Third day of Kosovo debate at ICJ

"Tichy explained this by saying there were "no rules that prohibited a declaration of independence or secession in international law", adding that it had been adopted by "elected officials who expressed the will of the people in Kosovo, and that was not illegal in international law"."

Well, if this is the case and the legal argument is accepted by the ICJ, then ANY group of people can declare independence. The serbs in northern kosovo, the albanians in presevo and bujanovac, the bosnian serbs, the croatian serbs if they go back to croatia, etc, etc, and this is just the balkans.

i think i'll declare independence and classify my property as a tax haven, hehehe.

"Tichy explained this by saying there were "no rules that prohibited a declaration of independence or secession in international law", adding that it had been adopted by "elected officials who expressed the will of the people in Kosovo, and that was not illegal in international law".

-- Awesome! I'm going to declare myself, Mike, an independent entity. I hope I can still have good neighborly relations with New Jersey, but if not, I'll call on the Amish of Pennsylvania to back me up.

Anyone want to recognize me? I can promise good pizza and bagels, and 24 hour diners.

The Austrian representative said there were two phases according to UNSCR 1244, interim period and final political settlement.
It is true.
Then he said: All efforts to achieve a solution by agreement had been exhausted"
That is not true! It is an exclusive right of the UN to reach such conclusion. And UN never reached such conclusion, so according to UNSCR 1244, Kosovo is still pending the final political settlement.

Second, Austria and others of the same oppinion, highlighted the will of the people of Kosovo, through their "elected leaders"...etc., but interestingly, Austria missed out the word "democratically" - in the view of recent intvestigation of political murders which involved mentioned "leaders", it is very dangareous and it is irrelevant to speak about the will of "people of Kosovo" expressed through such "leaders" (bunch of criminals)!

Third, the UDI defenders, say there is absence of a clear definition of the final political settlement (in UNSCR 1244), so they brightly conclude, any political settlement remains acceptable! There is only one thing missing, and it is in every Dictionary - settlement is an agreement composing differences, and involving all parts of agreement! In this case, it is only Albanians who reached the final political settlement with themselves!
What happened to the common sense?

How many posters here know what the Helsinki Act says?
--------
The Act's "Declaration on Principles Guiding Relations between Participating States" (also known as "The Decalogue") enumerated the following 10 points:

* I. Sovereign equality, respect for the rights inherent in sovereignty
* II. Refraining from the threat or use of force
* III. Inviolability of frontiers
* IV. Territorial integrity of States
* V. Peaceful settlement of disputes
* VI. Non-intervention in internal affairs
* VII. Respect for human rights and fundamental freedoms, including the freedom of thought, conscience, religion or belief
* VIII. Equal rights and self-determination of peoples
* IX. Co-operation among States
* X. Fulfilment in good faith of obligations under international law
---------------
Notice that territorial integrity is on equal footing with human rights, self-determination etc. Basically, you can't do what Serbia did and use Helsinki as defense. Look how many clauses Serbia broke! (This is Austria's argument)

This day goes clearly to austria while Belarus performance was considerably weak. Best part of the Austrians was this:

"The Special Representative did not invalidate the Declaration of Independence, despite his power to annul acts of the Provisional Institutions he considered in violation of resolution 1244. The responsibilities of the Special Representative in accordance with operative paragraph 6 of the resolution include control over the implementation of the international civil presence. Had he considered the Declaration as violating resolution 1244 and in particular the UNMIK Constitutional Framework, it would have been his duty to object to the Declaration of Independence either by public statement, in a report to the Secretary-General or directly to the Security Council. However, he obviously abstained from doing so."

I can't agree more. As expected, nothing came to counter that argument, what increases the number of points of the Albanian defence which remained unchallenged/unchallangable.

Well, I've got some more time to kill, so let's play around with aRTA's comment:

"The Act's "Declaration on Principles Guiding Relations between Participating States" (also known as "The Decalogue") enumerated the following 10 points:

* I. Sovereign equality, respect for the rights inherent in sovereignty

-- Which is what Serbia is trying to argue at the ICJ, contrary to the Albanian move at secession.

* II. Refraining from the threat or use of force

-- Serbia's diplomatic approach to solving the Kosovo problem since the overthrow of Milosevic in 2000.

* III. Inviolability of frontiers

-- Well, DUH! See point I.

* IV. Territorial integrity of States

-- Again, something Serbia is keenly arguing. See point I

* V. Peaceful settlement of disputes

-- Can't really produce much here when Pristina hides behind the US Military, now can you?

* VI. Non-intervention in internal affairs

-- I've never been a big fan of my country's attempt at international Eminent Domain.

* VII. Respect for human rights and fundamental freedoms, including the freedom of thought, conscience, religion or belief

-- Let's be honest: neither Serbs nor Albanians have a clean record on this. Kosovo's history has proven that whenever one side governs the land, the other sides' rights are abused.

* VIII. Equal rights and self-determination of peoples

-- Either within the bounds of territorial sovereignty, see points I, III, and IV, or you let the north go.

* IX. Co-operation among States

-- Hence Vuk's global trek and a veritable memorandum of understanding with Washington to agree to disagree.

* X. Fulfilment in good faith of obligations under international law

-- I've yet to see Pristina argue what it's doing constitutes fulfillment of international law.

Wow, that was fun.

