The International Court of Justice’s Advisory Opinion on Kosovo: Perspectives of a Delicate Question

Abstract

On 22 July 2010 , the International Court of Justice (ICJ) issued the muchawaited opinion on Kosovo’s declaration of independence. The general reaction to the opinion was mostly disappointment.In fact, in 2008, the question referred by the United Nations General Assembly (UN GA) to the ICJ had the ingredients to pave the way for some of the most controversial questions of modern international law, inter alia, on the meaning of self-determination in the 21st century. Some hoped that the ICJ would decline jurisdiction for this case; others hoped to receive allencompassing guidance on the many thorny subjects the question touched upon. The ICJ sought for a compromise, declaring that it had jurisdiction, but shied away from addressing the substance of the question. Acting in this manner, it appears doubtful as to whether the ICJ has measured up to its ‘duty to cooperate’ within the UN system. In fact, the line of arguments the ICJ presented 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 a 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.