Journal of International Dispute Settlement, Vol. 1, No. 1 (2010), pp. 123–151 doi:10.1093/jnlids/idp005
Advisory Opinions
ANTHONY AUST* Downloaded from https://academic.oup.com/jids/article/1/1/123/879380 by guest on 29 September 2021 The article argues that the International Court of Justice should exercise its discretion and refuse a request for an advisory opinion when the underlying problem can be resolved only by lengthy and difficult political negotiations. In recent years, the Court has given opinions on the legality of the threat or use of nuclear weapons and the construction of the wall being built around occupied Palestinian territory. There is now pending a request pending for an opinion about Kosovon statehood. Each has emanated from the UN General Assembly. The Court should look more at the motive for the request and consider whether the opinion would really help in solving the problem. It should not rely so heavily on its own precedents. Instead, it should examine critically why the request has been made, the voting and the effect of giving an opinion. It should not adopt a blinkered approach.
1. Introduction This article aims to throw more light on Advisory Opinions given by courts, both national and international, and in particular, by the International Court of Justice (ICJ). Such Opinions are usually guidance to natural or legal persons on a point of law. They are legally binding on the requester only if the relevant legal provision provides for this. This article argues that the ICJ should exercise its discretion not to give an Advisory Opinion when the subject is politically controversial. That is to say, that at root the problem cannot be resolved except by difficult and lengthy political negotiations. This abstinence by the ICJ should usually apply even if the problem has legal aspects. In other words, the ICJ should reconsider its approach to a request for an Advisory Opinion on politically controversial issues. This article does not rely much on learned articles or books. Most of the points about the ICJ have been made by reading its Advisory Opinions, as well as the writer’s knowledge of how the United Nations, including the ICJ,
* Graduate of the London School of Economics (LSE); Foreign and Commonwealth Office 1967–2002, retired as Deputy Legal Adviser; Legal Adviser to the UK Mission to the United Nations, New York 1988–91. He is a consultant, writer (eg Modern Treaty Law and Practice (2nd edn Cambridge 2007; Chinese edn Beijing 2005) and Handbook of International Law (2nd edn Cambridge 2010)) and teacher of international law as a visiting professor, in particular, at LSE, the School of Oriental and African Studies, London and University College, London. E-mail: [email protected] ß The Author 2010. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: [email protected] 124 Journal of International Dispute Settlement actually works, both from outside and inside. Writing this article has not involved taking views from present or previous ICJ judges or members of the Secretariat.1 But, first, we need to examine the practice of the courts of domestic legal systems, and of international and regional legal systems, as to the extent to which they can give Advisory Opinions, and, if so, their legal effect. Downloaded from https://academic.oup.com/jids/article/1/1/123/879380 by guest on 29 September 2021 2. Advisory Opinions of Domestic Courts The Advisory Opinion is virtually unknown in English law, though the Committee of Privileges of the House of Commons is able to ask the Judicial Committee of the Privy Council to give an Opinion. Although, it is not legally binding, and does not formally amount to a precedent, the Opinion is generally accepted.2 The United Kingdom does have a Constitution (albeit most of it is not written down in formal documents), under which legislation made by, or under its authority, is subject to judicial review if powers authorized by the legislation are abused. Yet, even then, judicial review has to rely on a legal dispute; it cannot be sought on an abstract basis. The reason for there being virtually no Advisory Opinions in English law is not hard to find: in common law countries there is a deep-seated objection to a court giving views on a matter that does not determine the rights of litigants in an actual dispute. There is opposition to anything that smacks of an approach that is divorced from solving a legal problem involving two or more parties. Only then, by considering and determining all the salient facts, can a court properly decide what is the legal position. This approach is generally followed in the jurisprudence of States that were originally British colonies, since they normally imported English law and principles. In Re Judiciary and Navigation Acts (1921)3 Grollo v Palmer (1995)4 and Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996),5 it was held that Australian courts had no power to give Advisory Opinions.6 Under the Canadian Supreme Court Act, the Federal Government may refer a legal question to the Supreme Court of Canada. Interested parties are able to apply for intervener status to make submissions during the hearing and, where necessary, the Court may appoint an amicus curiae to support a particular view. The Advisory Opinion of the Supreme Court is not legally binding. Nevertheless, in practice the Federal Government follows it.
1 However, the author wishes to thank a political scientist with no ICJ connections, Kirsten Kaarre Jensen, for commenting on a draft of this article. 2 Re Parliamentary Privilege Act 1770 [1958] AC 331. 3 29 CLR 257 (High Court of Australia). 4 184 CLR 348 (High Court of Australia). 5 189 CLR 1 (High Court of Australia). 6 For the argument that they should be entitled to give Advisory Opinions, see H Irving, ‘Advisory Opinions, the Rule of Law, and the Separation of Powers’ (2004) 4 MLJ 105–34. Advisory Opinions 125
In Canada, under the Constitutional Questions Acts, a provincial government is able to submit questions (known as references) to the provincial Superior Court or Court of Appeal. The process is similar to a Federal Government reference of legal questions to the Supreme Court of Canada, and the provincial government has the right to appeal also to that Court. Pursuant to the ruling of the Judicial Committee of the Privy Council in Attorney-General of Ontario v Attorney-General of Canada,7 the role of the courts with respect to such references is not judicial as such, but one of advising the executive branch Downloaded from https://academic.oup.com/jids/article/1/1/123/879380 by guest on 29 September 2021 of the government. As of 2005, there had been 75 references for Advisory Opinions since 1892. Some of the more recent subjects included: Resolution to Amend the Constitution (1981); Manitoba Language Rights (1984); Quebec Sales Tax (1994); Secession of Quebec (1998) and Same-Sex Marriage (2004). The Federal Supreme Court of India has discretion to give Advisory Opinions on constitutional matters, especially the constitutionality of draft legislation. Advisory Opinions are not legally binding, though it is rare for them to be ignored.8 The Supreme Court of the United States (which certain former British colonies combined to form the Federation) has consistently refused to give Advisory Opinions. This began with Chief Justice John Jay, who in 1793 refused a request from President George Washington for an Advisory Opinion. Since then it, and lower federal courts, have steadfastly refused to give Advisory Opinions. In 1911, in Muskrat v The United States,9 the US Supreme Court struck down an Act of Congress authorizing plaintiffs to sue the United States to determine the validity of certain laws. The Court found that it was a thinly veiled attempt to get an Advisory Opinion, and was therefore unconstitutional.10 Although the constitutions of some states of the Union authorize their state courts to give Advisory Opinions, these mainly concern draft legislation before the state legislature; state courts have refused to give Advisory Opinions on abstract questions of law. Advisory Opinions must be distinguished from declaratory judgments by US courts. These are allowed at both federal and state level. But, they determine the rights of litigants in an actual controversy. Although the distinction between a declaratory judgment and an Advisory Opinion is sometimes fine, the US Supreme Court has consistently emphasized the need to maintain the distinction: a declaratory judgment still needs to be about an actual dispute between two or more parties.11
7 [1912] AC 571. 8 See D Chatterjee, ‘Presidential References and their Precedential Value: A Constitutional Analysis’ (2009) 21 NLSofIR 175–88. 9 219 US 346. 10 J Bonsignore, Before the Law: An Introduction to the Legal Process (6th edn Boston, 1998). 11 Ashwander v Tenesseee Valley Authority 297 US 288 (1936). See p. 128–9 below about the preliminary rulings of the EU Court of Justice. 126 Journal of International Dispute Settlement And, there can be dangers in a court giving an Advisory Opinion. Civil law States that have constitutional courts (eg France and Germany) may have the power to rule on whether a given piece of legislation or a treaty is consistent with the Constitution. Whether this is desirable, is not for me to say. But the problem posed by Advisory Opinions on such matters was demonstrated by the ruling of the Bundesverfassungsgericht (German Constitutional Court) of 15 February 2006.12 This was that in no circumstances can one shoot down a civil aircraft. The Federal aviation law allowing for this was therefore declared invalid. But, the court Downloaded from https://academic.oup.com/jids/article/1/1/123/879380 by guest on 29 September 2021 was not told that in 1996 Germany had ratified an amendment (article 3bis) to the Chicago Convention 1944.13 The amendment, which had entered into force in 1998, authorized the shooting down of civil aircraft in self-defence.14 But, the Opinion of the German Constitutional Court did not even mention article 3bis. The Opinion had been sought by a pilot, a patent agent and four private lawyers. The Federal German Government was not a party to the proceedings, and may well not even have been aware of them.
