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Max Planck Encyclopedia of Public International Law [MPEPIL]

Advisory Opinions

Hugh Thirlway

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 18 August 2019

Subject(s):
Advisory opinions — International organizations, practice and procedure

Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.

A.  Definition

An advisory opinion is a judicial opinion, most frequently given by a standing international tribunal (International Court of Justice [ICJ]; Permanent Court of International Justice [PCIJ]) on a legal question which is frequently, but need not be, related to a current international dispute. In the case of standing tribunals, their statutes provide for such opinions to be given at the request of a defined class of international bodies rather than of States. An essential characteristic of advisory opinions is, as the term implies, that they constitute advice, ie they do not legally bind either the requesting entity or any other body or State to take any specific action pursuant to the opinion. In general, there may be, at most, an obligation on the requesting entity to regulate its conduct or its affairs taking due account of the view of the legal situation expressed in the opinion (compare the position under the European [Economic] Community treaties discussed in para. 7 below).

An advisory opinion is not, therefore, strictly speaking, a method of settlement of international disputes: ‘The purpose of the advisory function is not to settle—at least directly—disputes between States, but to offer legal advice to the organs and institutions requesting the opinion’ (Legality of the Threat or Use of Nuclear Weapons [Advisory Opinions] para. 15 [Nuclear Weapons Advisory Opinions]). However, in the early years of the PCIJ, it was most employed in that way, and it is generally analysed in academic works under that heading (Judicial Settlement of International Disputes; Peaceful Settlement of International Disputes). Advisory opinions are to be distinguished from declaratory judgments inasmuch as the parties to a contentious proceeding have committed themselves in advance to respect the judgment so that, to the extent that the underlying dispute is on a legal question, the dispute is settled by the judgment (Judgments of International Courts and Tribunals). In the case of a declaratory judgment, the decision may contain no provision that is immediately executory, but the judgment remains binding on the parties. No such binding force attaches to an advisory opinion (see also Res iudicata).

There is, on the other hand, no reason why the definition of the legal situation in an advisory opinion should not be accepted as binding through a separate agreement between two States or other entities either ante factum or ex post facto. The binding character of the opinion then results not from the nature of the opinion itself but from the international agreement as a separate transaction. As the ICJ observed in the case of the Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights (Advisory Opinion), ‘[a] distinction should … be drawn between the advisory nature of the Court’s task and the particular effects that parties to an existing dispute may wish to attribute, in their mutual relations, to an advisory opinion of the Court, which, “as such, … has no binding force”’ (at para. 25). This procedure has been used, in particular, to permit recourse to the ICJ to resolve disputes between a State and an international organization, the latter having no standing under Art. 34 Statute of the ICJ (‘ICJ Statute’) to appear before the Court in contentious proceedings (International Courts and Tribunals, Standing), eg under Art. VIII Sec. 30 Convention on the Privileges and Immunities of the United Nations (1946). Since the special effect attributed to an advisory opinion given on this basis derives from the relevant treaty, not from the United Nations Charter (‘UN Charter’) or the ICJ Statute, it is unclear whether the existence of a reservation to the treaty excluding the provision for a binding opinion would ‘act as a bar to the operation of the procedure of request for advisory opinion, or merely to deprive any opinion given of the decisive effect attributed to such opinions’ by that provision (Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations [Advisory Opinion] para. 34; Treaties, Multilateral, Reservations to).

