Tomorrow the International Court of Justice will rule on the legality of Kosovo's declaration of independence from Serbia. The ICJ was tasked by the UN General Assembly to make this judgment, but what will it actually mean? Stephanie Carvin sees the ruling as not having much importance for the Kosovo case, but could have some ramifications for future secessionist movements:
Second, no matter what the ICJ decides in its decision on Kosovo, I wonder if it is really going to make a difference. The starting point for this, of course, is that it is an advisory opinion – so it’s not going to make a huge difference either way as it is non-binding. It is either going to help solidify a fait accompli or it is going to basically make a decision that will fly in the face of political reality – Kosovo is not going back to whatever is left of the Former Yugoslavia. It may allow the Serbs to score some political points, (particularly if it goes to debate at the UN General Assembly) but that is about it.
Where this is obviously going to have greater implications is on other sovereigntist movements around the world. How they go about achieving their separatist ends will be of some interest.
Meanwhile, Steve Saideman sees even less in it:
So, I am saying that the ICJ ruling, whatever it is, will be used as justification for those countries that can use it as such, ignored by those countries that cannot use it as justification, and will not really affect what secessionists will do. I am truly a norm skeptic, although I am currently reading a book that addresses a dark side of norms that I am finding compelling--hypocrisy costs. But that is a post for another day.
What would I want to have happen here? Well, if the international community really supports the responsibility to protect and all that comes with it, it would make sense for the ICJ to allow for a remedial right to secession (as the normative literature on secession call it)--those who face significant repression/oppression should be allowed to determine their future and secede. Those who are not oppressed (that would be you, Quebec) would not have a right to secede, as granted by the international community. If host states, such as Canada, let their wayward provinces go, that is something else. But again, I am skeptical that norms will stop committed actors from doing what they want, at least in the short term and especially when domestic political incentives push in a particular direction (see Ties That Divide).
I'm with Saideman, especially his last sentence. It seems persuasive to me that sovereignty norms are usually window-dressing for power and interests: they are upheld when the powerful have in an interest in upholding them, and violated when they do not. The Kosovo case is a good example of that, as is the war in Iraq. These cases also reveal the vacuousness of another norm, the "responsibility to protect" oppressed peoples that requires the violation of state sovereignty under certain conditions. These norms are never upheld in a consistent fashion, usually because of domestic political incentives in the states that would have to enforce them.
I don't know enough about the ICJ to venture a guess about the ruling, but I know enough about international politics to predict that it is (almost) completely irrelevant. Tomorrow, just as today, the strong will do what they can and the weak will suffer what they must.
As to my personal feeling, I believe Kosovo was justified in separating from Serbia, and the international community was right to support them. That doesn't mean that I support everything done by Kosovo before and since the declaration of independence, and it certainly doesn't mean I support all separatist movements. But the situation in Kosovo was untenable; refusing to secede would have been suicidal. As Saideman says, this is not true in Quebec. I don't think it's true in Catalonia either, nor in Flanders. It's probably impossible to draw a straight line that adjudicates all of these cases, but for the most part I don't think it's terribly difficult to see which groups have legitimate claims to secession and which do not.