3. Advisory Opinions of international courts (other than the International Court of Justice) and regional courts
A. The Inter-American Court of Human Rights15 Under article 64 of the American Convention on Human Rights 1969,16 the Inter-American Court of Human Rights can give Advisory Opinions regarding the interpretation of the Convention. In contrast to judgments of the Court, which are binding (articles 67–8), Article 64 merely provides that an Advisory Opinion is just that. The parties to the Convention are mostly Spanish-speaking States of Central and South America, Brazil, a few former British colonies and a former Dutch colony. Canada, the United States, and certain English-speaking States in the Caribbean, are not parties to the Convention.
B. The International Tribunal for the Law of the Sea The Assembly of the International Sea-Bed Authority can ‘request’17 the Sea-Bed Disputes Chamber of the International Tribunal for the Law of the
12 1 BvR 357/05; 115 BverfGE 118. See generally, DP Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany (Duke UP, Durham 1989) 15–17. 13 Convention on International Civil Aviation (adopted 7 December 1944) (1948) 15 UNTS 295 (No 102); (1953) UKTS 8. Treaty collection available at
Sea (ITLOS) to give an Advisory Opinion as to whether a proposal before the Assembly is in conformity with the Law of the Sea Convention 1982 (UNCLOS).18 In addition, under its Rules, the Tribunal may give an Advisory Opinion on a legal question if a treaty related to the purposes of UNCLOS specifically provides for the submission to the Tribunal of a request for such an Opinion.19 Downloaded from https://academic.oup.com/jids/article/1/1/123/879380 by guest on 29 September 2021 C. Other international cases Certain international organizations provide that Advisory Opinions requested by them shall be legally binding. These concern mostly the interpretation or application of the constituent instrument of the organization or a treaty associated with the organization. Examples include the Convention on the Privileges and Immunities of the Specialised Agencies (1947).20 Article IX, Section 32, provides that differences arising out of the interpretation or application of that Convention shall be referred to the ICJ, unless it is agreed by the parties to have recourse to another mode of settlement. If a difference arises between one of the specialized agencies and a member, a request shall be made for an Advisory Opinion on any legal question involved. This would be done in accordance with article 96 of the UN Charter and article 65 of the Statute of the ICJ, and the relevant provisions of the agreements concluded between the United Nations and the specialized agency concerned. The parties to the dispute accept the Advisory Opinion as decisive.
D. European Court of Human Rights Under articles 47, 48 and 49 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (ECHR),21 the European Court of Human Rights (the Court) has discretion (‘may’) to give an Advisory Opinion on a legal question put to the Court by the Committee of Ministers (the Committee) concerning the interpretation of the ECHR and the several protocols to it. The request for an Advisory Opinion requires a majority vote of the Committee.22
18 See arts 156–60 of the UNCLOS, and especially art 159(10) and art 191. So far, none has been requested. 19 ITLOS Rules, art 138(1). Yet again, the status of the Advisory Opinion is unclear; it may depend on the provisions of the treaty under which the Advisory Opinion is sought. 20 33 UNTS 261 (No 521); UKTS (1959) 69. See also the General Convention on the Privileges and Immunities of the United Nations 1946, art VI (22) (1 UNTS 15 (No 4); UKTS (1950) 10), and the AOs on Mazilu (1989) and Cumaraswamy (1999); and art 37 of the ILO Constitution (15 UNTS 35; UKTS (1948) 47, UKTS (1961) 59 and UKTS (1975) 110), and art XIV of the UNESCO Constitution 1945 (4 UNTS 275 (No 52); UKTS (1946) 50). 21 213 UNTS 221 (No 2889); UKTS (1953) 71;
E. European Court of Justice The Court is also the final court of appeal from decisions of national courts of EU Member States. It has no power to issue an Advisory Opinion. Preliminary rulings given by the Court should not be confused with Advisory Opinions. Preliminary rulings are sought by a national court that is dealing with an actual
23 Decision on the Competence of the Court to Give an Advisory Opinion, 2 June 2004. 24 FG Jacobs and RCA White, The European Convention on Human Rights (4th edn OUP, Oxford 2006) 12–14. See this generally for facts about the power of the Court to give Advisory Opinions. 25 On ‘housekeeping’, see p. 133–4 below. Advisory Opinions 129 dispute. As such, preliminary rulings are to help the national court in reaching its judgment, and are not given in the absence of litigation between two or more parties.26 In other words, the Court deals only with real disputes.
F. The Permanent Court of International Justice Some mention should be made of Advisory Opinions given by the Permanent Court of International Justice (PCIJ)—the predecessor of the ICJ—from 1922 Downloaded from https://academic.oup.com/jids/article/1/1/123/879380 by guest on 29 September 2021 to its demise in 1946.27 The present situation is quite different to that of Advisory Opinions given by the PCIJ. Unlike the ICJ (which is the principal judicial organ of the United Nations), the PCIJ was not an organ of the League of Nations 1919,28 and the Statute of PCIJ did not expressly provide for it to give Advisory Opinions. But, article 14 of the Covenant of the League provided that the PCIJ ‘may also give an Advisory Opinion upon any dispute or question referred to it by the Council or the Assembly [of the League}.’29 In all, the PCIJ gave 29 judgments on contentious matters and 27 Advisory Opinions.30 The advisory jurisdiction of the PCIJ proved particularly impor- tant. The Council of the League, being very much a political body, was often glad to avoid making a decision and instead referred a legal dispute to the PCIJ for an Advisory Opinion. The Council of the League was relieved that, by so referring the matter, it could thereby avoid the embarrassment of having to make a decision.31 In contrast, under the UN Charter, the Security Council (as successor to the Council of the League) has sought only one Advisory Opinion.32 As with the ICJ, the PCIJ had discretion not to accede to a request for an Advisory Opinion. In 1923, the PCIJ refused to give one on Eastern Carelia.33 The Council of the League, at the instance of Finland, had asked for an Opinion on the obligations of the Soviet Union under the Treaty of Dorpat of 14 October 1920.34 The Soviet Union (which was not a member of the League) denied the competence of the PCIJ to investigate the dispute, and declined to take part in the proceedings. The PCIJ took the view that it should
26 A Arnull and others, Wyatt and Dashwood’s, European Union Law, (5th edn Sweet&Maxwell, London 2006). 27 6 LNTS 380; UKTS (1923) 23, or visit
4. The International Court of Justice Downloaded from https://academic.oup.com/jids/article/1/1/123/879380 by guest on 29 September 2021 As befits the ‘principal judicial organ of the United Nations,’ the Statute of the ICJ is part of the UN Charter (Article 92). Articles 34–8 of the Statute provide that the ICJ has contentious jurisdiction when States agree to submit a dispute to it. But, in article 96 of the UN Charter, and articles 65–8 of the Statute, there is provision for the ICJ to give Advisory Opinions. (article 96 and the Statute have never been amended.) Some 144 cases have been submitted to the ICJ, of which 24 were requests for Advisory Opinions. The UN General Assembly, or bodies established by it,36 has made most of the requests for Advisory Opinions. Other UN principal organs have made three requests: two by the Economic and Social Council (ECOSOC)37 and one by the Security Council.38 The constituent instruments of UN Specialised Agencies39 give them the right to seek an Advisory Opinion from the International Court of Justice. So far, this right has been little used. The UN Educational, Scientific and Cultural Organization (UNESCO), and the Intergovernmental Maritime Consultative Organization (IMCO) (now the International Maritime Organization (IMO)) have each requested one Advisory Opinion. The World Health Organisation (WHO) has requested two Advisory Opinions. So, the ICJ gave an Advisory Opinion to UNESCO in 1956; to IMCO in 1960; to WHO in 1980 but refused its later request.40
35 On the Eastern Carelia case, and generally on the advisory jurisdiction of the PCIJ, see JL Brierly, The Law of Nations (6th edn OUP, Oxford 1963) 361–6. 36 Such as the Committee on Applications for Review of Administrative Tribunal Judgments. 37 See the Advisory Opinions of 15 December 1989 on the Applicability of Article VI, section 22, of the Convention on the Privileges and Immunities of the United Nations (Mazilu) [1989] ICJ Rep 177; 85 ILR 300; and of 29 April 1999 on the same provision (Cumaraswamy) [1999] ICJ Rep 62; 121 ILR 405. 38 See the Advisory Opinion of 21 June 1971 on the Legal Consequences for States of the Continued Presence of South Africa in Namibia (South-West Africa) notwithstanding Security Resolution 276 (1970) [1971] ICJ Rep 16; 49 ILR 2. 39 The name is misleading. The so-called UN specialised agencies are not part of the United Nations. Instead, they are regarded as only part of the ‘UN family’ in that they have generally adopted working methods akin to those of the United Nations. But each specialised agency has its own constituent instrument; the membership of each differs from that of the United Nations; and the financing of each is quite separate from the United Nations. In fact, some of the UN specialised agencies, such as the UPU and ITU, date back to 1880s. There are 15 UN Specialised agencies, if one counts the World Bank Group as one of them. On the other hand, UNICEF and the UN Environment Programme (UNEP), in Nairobi, were established by the UN General Assembly and are part of the United Nations. 40 See the Advisory Opinions of 23 October 1956 on Judgments of the Administrative Tribunal of the ILO upon Complaints made against UNESCO [1956] ICJ Rep 77; of 8 June 1960 on the Constitution of the Maritime Safety Committee of IMCO [1960] ICJ Rep 150; 30 ILR 426; and of 20 December 1980 on the Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt [1980] ICJ Rep 73; 62 ILR 450. The second Advisory Advisory Opinions 131
