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WEB EXCLUSIVE: A Sidelight on the ICJ’s Kosovo Decision

Yesterday, the International Court of Justice, in a nonbinding opinion that resulted from a referral from the UN General Assembly at Serbia’s behest, ruled that Kosovo’s breakaway from Serbia was not illegal because “general international law contains no applicable prohibition on declarations of independence.” Well, that’s a relief.

On its merits, the opinion was correct. But this is exactly the kind of fundamentally political question that cannot be settled by the courts – especially not an international court. If the ICJ had decided that Kosovo’s independence was illegal, it would in theory have committed itself and the UN to reversing it. That could only be done by force applied by the so-called international community against Kosovo. There was and is not the slightest chance of that. The ICJ would have done better to refuse to accept the referral on the grounds that the matter was outside its competence.

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