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“There is some concern 

that, beyond Kosovo, other 

groups aspiring to statehood 

or seeking to consolidate 

their statehood claims may be 

encouraged by the advisory 

opinion—among them, Turkish Cypriots, Bosnian Serbs, 

Iraqi Kurds, Somalilanders, 

Abkhaz and South Ossetians...

However, the narrowness of 

the Court’s response meant 

that the Court did not weigh 

in on larger questions—

such as those relating to 

secession, statehood and 

self-determination—that 

might have had some bearing 

on these other contests. ”

September 17, 2010 

The ICJ’s Advisory Opinion on Kosovo

Summary

•	 On July 22, 2010, the International Court of Justice (ICJ) issued its advisory opinion on Kosovo’s 

declaration of independence of February 17, 2008, observing that the declaration was not in 

violation of international law.

•	 The Court’s opinion may facilitate further recognitions of Kosovo but thus far there has been 

no significant increase in the number of countries extending recognition.

•	 Although the Court’s opinion was drafted with the specific and unique circumstances of 

the Kosovo case in mind, it has been followed with interest by separatist parties engaged in 

contested territorial struggles elsewhere around the world.

•	 Separatists are likely also to be watching with interest the next steps that may be taken 

with regard to Kosovo in the wake of the ICJ’s advisory opinion, especially any boundary 

adjustments that may be proposed and agreed upon between the Serbian and Kosovar 

governments. 

Introduction

On July 22, 2010, the International Court of Justice (ICJ) issued its long-awaited advisory opinion 

on the legality of Kosovo’s declaration of independence of February 17, 2008. The expectation had 

been that the ICJ would offer a mixed ruling that would give some comfort to Serbia and some 

support to Kosovo. Instead, by a majority of 10 to four, the ICJ concluded that “the adoption of 

[the] declaration did not violate any applicable rule of international law.” While the advisory opinion will not resolve the longstanding dispute between Belgrade and Pristina, it will facilitate any 

further recognition of Kosovo. The ICJ opinion is also of interest to parties engaged in contested 

territorial struggles elsewhere, notwithstanding the fact that the opinion speaks principally to the 

specific and unique circumstances of the Kosovo case and the scope for application of the opinion 

beyond Kosovo therefore is limited.

The Advisory Opinion and its Significance

The ICJ opinion was issued in response to a single question put to it by the United Nations General 

Assembly in October 2008: “Is the unilateral declaration of independence by the Provisional 

Institutions of Self-Government of Kosovo in accordance with international law?” Serbia, which had 

initiated the procedure, was confident that the ICJ would rule in its favor for three reasons: first, 

Kosovo, although under international administration since June 1999, was a province of Serbia, 

and the U.N. Security Council had affirmed the “sovereignty and territorial integrity” of the then 

Richard Caplan

E-mail: richard.caplan@politics.

ox.ac.uk

Phone: +44.1865.288563

peaceBrieF55
© USIP 2010 • All rights reserved.

The ICJ’s Advisory Opinion on Kosovo

page 2 • PB 55 • September 17, 2010

Federal Republic of Yugoslavia in its Resolution 1244 (1999) establishing the international administration; second, the inherent conservativism of international law and diplomacy militates against 

acts of unilateral secession, which Kosovo’s declaration of independence was widely interpreted 

to be; and third, the conservativism of the ICJ itself means that its members are generally reluctant 

to intervene in matters that divide the international community and where the relevant legal 

principles are to some degree uncertain or in flux. And, yet, it would have been difficult for the ICJ 

to ignore the fact that, by the time of its ruling, 69 states—including 22 of 27 European Union (EU) 

member states—had already recognized Kosovo’s independence.

