Begging the Question? The Kosovo Opinion and the Reformulation of Advisory Requests

Abstract

The International Court of Justice’s 22 July 2010 advisory opinion on the legality of Kosovo’s declaration of independence contains an interesting statement which may have gotten snowed under, namely may the Court reformulate – put more bluntly: change – the question that is put to it? The Court held that what it was entitled to do what it had earlier done. Yet this hides, rather than discusses the question of whether the Court is legally entitled to change the question. In the following, we will try to give a brief review of the case law of the Court and its predecessor, the Permanent Court of International Justice (Section 2), fit in the Court’s and the individual judges’ arguments in Kosovo to the line of precedents (Section 3) and then proceed to discuss the legal, doctrinal and theoretical framework on the issue to come to the conclusion that the Court is not so entitled (Section 4).

Keywords: International Court of Justice, Advisory Opinions, Statute, Rules of Court, advisory request, deontics, prohibition, permission, legally neutral behaviour