By Tobias Thienel

Perhaps somewhat surprisingly, the General Assembly of the United Nations has voted to request an advisory opinion of the International Court of Justice on the legality of Kosovo’s unilateral declaration of independence. (It may be noted that the question is only about the claim to independence as such, not about the conduct of other States in supporting that claim.)

Leaving the merits of the question for another day, I would like to note now that some States (most notably Albania and the United States) have voted against the request for an advisory opinion, and may come to make submissions to the Court seeking to dissuade it from addressing the question. This raises some legal questions as to when the Court may or should refuse to give an advisory opinion.

First, some States have explained their vote against the resolution requesting the opinion by pointing out that the motivation for the resolution was much more political than it was legal. Many others accepted that the question was very much a legal one. That is clearly correct. If the question of independence and statehood is not a legal question, what is? But it seems the point was never actually contested; saying that the request was made for essentially political, even somewhat mischievous, reasons (the UK and Albania feeling that the advisory procedure was set in motion to delay the process of the recognition of Kosovo by States) is hardly the same as arguing that there is nothing legal for the Court to bite on. In any event, the Court has long insisted that a legal question does not cease to be so merely because there is some political interest in the state of the law (Legality of the Threat or Use of Nuclear Weapons (1996) 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); see also Tomuschat, in Zimmermann/Tomuschat/Oellers-Frahm (eds.), The Statute of the International Court of Justice. A Commentary, 2006, Art 36 MN 14; Frowein and Oellers-Frahm, ibid, Art 65 MN 21-4).

The second issue is that the question obviously and immediately relates to the rights of one, possibly two, States. It certainly does not raise a question of universal importance, that is to say, of the same importance to every single State, or of immediate relevance only to the United Nations itself. The question might arise, then, whether a question involving one or two immediately interested States is not a circumvention of the strictures of the Court’s contentious jurisdiction, which of course is based on the consent of the litigating parties. Unsurprisingly, the question has arisen before. 

he first time the point was raised, and with apparent success at that, was in the Eastern Carelia case in the olden days of the Permanent Court of International Justice. Then, in 1923, the PCIJ refused to give the opinion that had been requested of it, on the grounds that it related immediately to a pre-existing dispute involving a State that was neither a member of the League of Nations, nor a party to the Statute of the Court. The Court held that the consent of the absent State would be required before the dispute could be brought to the quasi-decision that the advisory opinion would entail, and also found it ‘very inexpedient’ to pronounce on the matter due to the absence of critical evidence, occasioned by the absence of one party to the dispute from both the Court and the efforts of the League in settling the issue.

This was in the context of the Court’s advisory competence what the famous dictum of the Lotus Case (by which everything that was not forbidden by international law was allowed) was in general international law, namely ‘the high-water mark of laissez-faire in international relations’ or in the conception of sovereignty (Arrest Warrant of 11 April 2000, Joint Separate Opinion of Judges Higgins, Kooijmans and Buergenthal (2002) ICJ Reports 63, at 78, para 51). Later developments made notable inroads into what appeared to be the Eastern Carelia holding.

The main aspect of the Court’s advisory competence, as it is understood today, was expressed in 1950, in the opinion on the Interpretation of Peace Treaties with Bulgaria, Hungary and Romania (1950) ICJ Reports 65, at 71. The Court has since said in its jurisprudence constante that ‘the reply of the Court, itself [now] an "organ of the United Nations", represents its participation in the activities of the Organization, and, in principle, should not be refused.’

That is now the starting point for any objections to the Court’s power to give an advisory opinion. To be sure, the Court retains discretion to refuse to give an opinion where to do so would be antithetical to its judicial character. However, the principle of consent is not such as to automatically disbar the Court from replying to a request for an advisory opinion where a State with a close interest in the issue at hand declines to consent to the Court’s activity. This point is no more than a consideration to be taken into account n deciding whether the Court ought to give its opinion or not. It would probably be very inexpedient to do so only if the question put to the Court really only raised a matter of the rights and duties of a single State or of two States in their mutual relations. On the other hand, if there is a good reason for the UN organs to have requested the Court’s opinion, where those organs can point to some important interest in the matter, the Court will ‘participate in the activities of the Organization’ and give its advice. (See, on all of this, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (2004) ICJ Reports 136, at 157-9, paras 47-9).

It is reasonably clear that the UN, and its General Assembly, have every right to take a close interest in whether an entity claiming to be a State actually is one. Also, it is difficult to argue that there might be any circumvention of the Court’s contentious procedure, as Kosovo could not sue or be sued in the Court if it was not a State – which is what a case would be about. Certainly, the Court would have a competence to ascertain whether an entity appearing before it really is a State, but surely it is much better, all things considered, that the issue be aired in the advisory procedure.

This raises one last issue noted by some States when the request was before the General Assembly. It is that, if Kosovo’s independence is before the Court, it is only fair that Kosovo should be heard. However, Article 66 of the Court’s Statute only allows for States entitled to appear before the Court and ‘international organizations’ to make submissions in advisory proceedings. This may be less than critical because Kosovo is likely to find a friendly Government to put its argument to the Court, and the Court is in any event not bound by the submissions of those appearing before it. Nonetheless, Professor Paulus has noted (in Zimmermann/Tomuschat/Oellers-Frahm, op cit, Art 66 MN 16) that there is nothing to prevent the Court from adopting an expansive interpretation of the term ‘international organization’, and that a broad interpretation may well be called for so that the best information may come before the Court. Even under the existing interpretation, by which only inter-State, inter-governmental organizations qualify under Article 66, UNMIK may well be competent to appear before the Court. Under a broader view, based either on Article 66 or on some kind of incidental power in the Court, the actual Kosovar entities might also come to be heard.

I am not at all sure that all these issues will be aired when the request comes up for a hearing in the ICJ. I am, however, reasonably certain that the Court will proceed to the merits of the case, putting international law firmly on the table. That, of course, is not necessarily where it has been until now, with all the political furore about Kosovo first and Southern Ossetia later.