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The Government of the Republic of Serbia

In the service of citizens

Serbia should file suit against at least one country recognising Kosovo independence

Belgrade, 28 February 2008

Legal advisor to the Serbian state team for negotiations on the status of Kosovo-Metohija and Director of the Swiss Institute of Federalism Thomas Fleiner stated that Serbia should file suits at the International Court of Justice (ICJ) against at least one country that recognised the self-proclaimed Kosovo state.

In an interview for today’s edition of the Politika daily, Fleiner stressed that Serbia should do that because a process before the ICJ may influence other countries that are preparing to acknowledge the province, and added that countries hesitating to recognise Kosovo would choose to wait for the court’s decision. However, he added he cannot estimate how long the process would last.

I think it is important for Serbia to sign the declaration accepting the ICJ’s compulsory jurisdiction. .As soon as it signs it, Serbia can file suits against all countries, explained Fleiner.

The Serbian government’s official web site gives excerpts of the interview.

Would the Serbian parliament have to ratify the declaration?

I do not think that is necessary, but yet I am not familiar enough with the Serbian Constitution to know that. However, once Serbia signs the declaration, it can file suits the very next day. This is very important because countries which also signed the ICJ declaration must accept the court’s decisions and subject to its jurisdiction. For instance, the UK signed it, as well as Switzerland, which has just recognised Kosovo.

How could Serbia take the US to court since America rarely acknowledges the ICJ jurisdiction?

I do not think Serbia should file charges against the US, but against the states that have already signed the compulsory declaration. If the court decides Serbia is right, and the odds of that are really huge, the decision would have an enormous political impact. This is not my opinion alone, but the opinion of one of the greatest experts on the ICJ Marcel Cohen, who told me that Serbia would have the support of that UN organ.

The legal and political consequences of the possible ICJ decision in Serbia’s favour?

First of all, the court would not decide on Kosovo, as the province is legally a part of Serbia, but only on whether the states that recognised Kosovo have made an illegal decision, which they would have to revoke.

What means may the court employ to revoke the decisions?

Force cannot be used in international law, but the sentence would greatly affect public opinion. This is the only possible sanction in this case, but it is worth much more to Serbia as it would have court proof that decisions to recognise Kosovo are illegal. With that sentence, Serbia would be in a completely different legal situation than if it just kept repeating that those decisions are illegal.