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Sunday, February 27, 2011

The UN Court Obviating War: The Ruling on Kosovo's Independence

The UN’s highest court ruled in 2010 that Kosovo’s declaration of independence from Serbia did not break international law. President Hisashi Owada of the International Court of Justice said international law contains no ”prohibition on declarations of independence” and therefore Kosovo’s declaration ”did not violate general international law.” Kosovo’s statehood had been recognized by all of the United States and most of the States of the EU.

Critically, the court’s ruling is nonbinding.  Hence China and Russia are under no obligation to recognize it, though as both states are members of the UN one might suppose that the UN’s ruling is binding on them as members of the UN. What sanctions, one might surmise, could the UN issue against its members that do not recognize the rulings of its court? Short of cancelling their memberships, what could the UN assess that it could enforce?  Perhaps the UN could effectively withhold their voting privilege in the UN while maintaining their membership (and fees).  I contend that such “teeth” is necessary if the UN is to be an honest broker concerning questions of declarations of independence such that war is obviated. In The Least Dangerous Branch, Alexander Bickel argues that the judiciary is the least dangerous branch because it does not have control of the purse or an army.  A court whose rulings are nonbinding is to render it nearly impotent—nearly because just being a court carries with it some legitimacy and thus influence. Even so, as an improvement on the alternative (i.e., war), the UN’s court needs something more binding. To tout an absolutist theory of sovereignty of the nation-state as an obstacle to recognizing the UN court as binding would be enervate a possible improvement of mankind with respect to conflict in international relations.  Particularly in an age in which mass  human destructiveness is possible, we can ill-afford a Bodinean theory of sovereignty. In spite of the dangers in continuing the status quo in international conflict resolution, we advance at a snail’s pace—particularly as compared to technological development. I contend that it is high time for political development in international relations. Yet for this to occur it seems that human nature itself—particularly, its intractability—would have to be overcome, which might render the original problem moot.  Even so, it is worth a try. We may be closer than we think to being able to give the UN’s highest court a bindingness sufficient to reduce the likelihood of war appreciably.

Source: http://www.nytimes.com/aponline/2010/07/22/world/europe/AP-EU-World-Court-Kosovo.html?_r=1