The purpose of this paper is to address the limits of the ICJ’s advisory jurisdiction, from the legal and policy point of view. The paper first discusses the ICJ’s authority to render advisory opinions, it then presents an overview of how the advisory jurisdiction operates and it concludes by examining the effects of the Court’s advisory jurisdiction.
The starting point is the opinion of Serbia’s representative who, while sponsoring the General Assembly Resolution for an Advisory Opinion on Kosovo’s Declaration of Independence stated:
“The Court’s advisory opinion would provide politically neutral, yet judicially authoritative, guidance to many countries […] Supporting this resolution would also serve to reaffirm a fundamental principle: the right of any Member State of the UN to pose a simple, basic question on a matter it considers vitally important to the Court. To vote against it would be a vote to deny the right of any country to seek judicial recourse through the UN system.”
The first sentence of this statement is consistent with the Court’s advisory practice but by designating States as recipients of the advice instead conflicts with the Court’s jurisprudence. Similarly, the advice sought by a State as a judicial recourse through the UN system falls squarely outside the meaning and scope of the Court’s advisory jurisdiction. The objective of advisory opinions is not one which could be qualified as “judicial recourse”. Instead, the Court acts more as a lawmaker than as a dispute settler, since the advice is given to the requesting body in order to clarify a point of law.
MATTERS RELEVANT TO JURISDICTION
1. THE LEGAL BASIS OF THE ICJ’S ADVISORY JURISDICTION
The uses of the advisory jurisdiction of the ICJ are to assist the political organs in settling disputes and to provide authoritative guidance on points of law arising from the function of organs and specialized agencies. With the request for an advisory opinion (AO) in hand, the ICJ first considers whether it has jurisdiction to give the opinion. Regarding this inquiry, Article 65(1) of the ICJ Statute provides that the court can give an AO on any legal question at the request of whatever body may be authorized by or in accordance with the UN Charter.
2. LIMITS TO THE JURISDICTION RATIONE PERSONAE
The UN Charter in Article 96 stipulates that the General Assembly (GA) and the Security Council (SC), as well as other political organs and specialized agencies that are authorized by the GA, may request AO. While the GA and the SC are directly authorized to request AO on any legal issue, specialized agencies may receive an authorization to ask for opinions, as long as the request falls within the scope of their activities.
Therefore, the ICJ will refuse to give AO to requests made by specialized agencies if its functions do not have a sufficient connection with the question. The authority of the GA and the SC to request AO has been described as an original right, compared with a derivative right of the other organs and specialized agencies. The above mentioned bodies are the only ones having “standing” in advisory proceedings before the ICJ.
Thus, while States enjoy a monopoly of the ICJ’s contentious jurisdiction, they have no possibility to seek the Court’s advisory proceedings. The Court held in the Kosovo AO that the advisory jurisdiction “is not a form of judicial recourse for States but the means by which the GA and the SC, as well as other organs of the UN […] may obtain the Court’s opinion in order to assist them in their activities. The Court’s opinion is given not to States but to the organ which requested it.” States are allowed to intervene in the proceedings but only to submit information.
Furthermore, the ICJ has no power to give an AO proprio motu. Advisory proceedings are initiated by a written request for opinions addressed to the Court accompanied by an exact statement of the question.
3. LIMITS TO THE JURISDICTION RATIONE MATERIAE - THE NATURE OF THE QUESTION
Another element relevant to jurisdiction is the nature of the question addressed to the Court. Both the UN Charter and the ICJ Statute require that the question relates to legal issues. The ICJ expressly stated in Certain Expenses case that if “a question is not a legal one, the Court has no discretion in the matter; it must decline to give the opinion requested”.
In several instances, the Court dealt with abstract questions and observed that it may give an AO on any legal question, abstract or otherwise. Lack of clarity does not matter because the Court can reformulate the question. Moreover, the Court is not concerned with the political nature of any motives inspiring the request, the political implications of any AO or with the political aspects of the legal question.
