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The Creation of States Before the International Court of Justice: Which (Il)Legality?

The Hague Justice Portal, October 1, 2010

8 Pages Posted: 17 Oct 2010  

Jean d'Aspremont

University of Manchester - School of Law; Sciences Po Law School

Date Written: October 1, 2010


On 22 September, the Amsterdam Center for International Law held a discussion on some of the controversies triggered by the International Court of Justice’s Kosovo advisory opinion. This commentary is part of a series discussing the opinion and its possible implications for Kosovo’s legal status as well as the added value of the opinion for the development of international law and the settlement of international disputes.

In this brief paper, I will first recall some salient elements of the context which led to a request for an advisory opinion (1). I shall then say a few words about the hopes for a far-reaching pronouncement vested by those initiating the request for an opinion and the extent to which these hopes contrasted with the traditional judicial economy to which international courts adhere (2). I shall then turn to the formulation of the question by the General Assembly and the way in which the Court (re-)interpreted it (3). Two substantive points of the reasoning of the Court will be examined: first, the already much-discussed question of the concept of being in accordance with international law (4); second, the equally controversial question of the identity of the authors of the declaration of independence (5). Without necessarily putting the conclusion reached by the Court into question, I will demonstrate that these two aspects of the opinion are beset by a similar paucity when it comes to the concept of legality embraced by the Court.

Keywords: International Law, Kosovo, Non-State Actors, Statehood, Recognition, Concept of Law, Responsibility, Legality, International Dispute Resolution, International Court of Justice

Suggested Citation

d'Aspremont, Jean, The Creation of States Before the International Court of Justice: Which (Il)Legality? (October 1, 2010). The Hague Justice Portal, October 1, 2010 . Available at SSRN:

Jean D'Aspremont (Contact Author)

University of Manchester - School of Law ( email )

Oxford Road
Manchester M13 9PL, M139PL
United Kingdom


Sciences Po Law School ( email )

13 rue de l'université
Paris, 75007


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