Dov Jacobs and Yannick Radi are both postdoctoral researchers at the Amsterdam Center of International Law, University of Amsterdam
[the post has been revised since it first went up]
In an article just published by the Leiden Journal of International Law, entitled Waiting For Godot: An Analysis of the Advisory Opinion on Kosovo, we revisit the advisory opinion issued by the ICJ on 22 July 2010. Two years after the United Nations General Assembly (UNGA) submitted a request in relation to the February 2008 Declaration of independence of Kosovo, the Court issued found that the declaration was not in violation of international law.
This opinion gave rise to a number of commentaries which discussed various aspects of the case. Here on EJIL Talk!, See the extensive preview of the legal issues of the case before the issuance of the opinion by Marko Milanovic and the subsequent analysis by Dapo Akande. Elsewhere, you can refer to the initial analysis by Dov Jacobs over at Spreading the Jam (here and here) and the comprehensive online symposium on The Hague Justice Portal. These commentaries usually isolate a topic related to the opinion (exercise of discretion, self-determination, the application of international law to individuals…) and deconstruct the reasoning of the Court in relation to it.
In our article, we try to explain more generally, the feeling that something is missing in the decision irrespective of the specific flaws in the legal reasoning of the Court, which gives the impression that we are waiting for something that will never come, in essence waiting for Godot.
In a nutshell, we argue that the main problem with the opinion is that the ICJ accepted to respond to a question that did not concern its core ratione personae jurisdiction which is primarily States and the UN. By considering the conduct of non-State entities, the ICJ let itself be dragged in a sort of twilight zone of international law where its conclusions could in fact not make sense.
The article therefore highlights the inconsistencies in the Court’s logic and how they relate to this ratione personae issue, and, ultimately suggests that the ICJ should have looked beyond the conduct of the authors of the declaration, to the responsibility of the UN, as the administrator of the territory, and the responsibility of Kosovo, which we argue, was implicitly recognized by the Court as an autonomous State.
As an illustration of our reasoning, here are two points of interest in our article.