B.  Jurisdiction to Give Advisory Opinions

1.  Nature of the Jurisdiction

The creation of a body as a ‘court’ or ‘tribunal’ and its empowerment to discharge judicial functions do not appear automatically to confer power to give advisory opinions. Such power is not inherent in its judicial status so that a tribunal cannot give an advisory opinion unless the power to do so is conferred on it by its constituent instrument. In the case of an arbitral body, the terms of the compromis by which it is established or of the definition of the dispute in the compromis may be such as to imply a request for advisory opinion only. This was the case, for example, in the Italy/United States Air Transport Arbitration (Case concerning the Interpretation of the Air Transport Services Agreement between the United States of America and Italy [Compromis] [1964] 16 RIAA 75, 77; Air Transport Disputes, Arbitrations on). Requests for advisory opinions addressed to the UN Administrative Tribunal (‘UNAT’; United Nations Administrative Tribunal, Applications for Review [Advisory Opinions]; Administrative Boards, Commissions and Tribunals in International Organizations) by the United Nations Secretary-General and to the ILO Administrative Tribunal (‘ILOAT’) by the ILO Governing Body have been met in the former with a refusal due to a lack of competence (see UN Secretary-General ‘Secretary-General’s Bulletin, ST/SGB/169 of 29 November 1978’; Powell v Secretary-General of the United Nations [Judgment No 237] [1985] AT/DEC/231–370 Judgments of the UNAT 59–60) and in the other by the furnishing of an opinion given by the members of the tribunal in their private capacity as jurists (see ILO Governing Body Doc GB 206/13/7 [2–3 June 1978]).

The system of advisory opinions given by a standing judicial body was conceived for the PCIJ on the basis of Art. 14 Covenant of the League of Nations and developed by the jurisprudence of that court. Similar power was conferred on the ICJ (Art. 96 UN Charter; Art. 65 ICJ Statute). Hudson has shown that while certain municipal courts possessed advisory jurisdiction, this was not the inspiration for Art. 14 Covenant of the League of Nations which was derived more from the concept of the PCIJ’s secondary role as legal adviser to the League of Nations (at 107–8, 485–86).

Protocol No 2 to the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) confers power on the European Court of Human Rights (ECtHR) to give advisory opinions at the request of the Committee of Ministers of the Council of Europe (COE) on legal questions concerning the interpretation of the convention and its protocols. No advisory opinions have been delivered to date. Similarly, the American Convention on Human Rights (1969) confers a broad competence to give advisory opinions on the Inter-American Court of Human Rights (IACtHR). The African Court on Human and Peoples’ Rights (ACtHPR) may give an advisory opinion at the request of ‘a Member State of the OAU, the OAU, any of its organs, or any African organization recognized by the OAU’ (African Union [AU]) upon ‘any legal matter relating to the Charter or any other relevant human rights instruments, provided that the subject matter of the opinion is not related to a matter being examined by the Commission’ (Art. 4 1998 Protocol to the African Charter on Human and Peoples’ Rights [1981]).

The Court of Justice of the European Union (European Communities, Court of Justice [ECJ] and Court of First Instance [CFI]) has power under several articles of the community treaties to give advisory opinions and under one such article, power to give a ‘ruling’. The first example of such power was in Art. 95 Treaty establishing the European Coal and Steel Community (ECSC) (no longer in force). Under Art. 228 Treaty establishing the European Community (‘ECT’) (now Art. 300 Consolidated Version of the Treaty establishing the European Community), an advisory opinion of the Court may be requested by the European Parliament, the Council, the Commission, or any Member State on the compatibility with the treaty of any agreement proposed to be entered into by the community with one or more non-Member States or with an international organization (European Community and Union, Party to International Agreements). Under Arts 103 and 104 Treaty establishing the European Atomic Energy Community (Euratom), agreements or contracts concerning matters within the purview of the treaty may be challenged if they contain clauses which impede the application of the treaty. A ‘ruling’ (deliberation) from the Court may be obtained on the question. When application to the Court under the first of these provisions was made for the first time in 1978, the Court entitled its response a ‘prise de position’ (official English translation: decision; see Ruling 1/78 Ruling of the Court of 14 November 1978 [1978] ECR 2151, 2165). The EC treaties adopted the concept of the advisory ‘opinion’ for judicial pronouncements which, while lacking any true binding or executory force, nevertheless entail practical consequences which the bodies concerned cannot ignore. Thus, for example, an agreement which is proposed to be entered into by the EC, if challenged before the ECJ and the subject of an adverse opinion, cannot come into force unless all Member States ratify it (Art. 228 ECT).