Historically, questions submitted to the ICJ have been quite broad but this particular one 

that the Court was asked to consider was a very narrow one. The ICJ was not asked what the 

legal consequences of the declaration of independence were, or whether the people of Kosovo 

had a right to self-determination, or whether Kosovo had satisfied the requirements of statehood. Confident that its advantage lay with a narrow focus, Serbia chose to challenge the legal 

authority of the U.N.-supervised Provisional Institutions of Self-Government of Kosovo (PISG) to 

declare independence. However, the ICJ shifted the focus away from the PISG. It concluded that 

the authors of the independence declaration were not the PISG but rather “persons who acted 

together in their capacity as representatives of the people of Kosovo outside the framework of the 

interim administration.” This was an important differentiation because had the declaration been 

taken to be an act of the PISG, it could have been interpreted to have exceeded the remit of the 

PISG—as the U.N.’s special representative of the secretary-general (SRSG) had judged other acts 

of the PISG to have done in the past. The Court was thus able to argue that, as the authors of the 

independence declaration were acting outside the legal framework of the U.N. interim administration, their declaration did not violate that framework and, as no legal prohibition of declarations of 

independence exists, the declaration did not violate general international law. 

The advisory opinion thus paves the way for more states to extend recognition to Kosovo, but 

so far the wave of new recognitions that Pristina had hoped for has not materialized. Even if more 

recognitions are forthcoming, they are unlikely to alter the political landscape fundamentally. 

Serbia has affirmed its opposition to Kosovo’s unilateral declaration of independence and as long 

as Serbia continues to withhold its recognition of Kosovo, other countries will follow suit, including 

China and Russia. As permanent members of the Security Council, these two states are in a position to block Kosovo’s admission to the U.N. and thus keep Kosovo in a sort of diplomatic limbo. 

The EU is keen to break the logjam, but as long as some of its member states continue to oppose 

recognition, it will be difficult for the EU to act effectively on this issue. 

Pandora’s Box?

There is some concern that, beyond Kosovo, other groups aspiring to statehood or seeking to 

consolidate their statehood claims may be encouraged by the advisory opinion—among them, 

Turkish Cypriots, Bosnian Serbs, Iraqi Kurds, Somalilanders, Abkhaz and South Ossetians. The Court 

was careful to formulate its response very narrowly—so much so that Judge Bruno Simma, while 

voting with the majority, issued a separate statement criticizing the Court for its “unnecessarily 

limited” analysis. However, the narrowness of the Court’s response meant that the Court did not 

weigh in on larger questions -- such as those relating to secession, statehood and self-determination -- that might have had some bearing on these other contests. Although the Court’s opinion, 

strictly speaking, is of little consequence for these struggles, there is anecdotal evidence to suggest 

that the opinion may be buoying the aspirations of separatists elsewhere. 

In the wake of the ICJ opinion, Milorad Dodik, the prime minister of Bosnia’s Republika Srpska, 
© USIP 2010 • All rights reserved.

The ICJ’s Advisory Opinion on Kosovo

page 3 • PB 55 • September 17, 2010

declared that “the ICJ decision can serve us as guidance for our continuing fight over our status 

and our future.”1 While the Bosnian Serb leadership formally accepts a unified Bosnian state, it has 

never abandoned its hopes of joining Serbia proper. Leading figures in the separatist regions of 

Abkhazia and South Ossetia in the Caucasus, meanwhile, say that they too are encouraged by the 

Court’s ruling. “The fact that Kosovo has been recognized in accordance with international law can 

be seen as a definitive precedent for Abkhazia, and I think it will serve as an important precedent 

for Abkhazia,” observed Irakly Khintba, a political analyst at the Abkhazian State University.2

Elsewhere in the Caucasus, Vahan Hovhannisian, the head of the opposition Armenian Revolutionary Federation parliamentary faction in the National Assembly of Armenia, has drawn similar 

conclusions for Nagorno-Karabakh in Azerbaijan: “The [ICJ] judgment clearly states that a unilateral 

proclamation of independence cannot be viewed as unlawful. For this, of course, there should be 

prerequisites, and Karabakh has at least the same prerequisites as Kosovo, if not more.” 3

Of equal if not greater significance than the Court’s advisory opinion, however, may be the submissions that states filed with the Court as part of its proceedings. A significant number of states 

invoked the notion of “remedial secession” in their written and oral pleadings, arguing that Kosovo 

had a right to independent statehood as a consequence of the human rights and other abuses 

that it had suffered by the Serbian authorities while subject to Serbia’s rule prior to 1999. Although 

the Court acknowledged the use of this argument, it took the view that the subject was beyond 

the scope of the question initially posed by the U.N. General Assembly. Nonetheless, encouraged 

by the support that remedial secession received in the proceedings, it is reasonable to expect that 

parties engaged in contested territorial struggles elsewhere may seek justification for their causes 

with reference to the notion of a right of remedial secession. 

