The International Court of Justice's Kosovo Advisory Opinion is a masterpiece of avoidance. The Court has lived to run another day, and one can only admire the judges' skill in arriving at the vacant place between difficult and clashing conclusions of substance. Still, in the wake of the Opinion, questions inevitably arise: Of what use is this document? Has it advanced a project of justice, or of law? The Opinion has done something, though not, perhaps, what it purports to do. To understand it, we must engage this cautious, crimped document in its full context—or rather, we must understand the ways in which the Opinion itself comprehensively avoids any engagement with context. Its caution and its crimped nature are themselves features illuminating the self-image, role, and limited value of the Court.
This Article argues that in the Kosovo Opinion, the International Court of Justice assiduously asserted its own jurisdictional, interpretative, and institutional prerogatives, at the cost of avoiding the momentous questions about secession and self-determination with which the Court was so clearly confronted. These two outcomes are related: The avoidance of substance and the assertion of prerogative were achieved by the selfsame maneuvers of definition and interpretation. Faced with a choice between emphasizing its own authority and actually engaging the question, the Court chose to invest in itself—but it did not, in turn, use that investment to any substantive end. The Opinion exhibits a misplaced boldness, advancing its procedural agenda but saying—almost literally—nothing in the process.
This Article also considers what a bolder Opinion might have looked like, by comparing the Opinion to the Canadian Supreme Court's seminal Reference re Secession of Quebec. This comparative exercise helps us to understand why questions of self-determination are easier to avoid than to decide—why it is hard even to talk about them in coherent and productive terms, and thus why one must feel sympathy for the seemingly impossible task facing the ICJ—but also to see that another, bolder language is in fact possible.
Timothy William Waters,
Misplaced Boldness: The Avoidance of Substance in the International Court of Justice’s Kosovo Opinion,
23 Duke Journal of Comparative & International Law
Available at: https://scholarship.law.duke.edu/djcil/vol23/iss2/2