2.  Advisory Jurisdiction and Its Exercise in Specific Cases

Possession of jurisdiction to give advisory opinions in general does not imply that the requested tribunal possesses jurisdiction, let alone that it is under an obligation to respond positively to the specific request for an advisory opinion in every case (International Courts and Tribunals, Jurisdiction and Admissibility of Inter-State Applications).

In the first place, no opinion can be given unless the request made for it is legally in order and complies with any conditions laid down by the constituent instrument of the tribunal. Thus, the competence of the tribunal may depend on whether the requesting body was competent to make the specific request.

10  Under Art. 96 UN Charter, the United Nations General Assembly and the United Nations Security Council may request opinions on ‘any legal question’ while other bodies authorized to request opinions may do so only on legal questions ‘arising within the scope of their activities’. It has been suggested that, despite this verbal distinction, even the General Assembly and Security Council may only request opinions on questions arising within the scope of their activities (see Legality of the Threat or Use of Nuclear Weapons paras 11–12; Israeli Wall Advisory Opinion [Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory] paras 15–17). In view of the breadth of the mandate of those two bodies, the question has so far not required to be settled.

11  For the purpose of assessing proprio motu the applicability of this restriction, the Court will make its own appraisal of the nature of the ‘activities’ of the requesting body (see Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory; Application for Review of Judgment No 158 of the United Nations Administrative Tribunal [Advisory Opinion] 173–75; Application for Review of Judgment No 158 of the United Nations Administrative Tribunal [Dissenting Opinion of Judge Onyeama] 228–29; United Nations Administrative Tribunal, Applications for Review [Advisory Opinions]; Legality of the Use by a State of Nuclear Weapons in Armed Conflict [Advisory Opinion] paras 18–28).

12  A clear case in which the Court lacked jurisdiction because the requesting body exceeded its competence was Legality of the Use by a State of Nuclear Weapons in Armed Conflict in which the World Health Organization (WHO) Assembly asked the ICJ whether the use of nuclear weapons by a State would be ‘a breach of its obligation under international law including the WHO Constitution’. The court held that the request made to it was not on a legal question arising within the scope of the activities of the WHO. Therefore, ‘an essential condition of founding … [the Court’s] jurisdiction is absent and … it cannot, accordingly, give the opinion requested’ (Legality of the Use by a State of Nuclear Weapons in Armed Conflict paras 1, 31). Similarly, in the case of the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, it was suggested that the General Assembly, when adopting the resolution requesting the Court’s opinion, had acted in violation of Art. (1) UN Charter and therefore, ultra vires. The court did not accept that this had been so, but acted on the implied basis that the Court would not have had jurisdiction to entertain a request which was ultra vires of the requesting body (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory para. 28).

13  However, even where the tribunal possesses jurisdiction to give an opinion on the subject-matter of the request, it appears that there may be cases in which that jurisdiction should not be exercised. This principle has been most clearly worked out in the jurisprudence of the ICJ by reference to Art. 65 ICJ Statute. The expression ‘[t]he Court may give an advisory opinion’ (emphasis supplied) has been interpreted as conferring on the Court a discretion whether to give or to refuse an opinion or as recognizing that the court necessarily has such a discretion. The Court has consistently held that the terms of this article give it ‘the power to examine whether the circumstances of the case are of such a character as should lead it to decline to answer the request’ (Western Sahara [Advisory Opinion] para. 23). In practice, this broad formula has received virtually no effective application. It has been spelled out fully only in one specific respect: in view of the established principle that the contentious jurisdiction of an international tribunal derives from the consent of the parties, it has been argued that where a question submitted for advisory opinion is or is closely related to a question in dispute between certain States, the tribunal is entitled or bound to take into account the existence or lack of consent of those States in deciding whether or not to exercise its advisory jurisdiction.

