Regular readers of this blog will know that I was critical of the ICJ’s advisory opinion as soon as it was released last July. I criticized it in a live blogging session from the ICJ on the day it was issued, and in subsequent posts, both here and on the Hague Justice Portal.
In an article just published in the Leiden Journal of International Law by myself and Yannick Radi, we explore more systematically and systemically the flaws of the opinion, considering that most of the difficulties that arise stem from the fact that the ICJ accepted to answer a question relating to non-State entities, i.e, the authors of the declaration of independence, rather than its core ratione personae jurisdiction, that are States and the UN.
You can follow the full extent of our reasoning in the article, and, for those who have a little less patience, the summary that we published on EJIL Talk!.
For those who have even less patience, one of the core arguments we make is that the acts of the Kosovo assembly, as established under the authority of the UNSC, can be attributed under international law to the UN, thus raising the rather interesting question of whether the UN can unilaterally declare the independence of a State. Pushing the logic even further, we argue that the ICJ implicitly recognises a new legal entity, Kosovo, to which the declaration could be alternatively attributed. I won’t elaborate here, and let you read the article to see how we pulled this one off!