have been guided by political rather than legal considerations. This way, however, the Court had to make a legal decision, not involve itself in the politics. It would, therefore, be bound to decide that the declaration of independence was contrary to international law.
As the English would say, this strategy was ‘too clever by half’. Why? Because the ICJ, like any other court, is not meant to pass judgments on any ‘essential questions’, but on those questions that are placed before it. So one should not rush to declare, at least not before taking the time to read the decision and its accompanying motivation, that the Court did respond also to ‘the essential question’. Tadic, Jeremic and their partners and advisers make their pronouncements assuming that no one will read the Court’s motivation, but simply accept their own explanations. It is perfectly possible that Serbian public opinion will indeed behave in this way, but the same is not true for the international factors. For the Court’s decision is too important and significant for it to be simply rejected as ‘technical’ and politically meaningless.
This is because the Court dealt with the essential question of whether the proclamation of independence was contrary to existing law – domestic and international. In doing so, it also interpreted – which will certainly be of some importance in future debates – Resolution 1244, the role played by Martti Ahtisaari, and all the relevant decisions of the Security Council and their motivations. It interpreted, in other words, the real, existing legal framework within which Kosovo’s proclamation of independence occurred. This is a reply to the truly essential question that is of significance to all those wishing to declare independence anywhere in the world. As it was stressed and pointed out in the December debate, the reply to the important essential question was to be that international bodies, such as for example the Security Council or its representatives, may approve or disapprove, as they have often done, some act of secession or self-determination or proclamation of independence. But the Court found that nothing in the legal framework or in Security Council decisions prohibits or proclaims illegitimate Kosovo’s declaration of independence or the fact of Kosovo’s independence. This is the reply to the essential question.
What the Court refused to consider was whether this position of international bodies runs contrary to the right to self-determination and the right to secession, because it was not asked to do so. But one can conclude from the motivation, as was stressed in the December debate, that the answer to this question too would be negative. By refusing to deal with the implied albeit indirect question posed to it, however, the Court refrained from pronouncing also on the ‘essential question’ that was not put to it: i.e. from trying to work out and formulate what the ‘essential question’ might be. The Court, in addition, refused to deal with the question of whether Kosovo will become a state. Because it is not possible to solve this question for Kosovo itself and for the international community by legal means.
The Court thus answered the question posed to it, both essential and technical, and not questions that it was not asked. Its response is based on law, not politics. It is all-embracing rather than ‘narrowly technical’. It will have significant legal and political weight.
The Serbian government and Serbian public opinion may say that none of this matters, but that is only an attempt to avoid responsibility. The future outcomes of such a policy will depend on responsible behaviour on the part of others, above all of the European Union and the United States. They will have to look after Serbian interests more than the Serbian government or Serbian public opinion do. In the absence of a system of intellectual and political responsibility, this is unlikely to turn out well.
Translated by Bosnian Institute, 24.07.2010.