1  Debates and deliberations in the late nineteenth and early twentieth centuries about the arbitral or judicial settlement of disputes between States focused on bodies with powers to make awards or decisions binding the State Parties. Such a power of decision was also central to the functioning of the national courts with which those involved in the negotiations setting up bilateral arbitral bodies or the Permanent Court of Arbitration (PCA) were familiar. Some of those national courts did, however, have the further power to give advice, usually to the executive branch of government at its request (eg Keith, 1971, 16). An early American draft of what became Article 14 Covenant of the League of Nations (‘Covenant’) contemplated that the Permanent Court of International Justice (PCIJ) would have, in addition to the jurisdiction to decide legal disputes between States, the power to give advisory opinions. In its final version that provision read as follows:

2  The Advisory Committee of Jurists set up by the Council of the League—in terms of its responsibility stated in the first sentence of Article 14—like the Secretariat advising it, were puzzled by the jurisdiction and included the following provision in the draft Statute of the PCIJ:

3  The United States member of the Committee declared that the advisory jurisdiction was a violation of all judicial principles—a proposition also adopted by the first United States judge on the Court (Keith, 1971, 15–16). The subcommittee of the League Assembly deleted the proposed Article with the consequence that the Statute of the PCIJ (‘PCIJ Statute’) adopted in 1920 contained no provisions relating to advisory jurisdiction. The League of Nations (‘League’) bodies left the matters of procedure and jurisdiction more generally to the practice and rule-making of the Court. In its very early days it faced a critical question: was it to act simply as a legal advisor to the political organs of the Court, like an Attorney-General or legal counsel advising a government or the League, without hearing interested parties and by providing advice in private to the requesting body; or as a Court, enabling interested States and other qualified bodies to make written and oral submissions in public, leading to a fully reasoned opinion, delivered in public? The Court from the outset took the latter position. As early as 1923, its second year, it stated this principle in response to the fifth request made to it for an advisory opinion:

4  By 1923, the PCIJ in its Rules of Court (or ‘Rules’), first adopted in 1922, and in its practice had:

1. (1)  given notice of requests to Members of the League, States mentioned in the Annex to the Covenant, and to other States (a group not included in the Rules) and international organizations which were likely to be able to furnish information on the question (such as employer and union bodies in cases concerning the International Labour Organization (‘ILO’));

2. (2)  received written information and submissions from interested States and organizations;

3. (3)  heard State and organization representatives in public hearings; and

4. (4)  delivered its reasoned advisory opinions in public, in some cases with dissenters being identified; later, dissenters made their reasons public and separate opinions and declarations were allowed.

5  That early practice and related rule-making, particularly the former:

1. (1)  ensured that the process and its outcome were public;

2. (2)  helped ensure that the Court had sufficient information to reach a conclusion on the questions put to it; and

3. (3)  helped ensure that the interested parties could present their case and counter the case against them on the basis of equality.

6  The second of those consequences is illustrated, if negatively, by the Eastern Carelia case from which the 1923 statement of principle quoted earlier was taken. The Court having decided that it was impossible for it to give the opinion—because Russia, a non-member of the League, had refused the invitation by the Council of the League to participate in its processes—immediately continued by saying that there are other cogent reasons which rendered it very inexpedient that the Court should attempt to deal with the question put to it. There was a disagreement on a matter of fact. It now appeared very doubtful, said the Court, whether there would be materials available to the Court sufficient to enable it to arrive at any judicial conclusion on that question: what did the parties agree to (Eastern Carelia, 28)? The 1922 Rules provided that the request for the advisory opinion, in addition to providing an exact statement of the question on which an opinion was requested, was to be accompanied by all documents likely to throw light upon the question (Art 72 1922 Rules; see also Article 3, Paragraph 2, of the Treaty of Lausanne (Frontier between Turkey and Iraq) (‘Mosul’), 1925, 9).

7  The third consequence of that early procedural practice and rule-making—of helping ensure equality—is demonstrated by the process followed in the immediately preceding case, Nationality Decrees issued in Tunis and Morocco. France and the United Kingdom had agreed that one issue relating to the decrees arising between them be put by the Council to the Court for an advisory opinion and that they would each present a case and counter case. In addition, the representatives of the two States made oral submissions and spoke in reply. Unusually, they also spoke in the Court, immediately following the reading of the Advisory Opinion, about the steps they would take to implement the Opinion.

8  The 1922 Rules were amended in 1926 but without practical consequence, since, as the Court’s annual report for 1926–27 said, the new provisions codified the earlier practice. By 1933 it was possible for the Registry to say:

9  That further amendment enabled the appointment of judges ad hoc when the request related to a dispute between States (PCIJ, Ten Years of International Jurisdiction, 18, n1). The first judge to comment on that proposed amendment agreed with it and referred to the practice of the Court to establish a great similarity in the contentious and advisory procedures. The judge who had earlier declared that the advisory jurisdiction was obviously not a judicial function warmly supported the proposal. ‘From the very beginning, [he declared,] the Court had assimilated procedure in advisory opinions to that in contested cases’ (Fourth Annual Report PCIJ, Series E No 4, 74). A committee of the Court to which the proposal was referred similarly emphasized that the Court, left by the PCIJ Statute with the entire regulation of the advisory procedure, had assimilated it to its contentious procedure; the results had abundantly justified its actions. The Court’s prestige was largely due to the amount of the advisory business and the judicial way it had handled it. The proposed amendment was adopted (Fourth Annual Report PCIJ, Series E No 4, 73–78; see also 296–97).

