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Court Compromises on Kosovo

Ruling likely won’t set precedent for Palestinian cause

Marc Tracy
July 22, 2010
Kosovo Prime Minister Hashim Thaci and Vice President Biden, yesterday.(Tim Sloan/AFP/Getty Images)
Kosovo Prime Minister Hashim Thaci and Vice President Biden, yesterday.(Tim Sloan/AFP/Getty Images)

In late 2008, the United Nations General Assembly voted to ask the International Court of Justice the following question: “Is the independence of Kosovo in accordance with international law?” Today, the ICJ answered: Yes, it is. This stamp of approval for the unilateral declaration of self-sovereignty by this one-time province of Serbia could have profound implications on other separatist/secessionist movements around the world—notably the Palestinians’.

… Or it may not.

Earlier this year, Milena Miletic laid out the possibilities in Tablet Magazine: “The first would be for the court to state that the declared independence of Kosovo violates international law,” Miletic explained. “The second would be for the court to rule in favor of Kosovo’s independence. …The third and most widely expected outcome is for the court to issue an opinion each party can interpret as it pleases, a result unlikely to increase international stability.”

The ICJ appears to have chosen Option 3. Writes the Times: “Legal experts emphasized that while the court had ruled that Kosovo’s declaration of independence was legal, it had scrupulously avoided saying that the state of Kosovo was legal under international law, a narrow and carefully calibrated compromise.”

What does this mean for the Palestinians?

Observers on all sides of the Mideast conflict have seen resonances between the struggle of Kosovo, whose majority-Albanian population has centuries-old grievances against the Serbs to the north, and that of the Palestinians living on Israeli-controlled land. “Many states that support Kosovo’s independence for religious, political, or idealistic reasons are enthusiastic supporters of unilaterally establishing a Palestinian state on territory now controlled by Israel,” Miletic reported. An aide to Palestinian President Abbas told Miletic, “Kosovo is not better than us. We deserve independence even before Kosovo.”

Had the Court ruled that the state of Kosovo was formally legal under international law, it would have implicitly endorsed the principle that violent oppression creates a mandate for internationally imposed independence, according to Miletic; such a decision, in turn, could have been the basis for a parallel appeal to international recognition for a unilateral declaration of Palestinian statehood.

However, since the Court did not endorse that principle, it will be more difficult for advocates of Palestinian statehood, and specifically for the sort of unilateral declaration of Palestinian statehood that Palestinian Prime Minister Salam Fayyad has flirted with, to cite this decision as precedent. Best to think of today’s opinion as—to borrow the immortal words of Bush v. Gore—“limited to the present circumstances.”

Marc Tracy is a staff writer at The New Republic, and was previously a staff writer at Tablet. He tweets @marcatracy.

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