ICJ’s Kosovo Decision: Economical Reasoning of Law and Question of Legitimacy of the Court

38 Pages Posted: 31 Aug 2012 Last revised: 19 Sep 2012

Date Written: August 30, 2012

Abstract

The International Court of Justice’s advisory opinion on the legitimacy of Kosovo’s unilateral declaration of independence based on the right of self-determination was a missed opportunity to clarify and enhance the international community’s understanding of the laws of sovereignty. The Court instead chose to apply a tautology of international law – that which is not expressly prohibited is allowed. Finding no express prohibition on secession, the ICJ’s advisory opinion acted as a ‘rubber stamp’ on powerful UN Security Council interests. The ultimate decision – that the declaration of Kosovar independence was an isolated and legal event – is totally divorced from the real-world consequences of independence. The ‘advice’ given does not address whether Kosovo actually achieved independence, it says only that the process of declaring independence was legal. This paper addresses the failings of the advisory opinion and suggests that the Court was not able to bring much clarity and legal certainty to important relevant legal aspects with regard to independence, statehood, territorial integrity, secession, self-determination, and the legal effect of recognition. Rather, it left these relevant questions to be answered by state practices based on political stratagems. That there were alternate and preferable avenues available to the court before finally assessing the legal issues that the ICJ failed to address.

Keywords: International Law, International Court of Justice, Kosovo, United Nations, Independence, Sovereignty

Suggested Citation

Acharya, Upendra D., ICJ’s Kosovo Decision: Economical Reasoning of Law and Question of Legitimacy of the Court (August 30, 2012). 12 Chicago-Kent Journal of International and Comparative Law 1 (2012); Gonzaga University School of Law Research Paper No. 2011-11. Available at SSRN: https://ssrn.com/abstract=2139200

Upendra D. Acharya (Contact Author)

Gonzaga University - School of Law ( email )

721 N. Cincinnati Street
Spokane, WA 99220-3528

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