10  Article 31 PCIJ Statute enabled a State which was party to a contentious case before the Court to appoint a judge ad hoc (Ad hoc judge) if a judge of its nationality was not a member of the Court. Before the Court made the amendment about advisory cases, the president in one case had ruled and the Court in another had proceeded without allowing such appointment of a judge ad hoc (Third Annual Report PCIJ, Series E No 3, 223–24). And in 1926 when the Rules were being revised the Court was divided, with the prevailing view being that the matter was governed by the PCIJ Statute and outside the Court’s competence (Acts and Documents concerning the Organization of the Court, Series D, Add to No 2, 185–93). Following the change, judges ad hoc were appointed in six cases but the requests in two were rejected. In the Austro-German Customs Régime between Germany and Austria (Protocol of March 19th, 1931), 1931 (‘Customs Union’) case, the Court ruled against requests by Austria and Czechoslovakia on the basis that because the positions of the German and Austrian governments lead to the same conclusion and that those of the French, Italian, and Czechoslovakian governments lead to the opposite conclusion, each group was respectively in the same interest in the proceedings within the meaning of Article 31 PCIJ Statute, and the Court included judges of German, French, and Italian nationality (the Court had begun by recording that it had had regard to the written statements on the merits of the case by the five governments). As the five dissenters pointed out, the Court had not dealt with the fact that the questions before the Court related only to the obligations of Austria, and Germany’s intervention in the proceedings did not make it a party to the dispute, with the consequence that the issue of ‘being in the same interest’ did not arise (Customs Union, Order, 88). That may, however, be seen as a quibble, given that the Austrian and German contentions were to exactly the same effect and that the dispute as argued before the Court was between those two governments on the one side and the other three on the other.

11  The second case concerned Danzig legislative decrees (Consistency of Certain Danzig Legislative Decrees with the Constitution of the Free City (‘Danzig Legislative Decrees’), 1935), the validity of which under the Danzig Constitution was challenged. Their validity was rejected by the minority parties in the Danzig Senate, but upheld by the Senate. The Senate had received notice of, had submitted written statements in, and had appeared from 1925 in several earlier advisory proceedings. In the first such proceeding, which concerned a dispute between Poland and the Senate of the Free City of Danzig, the request for an opinion was communicated in accordance with the Rules of Court to the Members of the League and those States mentioned in the Annex to the Covenant. ‘It was also communicated to the Senate of the Free State of Danzig as being likely to be able to furnish information on the questions before the Court’ (Polish Postal Service in Danzig, 1925, para [3]). Each party filed two sets of written pleadings, no hearing being requested. No question was raised about Danzig’s participation in that or the other advisory proceedings in which it participated on an equal footing with Poland with which it was in dispute. The Court did not see its Rules as limiting its powers to invite that participation. In the next advisory proceeding in 1928, relating to Danzig essentially the same procedure was followed, with the second written round being replaced by a hearing, but with the addition that both Poland and Danzig appointed judges ad hoc (Jurisdiction of the Courts of Danzig, 1928).

12  The Danzig Legislative Decrees case presented a different situation from those dealt with earlier which involved disputes between Poland and Danzig. Here the dispute was within Danzig, between the majority in the Senate and the minorities. As already mentioned, the minority parties were not seen as having direct access to the Court, they did not receive the special notification which as in earlier cases was routinely sent to the Senate, and they did not have the opportunity—which the Senate did have—to appear before the Court on the Senate’s request for a judge ad hoc or on the merits. But, following exchanges between the rapporteur of the Council of the League, the Secretariat, the High Commissioner for Danzig, and the Registrar, the minority parties were enabled to submit two documents, in effect as part of the information submitted by the Secretariat in terms of its responsibilities (Keith, 1971, 164–66). Counsel for the Senate realised that the 1927 Rule about ad hoc judges did not apply—there was no dispute between States. But nor was the issue before the Court a purely abstract one. The matter was, for Danzig, of eminent practical interest, even vital: were acts emanating from the highest authority of the Free City compatible with its constitution? The Free City found itself in the role of a party, even if the other side of the bar was empty. Counsel recalled that the 1920 Advisory Committee of Jurists had contemplated that judges ad hoc might sit in some advisory cases. And in this case, the State was faced with proceedings when its interests were affected in a manner at least as direct as in a dispute. In its written request it had said this, emphasising the value of an ad hoc judge in providing expertise to the Court:

The president considered that the issue called for oral argument before the whole Court. It rejected the request: the decision must be made in accordance with the PCIJ Statute and its Rules; Article 31 PCIJ Statute provides for judges ad hoc only in cases in which there are parties before the Court; that condition was not fulfilled in the present case; the Rule made the provisions of Article 31 PCIJ Statute relating to the appointment of judges ad hoc applicable in advisory cases but only where the proceedings relate to an existing dispute between two or more States or Members of the League; and the relevant paragraph of the Rules ‘at present’ constitutes the only exception to the general rule (presumably that in Art 25 PCIJ Statute, qualified by Art 31) and the exception cannot be given a wider application than is provided for by the Rules.

