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The ICJ ruling on Kosovo and its repercussions for the EU

23. July 2010. | 14:20

Source: EurActiv

Author: Sofía Sebastián

The ICJ ruling on Kosovo will have important repercussions for the EU in the weeks to come, writes Sofía Sebastián from Madrid-based think-tank FRIDE.

"The results of the much-anticipated International Court of Justice (ICJ) ruling on Kosovo's unilateral declaration of independence have been unmistakable and unexpectedly clear.

The non-binding opinion, which comes in the wake of years of political wrangling over Kosovo's status as an independent nation, states that the unilateral declaration of independence did not violate international law or UNSC resolution 1244 (the legal framework under which Kosovo remains an international protectorate until a final settlement on its status is reached).

Now the EU must move forward with a more united and committed on-the-ground engagement to complement the incentive of accession.

Kosovo proclaimed de facto statehood in the region in early 2008, but struggled to obtain international recognition. EU efforts to support Kosovo's state-building process faced strong opposition from Serbia, while Spain, Romania, Slovakia, Greece and Cyprus all refused to accept the declaration of unilateral independence for fear of the domestic implications of such action.

The non-binding decision will have important repercussions in the weeks to come, although it offers no clear indication of how the process will unfold. Both Serbia and Kosovo will likely maintain their respective positions and will continue to pursue their own political agendas.

Prior to the ruling, Serbia declared that it will never recognise Kosovo's independence and that it will seek a new UN resolution to open yet another round of negotiations on Kosovo's status. Serbia's position has been severely undermined however, and new recognitions of Kosovo's independence will reduce Serbia's room for manoeuvre within the UN. Kosovo, on the other hand, will interpret the ruling as legitimising its sovereign status and will refuse any negotiations that could potentially undermine this recognition.

This potential impasse places the burden of responsibility once again upon the international community to intervene in an effort to attempt to bring together both parties to resolve the political deadlock.

The EU should take the lead in the process. In the past, the EU has found itself gridlocked over Kosovo and with a weakened bargaining position. The ICJ's opinion has provided some legal clarity to allow for dissenting EU member states to reconsider their positions, although it is uncertain at this point which countries will support this initiative.

Cyprus has already claimed that it will not recognise Kosovo, even if Serbia does. Other nations, such as Spain, may not recognise Kosovo immediately, and will most likely adopt a 'wait and see' approach, pending further talks on the issue.

EU authority in the Balkans has been largely discredited and the challenge is now to engage the EU's new structures and member states in an effective mediation effort in order to deliver a cohesive plan of action. In light of the prevailing perception of the EU in the region, this initiative will need to be based on ground-level diplomacy, as opposed to the elusive lure of EU accession.

The EU must utilise all of its resources in order to convince Serbia to abandon its delay tactics and take a more conciliatory approach. The practical reality is that Kosovo's independence will not be reversed. The US and other prominent EU member states are supportive. Spain could also play an important role in this process by demonstrating strong leadership; however, such a move would require the Spanish government to act in the best interest of the region and without concern for its own internal problems. (After all, the Court made it clear during the ruling's reading that Kosovo is considered an exceptional case).

Negotiations should centre on northern Kosovo and on the provision of further assurances to protect the Serbian minority in Kosovo. It is imperative that EU mediation avoids the introduction of impractical ultimatums from all sides: such as Serbian recognition of Kosovo's independence as a pre-condition for EU membership. This approach would be short-sited and has proven to be counter-productive in the past.

A more constructive approach would be to create an incentive framework based on direct dialogue and cooperation. It is imperative that Kosovo's authorities be strongly encouraged to comply with strict conditions designed to protect the rights of the Serb minority within its borders.

Ultimately, Kosovo's independence is, for all intents and purposes, a foregone conclusion. Negotiations between Serbia and Kosovo should focus on the creation of a sustainable nation state that is capable of becoming a productive member of the EU as further progress towards accession is made. If Kosovo's status remains in dispute and contested by Serbia and the Serb minority in Kosovo, the risk of inter-ethnic and regional instability will persist.

Failure to reach consensus around this issue will also serve to undermine further the EU's broader agenda in the region."

Sofía Sebastián is an associate fellow at Madrid-based think-tank FRIDE.


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