The Kosovo Advisory Proceedings and the Court's Advisory Jurisdiction as a Method of Dispute Settlement

International Court of Justice and Kosovo: Opinion or Non-Opinion? Seminar, 2010

6 Pages Posted: 29 Jan 2012

See all articles by Eric De Brabandere

Eric De Brabandere

Leiden University - Grotius Centre for International Legal Studies

Date Written: September 1, 2010

Abstract

It is generally acknowledged that the International Court of Justice has a discretionary authority to answer the question put to it under its advisory jurisdiction. Although the Court has since its inception consistently refused to exercise its discretionary authority to refuse to answer a request for and advisory opinion, the question was raised again in the Kosovo-case. The fact that the question related to an actual dispute between Serbia and a non-state entity, and other States which had recognized Kosovo’s independence, and not as such to the General Assembly’s activities, is characteristic for several requests for advisory opinions. It raises questions as to whether the use of the Court’s advisory jurisdiction is an appropriate tool to settle such legal questions.

This article first discusses the International Court of Justice’s established and relatively consistent jurisprudence on the use of its discretionary authority. It then discusses the Court’s decision on the use of its discretionary authority in the Kosovo-case.

The paper will argue that although the Court’s appraisal of its discretionary authority is sound from a legal perspective, and should thus be upheld, the Court’s advisory function is not the best way to settle disputes between states or states and non-state entities. As some states observed, the Kosovo Advisory Opinion is undeniably aimed to serve the interests of certain states only, and the Court’s advisory function is here clearly used as an alternative to the Court’s jurisdiction in contentious cases. This development however, although not problematic in se, might however lead to blur the distinction between the two types of proceedings. Indeed, while it is not the purpose here to argue that this development is dangerous, we will argue that it is nevertheless undesirable.

Keywords: Kosovo, International Court of Justice, Advisory Proceedings

Suggested Citation

De Brabandere, Eric, The Kosovo Advisory Proceedings and the Court's Advisory Jurisdiction as a Method of Dispute Settlement (September 1, 2010). International Court of Justice and Kosovo: Opinion or Non-Opinion? Seminar, 2010 . Available at SSRN: https://ssrn.com/abstract=1992996

Eric De Brabandere (Contact Author)

Leiden University - Grotius Centre for International Legal Studies ( email )

Leiden University Law Faculty
P.O. Box 9520
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Netherlands
+31 71 527 7399 (Phone)
+31 71 527 7509 (Fax)

HOME PAGE: http://www.law.leiden.edu/organisation/publiclaw/publicinternationallaw/staff/eric-de-brabandere-.ht

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