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

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.

1) The search for a guiding principle: respecting the judicial function of the Court

The reason for the confusion in the framework to determine jurisdiction and exercise discretion is the absence of an underlying guiding principle. We therefore suggest one: the compatibility with the judicial function of the Court. In fact, this principle is mentioned in the opinion itself, where the Court considers that “the discretion […] exists so as to protect the integrity of the Court’s judicial function and its nature as the principal organ of the United Nations” (advisory opinion, §25), but never draws the contours of what it means exactly. For Judge Cançado Trindade, in his lengthy separate opinion, the Court “has confused discretion with judicial propriety” (Separate opinion, §26).

What would this have changed in the reasoning of the Court?

In relation to jurisdiction, it should compel the ICJ to more strictly interpret the “legal nature” of the question. Right now, there seems to be a presumption that if the question is framed in international law language, it is a legal question. But this misses out a fundamental aspect of the exact nature of the ICJ. It is not just a Court of international law. It is a Court that essentially deals, as the principal judicial organ of the UN, with international law as relating to States and the UN. The absence of this fundamental personal dimension to jurisdiction has for a consequence that the ICJ could have, in theory, jurisdiction to answer the question of whether Dov Jacobs and Yannick Radi violated international law by crossing the street when the light was not green. This would certainly fit the actual evaluation by the Court of the legal nature of the question, but is surely not what the drafters of the UN Charter had in mind when creating the ICJ. We therefore suggest that the Court could have found that it did not in fact have jurisdiction because the question related to the conduct of entities (either an internal organ, or a group of individuals, depending on the interpretation of the facts) that do not fall within its natural personal jurisdiction.

In relation to the exercise of discretion, such a focus on the judicial function of the Court would have several consequences. First of all, it would clearly removed from the discussion the considerations mentioned previously on the political effect of the question, the motives of the State at the origin of the request or the distribution of competences between various UN organs. Second of all, it would justify, in the exercise of its judicial function, that the ICJ be allowed to analyze the legal utility of the question, both from the point of view of the requesting organ and the content of the question itself.

On the requesting organ, we make the following finding: technically, an ICJ advisory opinion can never have any legal utility for the UNGA. Indeed, as an essentially political organ that issues non-binding resolutions, it need not be guided by conformity with international law. For example, it would have been perfectly possible for the UNGA to approve the declaration of independence, even if the ICJ had found it to not be in conformity with international law. Which leads us to a rather radical solution, which is logical, but unlikely to be picked up on:  to remove the power of the UNGA to request an advisory opinion, except for issues touching upon the internal functioning of the UN.

Less radically, the Court should acknowledge that it is within its judicial power to evaluate the legal utility of the question itself. Indeed, the whole advisory mechanism is premised on the idea that the UNGA does not have sufficient knowledge in law to answer the question, why should it be trusted to phrase the question correctly? In effect, this would mean that if the question does not cover relevant areas of international law, such as, in this case, the statehood, sovereignty or self-determination, the Court would be legitimate to refuse to answer it.

2) Considering the responsibility of Kosovo

One enigmatic issue which creeps up at several places in the Advisory opinion concerns is the legal order wherein the Court considers that the authors of the Declaration acted. The only conclusion which can be drawn in our view is the implied recognition of a Kosovar legal order, this implied recognition raising the issue of the responsibility of Kosovo.

Implied recognition of Kosovo by the ICJ

The ICJ makes many statements on the legal order issue. Mutatis mutandis, it always considers ‘that the declaration of independence of 17 February 2008 was not issued by the Provisional Institutions of Self-Government, nor was it an act intended to take effect, or actually taking effect, within the legal order in which those Provisional Institutions operated’ (advisory opinion, §121). This statement raises a basic question: where does the ICJ consider that the Declaration of independence actually took effect? Given that the Court considers that it did not in the sui generis legal order set up by the UNSC and that the Declaration cannot exist in a legal vacuum, we suggest that it can only have such an effect within another legal order, that is, Kosovo. Implicitly, it appears that the Court recognized thereby Kosovo as a state.

This impression is strengthened by the political evaluation made by the Court when it states, for examples, that “The declaration of independence reflects the awareness of its authors that the final status negotiations had failed and that a critical moment for the future of Kosovo had been reached” (Advisory opinion, §105). Beyond the issue of the propriety of such a statement in a judicial decision, it clearly indicates that the ICJ itself feels that there was no other choice.

Responsibility of Kosovo

It is on this basis which is a necessary consequence of the ICJ’s reasoning, that one can wonder whether the Declaration of independence entails the responsibility of Kosovo as a State.

As for attribution, one can consider that authors acting ‘together in their capacity as representatives of the people of Kosovo outside the framework of the interim administration’ are an organ of Kosovo as understood under Article 4 of the ILC Draft articles on State responsibility. In addition to this primary ground for attribution, one could argue, based on a cross-interpretation of Article 10(2) of the ILC Drafts Article on State responsibility (‘Conduct of an insurrectional or other movement’) and their comments with the comments on attribution of the ILC Draft Articles on IO responsibility, that the authors of the Declaration succeeded in establishing a new state in the territory under UN administration, the Declaration having to be considered as an act of the New Kosovar state, irrespective of its alleged illegality.

Being attributable to Kosovo on these alternative basis, is the Declaration of independence in breach of international law? Concerning Resolution 1244 (1999), Kosovo not being a UN member State nor an explicit addressee of the Resolution, it is difficult to affirm that it is bound by it. However, one can notice that the Declaration of independence itself provides for the respect of, among other things, the principles of the UN Charter and the treaties and other obligations of the former Socialist Federal Republic of Yugoslavia. In light of these elements, we may consider that Kosovo has bound itself by the Charter and thereby breached the principle of territorial integrity as enshrined in it.

It is only by drawing a de lege ferenda, except for Judge Cançado Trindade, analogy with the ‘Declaration on Principles of International Law concerning Friendly relations and Cooperation among States in Accordance with the Charter of the United Nations’, that we may consider that the Declaration, altering territorial integrity for the sake of a persecuted population, is not in breach of the UN Charter.