Recognition of Kosovo
Who is to be sued, how and to whom?
It is easier to practice patriotism than to work hard

During the parliamentary debate concerning the advisory opinion of the International Court of Justice (ICJ) on the Declaration proclaiming the independence of Kosovo, as well as in the broader debates in which a number of scholars also took part, the Serbian Government was criticized, amongst other things, for requesting, through the UN General Assembly, the advisory opinion of the ICJ which now the majority of participants in this discussion find to be unfavourable for Serbia. According to them, the Serbian Government should have taken legal action against all states which, following the Declaration of Independence, recognized Kosovo as a state.

An interesting fact is that the questions which should have been the most interesting for legal experts were almost never mentioned during parliamentary or other discussions.

The first among them, of course, is – to whom would Serbia address its legal complaints? The first option that comes into mind is that same ICJ, which, according to many critics, took a wrong stand, and even fell under the influence of some great powers. The majority of ICJ judges, according to these critics, are incapable, dishonest and intimidated. If these are all known facts, is there any point in addressing this Court? However, this is not a legal, but rather a political, psychological and moral question, and implies the existence of “experts”, who would be able to guess the disposition of the majority of ICJ judges in advance. Thus, it should be set aside.

The second question is both practical and legal. Namely, the ICJ is an international court, which acts only in disputes between states. As opposed to internal, domestic courts, say – a court in Serbia, an individual cannot seize this Court if certain additional requirements have not been met. The jurisdiction of the ICJ is optional, which means that a state cannot be sued only on the basis of the UN Charter and the ICJ Statute or only because it simply exists, but instead, the defendant state itself has to specifically and explicitly agree to that.

There are different ways of giving this explicit consent. The states in dispute may have agreed in advance, by signing an international treaty, that the competent court in case of a dispute would be the ICJ. This was the case with the disputes between states which were successors to SFRY, regarding genocide: the jurisdiction of the Court exists for countries that ratified the Convention on the Prevention and Punishment of the Crime of Genocide, which, in its article IX, defines the ICJ as the competent court in case of any dispute regarding its implementation. States can agree to ICJ’s jurisdiction even after the dispute has emerged by consenting through a special agreement (professionally named compromis) that the competent court is the ICJ. Finally, the most comprehensive method of accepting the Court’s jurisdiction lies in Article 36 of the ICJ Statute and is called the optional clause. According to this provision, any state which is a member of the UN and the ICJ Statute can, at any time, make a simple declaration that it consents to the ICJ jurisdiction regarding all disputes pertaining to the interpretation of a specific treaty, any issue of international law, the existence of a fact which would be in violation of an international commitment, and the nature and scope of compensation if such a commitment is violated. States which have made such a declaration without reservation can sue each other without additional, explicit consent of the defendant. There are additional limitations regarding specific statements, which have to be respected due to the principle of reciprocity. The most important facts that need to be pointed out is that a state which has not made this declaration cannot sue a state which has given one, that the case must be grounded on jurisdiction based on reciprocal commitment, meaning that the jurisdiction is as broad as the narrowest declaration allows.

A simple overview of ICJ documentation can ascertain that the ICJ archive does not contain any statements by Serbia in regard to Article 36. This means that, at this moment, Serbia cannot sue any state which has given such a statement. However, Serbia has the option of giving such a statement and then starting proceedings, but the Court would declare it as abuse, as in some previous cases, because states which already made the declaration were not aware that Serbia would make the declaration as well, while they did not have the opportunity to adjust to this state-of-affairs. Additionally, and this is more than a legal assessment, Serbia would be risking the possibility that other states which signed the optional clause bring disputes against it without prior consent, disputes whose content is hard to predict. For example, at one point, the Kingdom of Yugoslavia made such a declaration in regard to the Permanent Court of International Justice. However, the declaration was not renewed because, for the short period that it was in force, the Kingdom of Yugoslavia was forced to face unpleasant lawsuits and decisions which carried dire consequences.

If the optional clause cannot be used, can Serbia refer to an international treaty? It is probable that international treaties regarding secession, violation of neutrality, etc. exist, but no such treaty which designates the ICJ as the competent court in related disputes is known. We can deduce from this fact that Serbia, even if it wants to settle a dispute with a state which recognized Kosovo, cannot claim ICJ jurisdiction.

Which court remains then? Other international courts either deal with specific issues, such as the International court for the Law of The Sea, or do not deal with disputes between sates, but between legal and natural persons, or they try individuals regarding criminal matters. These are, for example, the European Court for Human Rights, the International Criminal Court and other international criminal courts. As we were able to discern from the abovementioned discussions in the parliament and in the public, there is an idea that Serbia should file lawsuits against states which recognized Kosovo before their own courts. These courts are, of course, national, not international. This can be attempted (at a high expense), but, in the majority of states, if not in all, national courts refuse to review decisions of state organs in the area of foreign policy. These decisions are considered to be “acts of state” and reviewing them would violate the principle of separation of powers, which prohibits courts to make political decisions in lieu of governments. An initiative against a government organ, even a legislative body, can be launched only before a constitutional court (if a country has such a court) if the said body has violated the state’s Constitution, but not if the complainant believes international law has been violated.

And, of course, there are lawsuits before our own courts. In 1999, we tried even this. And why not? We are approaching that year at any rate. There is a strong presence, especially in the media, of former judges and public prosecutors, as well as former and current advocates. However, our chances are even poorer now: at the time, we have sued individuals, Clinton, Chirac, Blair… now entire states should be made to stand trial before our courts.

I believe that we can conclude that the Serbian Government, that is, its Ministry of Foreign Affairs, was not mistaken when it demanded that the UN General Assembly request the ICJ’s advisory opinion. The Serbian Government did what it could do (the issue here is not how useful or harmful were the rumours, gestures and actions which accompanied this initiative).

However, Serbia would be making a costly mistake and taking a risk if it started filing charges against individual states which recognized Kosovo. If we have to be reconciled that policy has to be governed by myths, emotions and wishful thinking, it most certainly should not be based on ignorance. It is not sufficient to be born a patriot, one should know (learn) a little about how patriotic goals can, in the real world and in real time, be reached “to the benefit of the people” (Dositej Obradović).

Translated by Bojana Obradović

Pešč, 12.08.2010.