13  Perhaps there is a suggestion in that final phrase and the expression ‘at present’ that the Court did not see the PCIJ Statute at that time as limiting its power, in terms of the principle of the good administration of justice, to appoint judges ad hoc in advisory proceedings. The Court, it might be noted, had earlier proceeded on the basis of a broad understanding in terms of participation and beyond the limits of its rules by inviting States which were not within the categories set out in the Rules, and, in particular, Danzig, whether it was to be seen as a State or not.

14  In the 1930s the issue of the access of interested parties other than States and international organizations arose in two cases. As just noted, while the minority parties in the Danzig Senate were enabled to make written submissions, that was not on an equal footing: they were not represented at the hearing, nor were they able to contest the Senate’s request for an ad hoc judge (Sixteenth Annual Report PCIJ, Series E No 16, 200–1). One judge dissented on the basis, in part, of the lack of equality of the parties. The case, he contended, was never argued before the Court. In response to the contention that the minority parties had succeeded on the merits and their absence was of no consequence he said this: the submission of arguments from both sides was designed to furnish the Court with all data for its decisions and was therefore provided in the interests of justice and consequently of the Court (Danzig Legislative Decrees, Individual Opinion by M Anzilotti, 65–66). That judge, Anzilotti, was the senior member of the Secretariat for the 1920 Advisory Committee of Jurists, had been a member of the Court since 1922, had participated in the early discussions, rule-making, and procedural decisions tending to assimilate the advisory procedures with contentious cases, was in the majority in the Eastern Carelia case, and had been president of the Court.

15  That criticism may be seen as a factor in the resolution of the Council of the League, referring to the Court for an advisory opinion, claims made by former Saarland officials. The resolution, adopted on 14 December 1939, did two things. First, it waived the right of the League to present written and oral argument unless the former officials had the same rights and, second, it provided for a written exchange between them and the Secretary-General before the request was put to the Court (1939 League of Nations Official Journal 502–3). The request, understandably, was never put to the Court which accordingly had no opportunity to comment on the proposed procedure.

16  The PCIJ assimilated its advisory procedure to its contentious cases in a number of other ways—in respect of the listing of documents in support of pleadings; the submission of late pleadings; written and oral pleadings; representation (but not in general including agents); the making of pleadings available to other States and, with the consent of the parties, to the public and press; orders for the conduct of the case; the control of the hearing and the taking of minutes; the asking of questions; the secrecy of its deliberation; the exercise by the president of the casting vote; and the form of the opinion (Keith, 1971, 191–93). The possibilities of provisional measures apparently did not arise (although in some cases the League Council requested that the opinion be given urgently, a matter more recently addressed in the Rules). The Court did not, in cases where it may have, separate preliminary issues, particularly of jurisdiction, from the merits, although in one case it did, without a separate hearing, decide that it did have jurisdiction (Mosul; Second Annual Report PCIJ, Series E No 2, 164; Keith, 1971, 97–101). And the powers to revise or interpret a judgment (Arts 60 and 61 PCIJ Statute) by their very nature do not arise.

17  In 1928 the Assembly of the League thought it desirable that before the 1930 election of members of the Court, with its ever increasing docket, to draw the Council’s attention to the advisability of examining the PCIJ Statute with a view of the introduction of amendments. A Committee of Jurists, appointed by the Council, proposed that a new chapter IV—Advisory Opinions—be added to the PCIJ Statute. The Court, it said, had been compelled to remedy the omission by adopting provisions in its Rules of Court, the essential parts of which should be transferred into the PCIJ Statute to give them a permanent character. That was particularly so given the possible accession of the United States to the Court. It proposed an additional provision which became Article 68 of the Statutes of both Courts (PCIJ and ICJ) about the assimilation as appropriate of the advisory jurisdiction to contentious cases. That draft provision was the subject of debate and amendment at the Conference of the State Parties to the Statute held in 1929, as were the provisions (now Arts 66 and 67) about the giving of notice, the reception of statements, responses, the hearing, and the public delivery of the opinion.

18  The Committee of Jurists in its draft of the notice provisions had, without any explanation, omitted the reference to international organizations which were likely to be able to furnish information on the question (Minutes of the Conference regarding the Revision of the Statute of the Permanent Court of International Justice and the Accession of the United States of America to the Protocol of Signature of that Statute (‘1929 Conference Minutes’), 63–64). The Director-General of the ILO said that the omission seemed somewhat unfortunate. He referred to the practice in the four requests relating to the working of the ILO in which the Court had requested or accepted observations both from representatives of the ILO itself and of international trade union organizations. He might also have mentioned international employer organizations. This procedure had always worked quite satisfactorily and it might prove inexpedient to change it. A committee of the ILO Governing Body had requested that the text of Articles 73 and 74 Rules of the Court should be reproduced in the PCIJ Statute unchanged, or that the reference to the consultation of international organizations should not be omitted (1929 Conference Minutes, 74). At the conference the ILO representative repeated that position:

A State representative added to the reference to international trade unions the very large number of international bodies, such as the Red Cross, the Institute of Intellectual Cooperation, and the Institute of Agriculture, which might be very directly concerned in a request for an advisory opinion. He also said this:

