Just before Kosovo’s unilateral declaration of independence from Serbia in 2008, Vuk Jeremic, the Serbian foreign minister, warned that in Africa alone “there are about fifty Kosovos waiting to happen.” The African wannabes can take heart as the International Court of Justice has ruled Kosovo’s action was not illegal; international law contains no “prohibition on declarations of independence”.

What’s sauce for the goose is sauce for the gander: minorities seeking independence anywhere will be encouraged by the court’s ruling. Five of the European Union’s 27 members refuse to recognize Kosovo because they fear that their own minorities might use its independence as a precedent: Cyprus (Turkish Cypriots), Greece (Macedonian Turks), Slovakia (Hungarians), Romania (also Hungarians), and Spain (Catalans and Basques). Further afield, China worries about Tibet and Xinjiang and Russia frets about all sorts of potential secessionist movements. In fact, only 69 countries have recognized Kosovo, and it is still not a member of the United Nations.

There is an old legal adage that “hard cases make bad law,” and it is certainly at work in Kosovo. The Kosovars, who were 90 per cent of the population before the 1999 war and now account for 95 per cent, are Albanian-speaking Muslims who were oppressed under the ultra-nationalist Serbian regime of Slobodan Milosevic.

Milosevic abolished the autonomy that Kosovo had enjoyed in the former Yugoslavia, and by the late 1990s his troops and police were regularly beating, jailing and killing Kosovars suspected of seeking its restoration. He drove some Kosovars into a guerilla war against the regime, and then killed around 10,000 people in an attempt to terrorize the Kosovars into submission.

Only way out

The Kosovars were not saints in all this, but they owe no allegiance to a state that treated them in such a vile manner. In 1999, the United States of America and the European members of Nato decided that Serbian behaviour was intolerable, and waged an 11-week war of aerial bombardment to force Serbian troops to evacuate Kosovo. Then they occupied it — and started looking for a way to leave.

The only way to get out was to create a sovereign Kosovo state, with protection for the rights of the remaining Serbian minority. When Serbia refused to accept the independence of a province it sees as the cradle of the nation — “our Jerusalem,” in Jeremic’s words — the US and major European countries told the Kosovars they could declare their independence unilaterally.

Kosovo could not reasonably be expected to stay in Serbia after all that has happened, but it is a hard case, and it makes bad law. Or at least, it changes the law in ways that we may regret. The ICJ is right: international law does not ban declarations of independence. But the deal that underlies the creation of the UN, and that has spared us from great-power wars over the past 65 years, does forbid any changes in the borders of UN members that are imposed by force. That deal is embedded in the UN Charter. What they really intended in 1945 was to stop cross-border aggression. In practice, the charter has also been used to delegitimize unilateral declarations of independence all over the world.

It was a largely unintended side effect of the charter, and although it has suppressed violence in some places, it has helped perpetuate terrible injustices in many others. The decision of the ICJ undermines this interpretation of the charter, and probably means that more secessions actually succeed in the end. Whether that is a good thing or not depends on which side of the fence you are on, but it probably means more violence, at least in the short term.