4. THE PROPRIETY OF AN ADVISORY OPINION: DISCRETION OR OBLIGATION?
After having established that it has competence to issue an AO, the Court can nevertheless, as a matter of propriety, refuse to do so, using its discretionary authority under article 65 of the ICJ Statute. However, in practice, the Court has never refused to render an AO.
This can be justified on the basis of the organic relationship between the Court and the UN whereby the Court is considered to be the judicial arm of the UN, and of the great importance to UN organs. The Court itself stated that it considers to be under a duty to participate in the activities of the Organization and, in principle, should not refuse to give an opinion unless there are “compelling reasons” for such a refusal. Thus, the supposedly unfettered discretion of the ICJ is debatable, since it is obliged to cooperate with the other organs of the UN.
As AO are given to the organs requesting them and are non-binding upon States, they can be rendered without State consent. In its established practice, the ICJ held that lack of consent does not represent a compelling reason to prevent it to render an AO.
The danger of the Court’s advisory jurisdiction is that it can be used for judicial legitimacy of positions already taken by political organs. Sometimes a question contains its answer and state rather than query the legal premises, as action is taken simultaneously with the requesting resolution. Furthermore, as some observed, the advisory jurisdiction is aimed to serve the interests of certain States only, and it is sometimes used as an alternative to its contentious jurisdiction.
EFFECTS OF ADVISORY OPINIONS
Under the UN Charter and the ICJ Statute, AO are non-binding and are given not to States but to the requesting organs. The impact of the ICJ’s AO on political issues has not been significant. For instance, Israel has not ceased the construction of the wall in light of the ICJ AO against it.
However, AO can produce numerous policy effects: they have a high persuasive character and carry great legal weight and moral authority. They often have peace-keeping virtues and contribute to the development of international law and to the strengthening of peaceful relations between States.
The advisory jurisdiction of the ICJ has been used in several times as an alternative to the Court’s contentious jurisdiction, which affected its authority and triggered reluctance. For the sake of the Court’s prestige and credibility political organs should refrain from manipulating the advisory proceedings as much as possible.
Shahzada Sultan, The Advisory Jurisdiction of the ICJ, available at: http://sites.google.com/site/happinesshabits/international-law/limits-on-icj-s-advisory-jurisdiction
Eric de Brabandere, The Kosovo Advisory Proceedings and the Court’s Advisory Jurisdiction as a Method of Dispute Settlement, available at: http://www.haguejusticeportal.net/smartsite.html?id=12076.
Robert Araujo, Implementation of the ICJ Advisory Opinion – Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories: Fences (Do Not) Make Good Neighbors?, 22 B.U. Int'l L.J. at 352.
Martin Strahan, Nuclear Weapons, The World Health Organization, And The International Court Of Justice: Should An Advisory Opinion Bring Them Together?, Tulsa J. Comp. & Int'l L. at 402 (1995).
Legality of the Use by a State of Nuclear Weapons in Armed Conflicts, WHO request, ICJ Rep. 1996, p. 84.
Mohamed Amr, “The Role of the ICJ as the Principal Judicial Organ of the UN”, Kluwer Law International, (2003), at 52.
Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, ICJ Rep. 2010, para. 33.
Certain Expenses of the United Nations, ICJ Rep. 1962, at 155.
Conditions of Admission of a State in the United Nations, ICJ Rep 1947-1948, para 61.
Legality of the Threat or Use of Nuclear Weapons, ICJ Rep 1996, para. 13.
Brabandere, supra n. 2.
Amr, supra n. 5 at 107.
The Peace Treaties Advisory Opinion. ICJ Rep 1950.
Difference Relating to Immunity From Legal Process of a Special Rapporteur of the Commission on Human Rights, ICJ Rep. 1999, paras. 28-33.
Sam Muller et al., “The International Court of Justice”, The Hague, Martinus Nijhoff Publishers, (1997), at 294.
Brabandere, supra n. 2.
Interpretation of Peace Treaties with Bulgaria, Hungary, and Romania, ICJ Rep. 1950, para. 65.