BEGGING THE QUESTION? THE KOSOVO OPINION AND THE REFORMULATION OF ADVISORY REQUESTS

Abstract

The ICJ's 2010 Kosovo advisory opinion opens many interesting avenues of research, but one feature may have been overlooked in the recent commentary on the opinion: in answering the question put, the Court reformulated or changed it. Whether the Court may do so will be discussed in this article. The Court obviously felt that it was entitled to do what it had earlier done, but this is not enough to justify it doing so. This article proceeds in three steps. First, the case law of the PCIJ and the ICJ on the issue is reviewed. Second, the Kosovo opinion is discussed in the light of the precedents. Third, and centrally, the legal framework together with the doctrinal opinions and theoretical considerations is discussed to answer the question whether the Court may change the question. Concluding, this article opines that – whenever interpretation becomes change – the Court is prohibited from doing so by Article 107 of the Rules of Court.