14  In no case to date, however, has the ICJ in fact refused to exercise jurisdiction on this ground. The question first arose before the PCIJ in the case concerning the Status of Eastern Carelia (Request for Advisory Opinion) (Eastern Carelia), where the subject of the request for an opinion was a matter of dispute between Finland and the Soviet Union and the latter State took no part in the proceedings before the Council of the League of Nations preceding the request nor in those before the Court following it. The Court’s refusal to give an opinion constituted a clear finding that the Court was not, in every case, obliged to exercise advisory jurisdiction if there were circumstances which, in its discretion, it considered as militating against doing so. The Court’s unwillingness to give an opinion has, however, also been interpreted as supporting the view that the absence of consent by a State Party to the dispute is a bar to the exercise of advisory jurisdiction in respect of that dispute. The matter was re-examined by the ICJ in the cases concerning the Interpretation of Peace Treaties with Bulgaria, Hungary and Romania (Peace Treaties with Bulgaria, Hungary and Romania, Interpretation of [Advisory Opinions]), Legal Consequences for States of the Continued Presence of South Africa in Namibia (South-West Africa) Notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) South West Africa/Namibia [Advisory Opinions and Judgments]), Western Sahara, and Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory. The Western Sahara case in particular afforded the Court the opportunity of making it clear that ‘the consent of an interested State continues to be relevant, not for the Court’s competence, but for the appreciation of the propriety of giving an opinion’ and that while ‘[i]n certain circumstances, … the lack of consent of an interested State may render the giving of an advisory opinion incompatible with the Court’s judicial character’, that was not always or necessarily so (at paras 32–33).

15  It was also laid down in the Western Sahara case that to give an advisory opinion would be ‘incompatible with the Court’s judicial character’, inter alia, when ‘the circumstances disclose that to give a reply would have the effect of circumventing the principle that a State is not obliged to allow its disputes to be submitted to judicial settlement without its consent’ (ibid para. 33). The court has, however, been reluctant to find that such circumstances were present. Thus, in the case of Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations, the Court was prepared to give an opinion essentially on a dispute between the UN and Romania as to that State’s compliance with that convention despite the fact that Romania had entered a reservation to the dispute-settlement provision of the convention. The court based its approach on the ground that that provision, which had not been invoked as basis for the request, related to disputes as to the application of the convention while the dispute before the Court was as to its applicability (Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations para. 38).

16  In the case of the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, it was observed that ‘Israel and Palestine have expressed radically divergent views on the legal consequences of Israel’s construction of the wall, on which the Court has been asked to pronounce’, and Israel had never consented to the settlement by the Court of such a dispute with Palestine. Nevertheless, the Court decided to give the opinion requested essentially on the ground that ‘[t]he opinion is requested on a question which is of particularly acute concern to the United Nations, and one which is located in a much broader frame of reference than a bilateral dispute’ (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory para. 50). The significance of this appears to be that if a matter is regarded by the requesting body as one ‘of particularly acute concern’, this aspect overrides the principle of consent to judicial settlement. While this approach is logical enough in theory, it would be a striking innovation, considerably extending the powers of the majority in the General Assembly and curtailing the freedom of choice belonging to States in the field of settlement of disputes. However, the Advisory Opinion continued: ‘In the circumstances, the Court does not consider that to give an opinion would have the effect of circumventing the principle of consent to judicial settlement’, thus, preserving that principle at the cost of reducing its reasoning on the point to a non sequitur (ibid). It remains to be seen how any future conflicts between the desire of an international body—particularly the General Assembly—for an opinion and the maintenance of the consent principle can be resolved.

17  In the same case, the Court was also asked to exercise its discretion to refuse an opinion in view of the impact of the opinion requested on the Palestinian peace process (Israel, Occupied Territories). It found that it was not clear what might be the influence of the opinion and, therefore, did not refuse to give it. It therefore appears that in a proper case, a refusal might be justified on grounds of this kind (see Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory para. 53).