19  The reference to ‘international organizations’ was accordingly restored. As will appear, the original broad understanding of that expression has been neglected in more recent decades. The draft of Article 68 prepared by the Committee of Jurists was in these terms:

The mover of the amendment introducing the terms of the current Article 68 explained that, under the provision, the Court in advisory cases should also be guided by the procedure so far as it was laid down in the PCIJ Statute in contentious cases. He referred to the concern in the US about the advisory jurisdiction and the need to assimilate the advisory procedure as much as possible to the procedure in contentious cases (1929 Conference Minutes, 46–47). The Conference associated itself with these observations relating to the new provisions:

20  The 1929 Protocol for the Revision of the Statute of the Permanent Court of International Justice (‘1929 Protocol of Amendment’) did not come into force until 1936, after which the PCIJ received no requests for an advisory opinion. It would be for the new Court, the ICJ, to determine the effect of that transposition of Rules into the ICJ Statute and the added Article 68, which is in these terms:

21  Chapter IV, Advisory Opinions, PCIJ Statute was carried into the Statute of the new Court with one significant change and some minor changes. The significant change was the addition of paragraph 1 to Article 65:

The provision repeats the essence of the final sentence of Article 14 Covenant, with the replacement of ‘any dispute or question’ by ‘legal question’ and the extension of the bodies which were able to request an opinion. That replacement and extension reflected the terms of Article 96 UN Charter, which authorized the UN General Assembly (‘General Assembly’) to authorize ‘other organs of the [UN] and specialized agencies … [to] request advisory opinions of the Court on legal questions arising within the scope of their activities’.

22  A relevant change was made to ICJ Statute Chapter II, ‘Competence of the Court’, and in particular to Article 34. Two paragraphs were added.

23  The Committee of Jurists, meeting in April 1945 in Washington, explained that while, under paragraph 1 of Article 34 ICJ Statute, only States may be parties to cases before the International Court of Justice (ICJ) it was advisable that the Court be able to obtain relevant information from public international organizations. While this might be thought to be a matter of procedure rather than competence, the Committee, by placing it in Article 34 ICJ Statute, intended to emphasize its importance (Documents of the United Nations Conference on International Organization, San Francisco, 1945 (‘UNCIO’), 14 UNCIO 839). Also important is that the Committee explained that the changes to the provisions of Articles 65–68 (with the references to ‘international organizations’ in Article 66 (2) and (4) and Article 67 being maintained unchanged) were purely formal and did not call for any comment (14 UNCIO 850–51). In the course of the debate on the proposed additions to Article 34 the Committee affirmed that only organizations having States as members should have the right to submit information (14 UNCIO 138). There was no objection to draft Articles 66–68 ICJ Statute, which were considered approved (14 UNCIO 183). At San Francisco these provisions were not the subject of any recorded discussion and were incorporated in the ICJ Statute without change.

24  The Charter of the United Nations (‘Charter’) did make a significant change to the status and role of the Court. It is not only a judicial organ; it is also a principal organ of the United Nations. This is more than a matter of terminology. Very early the Court stated that when it gives an advisory opinion, it gives it not to the States affected 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.

25  The new Court adopted the PCIJ Rules of 1936 with only minimal changes—with one exception, an exception which it has maintained. Copies of opinions, once delivered, are to be sent among others, to ‘public international organizations directly concerned’. The word ‘public’ did not appear in the related PCIJ Rules (Art 84 of the 1936 Rules; Art 74 of the 1922 Rules, as revised). The 1972 and 1978 revisions made further minor changes, in part in presentation, and with additions. One addition is to the assimilation provisions in Article 102 ICJ Rules of Court. Under Article 102 (2) the Court is to be guided by the provisions of the ICJ Statute, as well as the Rules, applicable in contentious cases to the extent it recognized them to be applicable. The addition is the reference to the ICJ Statute, but the Court has already been given that direction by Article 68 ICJ Statute. The second addition to the Rules of Court is a new Article 105 under which the Registrar is to communicate the first round of written statements to any States and organizations which have submitted such statements; they may make comments within a fixed time. That provision, too, repeats a provision of the ICJ Statute, Article 66 (4), and the practice runs more widely. A third addition, Article 106 ICJ Rules of Court, paralleling Article 53 (2) Rules of Court relating to contentious proceedings, provides for the making available to the public of the written pleadings and annexed documents on the opening of the oral hearings. In some cases, contentious as well as advisory, that action has been taken even when there has been no oral hearing. A final addition, Article 107 ICJ Rules of Court, provides, in parallel to Articles 94 and 95 Rules of Court, concerned with judgments, for a public reading of the opinion and sets out the matters to be included in the opinion (for more detail see Rosenne, 1983, 209–24).

26  The appointment of a judge ad hoc has been requested in only two of the twenty-six advisory proceedings before the ICJ—the Namibia case in 1971 (Legal Consequences for States of the Continued Presence of South Africa in Namibia (South-West Africa) Notwithstanding Security Council Resolution 276 (1970) (‘Namibia’), 1971) and the Western Sahara case in 1975. The South African request in the first of these cases was rejected and, in the second, where Spain, the administering power, had a national among the permanent judges, the Moroccan request succeeded but Mauritania’s failed.

