Recent Developments: The Broader Consequences of the International Court of Justice’s Advisory Opinion on the Unilateral Declaration of Independence in Respect of Kosovo

By: ,

On July 22, 2010, the International Court of Justice (the court or the ICJ) rendered an Advisory Opinion, Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Kosovo Advisory Opinion or Opinion), considering whether the unilateral declaration of independence of Kosovo is in accordance with international law.  This Paper contrasts the court’s narrow interpretation of the question put to it by the General Assembly, and its subsequent narrow conclusions, with the broader consequences of its reasoning, in particular in relation to the questions of the legality of Kosovo’s attempted secession and the legality of the recognition of Kosovo’s independence by third States.  By analyzing the court’s reasoning in relation to the scope and meaning of the question as well as to whether the adoption of the declaration of independence was in violation of general international law, Security Council Resolution 1244 (1999) and the Constitutional Framework, this Paper reveals an Opinion far more damaging to Serbia’s interests than its narrow conclusions might suggest.  The Paper concludes that the court’s ultimate message is that while secessionist movements are free to declare independence, achieving it in practice should be left to the international community to decide through political fora.  In this light, this Paper urges Serbia and Kosovo to take up the European Union’s (EU) offer to facilitate a dialogue and begin their journey on the path towards peace, security and stability in the region.