01 Mar Serbia Threatens to Seek ICJ Opinion on Kosovo
Kosovo’s declaration of independence raised a host of interesting international legal questions that Chris, among others, explored in some very good posts and discussions. And it looks like the ICJ may get a chance to opine on this question as well.
Serbia will soon take Kosovo’s “illegal” declaration of independence to the International Court of Justice, Foreign Minister Vuk Jeremic told AFP Thursday.
“Serbia will seek the legal opinion of the International Court of Justice, asking whether or not this (declaration of independence) was done in compliance with international law,” Jeremic said in an interview on the sidelines of regional Balkan talks in Sofia.
It’s unclear how this would actually get to the ICJ (an advisory opinion? an application against which country, exactly?). But it would be useful to see the ICJ tackle this question…
Well, let us see if ICJ can repeat Eastern Carelia stance.
What Eastern Carelia stance? Could you elaborate on that?
Can a single country ask for an advisory opinion? I thought it was only select UN institutions that could (e.g. the GA, SC, IAEA, etc.)
I can’t be a case brought against Kosovo by Serbia as (a) you’d have to recognise Kosovo as a country first(!) and (b) Kosovo is not subject to ICJ jurisdiction.
This issue has been rattling around for a while. Julian and I have posted on it previously. Here’s some more information, based on what was said a few weeks ago.
Nighstallion: when the situation is so politically charged, ICJ may decide not to give its advisory opinion if it would be ‘inappropriate’.
;/:,
with respect, that’s putting it a bit simply. The fact that a question is politically charged does not mean the ICJ will exercise its discretion to refuse to give its opinion (consider Conditions of Admission of a State to Membership in the United Nations (Article 4 of the Charter) (1947-1948) ICJ Reports 57, at 61; Interpretation of Peace Treaties with Bulgaria, Hungary and Romania (1950) ICJ Reports 65, at 71-2; Interpretation of the Agreement of 25 March 1951 (1980) ICJ Reports 67, at 87 (para. 33); Legality of the Threat or Use of Nuclear Weapons (1996-I) ICJ Reports 226, at 234 (para. 13); Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (2004) ICJ Reports 136, at 155 (para. 41)).
In fact, the ICJ has never to date refused to give an opinion on discretionary grounds (the refusal in Legality of the Use by a State of Nuclear Weapons in Armed Conflict was a jurisdictional matter – See the Wall opinion, p. 156, para. 44). Still, the Court has frequently said that it still enjoys some discretion as to whether it should give an opinion, but it has also said that, in principle, it should do its job as part of the UN system. When it might refuse to do so has become a very difficult thing to predict. Two points from Eastern Carelia may have survived, though: it may be inappropriate to give an opinion where the question is not actually of any international interest, so that the question appears as an attempt to circumvent the limitations of the Court’s contentious jurisdiction (see the Wall opinion, pp. 158-9, paras. 49-50, and J.A. Frowein and K. Oellers-Frahm, in A. Zimmermann, C. Tomuschat and K. Oellers-Frahm (eds.), The Statute of the International Court of Justice. A Commentary (Oxford: OUP, 2006), Art. 65 MN 36). Another important factor may be the absence of crucial evidence occasioned by the absence of a closely interested State: Eastern Carelia, p. 28; Western Sahara, pp. 28-9 (para. 46); Wall opinion, p. 161 (para. 56); ibid., Declaration of Judge Buergenthal, pp. 240 et seq.; Frowein and Oellers-Frahm, ibid., MN 40-2.
Neither consideration seems relevant with respect to the Kosovo question. It may be that the Court would, possibly even could, invent a new reason of judicial policy to refuse to entertain the question, but I think the Court might be doing itself a disservice if it did so.