27  In other cases involving disputes to which States could be seen as parties, no request was made. A particular example was the Peace Treaties case, where the Court ruled that disputes did exist between Principal and Allied Powers (three nationals of which were among the permanent judges at the time) and three ex-enemy States. Those ex-enemy States made it very clear to the Court that for several reasons, including their refusal to consent to the proceedings which they rejected, they would not participate in them (Peace Treaties, Pleadings 196–97, 202–3, 210–12). No requests were made in the Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt (‘WHO/Egypt’), Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (‘Wall’), Accordance with International Law of the Unilateral Declaration of Independence by the Provisional Institutions of Self-Government of Kosovo (‘Kosovo’), or Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 (‘Chagos’) cases nor were they made in the earlier cases relating to South West Africa (International Status of South West Africa (‘South West Africa’), 1950). In all of those cases, States could be seen as being in disputes directly involving their important interests.

28  In addition to seeking a judge ad hoc, South Africa challenged the right of a number of permanent judges to sit on the Court, as did Israel in the Wall case in 2004 in respect of one judge. It is convenient to deal with that issue first. Those challenges have been dealt with by reference to the principles underlying Articles 17 and 24 ICJ Statute about incompatibilities; Article 68 ICJ Statute was also mentioned, perhaps as a matter of caution since, although the incompatibility provisions do not appear to be limited to contentious proceedings and are included in the generally applicable provisions of Chapter I, headed ‘The Organization of the Court’, they do refer to ‘cases’/‘affaires’, expressions used in the next two Chapters, regulating contentious procedures. As a matter of principle, the incompatibility restrictions along with the broader principle underlying them should also apply in advisory cases, and the Court, without any question being raised, has proceeded on that basis. In each of the cases, the challenge was based on roles played by judges earlier in their careers as members of their UN delegations. In both cases, the Court reached the conclusion that that participation did not attract the application of Article 17 ICJ Statute (Namibia, 18–19, para 9; quoted by Wall (Order) 5, paras 6 and 8). That statement of a rule may not however be as absolute as it appears: in the first case the Court, mentioning the objections based on statements made by the three judges, stated that it had examined each case carefully and separately. And in the second it noted that most of the activities of the judges were performed many years before the question of the construction of the wall arose and that question was not an issue at the General Assembly session at which the request was made until after the judge had ceased to participate in the session as representative of Egypt.

29  The Namibia order, adopted by ten votes to five, rejecting South Africa’s request for a judge ad hoc which followed a closed hearing ‘in accordance with the terms of Article 46 of the Statute’ (to which South Africa objected), at which South Africa was heard, did not provide reasons. The Court later gave its reasons for the refusal in its Advisory Opinion. The request, it said, did not relate to a legal dispute actually proceeding between two or more States. Rather a UN organ was seeking legal advice on the consequences and implications of decisions it had taken. Nor did the Advisory Opinion concern a dispute between South Africa and the UN. It followed that South Africa was not entitled, under Article 83 Rules of Court (the provision proceeded by the 1927 amendment to the PCIJ Rules), to the appointment of a judge ad hoc. Finally the Court rejected the argument that in exercise of its discretion granted by Article 68 ICJ Statute it should have allowed the appointment of a judge ad hoc ‘in recognition of the fact that South Africa’s interests are specially affected in the present case’. It recalled a decision of the PCIJ given at a time when the PCIJ Statute included no provisions concerning advisory opinions, the entire regulation of the procedure being thus left to the Court, and the refusal in the Danzig Legislative Decrees case (paras 11–13 above) and concluded in this way:

[i]n the present case the Court, having regard to the Rules of Court adopted under Article 30 of the Statute, came to the conclusion that it was unable to exercise discretion in this respect (Namibia, Opinion, 24–27, paras 32–39).

Of the five dissenters, two stated, when the Court’s order was made, that there was a discretionary power under Article 68 and that it would have been appropriate to exercise that power in view of the special interest of South Africa in the question before the Court (Namibia, Order, 14; and Namibia, Opinion, 138–41). When the opinion was delivered, the other three took essentially the same position (Namibia, Opinion, 128–30, 308–13, and 324–31), with one of them concluding that Article 83 Rules of Court also applied (Namibia, Opinion, 129, see also 326).

30  In Western Sahara, as noted above, Morocco’s request for a judge ad hoc succeeded while Mauritania’s failed. The Court already included a judge of Spanish nationality, the administering power of Western Sahara. In respect of Morocco’s request, the Court held:

In respect of Mauritania’s request, the Court however said that, while Mauritania had previously indicated a particular interest in the territory, the material indicated that when the request was made there appeared to be no legal dispute between Mauritania and Spain regarding the territory:

It will be observed that the Order uses the wording of Article 89 Rules of Court and does not appear to recognize any wider role for Article 68 ICJ Statute. In a declaration attached to the Order, the president of the Court said that the Court might wish to comment more fully on the appointment of judges ad hoc in the opinion (Western Sahara, Order, 9). One judge who dissented on the second order declared that he considered that Mauritania had the same right to choose a judge ad hoc as Morocco; further, the participation of such a judge would help in the preparation of the objective advisory opinion requested by the General Assembly. He added that the reasoning did not present the position of Mauritania accurately (Western Sahara, Order, 10). He may have had in mind the extensive argument made by its counsel relating to Article 68 ICJ Statute which he saw as raising the possibility of the Court agreeing to the appointment of a judge ad hoc, as opposed to its obligation to do so when the conditions in the Rules are satisfied (Western Sahara, Pleadings, 1975, 50–57). In its opinion the Court did not address that argument. It did add one distinct mater, quoting the Namibia order:

31  Later requests for advisory opinions have not led to requests by interested parties for the appointment of judges ad hoc although they might have in terms of a broad reading of Article 68 ICJ Statute or an inherent power, for instance in the Kosovo, Wall, or Chagos cases or those involving disputes about the immunities of UN officials.