C.  Possible Subjects of Advisory Opinions

1.  The ‘Legal Question’

18  The ICJ possesses a broad power to give an advisory opinion on ‘any legal question’ (Art. 96 UN Charter; Art. 65 ICJ Statute). Such a question will normally be one of international law (eg Reparation for Injuries Suffered in the Service of the United Nations [Advisory Opinion] [1949] ICJ Rep 174; Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide [Advisory Opinion] [1951] ICJ Rep 15) but may involve the legal appreciation of an historical situation (Western Sahara) or relate to the procedure of an international body (Voting Procedure on Questions relating to Reports and Petitions concerning the Territory of South West Africa [Advisory Opinion] [1955] ICJ Rep 67) or to the proceedings of an administrative tribunal (Judgments of the Administrative Tribunal of the ILO upon Complaints Made against UNESCO; Application for Review of Judgment No 158 of the United Nations Administrative Tribunal). There seems no reason why the Court should not be asked, in appropriate circumstances, for an opinion on a question purely of municipal law (compare the Danzig cases before the PCIJ; Consistency of Certain Danzig Legislative Decrees with the Constitution of the Free City [Advisory Opinion]; Danzig, Free City of). On the other hand, apart from the terms of the UN Charter, the Court is not equipped to conduct inquiries into matters of fact (see para. 23 below), and to be useful, the outcome of any such inquiry could hardly take the shape of a mere opinion.

19  If the question submitted for opinion is a legal one, the fact that it also has political aspects or has been raised in a politicized context does not affect the Court’s jurisdiction to give an opinion (see Legality of the Threat or Use of Nuclear Weapons para. 13 and jurisprudence cited therein).

20  Whereas the Court may, in some circumstances, wish to be satisfied that a judgment in a contentious case will be capable of having some impact or ‘practical consequences’ (see Case concerning the Northern Cameroons [Cameroon v United Kingdom] [1963] ICJ Rep 15, 34; Northern Cameroons Case), it is not concerned as to the use to which an advisory opinion might be put or whether it will be useful at all. The court has indicated that the organ requesting an advisory opinion ‘has the right to decide for itself on the usefulness of an opinion in the light of its own needs’ and that consequently, ‘it is not for the Court itself to purport to decide whether or not an advisory opinion is needed’ (Legality of the Threat or Use of Nuclear Weapons para. 16).

21  Although the Court’s advisory jurisdiction in this respect is thus a broad one, there are, as noted above, limitations on the questions which may be put to it, depending on the identity of the questioner. As indicated above, while the UN Security Council and General Assembly may seek an opinion on ‘any legal question’, other organs and agencies may be authorized by the General Assembly under Art. 96 UN Charter only to seek opinions on ‘legal questions arising within the scope of their activities’.

2.  Questions Involving Ascertainment of Facts

22  The expression of the Court’s opinion on a legal question may also involve the consideration of the existence and relevance of certain facts. In the Status of Eastern Carelia case, the PCIJ laid down a sound approach in this respect:

The Court does not say that there is an absolute rule that the request for an advisory opinion may not involve some enquiry as to facts, but, under ordinary circumstances, it is certainly expedient that the facts upon which the opinion of the Court is desired should not be in controversy, and it should not be left to the Court itself to ascertain what they are. (At 28)

23  It is in fact doubtful what powers the Court may have in order to ascertain the relevant facts and to go beyond the information supplied by the requesting body and those States that have chosen to participate in the proceedings. Arts 49 and 50 ICJ Statute (requests to the parties and commissioning an inquiry) are primarily directed to contentious proceedings though it may be that they could be invoked on the basis of the principle expressed in Art. 68 ICJ Statute (see paras 26–27 below). The problem has arisen not as a problem of what action of this kind, if any, the Court might take but rather as an objection to the exercise of advisory jurisdiction in a specific case on the ground that the Court does not have all relevant facts before it.

