Milanovic: Arguing the Kosovo Case

Marko Milanovic (Univ. of Nottingham - Law) has posted Arguing the Kosovo Case (in The Law and Politics of the Kosovo Advisory Opinion, Marko Milanovic & Michael Wood eds., forthcoming). Here's the abstract:

This chapter looks at how the Kosovo case was argued by the parties appearing before the International Court of Justice in the various stages of its advisory proceedings. My point in doing so is not to establish whether particular arguments were right or wrong, or to re-argue the case in any way. Rather, I am interested in the discursive shift that transpired once the issue of Kosovo’s independence (at least partly) moved from the political arena to the judicial one. In other words, I want to look at how those justifying or opposing Kosovo’s independence had to adjust their arguments, or develop new ones, once the case came before the Court.

The highly formalized setting of the ICJ required significant adjustments to arguments made either in support or in opposition to independence, as lawyers took over from the politicians and tried make their points in a language that the Court could not only understand, but could also adopt as its own when writing its opinion. Some previously deployed lines of argument thus had to be dropped, others transformed, and yet others invented purely for the sake of the advisory proceedings. In other words, arguments that were persuasive in one context did not necessarily work in the other. For instance, the frequent assertion of the supporters of Kosovo’s independence that Kosovo was a special or sui generis case had to be reframed before the ICJ in order to be truly persuasive. Similarly, whereas the interplay between two broad legal and political principles – the territorial integrity of states and the self-determination of peoples – was considered by many as being crucial for assessing Kosovo’s claim to independence before the advisory proceedings were initiated, these principles became increasingly marginalized as the proceedings progressed.

My goal in this chapter, therefore, is to observe the evolution of the argumentative strategies of the parties appearing before the Court, and to establish the driving factors for this evolution. In doing so I will mostly focus on the written and oral pleadings before the Court, their structure and the nature of the arguments made; the advisory opinion itself will generally be of interest to me only to the extent that it reflects the pleadings and the opposing litigation strategies. What concerns me here, in other words, is not what the Court decided, but how and why it got there.