This sample of Advisory Opinions may not be that significant for statistical purposes, though it does extend over nearly 60 years. It shows two things: first, that the ICJ, in exercise of its discretion, has so far acceded to all requests for Advisory Opinions, unless they are clearly outside the scope of the activities of the organization asking the question so that the ICJ has no jurisdiction (only one request so far);41 and, secondly, that the ICJ has so far exercised its discretion to accede to every request which was within its jurisdiction. Of the 23 Advisory Opinions that were given, 21 were on matters of concern Downloaded from https://academic.oup.com/jids/article/1/1/123/879380 by guest on 29 September 2021 to the proper functioning of the international organization, ie housekeeping. That is to say that an Advisory Opinion for the ICJ that may help the organization to do its work better. On the other hand, the Opinions sought be the UN General Assembly on the legality of the threat or use of nuclear weapons, the legal consequences of the construction of a wall in the occupied Palestinian territory (as well as the pending request about Kosovo) were (or are) on matters that were (or are) politically controversial. By ‘politically controversial’ is meant that they concerned problems that can be resolved (if at all) only by difficult and lengthy political negotiations, not by an Advisory Opinion. The problems were also of long-standing: such as the use of nuclear weapons and the Israel/Palestine problem. They both raised issues that go far beyond housekeeping. To criticism of its approach, the ICJ says that the role of its Advisory Opinions is to advise organs of the United Nations and UN specialized agencies what the law is in respect of a particular problem, and so help the requester deal with the problem in the future. It is not the task of an Advisory Opinion to the ICJ to settle disputes.42 The ICJ has so far only once refused to give an Advisory Opinion, and that was because the ICJ lacked jurisdiction. No question of its discretion thus arose.43 The advisory procedure is open to five United Nations organs and 15 UN specialized agencies. Before acceding to a request, the ICJ has to decide that it has jurisdiction and, if it has so, whether it should exercise its discretion to give an Advisory Opinion.
A. Procedure On receiving a request for an Advisory Opinion, the ICJ draws up a list of those States and organizations that may be able to furnish relevant information. It then organizes written and oral proceedings. Unlike contentious proceedings
Opinion requested by WHO, on the Legality of the Threat or Use by a State of Nuclear Weapons in Armed Conflict, was rejected by the ICJ in 1996 because the question of the legality of such action did not arise within the scope of the activities of’ the WHO: see the Advisory Opinion of 8 July 1966 [1996] ICJ Rep 66; 101 ILR 1. 41 See n 40, above and p. 132–3 below. 42 For a concise survey of the history of the ICJ’s approach so far to Advisory Opinions, see MN Shaw, International Law (6th edn CUP, Cambridge 2008) 1108–13. 43 See p. 133–5 below. 132 Journal of International Dispute Settlement the question of the jurisdiction of the ICJ, and the exercise of its discretion, has (at least so far) not been treated as a preliminary matter. The ICJ does not hold a preliminary stage (as it will often do in contentious proceedings) after which the ICJ would decide whether it has jurisdiction and, if so, whether it should exercise its discretion to give, or refuse to give, an Advisory Opinion. Instead, the ICJ holds simultaneous hearings of views (principally of UN Member States) on whether the Opinion should be given and its substance. (It also considers written views.) This procedure may be sometimes wise when it is Downloaded from https://academic.oup.com/jids/article/1/1/123/879380 by guest on 29 September 2021 necessary for the ICJ to give an Advisory Opinion very quickly,44 but not necessarily otherwise. Presumably, the judges discuss informally whether they may agree to give an Opinion. In most cases, there is no particular urgency. The ICJ might therefore consider whether, in certain circumstances, it should consider oral and written views on whether it has jurisdiction (if there should be any doubt) and, if there is no doubt, whether it should exercise its discretion to give (or not give) an Opinion. Only once the ICJ has it said that it would give an Opinion should it then hear representations about the substance. This may make the process for certain cases longer and more complicated—since it may not always be easy to separate discussion of the exercise of discretion from the substance—but it would give the ICJ the possibility to consider at an early stage in the formalities whether it should give an Opinion at all. Divorcing the preliminary issue from the substance is done all the time in contentious proceedings. There seems to be no good reason why it should not be done for Advisory proceedings as well.
B. Jurisdiction The ICJ must first decide that it has jurisdiction to give an Advisory Opinion.45 It is for the ICJ to satisfy itself that the request comes from a UN organ or a UN specialized agency that is competent to make it. The UN General Assembly is clearly authorized by article 96 (1) of the Charter to request an Advisory Opinion. The ICJ has only once declined to accept a request on the ground that it did not have jurisdiction. In the Advisory Opinion requested by the WHO on the Legality of the Use by a State of Nuclear Weapons in an Armed Conflict, the ICJ found that it was not able accede to the request. The ICJ began by observing that, in view of article 65(1) of its Statute, and article 96(2) of the Charter, three conditions have to be satisfied in order to found the jurisdiction of the ICJ when a request for an Advisory Opinion is submitted to it by a specialized agency: 1. Under the Charter, the agency requesting the Opinion
44 See Applicability of the Obligation to Arbitrate under s 21 of the UN Headquarters Agreement of 26 June 1947 (8 weeks) [1988] ICJ Rep 12; 82 ILR 225. 45 See Application for Review of Judgment No 273 of the United Nations Administrative Tribunal, Advisory Opinion [1982] ICJ Rep 333, para 21; 69 ILR 330. Advisory Opinions 133 must be duly authorized to request it from the ICJ. 2. The Opinion requested must be on a legal question, and 3. The question must be one arising within the scope of the activities of the requesting agency. In the WHO request, the first two conditions were met. However, with regard to the third condition, the ICJ found that, under its Constitution, the WHO was authorized to deal with the effects on health of the use of nuclear weapons, or of any other hazardous activity, and to take preventive measures aimed at protecting the health of populations in the event of such weapons Downloaded from https://academic.oup.com/jids/article/1/1/123/879380 by guest on 29 September 2021 being used or such activities engaged in. However, the request for an Opinion related not to the effects of the use of nuclear weapons on health, but, in view of their health and environmental effects, as to the legality of the use of such weapons. The ICJ pointed out that whatever those effects might be, the competence of the WHO to deal with them is not dependent on the legality of the acts that caused them. The ICJ further pointed out that, unlike States, international organizations do not possess a general competence, but are governed by the ‘principle of speciality.’ That is to say, they are invested by the States that created them with powers, the limits of which are a function of the common interests whose promotion those States entrust to them. The WHO is an international organization of a particular kind—a ‘specialized agency’— forming part of a system that is designed to organize international cooperation in a coherent fashion by bringing the United Nations, invested with powers of general scope, into relationship with various autonomous and complementary organizations (ie the specialized agencies) that are invested with sectorial powers. The ICJ therefore concluded that the responsibilities of the WHO are necessarily restricted to the sphere of public health and cannot encroach on the responsibilities of other parts of the UN system. There was no doubt that questions concerning the use of force, the regulation of armaments and disarmament are within the competence of the United Nations, and therefore are outside those of the specialized agencies. The request of the WHO for an Advisory Opinion thus did not relate to a question which arose ‘within the scope of [the] activities’ of that Organization; and this reasoning did not apply to any other requests for Advisory Opinions which had previously been made.