32  Early practice in two cases relating to participation recognized the distinction between the wording of Article 34 (2) and (3) and Articles 66 and 67 ICJ Statute and, in respect of the latter, maintained the practice of the PCIJ. The International League for the Rights of Man was informed in 1950 that it could make a written statement of information likely to assist the Court in the examination of the legal questions put to it by the Assembly concerning South West Africa (South West Africa, Pleadings, 324, 327, see also 331–32, 342, and 345–46). When the League, on the same day and through the same lawyers, sought to participate in the Asylum case between Peru and Colombia (Asylum Case (Colombia v Peru)), in terms of Article 34 (2) of the Statute, it was informed the League could not participate: it was not a public international organization (Asylum Case (Colombia v Peru), Pleadings, vol 2, 227–28; the Registrar at this time was Edward Hambro, who had led the Norwegian delegation at San Francisco).

33  But, in 1954, when the Federation of the International Civil Servants’ Association asked whether the Association would be able, under the Court’s Statute or in its discretion, to place its views before the Court on the request relating to the powers of the General Assembly in relation to awards of the UN Administrative Tribunal (‘Tribunal’ or ‘UNAT’) in favour of staff members, the (new) Registrar, within a week, replied, without reasons being given, in the negative:

The lawyers who had acted for the staff members also sought the opportunity to file a memorandum and to participate in oral argument before the Court. They recognized that the exclusion of private parties from proceedings before the Court was reasonable where the issues involve disputes between States.

The Registrar referred the request to the president and on his instructions referred to the provisions of Articles 65 (2) and 66 (2) and concluded:

34  The 1954 opinion in the UNAT case led to the establishment of a procedure by the General Assembly amending the Statute of the Tribunal. The ICJ would be given jurisdiction by way of a request for an advisory opinion to review awards on limited grounds—jurisdictional error, error on a question of law relating to the Charter and fundamental procedural error. The requesting body was made up of representatives of States which had served on the General Committee of the Assembly and it could be approached by a member State, the Secretary-General, or the staff member. The opinion was to be binding. The amendment provided that the Secretary-General was to transmit to the Court the views of the individual and the Assembly recommended that Member States and the Secretary-General not make oral statements in any such proceeding (General Assembly Resolution 957 (X)). The equality of access to the process of review of the individual and the Secretary-General, the obligation of the latter to transmit the individual’s views, and the recommendation against an oral stage were all aimed at placing the two parties who had been before the Tribunal in an equal position before the Court. When that review process was being established, the UN Secretary-General identified as a fundamental principle that the staff members should have the rights to initiate the review and to participate in it on an equitable basis which should ensure substantial equality (United Nations General Assembly, ‘Report of the Special Committee on Review of Administrative Tribunal Judgements’, paras 13 and 17). Those review provisions may be compared with those already included in the Statute of the ILO Administrative Tribunal in 1946 when the League of Nations Administrative Tribunal was transformed. The earlier provisions enabled only the international organizations in question to initiate the process, limited the jurisdictional ground to a wrongful taking of jurisdiction, and contained no provisions for the participation of the individual or relating to a hearing.

35  The two review processes were invoked on only five occasions—twice in respect of decisions of the ILO Administrative Tribunal and three times in respect of UNAT. All challenges failed. In all, procedural problems arose and individual judges and the Court itself expressed concern about the jurisdiction. Both review processes have been revoked—in 1995 in respect of UNAT and in 2016 in respect of the ILO Tribunal. The General Assembly, in the former case, stated that the procedure had not proved to be a constructive or useful element in the adjudication of staff disputes within the Organization (General Assembly Resolution 50/54) and, in the latter, the International Labour Conference emphasized the need to ensure equality of access to justice for the employing institutions and officials alike.

36  The correspondence between the institutions, the representatives of the individuals, and the Registry, and the rulings of the Court and separate and dissenting opinions demonstrate the Court’s growing concern over fifty years about the procedure when seen against an essential aspect of the principle of the good administration of justice—equality before the law. The Court emphasized that principle in the last of the five cases in which review was sought (Judgment No 2687 of the Administrative Tribunal of the International Labour Organisation upon a Complaint filed against the International Fund for Agricultural Development (‘IFAD’), 2012). The Court recalled, in relation to the ILO Administrative Tribunal, two aspects of inequality: inequality of access to the Court in the Tribunal Statute and inequality in the proceedings before the Court. On the first it contrasted the process for seeking review included in the UNAT Statute in 1955—the officials affected, along with the institution and member States (the last of which gave rise to questions in one UNAT case), could initiate the process leading to a request. It also highlighted the changing attitudes to the right, declared in the International Covenant on Civil and Political Rights (1966), of all persons to be equal before courts and tribunals—at the national level, it may be noted. The initial General Comment by the Human Rights Committee on the provision had done no more than repeat the terms of the provision. But in 2007, on the basis of thirty years’ experience, the Committee stated that if procedural rights—which would include appeal and review rights—are to be accorded they must be accorded to all parties unless distinctions can be justified on significant and reasonable grounds. In the case of the Administrative Tribunal of the International Labour Organization (‘ILOAT’), the Court was unable to see any justification for the review provision favouring the employer to the disadvantage of the staff member. That however was not an inequality it could rectify. The Court could, by contrast, attempt to ensure, so far as possible, that there was equality in the proceedings before it.

