Kosovo and the International Court, by Jack Matlock

If Kosovo independence is recognized, why not South Ossetia and Abkhazia? Why defend the right of self-determination in one instance and deny it in others?

Jack Matlock

American professor and former ambassador

The ruling by the International Court of Justice that Kosovo’s declaration of independence did not violate international law (see Dan Bilefsky’s article in the New York Times today) will be used by the Kosovo government to argue that it entitles Kosovo to diplomatic recognition by other governments. Serbia will deny this and point out that the ruling was carefully limited, making clear that diplomatic recognition is a political, not a legal decision.

ICJ President Judge Hisashi Owada, centre, flanked by Judge Peter Tomka, left, and Judge Awn Shawkat Al-Khasawneh, right, at the court in The Hague on Thursday, July 22, 2010.

I have not read the court’s ruling, which was by a 10-4 majority and thus not unanimous, and do not know whether the provisions of the Helsinki Final Act of 1975 were taken into account. Possibly not, because the Helsinki document was a political not legalcommitment. Signatories made a commitment to observe certain human rights, which we used with great effect to encourage correction of human rights abuses in the Soviet Union. It also contained a commitment not to change international borders without the consent of both parties involved.

For this reason, I would interpret the court’s ruling to be that the Kosovo authorities had a right to declare independence, but that that declaration was not legally binding on other countries. The court did not rule on the question of whether other countries are obligated to recognize Kosovo’s independence. If other countries adhere to the Helsinki Final Act, they would be violating one of its principles to do so without Serbia’s concurrence. Nevertheless, the United States and the majority (though far from all) European countries have recognized Kosovo’s independence. The court’s ruling will doubtless facilitate Kosovo’s campaign for further recognition, though it is already clear that neither Serbia nor Russia agree. China, given its problems in Xinjang and Tibet will most likely also not agree, providing two potential vetoes against UN membership.

I opposed the bombing of Serbia over Kosovo and was opposed to what I considered the premature U.S. recognition of Kosovo’s independence (which is hardly total since it requires UN assistance to keep order within the country). Nevertheless, what is done is done. At the present time, all parties would be served by putting this issue behind them and encouraging both Kosovo and Serbia to move into an association with the European Union, and eventual membership.

However, if this is to happen, the U.S. should adopt a more consistent policy in regard to other frozen conflicts. If Kosovo independence is recognized, why not South Ossetia and Abkhazia? Why defend the right of self-determination in one instance and deny it in others? This goes also for areas like Trans-Dniestr, Northern Cyprus, and (hold your breath) Kurdistan. No? Well, think about it. Are we to cherry pick the conflicting principles of international law and apply some when it suits us and others when it doesn’t?

But my bottom line is that the United States should ease itself out of these local and regional problems. They represent no-win situations for outsiders. So why don’t we just step aside, do all we can to avoid violence in the area, but leave the rest to the people directly involved?

Jack Matlock is a career diplomat who served on the front lines of American diplomacy during the Cold War and was U.S. ambassador to the Soviet Union when the Cold War ended. Since retiring from the Foreign Service, he has focused on understanding how the Cold War ended and how the lessons from that experience might be applied to public policy today.

For more biographical details, see the Wikipedia page: Jack F. Matlock, Jr.

Source: Here & Now: A Blog (July 24, 2010)