24  In the Western Sahara case, the Court indicated that the decisive issue was ‘whether the Court has 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’ (at para. 46). Both in that case and in the subsequent case of the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, the Court was satisfied that it had sufficient material to meet this criterion, relying in the former case on material submitted by the parties and in the latter, on an extensive report prepared by the UN Secretary-General.

25  In the case of the Legality of the Threat or Use of Nuclear Weapons, the Court was unable to reach a conclusion on the question of whether the use of nuclear weapons would necessarily, in all circumstances, conflict with humanitarian law (Humanitarian Law, International) or the ius in bello. The significance of this decision is controversial, but it appears that, to some extent, it was dictated by the absence of factual evidence as to the foreseeable impact of the limited use of tactical nuclear weapons (see Legality of the Threat or Use of Nuclear Weapons paras 94–95).

D.  Procedure of the ICJ in Advisory Cases

26  The original Statute of the PCIJ contained no provisions concerning the procedure to be followed in advisory proceedings, and the Rules of Court (‘PCIJ Rules’) prepared in 1922, in view of the total absence of experience in this domain, contained only the barest outline. With the subsequent revisions of the PCIJ Rules in 1926, 1931, and 1936, and the amendment of the PCIJ Statute by the revision protocol of 1929, the opportunity was taken to incorporate provisions reflecting the growing experience of the Court in the matter (International Courts and Tribunals, Procedure). In particular, Art. 68 PCIJ Statute provided that ‘[i]n the exercise of its advisory functions, the Court shall further be guided by the provisions of the present Statute which apply in contentious cases to the extent that it recognizes them to be applicable’. The ICJ Statute and Rules of Court of the ICJ followed the PCIJ Statute and PCIJ Rules without material change. However, the distinction in Art. 14 Covenant of the League of Nations between ‘disputes’ and ‘questions’ which might be referred to the Court for advisory opinion was not repeated in Art. 96 UN Charter, a change which was not without significance to procedure (see para. 32 below).

27  The general approach of the PCIJ from an early stage was to insist that even when giving advisory opinions, it remained a court of justice, and it therefore adopted a procedure for its advisory work which broadly followed the established contentious procedure. This assimilation of the advisory procedure to the contentious procedure tended over the years to become stricter; a particularly significant step was the Court’s decision in 1927 to allow the appointment of judges ad hoc in certain advisory proceedings (International Courts and Tribunals, Judges and Arbitrators). In this respect, the ICJ has, if anything, intensified the approach which views contentious proceedings as the norm, to which advisory proceedings should so far as possible be assimilated, taking account of the scope and nature of institutions of contentious procedure when transposed to the advisory field. The 1978 revision of the ICJ Rules has extended the section relating to advisory procedure, principally by codifying existing practice where, previously, the general provision of Art. 68 ICJ Statute effected the necessary assimilation to contentious procedure.

28  In general, therefore, advisory procedure is closely modelled on the contentious procedure: it is divided into a written and an oral phase though the Court has exercised the power to dispense with oral proceedings where it has seen fit to do so.

29  There are no ‘parties’, merely a category of States and international organizations regarded by the Court as likely to be able to furnish information on the question before the Court (Art. 66 ICJ Statute). The furnishing of information is, in practice, treated as including or as equivalent to the presentation of legal arguments on the question submitted. While Art. 66 ICJ Statute refers simply to ‘international organizations’ in this context (compare Art. 34 (3) ICJ Statute), this is interpreted as referring only to public international organizations—note the special provisions for non-governmental organizations in Practice Direction XII (International Court of Justice, Rules and Practice Directions). Since there are no ‘parties’, Art. 34 (1) ICJ Statute is not directly applicable in advisory procedure; nevertheless, the Court has found it impossible to permit direct representation of individuals before it (see para. 37). On the other hand, the Court has permitted itself some flexibility in the application of Art. 66 ICJ Statute, which refers only to States and international organizations, by permitting the participation of a non-State entity (Palestine) on the same terms as a State (see Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory).

