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

Daphne Richemond-Barak, Interdisciplinary Center, Herzliya

Abstract

This article analyzes the reasons why the International Court of Justice chose to significantly narrow the scope of its advisory jurisdiction in its Kosovo opinion and, arguably, missed an opportunity to opine on important questions of international law (in particular, 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 working towards an equitable solution, the Court positioned itself more as a means of dispute settlement than as a legal advisory body. The Court succeeded, in the sense that it created a favorable climate for talks between Belgrade and Pristina, though at the cost of a lost opportunity for the development of international law and some confusion of its contentious and advisory roles.