Can a state based on ethnicity be legitimate?

The International Court of Justice (ICJ) finally announced its advisory opinion on July 22 2010 on the question of whether the unilateral declaration of independence (UDI) of Kosovo is in accordance to international law. A very technical linguistic interpretation by the court concluded that the UDI did not violate general international law.

Africa is a continent plagued by conflicts, issues of development and is rich in resources, demographic diversity and hope. The “legality” and recognition of the UDI of Kosovo, which has been throughout history part of Serbian territory and is the cradle of Serbian culture, would spur and encourage aspirant secessionists and thus destabilise countries already struggling to build national unity. Such destabilisation would prove disastrous for the peace building, progress and development of African, and other, countries and pave the way for regression. The use of force would be the most common response to secessionist movements.

Would this be desirable and necessary in Africa, and elsewhere for that matter? It is interesting to note that the ICJ stated that the UDI is not an act of the Assembly of Kosovo, but of a group of “persons acting in their capacity as representatives of the people of Kosovo”. Does this mean that the ICJ has allowed groups worldwide to, as representatives of a certain people, declare their independence? Upon closer scrutiny, the advisory opinion contains many contradictions and does not answer the essential questions at all, such as whether Kosovo had the right to exercise self-determination, unilaterally declare independence and whether there were grounds for secession. Such questions, according to the ICJ, are “beyond the scope of the original question posed by the United Nations General Assembly (UN GA)”.

Another important question to be raised, were the UDI of Kosovo recognised, is how can a state based on ethnicity be legitimate and relevant in today’s globalising world and where human rights of dignity and against discrimination based on race, religion, ethnicity, etc. are enshrined and meant to be upheld? For example, South Africa prides itself, as it should, on the fact that it is a rainbow nation where people of different races, ethnicities, religions, etc, live side by side in peace. Even though certain socioeconomic problems and issues persist, South Africans are proudly moving forward to greater national unity, as was demonstrated during the successful Fifa 2010 World Cup.

Returning to the advisory opinion, the ICJ considered the general international law, Resolution 1244 (1999), adopted by the United Nations Security Council, and the Constitutional Framework as the applicable laws in the case of Kosovo. The ICJ opined that the UDI of Kosovo did not violate general international law — however it should be noted that it is a mistaken and hasty interpretation to conclude that a lack of prohibition presupposes legality — but what about Resolution 1244 and the Constitutional Framework, both of which are considered by the ICJ as part of international law, binding and imposing legal obligations and both of which were in force at the time of the UDI and now? Resolution 1244 defines and recognises the territorial integrity and sovereignty of Serbia. It also makes provision for a political settlement reached through negotiations and dialogue.

Effectively, the advisory opinion of the ICJ did not bring any significant breakthroughs and the issue still needs to be resolved through debate to find a legal and political settlement. The UN General Assembly, the body which brought the issue of the UDI of Kosovo before the ICJ, will now debate the future steps to be taken. This is why the UN GA should pass a resolution which will continue to respect the territorial integrity and sovereignty of its members. It is crucial to reaffirm the process of dialogue through tangible actions as the only viable means of finding a mutually acceptable solution on the issue of the status of Kosovo and Metohija, as well as to other conflicts in the world.

The opinion that the UDI is not illegal under general international law, taken out of the context of the full advisory opinion, will, inevitably, be used to exert pressure on the countries that have not recognised the UDI to do so. The Republic of Serbia expects that the countries that have not recognised the UDI of Kosovo will remain responsible members of the international community and will not change their stance in the future, as the advisory opinion of the ICJ did not legalise the UDI and neither did it give the green light to other secessionist aspirants. The continent of Africa and the countries that have not recognised the UDI of Kosovo cannot consider the issue of Kosovo as “a unique case” as not even the ICJ has stated it as so, and its implications would have far reaching consequences. The active efforts of Africa, and the rest of the world, are necessary to prevent the legalisation of secessions and to lead towards the resolution of conflicts and disputes through peaceful, inclusive and democratic means, with the aim of promoting and maintaining stability, without unilateral acts or threats of or use of force. Therefore, the preservation of peace and stability should be the main priority.

The Republic of Serbia will never recognise the independence of Kosovo and, in cooperation with the international community, it will strive to find a solution which will promote and protect its interests, the interests of the whole region of South Eastern Europe, Europe and the world at large. From that perspective, Serbia welcomes the statement by Secretary General Ban Ki-moon on the further proceedings of UN GA and his encouragement for the parties to engage in constructive dialogue.