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Trudsaam was asking the more appropriate question of "Why do you think Kosovo has a right to be independant?").
(Ark I, 9 November 2010 16:33)
No, that question is wrong, because I nowhere said that “I think Kosovo has a right to be independent”. The correct question would have been “what do you think…” instead of putting somebody’s else thoughts in my head.
If that’s what he meant, then here is what I think. Under Serbian law, Kosovo does not have a right to be independent. Under international law, I have not yet formed a definitive opinion; it could be yes, it could be no… There are arguments on both sides. I leaned more towards the no before the ICJ decision and I said that in this site, but after reading the dissenting opinion of Judge Cancado Trindade, I now lean more towards the yes. Anyway it’s something that’s irrelevant now for legality or illegality determination in Kosovo’s case – so we can discuss it for academic purposes if you want.
Indeed ICJ said that “is not required by the question it has been asked to take a position on whether international law conferred a positive entitlement on Kosovo unilaterally to declare its independence”. After saying the above, the Court indeed solved the legality issue without having to deal at all with whether a right existed or not. To remove any doubt about that even for dummies, the Court contrasted it with the famous Quebec opinion of the Supreme Court of Canada. And that case WAS about the “right”. So ICJ said:
“The question put to the Supreme Court of Canada inquired whether there was a right to “effect secession”, and whether there was a rule of international law which conferred a positive entitlement on any of the organs named. By contrast, the General Assembly has asked whether the declaration of independence was “in accordance with” international law”
So what did the ICJ have to do to answer the question about Kosovo ? “The answer to that question turns on whether or not the applicable international law prohibited the declaration of independence” so it did not care at all about right or no right. “The task which the Court is called upon to perform is to determine whether or not the declaration of independence was adopted in violation of international law”
I thought that was obvious from his question, but since you didn't get it I will clarify.
(Ark I, 9 November 2010 16:33)
No, I did not get it because I don’t remember having said anywhere what he said that I thought.
Declaring independence according to the international court of "justice" does not equate to being independent,
(Ark I, 9 November 2010 16:33)
The court said declaring independence was not illegal. Full stop. The rest are your words, which I agree with. The Court provided the legal basis under int’l law for the independence (so de-jure Kosovo is now independent). That of course does not make an entity de-facto independent. Whether something is de-facto independent or not, that’s determined from the reality on the ground, not from paperwork. So the question is who, de facto, has the final word in Kosovo ? Serbia says UNMIK is in charge; Kosovo says it’s Kosovo’s government. So, it appears all parties agree that Serbia is not in charge and thus Kosovo is de-facto independent from Serbia (and it’s been so for more than 10 years now). Whether it is de-facto independent from UNMIK or not, here the opinions diverge and we need to consider more facts about that.
it only means that people said the words "we are independent".
(Ark I, 9 November 2010 16:33)
And, continue the sentence, they did so legally. Which in turn means that Kosovo’s Constitution, which is based on those words, is legal. Which is turn means that Kosovo’s government, which is based on the Constitution, is legal. Which in turn means that all decisions of Kosovo’s government taken in accordance with the Constitution are legal, and so on. So yes, those few words declared legally, make legal a lot of things.
Whereas Trudsaam's question doesn't have that technical loophole that albanian and western propaganda like to exploit.
(Ark I, 9 November 2010 16:33)
As explained above, Trudsaam question was based on the false assumption that I think that Kosovo has the right to be independent. So it was not a matter of “technical loophole”. The whole question was a hole.
And I’m not sure what is the loophole that Albanian and western propaganda like to exploit. The Court, against all expectations, was crystal clear in answering the question: “the declaration of independence of Kosovo adopted on 17 February 2008 did not violate international law”. It did not leave any question or doubt as far as the legality is concerned.
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