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

Upendra Acharya, Gonzaga University

Abstract

ABSTRACT The ICJ’s recent advisory opinion on Kosovo’s unilateral declaration of independence from Serbia that the Kosovo’s declaration of independence did not violate international law ignores a set of questions that concern contentious international legal issues, including the right to self-determination via remedial secession, the law of statehood, the territorial integrity of states, and the legal effect of recognition by other states. Because these issues were ignored by the ICJ in its legal analysis by its adoption of an economy of judicial reasoning, the advisory opinion marks a state of confusion and complicates similar independence claims by other territories and entities. While the Kosovo opinion also enhances the role of the General Assembly in maintaining international peace and security, and answers important questions about the interplay of the roles of the ICJ, General Assembly, and Security Council in maintaining international peace and security, the majority opinion answers little about the core issue: whether the Kosovar people are entitled to independence under the principle of self-determination. Instead of addressing this obvious issue, the majority took an exceptionally minimalist approach to the question presented and based its opinion on the international legal truism that anything not banned by international law is generally permitted. The Court was not able to bring much clarity and legal certainty to important relevant legal aspects of the Kosovo conflict 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.