30  Even where an existing dispute forms, to a greater or lesser extent, the background of the proceedings before the Court, in principle, no State concerned in the proceedings is regarded as having any particular status except with regard to the question of the appointment of judges ad hoc. The decision of the Court on a request for an advisory opinion is produced through a deliberation process identical to that adopted for judgments and in form, closely resembles a judgment—a point emphasized by the addition of Art. 107 ICJ Rules in 1978 defining the contents of an advisory opinion which closely follows the wording of Art. 95 ICJ Rules concerning the contents of a judgment.

31  The procedural question which has given rise to most difficulty is that of the appointment of judges ad hoc. After first declining to recognize the possibility of appointment of judges ad hoc in advisory proceedings, the PCIJ then reversed this approach, and judges ad hoc were regularly appointed in cases involving existing disputes between States. An attempt to obtain the appointment of a judge ad hoc on the ground of the general desirability of the Court’s having his assistance in a case where there was no inter-State dispute was unsuccessful though the decision of the Court on the point has lent itself to differing interpretations (Consistency of Certain Danzig Legislative Decrees with the Constitution of the Free City 69–71).

32  The attitude of the ICJ has been influenced by, inter alia, the disappearance of the express distinction between ‘disputes’ and ‘questions’ formerly in Art. 14 Covenant of the League of Nations. The concept of ‘dispute’ has been replaced by that of a ‘legal question actually pending between two or more States’, and this apparently broader formula has been narrowly interpreted. Furthermore, the ICJ has developed a philosophy deriving from the fact that it is an organ of the UN whereas the PCIJ was technically not an organ of the League of Nations.

33  The ICJ has consistently laid emphasis on its duty to co-operate in the functioning of the UN and to be guided by the objects and purposes of the organization (United Nations, Purposes and Principles). Similarly, it has tended to concentrate on the fact that the purpose of a request for an opinion by a UN body is to obtain guidance from the Court for that body and, therefore, to play down the dispute element in cases in which the matter is, at the same time, one of concern to a UN organ and arguably, a ‘legal question actually pending between States’. Thus, in the Legal Consequences for States of the Continued Presence of South Africa in Namibia, the Court’s decision, subject to the powerful dissent of a minority of members of the Court, was that South Africa could not appoint a judge ad hoc because the opinion had not been requested ‘upon a legal question actually pending between two or more States’ (at para. 34). The dispute was regarded rather as between South Africa and the UN. However, in Western Sahara, the Court was able to discern a difference in the position of two States closely concerned in the matter—Morocco and Mauritania—justifying the appointment of a judge ad hoc by one of them and not by the other. In the case of the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, the basic dispute was between Israel and Palestine, and the latter, not being a State, probably could not be permitted to appoint a judge ad hoc. In fact, neither entity made any request or proposal in this sense.

34  A minor manifestation of the same approach in the procedural field is the well-established practice of the ICJ whereby a representative of the Secretary-General of the UN is heard by the Court not simply as supplying information but also arguing as to what should, in the view of the Secretary-General, be the proper decision in the interests of the organization (see in particular Legal Consequences for States of the Continued Presence of South Africa in Namibia [South-West Africa] Notwithstanding Security Council Resolution 276 [1970] II ICJ Pleadings 1, 31, 61–62). The court may invite the requesting organization or indeed, any other international organization, to furnish information (Art. 66 ICJ Statute), but the Secretary-General’s participation is not based upon any text. As was pointed out by the WHO legal counsel in the case of the Legality of the Use by a State of Nuclear Weapons in Armed Conflict, it is not possible for the Secretary-General or other representative of an organization to present the views of that organization as an entity if the views of its Member States are divided (Legality of the Use by a State of Nuclear Weapons in Armed Conflict [Request for Advisory Opinion Submitted by the World Health Organization] Verbatim Record CR 1995/22, 1, 20). This did not, however, restrain, for example, the UN Secretary-General in the Legal Consequences for States of the Continued Presence of South Africa in Namibia case from presenting to the Court the majority view in the General Assembly.