@ arta,

if you had studied international law you would know that self-determination is defined in two ways: internal and external. As was pointed out in several submissions, the commonly understood meaning of self-determination by groups within established states is autonomy - internal self-determination. External self-determination applies to colonies.

As for the argument that a declaration of independence is not illegal in itself and that states are free to make political decisions about whether to recognise such declarations, this is an utterly ridiculous argument that *will* have very grave consequences if accepted by the Court. It really would open the way for the creation of many new states. It is rather amazing that countries like Austria and Germany are pursuing this line. In trying to justify their actions over Kosovo they are deliberately creating the conditions for wider international disorder. It is as if they don't have any idea about the wider impact of their actions - or else just don't care!

Someone said; "That is not true! It is an exclusive right of the UN to reach such conclusion. And UN never reached such conclusion, so according to UNSCR 1244, Kosovo is still pending the final political settlement. "

That is not true. The secretary General has that power and through Ahtisari and the Toika he decided when the transitional period is over and he decided it was over.

independent entity. I hope I can still have good neighborly relations with New Jersey, but if not, I'll call on the Amish of Pennsylvania to back me up.

Anyone want to recognize me? I can promise good pizza and bagels, and 24 hour diners.
(Mike, 3 December 2009 18:33)

Joke apart, if we follow his thinking there will be at least 30 new countries tomorrow. Great news

Anyone who actually thinks this is clear cut is mad. The only certain thing here is that the Balkans micro problems have once again thrown the world into chaos.

"Tichy explained this by saying there were "no rules that prohibited a declaration of independence or secession in international law", adding that it had been adopted by "elected officials who expressed the will of the people in Kosovo, and that was not illegal in international law".

Perhaps but what about Res 1244?
Does this ensure that Kosovo is still part of Serbia administered temporarily by outside bodies?
Maybe without Res1244 you could argue but not now.

I am bored!

Arta,

The new reality on the ground is that no one is threatening anyone's human rights. Unless, the implicit threats about subsequent violence by K-Albanians can be construed that way. And unless you mean that serbs do not have, in practice of not in words, those rights.

One minute we are being told it is the here and now that matters, the next it is historic events that matter. Which is it?

Well, I am very satisfied with the arguments presented by the pro-kosovar side.

As for the verdict, I wonder whether it matters. I think the Serbs are up for a real disappointment even if the Court decides that the declaration was illegal.

The only consequence of the verdict IMO will be whether the Serbs would feel that their ruling coalition made the right choices on Kosovo or whether they gave up too much for too little.

Other than that, who cares. Yes Serbia would use it to delay even more the recognition, but this hardly concerns people in Kosovo anymore. Now they know it will take a generation for the process to be completed and no one is counting.

Well, if this is the case and the legal argument is accepted by the ICJ, then ANY group of people can declare independence. The serbs in northern kosovo, the albanians in presevo and bujanovac, the bosnian serbs, the croatian serbs if they go back to croatia, etc, etc, and this is just the balkans.

i think i'll declare independence and classify my property as a tax haven, hehehe.
(Radoslav, 3 December 2009 19:11)

Finally you got it. That is the whole point. Anyone under this earth can declare independence; anyone and any group. However that doesn't mean anything. Even though you declare it doesn't mean you are dependent or independent. That is the crux of the issue. Declaring independence is not legal or illegal. Its what preceded it or follows it that can be deemed legal or illegal. A declaration is just an expression of possible future intent (in this case the intent to secede). Its what follows it or the steps that lead to that intent that can qualify as legal or illegal.

All this publicity is going in favor of Kosovo albanians.More countries will recognize Kosovo,which is the goal of the albanians.What will Serbia achieve?Serbia used the same arguments when Slovenia and Croatia declared independence.But where is Slovenia and Croatia now?It is more complicated in the case of Kosovo, but all serbian politician agree that Kosovo is a lost cause,but they don't say this to their people by fear of loosing their political credibility or to avoid being attacked and accused of not being patriotic enough.I know serbians better than I know my fellow albanians.Anyway, my personal opinion is that serbians and albanians should work together in order to solve problems of mutual interest.It is important that we move forward and change that cycle of ethnic hate.I don't want my children to grow up hating serbs or anyone else.However I am convinced that Kosovo has the right to self determination.

Berkeley,

Yes, Austria with Tichy (of Hungarian descent) did a superb job. As for those who try desperately to downplay his argument I advise to read a WSJ article of today about Seborga, pop. 320 in nortwest Italy on the French border close to Nice. As a lawer representing Seborga explained "International bodies are not inclined to recognize what we call ministates". Kosovo with a population of over 2 millions is not a ministate.

Looks like Bahrain missed their cab to the preceedings!

"This day goes clearly to austria while Belarus performance was considerably weak. Best part of the Austrians was this:

"The Special Representative did not invalidate the Declaration of Independence, despite his power to annul acts of the Provisional Institutions he considered in violation of resolution 1244. The responsibilities of the Special Representative in accordance with operative paragraph 6 of the resolution include control over the implementation of the international civil presence. Had he considered the Declaration as violating resolution 1244 and in particular the UNMIK Constitutional Framework, it would have been his duty to object to the Declaration of Independence either by public statement, in a report to the Secretary-General or directly to the Security Council. However, he obviously abstained from doing so."