C. Discretion Unlike judgments handed down in contentious proceedings, the ICJ’s Advisory Opinions are not legally binding. However, the authority of the ICJ as the principal judicial organ of the United Nations attaches to them. Since 1946, the ICJ has given 24 Advisory Opinions, concerning, inter alia, the conditions of admission of a State to membership in the United Nations; reparation for injuries suffered in the service of the United Nations; the international status of 134 Journal of International Dispute Settlement South West Africa (Namibia); certain expenses of the United Nations; certain judgments rendered by the United Nations administrative tribunal; Western Sahara; the applicability of the obligation to arbitrate under Section 21 of the United Nations Headquarters Agreement; and questions relating to the privileges and immunities of human rights rapporteurs. These may be properly described as ‘housekeeping,’ in the sense that an ICJ Advisory Opinion may well help the United Nations to do its work better. On the other hand, the legality of the threat or use of nuclear weapons, the legal consequences of the Downloaded from https://academic.oup.com/jids/article/1/1/123/879380 by guest on 29 September 2021 construction of a wall in the occupied Palestinian territory, and the pending request about Kosovo, are decidedly politically controversial. The question that will now be dealt with is whether the ICJ should exercise its discretion not to accede to a request for an Advisory Opinion that is on a non-housekeeping subject, such as the request of the UN General Assembly on the problem of Kosovo. For present purposes, the important provision is article 65(1) of the ICJ Statute. This provides that the ICJ ‘may give an Advisory Opinion on any legal question’ (emphasis added). This contains two conditions. First, that the request is about a legal question; and, second that the ICJ has a discretion (‘may’) to give an Advisory Opinion. All requests for Advisory Opinions from the ICJ have been on problems that have some legal aspects. In fact, almost all issues those come before any court or tribunal, whether domestic or international, have some legal aspect; but most are not politically controversial. In its 1950 Advisory Opinion on the Interpretation of Peace Treaties with Bulgaria, Hungary and Romania (Peace Treaties) the ICJ rejected two objections made by the three States to its competence. First, the ICJ rejected the allegation that the request for an Advisory Opinion was ultra vires the General Assembly because, in dealing with the question of the observance of human rights and fundamental freedoms in the three States the General Assembly was ‘interfering’ or ‘intervening’ in matters essentially within the domestic jurisdiction of States. This contention against the exercise by the ICJ of its advisory function was based on the alleged incompetence of the General Assembly itself, as deduced from article 2(7) of the Charter. The ICJ pointed out that there was no need for the consent of the requesting States since the ICJ would not be dealing with a contentious case, and an Advisory Opinion had no legally binding force. Furthermore, the object of the request was limited. It was directed solely to obtaining from the ICJ clarifications of a legal nature regarding the applicability of the procedure for the settlement of disputes by the Commissions provided for in the Peace Treaties. The interpretation of the terms of a treaty for this purpose could not be considered as a question essentially within the domestic jurisdiction of a State. It was a question of international law that, by its very nature, lay within the competence of the ICJ. In considering a request for an Advisory Opinion, the ICJ must furthermore satisfy itself that the request does indeed relate to a ‘legal question’ within the Advisory Opinions 135 meaning of its Statute (annexed to the Charter) and the UN Charter itself. Later, the ICJ indicated that questions ‘framed in terms of law and rais[ing] problems of international law ...are by their very nature susceptible of a reply based on law ...[and] appear ...to be questions of a legal character’.46 Secondly, in Peace Treaties the ICJ asserted that States could not prevent an Advisory Opinion that the United Nations considers to be desirable to get enlightenment as to what it should do. The ICJ added that an Advisory Opinion represents the ICJ’s ‘participation in the activities of the Organization, Downloaded from https://academic.oup.com/jids/article/1/1/123/879380 by guest on 29 September 2021 and, in principle, should not be refused’ (emphasis added).47 The ICJ distin- guished acceding to a request for an Advisory Opinion to the refusal of its predecessor, the Permanent Court of International Justice (PCIJ), to give an Advisory Opinion in Eastern Carelia.48 The dispute under consideration by the ICJ was profoundly different, being about the General Assembly’s concern with the procedure for the settlement of disputes under the Peace Treaties, and in no way touched on the merits of those disputes. Their settlement was entrusted solely to the Commissions provided for by the Peace Treaties. Consequently, it was for the Commissions to decide upon any objections that may be raised to their jurisdiction in respect of any of the disputes. An Advisory Opinion would in no way prejudge the decisions of the Commissions that may be taken on those objections. It followed that the legal position of the parties to these disputes could not be in any way compromised by the answers that the ICJ gave to the Questions put to it.49 One now comes to the main point of this article. As Judge Higgins said in her Separate Opinion in Legal Consequences of the Construction of a Wall in Occupied Palestinian Territory (hereinafter Wall): The question of discretion and propriety is very much harder. Although ultimately I have voted in favour of the decision to give the Opinion, I do think matters are not as straightforward as the Court suggests.50
D. Nuclear Weapons In their comments on the request by the UN General Assembly for an Advisory Opinion the Legality of the Threat or Use of Nuclear Weapons in Armed Conflict (hereinafter Nuclear Weapons),51 some States asserted that the ICJ should refuse the request arguing that the General Assembly, or the Security
46 Western Sahara [1975] ICJ Rep 12, para 15; 59 ILR 30. 47 [1950] ICJ Rep 65, 71; 17 ILR 318. 48 See 2 AD 394;
52 Application for Review of Judgment No. 158 of the United Nations Administrative Tribunal, Advisory Opinion [1973] ICJ Rep 172, para 14; 54 ILR 381. 53 Conditions of Admission of a State to Membership in the United Nations (Article 4 of Charter), Advisory Opinion [1948] ICJ Rep 57; 15 AD 333; Competence of the General Assembly for the Admission of a State to the United Nations, Advisory Opinion [1950] ICJ Rep 4; 17 ILR 326; Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion [1962] ICJ Rep 155; 34 ILR 281. Advisory Opinions 137 the ICJ had previously noted: The Court’s Opinion is given not to the States, but to the organ which is entitled to request it; the reply of the Court, itself an ‘organ of the United Nations’, represents its participation in the activities of the Organization, and, in principle, should not be refused.54 (emphasis added) The ICJ said that it had been constantly mindful of its responsibilities as ‘the principal judicial organ of the United Nations’ (Charter, article 92). When Downloaded from https://academic.oup.com/jids/article/1/1/123/879380 by guest on 29 September 2021 considering each request, it was therefore mindful that, in principle, it should not refuse to give an Advisory Opinion. In accordance with the consistent jurispru- dence of the ICJ, only ‘compelling reasons’ could lead it to such a refusa1.55
