On 22 July 2010 the International Court of Justice rendered a long-awaited Advisory Opinion on the accordance with international law of the 2008 declaration of independence of Kosovo. This article argues that the Opinion is calibrated to sound (and produce a political effect) in favour of Kosovo without providing a clear demonstration and without establishing legal principles capable of being applied in other secession instances. The Court expressly refused to pronounce itself on the critical questions of whether Kosovo has acquired independence or has a right to independence in the name of self-determination of peoples, nor did the Court examine what legal effect and validity recognitions (or failures of recognition) of Kosovo have. The Court concluded that the declaration of independence «did not violate» international law without clarifying whether non-violation was the result of a permission (that is, a right) to make the declaration or of the mere inexistence of applicable legal rules. Had the Court addressed the substantive legal questions at issue, it would have been led to conclude that the declaration of independence was not in accordance with international law. Since the Court’s message against Serbia has somehow reached the audience, admittedly with little if any effect on realities, the Opinion arguably is «much ado (almost) about nothing».

Focarelli, C. (2011). Tanto rumore (quasi) per nulla: lo status del Kosovo e la strategia argomentativa della Corte internazionale di giustizia nel parere del 22 luglio 2010. IL POLITICO, 59-80.

Tanto rumore (quasi) per nulla: lo status del Kosovo e la strategia argomentativa della Corte internazionale di giustizia nel parere del 22 luglio 2010

FOCARELLI, CARLO
2011

Abstract

On 22 July 2010 the International Court of Justice rendered a long-awaited Advisory Opinion on the accordance with international law of the 2008 declaration of independence of Kosovo. This article argues that the Opinion is calibrated to sound (and produce a political effect) in favour of Kosovo without providing a clear demonstration and without establishing legal principles capable of being applied in other secession instances. The Court expressly refused to pronounce itself on the critical questions of whether Kosovo has acquired independence or has a right to independence in the name of self-determination of peoples, nor did the Court examine what legal effect and validity recognitions (or failures of recognition) of Kosovo have. The Court concluded that the declaration of independence «did not violate» international law without clarifying whether non-violation was the result of a permission (that is, a right) to make the declaration or of the mere inexistence of applicable legal rules. Had the Court addressed the substantive legal questions at issue, it would have been led to conclude that the declaration of independence was not in accordance with international law. Since the Court’s message against Serbia has somehow reached the audience, admittedly with little if any effect on realities, the Opinion arguably is «much ado (almost) about nothing».
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Utilizza questo identificativo per citare o creare un link a questo documento: http://hdl.handle.net/11590/317885
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