Waiting for Godot: An Analysis of the Advisory Opinion on Kosovo

Leiden Journal of International Law, Vol. 24, Issue 2, pp. 331-353, 2011

Posted: 14 Jan 2013 Last revised: 1 Nov 2014

See all articles by Dov Jacobs

Dov Jacobs

Leiden University - Grotius Centre for International Legal Studies; Legal Assistant at the International Criminal Court

Yannick Radi

University of Louvain (UCL) - School of Law

Date Written: June 1, 2011

Abstract

The Kosovo Advisory Opinion gave rise to responses that suggest that the Court went too far, or not far enough, depending on one’s perspective. In this article, the authors argue that the Court should either have done nothing or gone all the way. By accepting an inadequately drafted question, the Court was necessarily going to give an inadequate answer. This article adopts a strict approach to the legal nature of the question and considers that the ICJ should have declined its competence, not as an exercise of its discretion, but as a preservation of its core judicial function, which does not include primarily the conduct of non-state entities. Going further, the authors suggest that the Court could have rephrased the question and sought to establish the international responsibility of the United Nations, and, ultimately, of Kosovo, which, it is argued, is in fact implicitly recognized by the Court, both politically and legally.

Keywords: International law, international responsibility, attribution, United Nations, Kosovo, International Court of Justice, advisory opinion, discretion

Suggested Citation

Jacobs, Dov and Radi, Yannick, Waiting for Godot: An Analysis of the Advisory Opinion on Kosovo (June 1, 2011). Leiden Journal of International Law, Vol. 24, Issue 2, pp. 331-353, 2011, Available at SSRN: https://ssrn.com/abstract=2200136

Dov Jacobs

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

Leiden University Law Faculty
P.O. Box 9520
Leiden, 2300 RA
Netherlands

Legal Assistant at the International Criminal Court ( email )

The Hague
Netherlands

Yannick Radi (Contact Author)

University of Louvain (UCL) - School of Law ( email )

University of Louvain (UCL) - School of Law
Place Montesquieu 2
Ottignies-Louvain-la-Neuve, 1348
Belgium

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