5. Argument Some 14 contentious cases are now pending, plus one request in 2008 from the UN General Assembly for an Advisory Opinion. This is pending and is here referred to simply as Kosovo. The ICJ has been asked: Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law? On only one occasion (Eastern Carelia), the Permanent Court of International Justice took the view that, having regard to the very particular circumstances, it could not reply to a question put to it.56 Provided that it has jurisdiction, the ICJ has not yet refused to give an Advisory Opinion. Most of the reasons adduced in Nuclear Weapons, in order to try to persuade the ICJ that it should decline to give the Advisory Opinion requested by General Assembly, were summarized in the following statement made by the United States in their written views: The question presented is vague and abstract, addressing complex issues that are the subject of consideration among interested States and within other bodies of the United Nations that have an express mandate to address these matters. An Opinion by the ICJ concerning the question presented would provide no practical assistance to the General Assembly in carrying out its functions under the Charter. Such an
54 See, Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory Opinion (see n 48, above). See also Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion [1951] ICJ Rep 19; Judgments of the Administrative Tribunal of the ILO upon Complaints Made against UNESCO Advisory Opinion [1956] ICJ Rep 86; Certain Expenses of the United Nations (Article 17(2), of the Charter), Advisory Opinion [1962] ICJ Rep 155; and Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations, Advisory Opinion [1989] ICJ Rep 189. 55 See, Judgments of the Administrative Tribunal of the IL0 upon Complaints Made against UNESCO, Advisory Opinion [1956] ICJ Rep 77, 86. See also Certain Expenses of the United Nations (Article 17(2), of the Charter), Advisory Opinion [1962] ICJ Rep 155; Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion [1971] ICJ Rep 27; Application for Review of Judgment No. 158 of the United Nations Administrative Tribunal, Advisory Opinion [1973] ICJ Rep 183; Western Sahara, Advisory Opinion [1975] ICJ Rep 21; and Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations, Advisory Opinion [1989] ICJ Rep 191. 56 See p. 129 above. 138 Journal of International Dispute Settlement
Opinion has the potential of undermining progress already made or being made on this sensitive subject and, therefore, is contrary to the interests of the United Nations Organization.57 The ICJ said that the statement contended that the question put to the ICJ was vague and abstract, meaning that there existed no specific dispute on the subject matter of the question. The ICJ thought it necessary to distinguish between requirements governing contentious procedure and those applicable to Advisory Opinions. The purpose of the advisory function was not to settle—at Downloaded from https://academic.oup.com/jids/article/1/1/123/879380 by guest on 29 September 2021 least directly—disputes between States, but to offer legal advice to the organs and institutions requesting the Opinion.58 The fact that the question put to the ICJ does not relate to a specific dispute should as a consequence not lead the ICJ to decline to give the Advisory Opinion requested. Moreover, it was the clear position of the ICJ that to contend that it should not deal with a question couched in abstract terms was ‘a mere affirmation devoid of any justification’, and that ‘the Court may give an Advisory Opinion on any legal question, abstract or otherwise’.59 This was a very wide assertion. The ICJ added that certain States had, however, expressed the fear that the abstract nature of the question might lead the ICJ to make hypothetical or speculative declarations outside the scope of its judicial function. However, the ICJ did not consider that, in giving an Advisory Opinion on the legality of the threat or use of nuclear weapons, it would necessarily have to write ‘scenarios’, to study various types of nuclear weapons and to evaluate highly complex and politically controversial technological, strategic and scientific information. The ICJ would simply have to address the issues arising in all their aspects by applying the relevant legal rules. As the ICJ was to find, this was not at all easy. Equally, the ICJ said that once the General Assembly had asked for an Advisory Opinion on a legal question, the ICJ, in determining whether there are any compelling reasons for it to refuse to give such an Opinion, would not have regard to the origins or to the political history of the request, or to the distribution of votes in respect of the adopted resolution.60 The ICJ also commented on a submission by some States that an Advisory Opinion on the legality of the threat or use of nuclear weapons might adversely affect disarmament negotiations and would, therefore, be contrary to the interest of the United Nations. The ICJ said that it was aware that, no matter what might be its conclusions in any Opinion, they would have relevance for
57 See Written Statements by the United States 1–7; and also those by the United Kingdom, paras 2.23–2.45; France, paras 5–9; Finland, pp. 1–2; Netherlands, paras 6–13; and Germany, pp. 3–6. 58 See Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory Opinion (see n 48, above). 59 Conditions of Admission of a State to Membership in the United Nations (Art 4 of Charter), Advisory Opinion [1948] ICJ Rep 51, 61. See also the Effect of Awards of Compensation Made by the United Nations Administrative Tribunal, Advisory Opinion [1954] ICJ Rep 51; and Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion [1971] ICJ Rep 27, para 40. 60 On this point, see p. 149 below. Advisory Opinions 139 the continuing debate on the matter in the General Assembly and would present an additional element in the negotiations on the matter. Beyond that, the effect of the Opinion would be a matter of appreciation. The ICJ had heard contrary positions advanced and there are no evident criteria by which it could prefer one assessment to another. That being so, the ICJ could not regard this factor as a compelling reason to decline to exercise its discretion and give the Opinion. Finally, it was contended by some States that in answering the question Downloaded from https://academic.oup.com/jids/article/1/1/123/879380 by guest on 29 September 2021 posed about the legality of the threat or use of nuclear weapons, the ICJ would be going beyond its judicial role and would be taking upon itself a law-making capacity. The ICJ responded that it was clear that it could not legislate. Rather its task was to engage in its normal judicial function of ascertaining the existence or otherwise of legal principles and rules applicable to the threat or use of nuclear weapons. The contention that the giving of an answer to the question posed would require the ICJ to legislate is based on a supposition that the present corpus juris is devoid of relevant rules in this matter. The ICJ could not accede to this argument; the ICJ stated the existing law and does not legislate. This is so even if, in stating and applying the law, the ICJ necessarily has to specify its scope and sometimes note its general trend. The ICJ concluded that it had the authority to deliver an Advisory Opinion on the question posed by the General Assembly, and that there existed no ‘compelling reasons’ which would lead the ICJ to exercise its discretion not to do so. The fact that the judges were split on to whether the Opinion should be given (and that it was only given due to the casting vote of the President) does point to the fact that a request for an Advisory Opinion on a politically controversial subject may not be as easy as the may have been suggested.