I can't agree more. As expected, nothing came to counter that argument, what increases the number of points of the Albanian defence which remained unchallenged/unchallangable.
(Berkeley, 3 December 2009 18:34)"

So it was all down to one person? Get a grip.

RussiaSerbia,

Looks like Laos missed their cab too!

Russia doesn't have an argument because they did a very same thing with South Osetia and Abkhazia.

"Anyone who actually thinks this is clear cut is mad. The only certain thing here is that the Balkans micro problems have once again thrown the world into chaos.
(Mister, 3 December 2009 22:47) "

The only chaos is in Serbia itself, keeping also Kosovo as a "hostage", but not for a long time ahead. This will finally end in a spring and we are expecting more and more recognitions. Everyone knows that this ICJ issue will not change anything as far as Kosovo independence is concerned, but it has, I must say, prolonged further recognitions, and everybody in Kosovo is looking forward to an end on this.

So it was all down to one person? Get a grip.
(Mister, 3 December 2009 23:46)

It's an institution not a person. Tadic is not a person when he enters his office- he is President of the Republic- so institution- and whatever he deliberates he douse that not in his personal name but in the name of the institution that he is vested.

Same with the Special Representative. He is not a person but an institution with all his advisors and all dept that answer directly to him: THE LEGAL dept INCLUDING + NY- HC of UN.

What I see very funny here is that Belarus proclaims herself defender of the international law... lol... and Serbia is proud with that :))

I just wonder how Charlie Chaplin would interpret this: Lukashenko preaching law and Tadic with big open eyes shaking is head in support... lol.. in what a mess you have dragged yourselves ;)

The second very important thing that I notice here is: the Serbian politicians are of ‘full mouth’ with the moral right of Serbia and the soul/heart stuff regarding Kosova while the legal team of Serbia almost didn’t even mentioned that kind of rubbish.

On contrary it was Kosova’s delegation that emphasised the historical evolution and historical right of Kosova to be a state.

Don’t you think it is time to open your eyes and start thinking of the limits and the pure falsity of your propaganda??

Can someone answer me if the Croatian, Slovenian, Bosnian declaration of independence was done in concordance with the Federation of Yugo??

If you think answering the republic/autonomy stuff: do you think it is logical and morally acceptable that only Slav nation’s part of Yugo can have their states but not the non-Slavic one??

do you think that you can occupy someone’s land and then ASSIGN to them autonomy or republic or whatever YOU want and that to be fair morally and legally correct ad they should agree with it and you will leave in peace??? Get a grip (but this time it makes sense).

You cannot rob someone put his wallet in you pocket and claim to be yours since it is in your pocket- OK???

"All this publicity is going in favor of Kosovo albanians.More countries will recognize Kosovo,which is the goal of the albanians.What will Serbia achieve?Serbia used the same arguments when Slovenia and Croatia declared independence.But where is Slovenia and Croatia now?It is more complicated in the case of Kosovo, but all serbian politician agree that Kosovo is a lost cause,but they don't say this to their people by fear of loosing their political credibility or to avoid being attacked and accused of not being patriotic enough.I know serbians better than I know my fellow albanians.Anyway, my personal opinion is that serbians and albanians should work together in order to solve problems of mutual interest.It is important that we move forward and change that cycle of ethnic hate.I don't want my children to grow up hating serbs or anyone else.However I am convinced that Kosovo has the right to self determination.
(Murik, 4 December 2009 00:49)
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What's this"

Murik,

The sentiment to the end of your post is commendable. I just think that a solution fully imposed on another is no way to bring lasting peace. It certainly didn't work for Serbia! At this moment in time I am sure that there is a solution out there if people think like you. Until people think more in terms of watch can be achieved rather than "winning" then that won't happen.

About the ICJ arguments. The case that international law does not apply is certainly interesting but you have to think of the political/legal inter-play. If what is being argued is correct then it is likely to galvanise opposition against recognising Kosovo as much as it will encourage others to do so.

You need to think of the wider implications.

As long as you are ok, yes? Maybe others should have thought that way in 1999.
(Mister, 4 December 2009 20:30)

Mister: the capital letters I use to underscore not for shouting.

The “lesson” is to highlight your inconsistent claim: persons exercising functions are institutions and the Special Representative is UN institution representing UN in Kosova.

Regarding the “It is one thing to have the power to annul and another to effectively have the power to decide” the Special Representative in accordance with NY could have at least verbally condemned the DI why not also annul it in a piece of paper regardless the effectiveness of that act- it would have been clear black in white. But he/they (NY) did not.

Thus you cannot reduce it in one simple “So it was all down to one person? Get a grip”.

But to use your words as long as you are OK with Lukashenko preaching law to the world then it’s fine with me.

The new reality on the ground is that no one is threatening anyone's human rights. Unless, the implicit threats about subsequent violence by K-Albanians can be construed that way. And unless you mean that serbs do not have, in practice of not in words, those rights.

One minute we are being told it is the here and now that matters, the next it is historic events that matter. Which is it?
(Mister, 3 December 2009 22:12)
While your statement may be true it does not relay the reality on the ground. The reality is that there is the international community between Serbia and Kosovo, to prevent it at this time.
The question is has Serbia given any indication that history would not present itself should the international community withdraw. The answer to that is absolutely no.
If Serbia was seriously wanting to retain Kosovo, instead of spending one day to add that Kosovo was an inalienable part of Serbia they would have spent several days placing safeguards in the constitution protecting the rights of the people of Kosovo.
Serbia has shown the world that Kosovo is property only and they want nothing to do with the people on it. So are we really at a different point in time or are we stuck in the past?