Separatists elsewhere, however, are likely also to be mindful of the uniqueness of the Kosovo 

case in one important respect. They will appreciate that even if their own situations may appear 

to be comparable to those of Kosovars, the basis for international support ultimately is often 

political rather than legal. Kosovo has attracted recognition within Europe in large part because 

it is the view of many European states that the peaceful reintegration of Kosovo into Serbia is an 

impossibility and that independent statehood therefore represents the only plausible way forward. 

Outside of Europe, Kosovo has attracted recognition in part because of the diplomatic efforts of 

the United States and leading EU member states to promote recognition. This is not to suggest 

that the many objective factors that distinguish the Kosovo case have not been important considerations—including the fact that Serbia’s authority in Kosovo had been displaced by the U.N. 

interim administration for a prolonged period of time, that U.N. Security Council Resolution 1244 

envisioned a final determination of Kosovo’s status that did not preclude independent statehood, 

and that it was widely agreed that all avenues of negotiating a settlement had, by the time of the 

unilateral declaration, been exhausted. However, as the experience of Somaliland suggests, in the 

absence of ample political support—especially from countries within the region—compelling 

objective factors are not always sufficient to tip the balance. 

Separatists will also be watching with interest the next steps that are taken with regard to 

Kosovo in the wake of the ICJ’s advisory opinion. In view of the continuing impasse between 

Belgrade and Pristina, one proposal that is gaining renewed currency in some quarters is a 

“territorial adjustment” that would see the heavily Serb-populated north of Kosovo traded for the 

largely Albanian-populated parts of the Presevo Valley in southern Serbia. Consensual boundary 

changes have made important contributions to peace and stability between states in the past. But 

leaving aside the fact that the majority of Kosovo’s Serbs live scattered in the south of Kosovo, the 

fundamental concern with any prospective land swap is the knock-on effects that it could have in 

the Balkans—where, as noted above, Bosnian Serbs would welcome a boundary adjustment, as 
© USIP 2010 • All rights reserved.

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About This Brief

Richard Caplan is professor of 

International Relations and director 

of the Centre for International 

Studies at Oxford University. He 

is the author of “Europe and 

the Recognition of New States 

in Yugoslavia,” published by 

Cambridge University Press. 

would Turks in northern Cyprus and possibly also Albanians in western Macedonia. Any territorial 

adjustments would be seen in many other conflict zones, notably on the African continent, as an 

invitation to disaster. 

Conclusion

The ICJ’s advisory opinion will help to dispel uncertainty regarding Kosovo’s statehood and thus 

may make a contribution to peace and stability in the Balkans region, even if Serbia and Kosovo 

remain deadlocked for the foreseeable future. Although the Court’s opinion was drafted with 

Kosovo’s specific and unique circumstances in mind, separatists elsewhere are drawing inspiration 

from the opinion and from the submissions of the states before the Court. We are likely to see 

more debate about the claims of an emerging right of remedial secession—claims that may be 

invoked with greater frequency by peoples engaged in self-determination struggles outside the 

Balkans context.

Endnotes

1. Charles Recknagel. “Eastern Europe’s Frozen Conflicts Look to Kosovo Ruling.” Radio Free 

Europe/Radio Liberty, July 23, 2010. Accessible at: http://www.rferl.org/content/Eastern_

Europes_Frozen_Conflicts_Look_To_Kosovo_Ruling/2108088.html. 

2. Ibid.

3. Ibid.

The ICJ’s Advisory Opinion on Kosovo

page 4 • PB 55 • September 17, 2010