A. Wall The next (and most recent) statement by the ICJ on whether it should accede to a request for an Advisory Opinion was in the 2004 Advisory Opinion on the Wall.61 The ICJ began by considering whether it had jurisdiction to give the Advisory Opinion requested by resolution ES-10/14 of the UN General Assembly, concluding that it did have jurisdiction. However, it was contended that the ICJ should exercise its discretion to refuse the request because of the presence of specific aspects of the General Assembly’s request that would render the exercise of the ICJ’s jurisdiction improper and inconsistent with the ICJ’s judicial function. In response, the ICJ recalled that article 65(1) of its Statute should be interpreted to mean that the ICJ has discretion to refuse to give an Opinion
61 [2004] ICJ Rep 136; 129 ILR 37, 207;
62 Legality of the Threat or Use of ‘Nuclear Weapons, Advisory Opinion [1996] ICJ Rep (I) 226, at para 14; 110 ILR 163. 63 Certain Expenses of’ the United Nations, Advisory Opinion [1962] ICJ Rep 15i, at 155; 34 ILR 281. See also, eg Difference Relating to Immunity from Legal Process of Special Rapporteur of the Commission on Human Rights, Advisory Opinion [1999] ICJ Rep (I) 78–9, paras 29–30. 64 Interpretation of’ Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory Opinion [1950] ICJ Rep (see n 48, above). See also Western Sahara [1975] ICJ Rep 24, para 31; 59 ILR 30. Advisory Opinions 141 judicial propriety. Commenting on its 1950 decision, the ICJ explained that in its Advisory Opinion on Western Sahara it had: Thus ...recognized that lack of consent might constitute a ground for declining to give the Opinion requested if, in the circumstances of a given case, considerations of judicial propriety should oblige the Court to refuse an Opinion. In certain circumstances ...the lack of consent of an interested State: may render the giving of an Advisory Opinion incompatible with the ICJ’s judicial character. An instance of this would be when the circumstances disclose that to give a reply would have the Downloaded from https://academic.oup.com/jids/article/1/1/123/879380 by guest on 29 September 2021 effect of circumventing the principle that a State is not obliged to allow its disputes to be submitted to judicial settlement without its consent.65 In applying that principle to the request concerning Western Sahara the ICJ found that a legal controversy did indeed exist, but one that had arisen during the proceedings of the General Assembly and in relation to matters with which the Assembly was dealing. It had not arisen independently in bilateral relations.66 As regards the request for an Advisory Opinion regarding the wall, the ICJ acknowledged that Israel and Palestine had expressed radically divergent views on the legal consequences of Israel’s construction of the wall, on which the ICJ has been asked to pronounce. However, as the ICJ had itself noted, ‘Differences of views ...on legal issues have existed in practically every advisory proceeding’.67 Furthermore, the ICJ did not consider that the subject matter of the General Assembly’s request could be regarded as only a bilateral matter between Israel and Palestine. Given the powers and responsibilities of the United Nations in questions relating to international peace and security, it was the ICJ’s view that the construction of the wall must be deemed to be directly of concern to the United Nations. The responsibility of the United Nations in this matter also had its origin in the Mandate and the Partition Resolution concerning Palestine.68 This responsibility had been described by the General Assembly as: a permanent responsibility towards the question of Palestine until the question is resolved in all its aspects in a satisfactory manner in accordance with international legitimacy.69 Within the institutional framework of the United Nations, this responsibility had been manifested by the adoption of many General Assembly or Security Council resolutions, and by the creation of several subsidiary bodies specifically
65 Western Sahara (see n 64, above), paras 32–3. 66 Ibid 25, para 34. 67 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion [1971] ICJ Rep 16, para 34. 68 On the Partition Resolution, see paras 70 and 71 of Wa l l . 69 See eg UNGA resolution 57/107 of 3 December 2002. 142 Journal of International Dispute Settlement established to assist in the realization of the rights of the Palestinian people. The object of the request by the General Assembly for an Advisory Opinion was to help it in the proper exercise of its functions. The Opinion requested was on a question that was of particularly acute concern to the United Nations, and one that was in a much broader frame of reference than a bilateral dispute. In these circumstances, the ICJ did not consider that to give an Opinion would have the effect of circumventing the principle of consent to judicial settlement, and the ICJ accordingly could not ‘in the exercise of its discretion, decline to Downloaded from https://academic.oup.com/jids/article/1/1/123/879380 by guest on 29 September 2021 give an Opinion on that ground’. This could be seen as representing a rather narrow judicial (not to say, unworldly) view. The ICJ then turned to another argument raised in support of the view that it should use its discretion to decline to give an Opinion. Some participants had argued that an Advisory Opinion from the ICJ on the legality of the wall, and the legal consequences of its construction, could impede a political, negotiated solution to the Israeli–Palestinian conflict. More particularly, it was contended that such an Opinion could undermine the scheme of the so-called ‘Roadmap’,70 that requires Israel and Palestine to comply with certain obligations in various phases referred to therein. The requested Opinion, it was alleged, could complicate the negotiations envisaged in the ‘Roadmap’, and the ICJ should therefore exercise its discretion and decline to give an Opinion. In response, the ICJ said that it had already had to consider this point several times in the past. For example, in Nuclear Weapons, the ICJ had stated: It has ...been submitted that a reply from the Court in this case might adversely affect disarmament negotiations and would, therefore, be contrary to the interest of the United Nations. The Court is aware that, no matter what might be its conclusions in any Opinion it might give, they would have relevance for the continuing debate on the matter in the General Assembly and would present an additional element in the negotiations on the matter. Beyond that, the effect of the Opinion is a matter of appreciation. The ICJ has heard contrary positions advanced and there are no evident criteria by which it can prefer one assessment to another.71 The ICJ was conscious that the ‘Roadmap’, which was endorsed by the Security Council in resolution 1515 (2003), constituted a negotiating frame- work for the resolution of the Israeli–Palestinian conflict. It was not clear, however, what influence the ICJ’s Advisory Opinion might have on those negotiations: participants in the proceedings having expressed differing views. The ICJ said that it could not therefore regard this factor as a ‘compelling reason’ to decline to exercise its jurisdiction.
70 See the Wa l l Advisory Opinion [2004] ICJ Rep 136, para 22; 129 ILR 37; or
It was also put to the ICJ by certain participants that the question of the construction of the wall was only one aspect of the Israeli–Palestinian conflict, which could not be properly addressed in the present proceedings. However, the ICJ did not consider this a reason for it to decline to reply to the question asked. It said it was indeed aware that the question of the wall is part of a greater whole, and it would take this circumstance carefully into account in any Opinion it gave. At the same time, the question that the General Assembly had chosen to ask the ICJ was confined to the legal consequences of the Downloaded from https://academic.oup.com/jids/article/1/1/123/879380 by guest on 29 September 2021 construction of the wall, and the ICJ would only examine other issues to the extent that they might be necessary to its consideration of the question put to it. Several participants in the proceedings raised the further argument that the ICJ should decline to exercise its jurisdiction because it did not have at its disposal the requisite facts and evidence to enable it to reach its conclusions. In particular, Israel, referring to the Peace Treaties Advisory Opinion, contended that the ICJ could not give an Opinion on issues that raised questions of fact that cannot be elucidated without hearing all parties to the conflict. According to Israel, if the ICJ decided to accede to the request, it would be forced to speculate about essential facts and make assumptions about arguments of law. More specifically, Israel argued that the ICJ could not rule on the legal consequences of the construction of the wall without enquiring, first, into the nature and scope of the security threat to which the wall is intended to respond and the effectiveness of that response, and, second, into the impact on the Palestinians. This task, which would already be difficult in a contentious case, would be further complicated in an advisory proceeding, particularly since Israel alone possesses much of the necessary information, but had stated that it chose not to address the merits. Israel concluded that the ICJ, confronted with factual issues impossible to clarify in the present proceedings, should use its discretion and decline to comply with the request. In response, the ICJ observed that the question whether the evidence available to it is sufficient to give an Advisory Opinion must be decided in each particular instance. In its Advisory Opinions in the Peace Treaties,72 and again in the Western Sahara,73 the ICJ made it clear that what was decisive was whether the ICJ had before it sufficient information and evidence to enable it to arrive at a judicial conclusion upon any disputed questions of fact the determination of which is necessary for it to give an Opinion in conditions compatible with its judicial character. In Western Sahara, the ICJ had observed that it had been provided with very extensive documentary evidence of the relevant facts.74 In the Wall, the ICJ said it had at its disposal the report of the UN Secretary-General, as well as a