Notice that territorial integrity is on equal footing with human rights, self-determination etc. Basically, you can't do what Serbia did and use Helsinki as defense. Look how many clauses Serbia broke! (This is Austria's argument)
(ArTa, 3 December 2009 17:53)

Oh... So - why Austria don't defend rights of Karabakh Armenians???? How many of Helsinki act points was broken by Azerbaijan in the early 90's??

Ben,

Thanks for the lesson, the capital letters and the accusations. Believe what you want to believe. However, please explain how I am a victim of propaganda?

If you want to believe that he had the authority suggested then I think you need to be more objective. It is one thing to have the power to annul and another to effectively have the power to decide. There is a huge difference and if was what you suggest then that certainly wasn't the intention of many who supported 1244. You also might want to consider the implications for the future international interventions if that were the case.

As long as you are ok, yes? Maybe others should have thought that way in 1999.

Ben,

You are passed help. You are too close to this. I'm not.

In future please don't make accusations that had nothing to do my opinion as stated.

"But to use your words as long as you are OK with Lukashenko preaching law to the world then it’s fine with me.
(ben, 4 December 2009 23:02)"

And by the way, I am looking at what is said and not who said it. But again, what has that to do with what I said? It was your tirade, not mine.

Mister,

"...under many common law systems it is relevant to consider the factual matrix and the objective intent of the parties to determine the meaning. Hence, even objectively, if that applied in international law it would be absurd to suggest that parties to 1244 had that intention."

I agree that the hope was that the final settlement would be consensual, but the reference to the Rambouillet Accords showed that independence was considered to be a possible outcome.

But now it's up to the Court: they can rule as widely or as narrowly as they see fit, and use whatever principles of international law they consider most appropriate. You may be right in thinking they'll do what they can to forestall future secessions, but they still have to decide this case on its own merits.

"There is only one thing missing, and it is in every Dictionary - settlement is an agreement composing differences, and involving all parts of agreement!"

"Definitions of settlement on the Web:
...
# a conclusive resolution of a matter and disposition of it "

Nothing there about everybody being happy with it.

"Well, if this is the case and the legal argument is accepted by the ICJ, then ANY group of people can declare independence. ...

i think i'll declare independence and classify my property as a tax haven, hehehe.
(Radoslav, 3 December 2009 19:11)"

Sure, go ahead - all you have to worry about is the U.S. government. It's only under international law that a declaration of independence is merely factual - under domestic law, it's illegal. They'd probably charge you with disturbing the peace or something.

"Perhaps but what about Res 1244?
Does this ensure that Kosovo is still part of Serbia administered temporarily by outside bodies?
Maybe without Res1244 you could argue but not now.
(Peggy, 3 December 2009 23:19) "

What about Res 1244?! The sides supporting Kosovo discuss this in mind-numbing detail in their written statements and comments: No, 1244 doesn't ensure that Kosovo is still part of Serbia.

"About the ICJ arguments. The case that international law does not apply is certainly interesting but you have to think of the political/legal inter-play. If what is being argued is correct then it is likely to galvanise opposition against recognising Kosovo as much as it will encourage others to do so.

You need to think of the wider implications.
(Mister, 4 December 2009 12:21) "

Entities can claim independence all they want - they still have to persuade the sovereign government to recognize them or garner support from the world community, which as you recognize, is highly unlikely to happen. There were special circumstances involved in the case of Kosovo, including years of international efforts to find a mutually acceptable solution. The lack of recognition of Abkhazia and South Ossetia shows how unwillingly other countries are to recognize self-proclaimed entities as independent, even when they are supported by as powerful a country as Russia and opposed by as weak a country as Georgia.

"... that certainly wasn't the intention of many who supported 1244.
...
(Mister, 4 December 2009 20:30) "

Yes, this is what Argentina said: if we'd only realized... It's a diplomat's job to consider all possibilities and to make sure that what he's hoping or assuming is actually present in an agreement. This is why they spend so much energy arguing over commas. BTW, would you hire a lawyer who admitted he didn't consider the implications of a contract he'd allowed a previous client to sign? Which cost that client part of his house?

Amer,

I don't know anything about the rules for construction of an agreement under international law. What I can say is that where there is a lack of clarity in a commercial document then under many common law systems it is relevant to consider the factual matrix and the objective intent of the parties to determine the meaning. Hence, even objectively, if that applied in international law it would be absurd to suggest that parties to 1244 had that intention.

So you can make a fool of Argentina if you like but they may have made a relevant point. Also given that the international community in general, at that time, were not in favour of independence - maybe this provides further support of the intention of 1244.

Of course I have been involved in enough litigations to know that what I think isn't always proved correct.

What has surprised me about this case is the lack of focus on the "special case" argument. Even considering the technical arguments regarding the question I can't see how this process will not result in a much more solid wall of resistance from those countries who for their own reasons are concerned.

ICJ will rule that Kosovo is Serbia , we defended Serbia against Ottoman we will defend it against Albania not for us but for our children and for our holly land!

