The ICJ Advisory Opinion on Kosovo: Different Perspectives of a Delicate Question

Abstract

When the ICJ on 22 July 2010 finally handed down the much-awaited opinion on Kosovo´s declaration of independence the reaction was mostly disappointment. In fact, the question referred by the UN General Assembly to the ICJ in 2008 had the ingredients to pave the way for a stock-taking on some of the most controversial questions of modern international law, first of all on the meaning of self-determination in the 21th century. Some hoped that the ICJ would decline jurisdiction for this case, others hoped to receive all-encompassing guidance on the many thorny subjects the question touched upon. The ICJ sought for a compromise: It declared that it had jurisdiction but it shied away from addressing the substance of the question posed. It appears to be doubtful whether the ICJ, acting this way, really has come up to its duty to cooperate within the UN system. In fact, the line of arguments presented by the ICJ is too shaky and as a consequence status and function of the ICJ end up damaged from this proceeding. On the other hand, the ICJ deserves praise for having handled a thoroughly political issue with great sense of responsibility. It is argued here, that notwithstanding all the ambiguities surrounding the distinction between the legal and the political, this distinction still matters - judges should not be asked to do the undone jobs of politicians.