72 See n 48, above. 73 Western Sahara [1975] ICJ Rep 28–9, para 46; 59 ILR 30. 74 Ibid. 144 Journal of International Dispute Settlement voluminous dossier submitted by him, comprising not only detailed informa- tion on the route of the wall, but also on its humanitarian and socio-economic impact on the Palestinian population. The dossier included several reports based on on-site visits by special rapporteurs and competent organs of the United Nations. The Secretary-General had submitted to the ICJ a written statement updating his report, which supplemented the information contained therein. Moreover, numerous other participants had submitted to the ICJ written statements that contained information relevant to a response to the Downloaded from https://academic.oup.com/jids/article/1/1/123/879380 by guest on 29 September 2021 question put by the General Assembly. The ICJ noted, in particular, that Israel’s written statement, although limited to issues of jurisdiction and judicial propriety, contained observations on other matters, including Israel’s concerns in terms of security, and was accompanied by corresponding annexes; many other documents issued by the Israeli Government on those matters were in the public domain. The ICJ therefore found that it had before it sufficient information and evidence to enable it to give the Advisory Opinion requested by the General Assembly. Moreover, the circumstance that others might evaluate and interpret these facts in a subjective or political manner can be no argument for a court of law to abdicate its judicial task. There was therefore no lack of information such as to constitute a compelling reason for the ICJ to decline to give the requested Opinion. In their written statements, some participants also put forward the argument that the ICJ should decline to give the requested Opinion because it would lack any useful purpose. They argued that the Advisory Opinions of the ICJ are to be seen as a means to enable an organ or agency in need of legal clarification for its future action to obtain that clarification. In the present instance, the argument continued, the General Assembly would not need an ICJ Opinion because it had already declared that the construction of the wall to be illegal, and had already determined the legal consequences by demanding that Israel stop and reverse its construction, and further, because the General Assembly had never made it clear how it intended to use the Opinion. In its response, the ICJ said it was clear from its jurisprudence that Advisory Opinions have the purpose of furnishing to the requesting organs the elements of law necessary for them in their action. In Reservations to the Convention on the Prevention und Punishment of the Crime of Genocide, the ICJ observed that The object of this request for an Opinion is to guide the United Nations in respect of its own action.75 Likewise, in the Legal Consequences for States for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security
75 [1951] ICJ Rep 15, 19; 18 ILR 364. Advisory Opinions 145
Council Resolution 276 (1970), the ICJ noted: The request is put forward by a United Nations organ with reference to its own decisions and it seeks legal advice from the ICJ on the consequences and implications of these decisions.76 The ICJ found on another occasion that the Advisory Opinion would furnish the General Assembly with elements of a legal character relevant to its further 77 treatment of the decolonization of Western Sahara. Downloaded from https://academic.oup.com/jids/article/1/1/123/879380 by guest on 29 September 2021 With regard to the argument that the General Assembly had not made it clear what use it would make of an Advisory Opinion about the wall, the ICJ recalled—as is equally relevant in the pending request on Kosovo—what it stated in its Nuclear Weapons Advisory Opinion that [C]ertain States have observed that the General Assembly has not explained to the ICJ for what precise purposes it seeks the Advisory Opinion. Nevertheless, it is not for the ICJ itself to purport to decide whether or not an Advisory Opinion is needed by the Assembly for the performance of its functions. The General Assembly has the right to decide for itself on the usefulness of an Opinion in the light of its own needs.’78 The ICJ concluded that it could not therefore decline to answer the question on the ground that its Opinion would lack any useful purpose. The ICJ said also that it could not substitute its assessment of the usefulness of a request of an Advisory Opinion for that of the organ that seeks it. In the case of the Wall (and Nuclear Weapons), that was the UN General Assembly. Furthermore, and in any event, the ICJ considered that the General Assembly has not yet determined all the possible consequences of its own resolution. The ICJ’s task would be to determine in a comprehensive manner the legal consequences of the construction of the wall, while the General Assembly—and the Security Council—may then draw conclusions from the ICJ’s findings. Thus, in the case of the Wall, the ICJ concluded, that there was no compelling reason for it to use its discretionary power not to give that Opinion.79
6. Conclusions The views of the ICJ have set out in some detail. It describes the ICJ’s approach to any suggestion that should exercise its discretion to refuse a request for an Advisory Opinion. The ICJ gives its reasons only after it has heard the views of States and international organizations, both as to whether the request should be acceded to, or refused, and the substance. As has been
76 [1971] ICJ Rep 16, para 32; 49 ILR 2. 77 Western Sahara [1975] ICJ Rep 12, para 72; 59 ILR 30. 78 [1996] ICJ Rep 226, para 16; 110 ILR 163. 79 Wa l l [2004] ICJ Rep 136, para 65; 129 ILR 37. 146 Journal of International Dispute Settlement suggested, the ICJ might, at least in politically controversial cases, divide the process by which it seeks the views of States into two separate halves; only seeking the views of States on the substance of the requested Advisory Opinion when the ICJ has decided to give one.80 The Advisory Opinions on Nuclear Weapons and the Wall show well that any court needs to be careful in acceding to a request for an Advisory Opinion. Given that in many cases it may be on a point that may later arise in contentious proceedings before it or another court, it should exercise great Downloaded from https://academic.oup.com/jids/article/1/1/123/879380 by guest on 29 September 2021 caution in acceding to any request. But, the real difficulty lies with the second condition in article 65(1) of the ICJ Statute: the exercise of the discretion to give an Advisory Opinion. The ICJ has confirmed that it has such discretion. The positive exercise of discretion is best expressed in the Advisory Opinion in the Wall, in which the request was about the question: What are the legal consequences arising from the construction of the Wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem, as described in the report of the Secretary-General, considering the rules and principles of international law, including the Fourth Geneva Convention of 1949, and relevant Security Council and General Assembly resolutions?81 As was said in para 13 of that Advisory Opinion, when seised of a request for an Opinion, the Court must consider if it has jurisdiction, and, if so, whether ‘there is any reason why it should decline to exercise any such jurisdiction.’82 The problem is that when the ICJ has jurisdiction (which is usually the case) it appears most reluctant to refuse to give an Advisory Opinion even when the subject is politically controversial. In essence, the main argument of the ICJ has been that there were good precedents for acceding to the request; the question raised matters of international law and was therefore of a legal character; and the fact the problems were highly complex, and raised sensitive questions of a legal character, was not a reason to respond negatively. In the past, it is clear that just because legal questions had political aspects this did not deprive the ICJ of jurisdiction to give an Advisory Opinion. Nobody is disputing that the ICJ had competence to give an Advisory Opinion in both Nuclear Weapons and the Wall, only that it should have exercised its discretion and refused both requests for Opinions. Even when there is a request for an Advisory Opinion on a politically controversial matter there seems to be a reluctance for the ICJ, in exercise of
80 See p. 131–2 above. 81 See [2004] ICJ Rep 141, end of para 1; 129 ILR 37. 82 Legality of the Threat or Use of Nuclear Weapons Advisory Opinion [1996] ICJ Rep 226, para 10; 110 ILR 163. Advisory Opinions 147 its discretion, to refuse to give the Opinion. In so doing the ICJ, drawing on many other Advisory Opinions, say that there is No compelling reason for it to use its discretionary power not to give [an] Opinion.83 (emphasis added) The argument that the character of a question is ‘political’ has been dismissed by the ICJ on the ground that most political issues also have legal aspects, and advice about them may help the UN General Assembly in its Downloaded from https://academic.oup.com/jids/article/1/1/123/879380 by guest on 29 September 2021 further consideration of the issue. It is therefore relevant to the exercise of discretion in considering the process leading up to the request for an Advisory Opinion. Up to now, the ICJ has given most Advisory Opinions on ‘housekeeping’ matters. Nobody would criticise the ICJ for giving those Opinions. They may well help the United Nations or the specialized agencies in their work. So far, the ICJ has given only two Opinions on matters that could never be described as merely ‘housekeeping’: Nuclear Weapons in 1996 and the Wall in 2004. The reasons the ICJ gave for exercising its discretion in favour of giving such Opinions were similar. If the ICJ continues in the same vein, it is hard to see it ever exercising its discretion to refuse giving an Opinion, even when the matter is politically controversial. One may therefore legitimately ask why the ICJ was given discretion. At present, it may look as if, in reality, that discretion is being exercised by the UN General Assembly. The ICJ should be concerned that its standing as an independent judicial body may be questioned. Although the ICJ is a principal organ of the United Nations, it has emphasized its independent judicial role by sitting in The Hague, far away from New York. The United Nations has had, and still has, many problems. It would be regrettable if the ICJ were to be perceived as just another principal organ of the United Nations. It is only relatively recently that the UN General Assembly has requested, and the ICJ has given, Advisory Opinions on matters that were clearly politically controversial. They relate to long-standing problems that will not be resolved by any Advisory Opinion (however helpful it may be), but only by lengthy political negotiations between States and, sometimes, others. As such, the ICJ should in future consider seriously using its clear discretion to refuse such requests. Of course, one has in mind the Advisory Opinions requested by the UN General Assembly of the Nuclear Weapons, as well as the Wall, and the pending request of 2008 by the UN General Assembly for an Advisory Opinion on Kosovo. In the latter case, public hearings of the views of States were held from 1 December 2009.84