Kosovo is Serbia

How many posters here know what the Helsinki Act says?
--------
The Act's "Declaration on Principles Guiding Relations between Participating States" (also known as "The Decalogue") enumerated the following 10 points:

* I. Sovereign equality, respect for the rights inherent in sovereignty
* II. Refraining from the threat or use of force
* III. Inviolability of frontiers
* IV. Territorial integrity of States
* V. Peaceful settlement of disputes
* VI. Non-intervention in internal affairs
* VII. Respect for human rights and fundamental freedoms, including the freedom of thought, conscience, religion or belief
* VIII. Equal rights and self-determination of peoples
* IX. Co-operation among States
* X. Fulfilment in good faith of obligations under international law
---------------
Notice that territorial integrity is on equal footing with human rights, self-determination etc. Basically, you can't do what Serbia did and use Helsinki as defense. Look how many clauses Serbia broke! (This is Austria's argument)

Someone said; "That is not true! It is an exclusive right of the UN to reach such conclusion. And UN never reached such conclusion, so according to UNSCR 1244, Kosovo is still pending the final political settlement. "

That is not true. The secretary General has that power and through Ahtisari and the Toika he decided when the transitional period is over and he decided it was over.

This day goes clearly to austria while Belarus performance was considerably weak. Best part of the Austrians was this:

"The Special Representative did not invalidate the Declaration of Independence, despite his power to annul acts of the Provisional Institutions he considered in violation of resolution 1244. The responsibilities of the Special Representative in accordance with operative paragraph 6 of the resolution include control over the implementation of the international civil presence. Had he considered the Declaration as violating resolution 1244 and in particular the UNMIK Constitutional Framework, it would have been his duty to object to the Declaration of Independence either by public statement, in a report to the Secretary-General or directly to the Security Council. However, he obviously abstained from doing so."

I can't agree more. As expected, nothing came to counter that argument, what increases the number of points of the Albanian defence which remained unchallenged/unchallangable.

I am bored!

The Austrian representative said there were two phases according to UNSCR 1244, interim period and final political settlement.
It is true.
Then he said: All efforts to achieve a solution by agreement had been exhausted"
That is not true! It is an exclusive right of the UN to reach such conclusion. And UN never reached such conclusion, so according to UNSCR 1244, Kosovo is still pending the final political settlement.

Second, Austria and others of the same oppinion, highlighted the will of the people of Kosovo, through their "elected leaders"...etc., but interestingly, Austria missed out the word "democratically" - in the view of recent intvestigation of political murders which involved mentioned "leaders", it is very dangareous and it is irrelevant to speak about the will of "people of Kosovo" expressed through such "leaders" (bunch of criminals)!

Third, the UDI defenders, say there is absence of a clear definition of the final political settlement (in UNSCR 1244), so they brightly conclude, any political settlement remains acceptable! There is only one thing missing, and it is in every Dictionary - settlement is an agreement composing differences, and involving all parts of agreement! In this case, it is only Albanians who reached the final political settlement with themselves!
What happened to the common sense?

Well, I am very satisfied with the arguments presented by the pro-kosovar side.

As for the verdict, I wonder whether it matters. I think the Serbs are up for a real disappointment even if the Court decides that the declaration was illegal.

The only consequence of the verdict IMO will be whether the Serbs would feel that their ruling coalition made the right choices on Kosovo or whether they gave up too much for too little.

Other than that, who cares. Yes Serbia would use it to delay even more the recognition, but this hardly concerns people in Kosovo anymore. Now they know it will take a generation for the process to be completed and no one is counting.

"Tichy explained this by saying there were "no rules that prohibited a declaration of independence or secession in international law", adding that it had been adopted by "elected officials who expressed the will of the people in Kosovo, and that was not illegal in international law".

-- Awesome! I'm going to declare myself, Mike, an independent entity. I hope I can still have good neighborly relations with New Jersey, but if not, I'll call on the Amish of Pennsylvania to back me up.

Anyone want to recognize me? I can promise good pizza and bagels, and 24 hour diners.

"Tichy explained this by saying there were "no rules that prohibited a declaration of independence or secession in international law", adding that it had been adopted by "elected officials who expressed the will of the people in Kosovo, and that was not illegal in international law"."

Well, if this is the case and the legal argument is accepted by the ICJ, then ANY group of people can declare independence. The serbs in northern kosovo, the albanians in presevo and bujanovac, the bosnian serbs, the croatian serbs if they go back to croatia, etc, etc, and this is just the balkans.

i think i'll declare independence and classify my property as a tax haven, hehehe.

Well, I've got some more time to kill, so let's play around with aRTA's comment:

"The Act's "Declaration on Principles Guiding Relations between Participating States" (also known as "The Decalogue") enumerated the following 10 points:

* I. Sovereign equality, respect for the rights inherent in sovereignty

-- Which is what Serbia is trying to argue at the ICJ, contrary to the Albanian move at secession.

* II. Refraining from the threat or use of force

-- Serbia's diplomatic approach to solving the Kosovo problem since the overthrow of Milosevic in 2000.

* III. Inviolability of frontiers

-- Well, DUH! See point I.

* IV. Territorial integrity of States

-- Again, something Serbia is keenly arguing. See point I

* V. Peaceful settlement of disputes

-- Can't really produce much here when Pristina hides behind the US Military, now can you?