37  As in the four earlier review cases, the inequality arising from the ICJ Statute had been substantially alleviated by two decisions of the Court. First, the IFAD was to provide to the Court the staff members’ statement in the first round and their comments on their first round statements in the second, along with its own statement and comments. Second, it decided there would be no oral hearing—a decision it confirmed in response to requests from the IFAD; the Court’s Statute, it said, does not allow individuals to appear in such cases. The Court, having referred to three particular difficulties caused by the IFAD’s actions, concluded that:

38  As indicated, both review processes have been revoked. The ILO procedure was seen as unfortunate. The paper before the ILO Governing Body stated that the provisions failed to meet the overriding principle of equality of access to courts and tribunals and that the provisions had been vividly criticized by the Court as anachronistic.

39  Issues about the participation of non-governmental organizations in advisory proceedings have continued to arise since the conflicting practice in the South West Africa and UNAT cases mentioned earlier. In 1971 in the Namibia case, an individual sought the opportunity to submit an amicus curiae brief and referred to the willingness of the Court in 1950 to allow the International League for the Rights of Man. In rejecting the request the Registrar pointed out that the League based its claim on Article 66 (2) ICJ Statute as being an international organization which could be considered by the Court as likely to be able to furnish information on the question. Requests by individuals by contrast were not acceded to; he also referred to the practice in the UNAT and earlier ILOAT cases (Namibia, Pleadings 636–39). Four days after that response, the Registrar received a request by the International League for the Rights of Man to submit a written statement and referred to the permission granted to it in the 1950 South West Africa case to submit a written statement. It also sought the opportunity to comment on other written statements and to make an oral statement if hearings were held. The request, the Registrar replied on the direction of the president, was to be laid before the Court for decision. The Registrar, three months after the request was received and only four days before the hearings began, informed the League that the Court had carefully considered its ‘application … to participate in the written and oral proceedings, and [had] decided that it should not be acceded to’ (Namibia, Pleadings, 672, for other refusals to requests by other individuals and organizations see 647, 652, 678). No reasons were given.

40  The question of the participation of international non-governmental organizations arose next in respect of the two requests relating to nuclear weapons, one made by the Assembly of the World Health Organization (WHO), the other by the General Assembly. In the former case the International Physicians for the Prevention of Nuclear War, which had had a major role in the World Health Assembly’s adopting the request, was refused permission to submit a statement. The Registrar, noting the organization’s close working relationship with the WHO, advised that the Court, having regard to the circumstances of the case and the scope of the request, had decided not to ask it to submit a written or oral statement, it appears without further reasons being given (Shelton, 1994, 624). At the hearing the question arose whether a statement by Joseph Rotblat, one of the physicists engaged in the Manhattan Project, which designed the first atomic bombs, could be attached to the oral submissions made by the Solomon Islands. It was, by the decision of a divided Court (Legality of the Use by a State of Nuclear Weapons in Armed Conflict (Request for Advisory Opinion Submitted by the World Health Organization) and Legality of the Threat or Use of Nuclear Weapons (Request for Advisory Opinion Submitted by the General Assembly of the United Nations), Public Sitting, CR 95/32, 14 November 1995, 72–73) (‘Nuclear Weapons cases’). The mayors of Hiroshima and Nagasaki, as members of the Japanese delegation and representatives of the Marshall Islands, in effect gave oral evidence of the effects of the use and testing of atomic and nuclear weapons. And Costa Rica, in its oral statement, quoted from an analysis provided by the International Committee of the Red Cross (ICRC), and annexed the full statement to its statement (Legality of the Use by a State of Nuclear Weapons in Armed Conflict (Request for Advisory Opinion Submitted by the World Health Organization) and Legality of the Threat or Use of Nuclear Weapons (Request for Advisory Opinion Submitted by the General Assembly of the United Nations), Public Sitting, CR 95/33, 14 November 1995, 30–33; for further background, see Higgins and others, 2017, para 29, 157–62).

41  One consequence of that experience was the adoption of ICJ Practice Direction XII:

It will be seen that ICJ Practice Direction XII interprets ‘international organizations’ in Article 66 ICJ Statute as meaning only intergovernmental organizations, contrary to the understanding reached in 1929 and the practice followed in 1950. The restrictive reading would also have caused problems had the proposed ILO request relating to freedom of association gone ahead in 2015–16. And it is not consistent with the broader positions taken in respect of Germany, Austria, Russia, Turkey, and Danzig by the PCIJ, or in the Wall and Kosovo cases considered next. In the proposed ILO case, the ‘international organizations’ likely to be able to furnish information on the question submitted and to have the opportunity to make written and oral submissions should have included the international employer and worker organizations as had happened in the 1920s and 1930s. Those organizations and their member associations would have been affected in major ways by any ruling. Their participation in ILO processes since 1920 in terms of the principles underlying the ILO constitution plainly demonstrates that. Their contributions would also have been important, even necessary, for the Court to be fully informed.

