Kosovo and the ICJ

Serbia wants the ICJ to rule on Kosovo independence. Rather than use the contentious case process (which I surmise would have no hope of success), they want the General Assembly to request an Advisory Opinion from the ICJ.

Some comments:

— I think it would be foolish for the ICJ to stray into the territory of pronouncing on issues like Kosovo independence. I just don’t think they are amenable to being resolved by legal processes, given the current state of evolution of the global order. Would it be useful here to import the political question doctrine as developed in various municipal legal traditions, for example U.S. constitutional law? Maybe; then again, maybe the notion of non liquet is already ample enough?

— Territorial integrity and the right to self-determination represent two contrary principles, both of which one might argue are recognized by customary law; and yet, customary law has not yet developed either principle to a sufficient degree of precision that the inherent contradiction between them can be transcended. Again, the current evolution of the global order just doesn’t support such a revolution.

— As much as the law relies on the judicial system to be (or at least, to appear to be) politically neutral, no court can lose sight of the fact that they are always subject to pragmatic (as opposed to formal or official) political limits. Sometimes, it is better to refuse to rule on an issue, than to issue a ruling which will be inevitably disregarded, thus serving no purpose other than causing the court to lose face. I think the Legality of the Threat or Use of Nuclear Weapons case proves that the ICJ is aware of its own political limits.

— When a state has not accepted the jurisdiction of the Court in a contentious case, should the Court allow the case through the backdoor via an advisory opinion? To rule that Kosovo’s independence was illegal could be taken to imply that those states who have recognized Kosovo have engaged in an illegal act. (I guess that would be Serbia’s preferred interpretation.) I think the United States, among others, would have a strong argument here that the Court should refuse to rule on an advisory opinion. Especially since, compared to Nuclear Weapons, it is one thing to ask about a largely hypothetical situation (nuclear war), another to ask about an actual event which has recently occurred.

— The recent action of Russia in recognizing Abkhazia and South Ossetia presents what may be a brilliant opportunity for a wrecking amendment — let the Court rule on Kosovo, and let it rule on South Ossetia and Abkhazia as well. Such a move would likely result in Russia not supporting a referral to the ICJ, and without Russia, Serbia has no hope.

To be honest, the Putin/Medvedev government has really shown its true colours here. When they opposed Kosovo’s independence, however wrong I thought they were, at least they had some important principles on their side. But, with South Ossetia and Abkhazia, they’ve shown that the only principle they stand for is unprincipled geopolitical opportunism.