* VI. Non-intervention in internal affairs

-- I've never been a big fan of my country's attempt at international Eminent Domain.

* VII. Respect for human rights and fundamental freedoms, including the freedom of thought, conscience, religion or belief

-- Let's be honest: neither Serbs nor Albanians have a clean record on this. Kosovo's history has proven that whenever one side governs the land, the other sides' rights are abused.

* VIII. Equal rights and self-determination of peoples

-- Either within the bounds of territorial sovereignty, see points I, III, and IV, or you let the north go.

* IX. Co-operation among States

-- Hence Vuk's global trek and a veritable memorandum of understanding with Washington to agree to disagree.

* X. Fulfilment in good faith of obligations under international law

-- I've yet to see Pristina argue what it's doing constitutes fulfillment of international law.

Wow, that was fun.

All this publicity is going in favor of Kosovo albanians.More countries will recognize Kosovo,which is the goal of the albanians.What will Serbia achieve?Serbia used the same arguments when Slovenia and Croatia declared independence.But where is Slovenia and Croatia now?It is more complicated in the case of Kosovo, but all serbian politician agree that Kosovo is a lost cause,but they don't say this to their people by fear of loosing their political credibility or to avoid being attacked and accused of not being patriotic enough.I know serbians better than I know my fellow albanians.Anyway, my personal opinion is that serbians and albanians should work together in order to solve problems of mutual interest.It is important that we move forward and change that cycle of ethnic hate.I don't want my children to grow up hating serbs or anyone else.However I am convinced that Kosovo has the right to self determination.

Well, if this is the case and the legal argument is accepted by the ICJ, then ANY group of people can declare independence. The serbs in northern kosovo, the albanians in presevo and bujanovac, the bosnian serbs, the croatian serbs if they go back to croatia, etc, etc, and this is just the balkans.

i think i'll declare independence and classify my property as a tax haven, hehehe.
(Radoslav, 3 December 2009 19:11)

Finally you got it. That is the whole point. Anyone under this earth can declare independence; anyone and any group. However that doesn't mean anything. Even though you declare it doesn't mean you are dependent or independent. That is the crux of the issue. Declaring independence is not legal or illegal. Its what preceded it or follows it that can be deemed legal or illegal. A declaration is just an expression of possible future intent (in this case the intent to secede). Its what follows it or the steps that lead to that intent that can qualify as legal or illegal.

"Tichy explained this by saying there were "no rules that prohibited a declaration of independence or secession in international law", adding that it had been adopted by "elected officials who expressed the will of the people in Kosovo, and that was not illegal in international law".

Perhaps but what about Res 1244?
Does this ensure that Kosovo is still part of Serbia administered temporarily by outside bodies?
Maybe without Res1244 you could argue but not now.

Berkeley,

Yes, Austria with Tichy (of Hungarian descent) did a superb job. As for those who try desperately to downplay his argument I advise to read a WSJ article of today about Seborga, pop. 320 in nortwest Italy on the French border close to Nice. As a lawer representing Seborga explained "International bodies are not inclined to recognize what we call ministates". Kosovo with a population of over 2 millions is not a ministate.

ICJ will rule that Kosovo is Serbia , we defended Serbia against Ottoman we will defend it against Albania not for us but for our children and for our holly land!

Kosovo is Serbia

Arta,

The new reality on the ground is that no one is threatening anyone's human rights. Unless, the implicit threats about subsequent violence by K-Albanians can be construed that way. And unless you mean that serbs do not have, in practice of not in words, those rights.

One minute we are being told it is the here and now that matters, the next it is historic events that matter. Which is it?

@ arta,

if you had studied international law you would know that self-determination is defined in two ways: internal and external. As was pointed out in several submissions, the commonly understood meaning of self-determination by groups within established states is autonomy - internal self-determination. External self-determination applies to colonies.

As for the argument that a declaration of independence is not illegal in itself and that states are free to make political decisions about whether to recognise such declarations, this is an utterly ridiculous argument that *will* have very grave consequences if accepted by the Court. It really would open the way for the creation of many new states. It is rather amazing that countries like Austria and Germany are pursuing this line. In trying to justify their actions over Kosovo they are deliberately creating the conditions for wider international disorder. It is as if they don't have any idea about the wider impact of their actions - or else just don't care!

independent entity. I hope I can still have good neighborly relations with New Jersey, but if not, I'll call on the Amish of Pennsylvania to back me up.

Anyone want to recognize me? I can promise good pizza and bagels, and 24 hour diners.
(Mike, 3 December 2009 18:33)

Joke apart, if we follow his thinking there will be at least 30 new countries tomorrow. Great news

Looks like Bahrain missed their cab to the preceedings!

RussiaSerbia,

Looks like Laos missed their cab too!

Russia doesn't have an argument because they did a very same thing with South Osetia and Abkhazia.

The new reality on the ground is that no one is threatening anyone's human rights. Unless, the implicit threats about subsequent violence by K-Albanians can be construed that way. And unless you mean that serbs do not have, in practice of not in words, those rights.

