The International Court of Justice on Kosovo: Missed Opportunity or Dispute 'Settlement'?

Abstract

This article analyzes the reasons why the International Court of Justice narrowly interpreted the General Assembly’s question in its Kosovo opinion and, arguably, missed an opportunity to opine on important questions of international law (in particular on matters of recognition, secession, and self-determination). I argue that the Court's approach was driven by a desire to avoid exacerbating tensions between the two most interested parties, namely Kosovo and Serbia. Although the opinion was overwhelmingly perceived as pro-Kosovo in its immediate aftermath, a more thorough analysis suggests that the Court sought a delicate compromise between the positions of the two entities. By interpreting the General Assembly's question narrowly, the Court was able to adopt a solution that was beneficial, at least in some respects, to both entities, thereby maintaining the fragile legal/political status quo in the region. For this, the Court should be commended – even though it came at the cost of a lost opportunity for the development of international law and some confusion of the Court’s contentious and advisory functions.

Keywords: international court of justice, jurisdiction, advisory, settlement, equity, international law, Kosovo