83 [2004] ICJ Rep 136, para 65; 129 ILR 37. 84 It is now too late to include them, or the substance of oral statements, in this article. 148 Journal of International Dispute Settlement In the case of Nuclear Weapons, the ICJ (on that occasion with only 14 judges) famously divided 7–7 and the Advisory Opinion was only given (albeit in guarded terms) in favour of the use of nuclear weapons in self-defence by the casting vote of the President. Each problem facing the United Nations (including the pending request about Kosovo) had (and has) legal aspects. All of the three latest requests were (or are) on problems that, unlike other requests for Advisory Opinions by the ICJ, on matters that will never be resolved (or indeed materially helped) by an Advisory Opinion on its various Downloaded from https://academic.oup.com/jids/article/1/1/123/879380 by guest on 29 September 2021 legal aspects. Instead, such Advisory Opinions can in fact exacerbate the problem by giving the impression that the last word on the legal aspects has been said. This is particularly so for students (even of law) and members of NGOs, who often make no distinction between a Judgment and an Advisory Opinion of the ICJ. To them, the distinction is often irrelevant: the judges of the ICJ have said what the law is. This is dangerous, particularly when the judges of the ICJ state an important rule of international law quite wrongly. This happened, most recently, in the Wall.85 In paras 138–42, the ICJ dismissed in less than a page the argument that the wall was lawful because it was to protect citizens of Israel for terrorist attacks. The ICJ relied on the wording of article 51 of the UN Charter, which saved the right of self-defence, and reflects the rule in customary international law. But, by saying that the self-defence argument was not available to Israel because article 51 said that self-defence is only available if a State is attacked by another State, is contrary to the express wording of article 51. The article does not mention that self-defence can be used by a State only against an attack by another State. In fact, the rule stemmed from the Caroline incident that involved a State’s response to acts of private persons. The ICJ statement was also contrary to an earlier UN Security Council resolution, which in 2001 had recognized that force could be used by a State in self-defence in response to attacks on it citizens by non-State actors (see Resolution 1368 (2001) following the 9/11 attacks). Given the importance of the problem that the Wall Advisory Opinion was seeking to deal with, this clearly wrong statement of international law was most surprising given the eminence of the judges.86 There is another reason why the ICJ should be wary of a request for an Advisory Opinion in a politically controversial case, particularly from the UN General Assembly. In the past, most requests by the General Assembly have been necessary to the good functioning of the United Nations (called in this
85 [2004] ICJ Rep; 129 ILR 37. 86 See also the Separate Opinions of Judges Higgins (paras 33–5) and Kooijmans (para 35) and the Declaration of Judge Buergenthal (paras 5–6). Some writers have tried to explain away the ICJ’s approach to self-defence: see, eg MN Shaw, International Law (6th edn CUP, Cambridge 2008) 1135, and C Gray, International Law and the Use of Force (3rd edn OUP, Oxford 2008) 135–6. Advisory Opinions 149 article, ‘housekeeping’ Opinions).87 But, since 1996 until the present day, the three requests by the General Assembly for an Advisory Opinion have been on politically controversial matters: the Nuclear Weapons, the Wall and, now pending, Kosovo. Being the ‘principal judicial organ of the United Nations’, it is right that the ICJ should help the United Nations in its work, provided that the help is useful and correct. Yet, some of the judges of the ICJ do not seem to be aware how requests for Advisory Opinions by the UN General Assembly, particularly on Downloaded from https://academic.oup.com/jids/article/1/1/123/879380 by guest on 29 September 2021 politically controversial matters, are made, and, more importantly, why they are made. In fact, the ICJ mentions in the Wall Advisory Opinion that it takes no notice of the voting in the General Assembly on a resolution asking for the Advisory Opinion.88 This ‘hands off’ attitude is difficult to understand; nobody would want the ICJ to be used for political purposes. It is now not difficult for a politically controversial matter to get the required number of affirmative votes in the General Assembly for the request for an Advisory Opinion. Such a request is not considered an important question,89 and so only a simple majority of the votes in the General Assembly is needed. When it comes to such matters, the search for consensus,90 which is so important for the effectiveness of multilateral treaties (not just for treaties negotiated under UN auspices), is abandoned. For example, in 1994 the request for an Advisory Opinion on Nuclear Weapons was agreed by the General Assembly in Resolution 49/75 K by 127 votes with 30 against and 23 abstentions. But, the voting in 2003 for an Opinion on the Wall was 90 votes for with 8 against and no less than 74 abstentions. And, in the pending case of the Kosovo, the resolution requesting an Advisory Opinion from the ICJ was made by 77 States with 6 objecting and, once again, 74 abstentions. So, it should have been clear from those votes alone that support for both the latest requests was by no means overwhelming. This does illustrate the politically controversial nature of the two latest requests, which the ICJ professes to ignore. It is true that the ICJ must ignore the size and status of Members of the UN General Assembly; whether they are small or big, developing or developed, Eastern or Western. But, the ICJ should bear in mind that there were numerous abstentions on the requests for an Advisory Opinion on the Wall, and the pending request regarding Kosovo. And, that it was only possible to give the Nuclear Weapons Advisory Opinion because of the casting vote of the President.
87 For example, the Advisory Opinions on Admissions (1948) and (1950), Reparations (1949), Interpretation of Peace Treaties (1950 twice), South-West Africa/Namibia (1950), (1955), (1956), (1971), Reservations (1951), UN Administrative Tribunal (1954), (1973), (1982) and (1987), Expenses (1952), Western Sahara (1975), Obligation to Arbitrate (PLO Case) (1988), UN Privileges and Immunites, Mazilu (1989) and Cumaraswamy (1999). 88 See text to n 61, above. 89 See art 18 of the Charter and Rules 82, 83 and 85 of the Rules of Procedure of the General Assembly. Under Rule 85, a decision on what is an additional important question needs only a simple majority of votes in the General Assembly. 90 A Aust, Modern Treaty Law and Practice (2nd edn CUP, Cambridge 2007) 84–9. 150 Journal of International Dispute Settlement The ICJ has an unenviable task if it accedes to the latest request. Despite its careful wording, the request is in reality for advice on whether Kosovo is a State. So far, Kosovo has been recognized as a State by only a minority of States that are Members of the United Nations some 60 out of 192. After hearing the many statements about the request that will be made to the ICJ, the most prudent course for the judges may be to outline the two well-known theories of recognition of States (declaratory and constitutive), but not to choose one over the other or even hint that the ICJ prefers one of them. The Downloaded from https://academic.oup.com/jids/article/1/1/123/879380 by guest on 29 September 2021 ICJ should leave it to States that have not recognized Kosovo to decide whether to do so. It would be brave (some might even say, foolhardy) for the ICJ to come down on one side or the other on what must be one of the most controversial issues of public international law. Any question of which of two competing theories is right should be left to those who have to take the decision: States. One should be very aware that Advisory Opinions are not judgments, but their influence, especially when they are on a politically controversial matter, can be disproportionate to their status. Try telling a Palestinian that the Wall Opinion is just that, only an Opinion, and obviously wrong in at least one important aspect. The Opinion is seen by a large number of Palestinians as confirming their right to use force to make settlers in the occupied territories to leave or even to kill them. One must also not discount the readiness of some ICJ judges to accede to a request for an Advisory Opinion on a politically controversial matter. It only needs a simple majority of the members of the ICJ to accede to a request. Much of the work of the ICJ is detailed and relatively humdrum, eg delimitation disputes. Although they are most important to the States involved, and may result in one side losing much, they require long hours of painstaking, not to say tedious, work. An ICJ judge cannot choose what to do and what not to do: it is not like when one is invited to be a member of an international arbitral tribunal. As a judge of the ICJ, once one has to deal with each case, unless one has to recuse oneself. In contrast, with an Advisory Opinion there is likely to be more scope for a judge to give his views on matters such as the legality of the threat or use nuclear weapons; on the legality of the wall being built around occupied Palestinian territory; or on whether Kosovo is a State. An Advisory Opinion gives scope for giving and influencing views on such subjects, safe in the knowledge that the Opinion is not legally binding and unlikely to prove decisive. What is more, since an Advisory Opinion given to the UN General Assembly is not legally binding, any decision later taken by the Assembly will be not be that of the ICJ. The ICJ should therefore consider whether giving an Advisory Opinion would always enhance its reputation. If an Opinion is given on Kosovo, then the judges are very likely to be the present fifteen. Essentially, a majority of them were (or some still are) professors of international law, even though they have Advisory Opinions 151 some experience of the reality of diplomacy. A minority (including some professors) have long experience of that reality, but may well be outvoted on whether or not to give an Advisory Opinion. The danger is that the majority will use the Opinion to promulgate their view of what is or should be the relevant international law. This has already been demonstrated in the Advisory Opinions on Nuclear Weapons and the Wall. Both were on politically controversial matters that will never be solved by an Advisory Opinion, however high the respect in which the ICJ is held. Downloaded from https://academic.oup.com/jids/article/1/1/123/879380 by guest on 29 September 2021