One minute we are being told it is the here and now that matters, the next it is historic events that matter. Which is it?
(Mister, 3 December 2009 22:12)
While your statement may be true it does not relay the reality on the ground. The reality is that there is the international community between Serbia and Kosovo, to prevent it at this time.
The question is has Serbia given any indication that history would not present itself should the international community withdraw. The answer to that is absolutely no.
If Serbia was seriously wanting to retain Kosovo, instead of spending one day to add that Kosovo was an inalienable part of Serbia they would have spent several days placing safeguards in the constitution protecting the rights of the people of Kosovo.
Serbia has shown the world that Kosovo is property only and they want nothing to do with the people on it. So are we really at a different point in time or are we stuck in the past?

Anyone who actually thinks this is clear cut is mad. The only certain thing here is that the Balkans micro problems have once again thrown the world into chaos.

"This day goes clearly to austria while Belarus performance was considerably weak. Best part of the Austrians was this:

"The Special Representative did not invalidate the Declaration of Independence, despite his power to annul acts of the Provisional Institutions he considered in violation of resolution 1244. The responsibilities of the Special Representative in accordance with operative paragraph 6 of the resolution include control over the implementation of the international civil presence. Had he considered the Declaration as violating resolution 1244 and in particular the UNMIK Constitutional Framework, it would have been his duty to object to the Declaration of Independence either by public statement, in a report to the Secretary-General or directly to the Security Council. However, he obviously abstained from doing so."

I can't agree more. As expected, nothing came to counter that argument, what increases the number of points of the Albanian defence which remained unchallenged/unchallangable.
(Berkeley, 3 December 2009 18:34)"

So it was all down to one person? Get a grip.

"Anyone who actually thinks this is clear cut is mad. The only certain thing here is that the Balkans micro problems have once again thrown the world into chaos.
(Mister, 3 December 2009 22:47) "

The only chaos is in Serbia itself, keeping also Kosovo as a "hostage", but not for a long time ahead. This will finally end in a spring and we are expecting more and more recognitions. Everyone knows that this ICJ issue will not change anything as far as Kosovo independence is concerned, but it has, I must say, prolonged further recognitions, and everybody in Kosovo is looking forward to an end on this.

So it was all down to one person? Get a grip.
(Mister, 3 December 2009 23:46)

It's an institution not a person. Tadic is not a person when he enters his office- he is President of the Republic- so institution- and whatever he deliberates he douse that not in his personal name but in the name of the institution that he is vested.

Same with the Special Representative. He is not a person but an institution with all his advisors and all dept that answer directly to him: THE LEGAL dept INCLUDING + NY- HC of UN.

What I see very funny here is that Belarus proclaims herself defender of the international law... lol... and Serbia is proud with that :))

I just wonder how Charlie Chaplin would interpret this: Lukashenko preaching law and Tadic with big open eyes shaking is head in support... lol.. in what a mess you have dragged yourselves ;)

The second very important thing that I notice here is: the Serbian politicians are of ‘full mouth’ with the moral right of Serbia and the soul/heart stuff regarding Kosova while the legal team of Serbia almost didn’t even mentioned that kind of rubbish.

On contrary it was Kosova’s delegation that emphasised the historical evolution and historical right of Kosova to be a state.

Don’t you think it is time to open your eyes and start thinking of the limits and the pure falsity of your propaganda??

Can someone answer me if the Croatian, Slovenian, Bosnian declaration of independence was done in concordance with the Federation of Yugo??

If you think answering the republic/autonomy stuff: do you think it is logical and morally acceptable that only Slav nation’s part of Yugo can have their states but not the non-Slavic one??

do you think that you can occupy someone’s land and then ASSIGN to them autonomy or republic or whatever YOU want and that to be fair morally and legally correct ad they should agree with it and you will leave in peace??? Get a grip (but this time it makes sense).

You cannot rob someone put his wallet in you pocket and claim to be yours since it is in your pocket- OK???

Ben,

Thanks for the lesson, the capital letters and the accusations. Believe what you want to believe. However, please explain how I am a victim of propaganda?

If you want to believe that he had the authority suggested then I think you need to be more objective. It is one thing to have the power to annul and another to effectively have the power to decide. There is a huge difference and if was what you suggest then that certainly wasn't the intention of many who supported 1244. You also might want to consider the implications for the future international interventions if that were the case.

As long as you are ok, yes? Maybe others should have thought that way in 1999.

Notice that territorial integrity is on equal footing with human rights, self-determination etc. Basically, you can't do what Serbia did and use Helsinki as defense. Look how many clauses Serbia broke! (This is Austria's argument)
(ArTa, 3 December 2009 17:53)

Oh... So - why Austria don't defend rights of Karabakh Armenians???? How many of Helsinki act points was broken by Azerbaijan in the early 90's??

"All this publicity is going in favor of Kosovo albanians.More countries will recognize Kosovo,which is the goal of the albanians.What will Serbia achieve?Serbia used the same arguments when Slovenia and Croatia declared independence.But where is Slovenia and Croatia now?It is more complicated in the case of Kosovo, but all serbian politician agree that Kosovo is a lost cause,but they don't say this to their people by fear of loosing their political credibility or to avoid being attacked and accused of not being patriotic enough.I know serbians better than I know my fellow albanians.Anyway, my personal opinion is that serbians and albanians should work together in order to solve problems of mutual interest.It is important that we move forward and change that cycle of ethnic hate.I don't want my children to grow up hating serbs or anyone else.However I am convinced that Kosovo has the right to self determination.
(Murik, 4 December 2009 00:49)
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Murik,

The sentiment to the end of your post is commendable. I just think that a solution fully imposed on another is no way to bring lasting peace. It certainly didn't work for Serbia! At this moment in time I am sure that there is a solution out there if people think like you. Until people think more in terms of watch can be achieved rather than "winning" then that won't happen.

