The Cowardice of the Restrictive Advisory Opinion Approach: A Failure of the Court to Exercise its Judicial Prerogative in the Application of General Principles of International Law in Fulfillment of International Peace and Security (An Assessment of the Kosovo Advisory Opinion)

Abstract

This paper examines the ICJ Advisory Opinion 'Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo' (22 July 2010), hypothesizing that the ICJ has erroneously adopted a 'restrictive' approach in their determination and scope of advisory opinion requests. The court justifies the limitation of its approach to the question presented by relying upon a restrictive reading of the question and coupling this with an approach of restrictive application of its jurisdiction. It legitimizes this limited reading by noting that 'in past requests for advisory opinions, [the G.A.], when they have wanted the Court’s opinion on the legal consequences of an action, have framed the question in such a way that this aspect is expressly stated (see SouthWest Africa Advisory Opinion, Construction of Wall Advisory Opinion) (para. 51).' The court has two options as this point. It can adopt the restrictive approach as seen in the current opinion, answering the question on its face. Or, it can exercise its judicial prerogative to resolve the underlying legal question directly associated with the declaration. This alternative approach can be called the 'general principles approach.'