42  In the Wall case, the Court decided that Palestine was to be invited to participate, taking into account that the General Assembly had granted it a special status of Observer and that it cosponsored the draft resolution requesting the opinion. In the Kosovo case, the Court, taking account of the fact that the Unilateral Declaration of Independence by the Provisional Institutions of Self-Government of Kosovo was the subject of the question submitted to the Court, decided that the authors of the declaration were considered to be likely to be able to furnish information on the question and invited them to participate. Neither of those invitations fits within the terms of Article 66 ICJ Statute. Further, those receiving the invitations were not ‘states entitled to appear before the Court’ as described in Article 66. The Court did not have available to it the opportunity of making the invitations by way of Articles 63 (on intervention by State Parties to a treaty) and 68 (on assimilation) ICJ statute as it did in respect of the request concerning the interpretation of the 1947 Peace Treaties with Bulgaria, Hungary, and Romania—those being States which at that time (1949–51) were not entitled to appear before the Court.

43  In some cases in which two participants are plainly in dispute the Court has recognized that fact in the ordering of the oral proceedings. That was to be seen from the outset in the PCIJ, notably in the Nationality Decrees issued in Tunis and Morocco case between France and the United Kingdom. That, however, has only rarely occurred in the practice of the ICJ. In the IMCO case in 1960, at the end of submissions, the president announced that, at the request of a major party and ‘as an exception and because of the special character of the case’, a second round would be allowed. It would be ‘limited to new points’ raised in the initial round (Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organization (‘IMCO’), Oral Statements, Minutes of the Hearings Held from 26 April to 4 May and on June 1960, Sixth Public Hearing (2 May 1960), 265). In 1998 in relation to a request concerning the refusal of a State to recognize the immunities of a UN special rapporteur, representatives of that State and the UN legal counsel, along with a second State with no particular interest in the dispute, were also permitted to make second round submissions.

44  But in others, the sequence has been governed by the alphabet, French or English, as in the Nuclear Weapons and Chagos cases. In two cases, the Kosovo and Chagos cases, the principal parties were given a longer period to address the Court but there was no second round. This limiting practice perhaps emphasizes that the role of the participants is to furnish information to the Court (to use the terms of Art 66 (2) ICJ Statute) rather than to exercise the rights of a party in terms of the principle and practice of the assimilation of the advisory procedure to contentious cases.

45  The ICJ, like the PCIJ, has not always found it possible to answer the question in exactly the way it is presented. Earlier surveys cover the period to 1995 (Keith, 1971, 63–71; Keith, 1996, 48–53). In five of the six opinions given since 1995, the Court has not answered the question in the form of the request made to it. In the other case, the Nuclear Weapons case submitted by the World Health Assembly, the Court held that it did not have jurisdiction to answer the request since the World Health Assembly did not have the authority to seek it. The reasons for the redrafting are several:

1. (1)  the question may be open ended, particularly by asking what the (legal) consequences of certain actions are, as in the Namibia, Wall, and Chagos cases, or what the legal obligations of a State are, as in the Difference relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights case (also known as the Cumaraswamy case), or what certain legal ties were as in the Western Sahara case;

2. (2)  the abstract nature of the question may require the answer to be related to the actual situation faced as in the Reparations, UNAT, and South West Africa (Hearings) cases;

3. (3)  while the question may be stated in a yes/no form, it may not be capable of being answered in that way, as the Nuclear Weapons case shows;

4. (4)  the question may not be stated in such a way as to allow the pertinent legal issues to be addressed, as in the WHO/Egypt and later UNAT and ILOAT cases; and

5. (5)  the legal or factual base of the question may not be accurately stated, as in the Reparations case and Kosovo case, respectively.

46  The Court in recasting the questions put to it for reasons such as those set out above has stressed that if it is to remain faithful to the requirements of its judicial function it must ascertain what legal issues are really in issue; further, it should aim to make its reply complete, effectual, and not misleading. It must take into account all the pertinent legal issues (WHO/Egypt, Opinion, para 35). It is unfortunate that UN requesting bodies, when framing their questions, have not acted on the 1953 recommendation of the General Assembly to refer drafting issues to the legal committee of the Assembly or some other appropriate body (General Assembly Resolution 684 (VII)).

47  The two Courts, over almost the whole of the last century, have made it clear that they were and are to adhere to the essential rules guiding their activities as a Court (to put the statement made in the Eastern Carelia case in the positive). They have done that by progressively assimilating their advisory procedure to contentious cases, even when in their practice they have gone outside the Statute and their Rules. Those departures may be attributed to their understanding of the requirements of the good administration of justice involving the principle of the equality of the parties, an understanding which is also to be related to Article 68 ICJ Statute (for a more limited reading of that provision see Jean-Pierre Cot, 2012, para 43).