About the ICJ arguments. The case that international law does not apply is certainly interesting but you have to think of the political/legal inter-play. If what is being argued is correct then it is likely to galvanise opposition against recognising Kosovo as much as it will encourage others to do so.

You need to think of the wider implications.

As long as you are ok, yes? Maybe others should have thought that way in 1999.
(Mister, 4 December 2009 20:30)

Mister: the capital letters I use to underscore not for shouting.

The “lesson” is to highlight your inconsistent claim: persons exercising functions are institutions and the Special Representative is UN institution representing UN in Kosova.

Regarding the “It is one thing to have the power to annul and another to effectively have the power to decide” the Special Representative in accordance with NY could have at least verbally condemned the DI why not also annul it in a piece of paper regardless the effectiveness of that act- it would have been clear black in white. But he/they (NY) did not.

Thus you cannot reduce it in one simple “So it was all down to one person? Get a grip”.

But to use your words as long as you are OK with Lukashenko preaching law to the world then it’s fine with me.

Ben,

You are passed help. You are too close to this. I'm not.

In future please don't make accusations that had nothing to do my opinion as stated.

"But to use your words as long as you are OK with Lukashenko preaching law to the world then it’s fine with me.
(ben, 4 December 2009 23:02)"

And by the way, I am looking at what is said and not who said it. But again, what has that to do with what I said? It was your tirade, not mine.

"There is only one thing missing, and it is in every Dictionary - settlement is an agreement composing differences, and involving all parts of agreement!"

"Definitions of settlement on the Web:
...
# a conclusive resolution of a matter and disposition of it "

Nothing there about everybody being happy with it.

"Well, if this is the case and the legal argument is accepted by the ICJ, then ANY group of people can declare independence. ...

i think i'll declare independence and classify my property as a tax haven, hehehe.
(Radoslav, 3 December 2009 19:11)"

Sure, go ahead - all you have to worry about is the U.S. government. It's only under international law that a declaration of independence is merely factual - under domestic law, it's illegal. They'd probably charge you with disturbing the peace or something.

"Perhaps but what about Res 1244?
Does this ensure that Kosovo is still part of Serbia administered temporarily by outside bodies?
Maybe without Res1244 you could argue but not now.
(Peggy, 3 December 2009 23:19) "

What about Res 1244?! The sides supporting Kosovo discuss this in mind-numbing detail in their written statements and comments: No, 1244 doesn't ensure that Kosovo is still part of Serbia.

"About the ICJ arguments. The case that international law does not apply is certainly interesting but you have to think of the political/legal inter-play. If what is being argued is correct then it is likely to galvanise opposition against recognising Kosovo as much as it will encourage others to do so.

You need to think of the wider implications.
(Mister, 4 December 2009 12:21) "

Entities can claim independence all they want - they still have to persuade the sovereign government to recognize them or garner support from the world community, which as you recognize, is highly unlikely to happen. There were special circumstances involved in the case of Kosovo, including years of international efforts to find a mutually acceptable solution. The lack of recognition of Abkhazia and South Ossetia shows how unwillingly other countries are to recognize self-proclaimed entities as independent, even when they are supported by as powerful a country as Russia and opposed by as weak a country as Georgia.

"... that certainly wasn't the intention of many who supported 1244.
...
(Mister, 4 December 2009 20:30) "

Yes, this is what Argentina said: if we'd only realized... It's a diplomat's job to consider all possibilities and to make sure that what he's hoping or assuming is actually present in an agreement. This is why they spend so much energy arguing over commas. BTW, would you hire a lawyer who admitted he didn't consider the implications of a contract he'd allowed a previous client to sign? Which cost that client part of his house?

Amer,

I don't know anything about the rules for construction of an agreement under international law. What I can say is that where there is a lack of clarity in a commercial document then under many common law systems it is relevant to consider the factual matrix and the objective intent of the parties to determine the meaning. Hence, even objectively, if that applied in international law it would be absurd to suggest that parties to 1244 had that intention.

So you can make a fool of Argentina if you like but they may have made a relevant point. Also given that the international community in general, at that time, were not in favour of independence - maybe this provides further support of the intention of 1244.

Of course I have been involved in enough litigations to know that what I think isn't always proved correct.

What has surprised me about this case is the lack of focus on the "special case" argument. Even considering the technical arguments regarding the question I can't see how this process will not result in a much more solid wall of resistance from those countries who for their own reasons are concerned.

Mister,

"...under many common law systems it is relevant to consider the factual matrix and the objective intent of the parties to determine the meaning. Hence, even objectively, if that applied in international law it would be absurd to suggest that parties to 1244 had that intention."

I agree that the hope was that the final settlement would be consensual, but the reference to the Rambouillet Accords showed that independence was considered to be a possible outcome.

But now it's up to the Court: they can rule as widely or as narrowly as they see fit, and use whatever principles of international law they consider most appropriate. You may be right in thinking they'll do what they can to forestall future secessions, but they still have to decide this case on its own merits.