E.  Special Features and Proposals for Development

35  The disappearance of the reference to advisory opinions being given on ‘disputes’ in the UN Charter as compared to the Covenant of the League of Nations (see para. 32 above) has been followed by a decline in the use of the procedure for indirect dispute settlement with the consent of those States concerned, although post hoc does not necessarily imply propter hoc. A number of international instruments negotiated in the immediate post-war years, however, contained provisions for dispute settlement by advisory opinion accepted in advance by the parties as binding (eg Art. VIII Sec. 30 Convention on the Privileges and Immunities of the United Nations).

36  A further specialized use of the advisory opinion procedure which has been implemented but which has not escaped criticism is the procedure for review of judgments of the ILOAT and the UNAT (see Art. XII Statute of the ILOAT and former Art. XI [later deleted] Statute of the UNAT). In the context of UNAT, the procedure was instituted in the wake of the case of the Effects of Awards of Compensation Made by the United Nations Administrative Tribunal ([Advisory Opinion] [1954] ICJ Rep 47) and, thus, was more directed to the interests of States which ultimately have to foot the bill for compensation awarded to staff members of international organizations than to the interests of the staff members themselves. Nevertheless, the procedure on its face afforded an ultimate judicial guarantee for the staff member.

37  The procedure under these provisions partakes more of a review by way of cassation than an appeal since the role of the ICJ is limited to examining the procedure and judgments of the administrative tribunals to ensure that they meet certain specified criteria (Judgments of International Courts and Tribunals, Revision of ). In the case of the UNAT, it has been doubted whether the legal question put to the Court could be treated as one ‘arising within the scope of the activities’ of the special body created to obtain advisory opinions (the Special Committee on Advisory Tribunal Judgments; see Application for Review of Judgment No 158 of the United Nations Administrative Tribunal) but the Court found that it could. However, as regards both tribunals, the provision in Art. 34 ICJ Statute that ‘only States may be parties in cases before the Court’ has been read as debarring the Court from hearing entities other than States even in advisory proceedings. Some degree of participation of the staff member concerned in the procedure, generally regarded as necessary if justice is to be done, has been rendered possible only by a certain amount of procedural gymnastics. For this reason, individual judges have cast some doubt on the propriety of the procedure, but the majority of the Court has accepted it (see Judgments of the Administrative Tribunal of the ILO upon Complaints Made against UNESCO; Application for Review of Judgment No 158 of the United Nations Administrative Tribunal).

38  The provision for review of UNAT judgments was abolished as unsatisfactory in 1996 by General Assembly Resolution 50/54 (UNGA Res 50/54 [11 December 1995] UN Doc A/RES/50/54). It may not be coincidental that the general trend of the opinions given by the Court under this procedure was protective of the interest of the staff members.

39  Proposals have, from time to time, been made for further specialized use or extension of the advisory competence of the ICJ. In particular, in response to the invitation of the General Assembly in Resolution 2723 (UNGA Res 2723 [XXV] [15 December 1970]) for the ‘views and suggestions’ of States ‘concerning the role of the Court’, a number of governments put forward suggestions (for a summary, see the UNGA ‘Report of the Secretary-General: Review of the Role of the International Court of Justice’ UN Doc A/8382 [15 September 1971] paras 263–305). Some of the proposals would have involved the amendment of the ICJ Statute and might therefore be regarded as politically unrealistic, but in fact, even those proposals which, according to their authors, would not have required such amendment, did not result in specific action by the General Assembly.

40  Among the ideas explored in this context was that of enabling regional organizations and individual States to seek advisory opinions from the Court although there was a division of views as to whether this would be desirable. It was also suggested that arbitral tribunals or permanent international tribunals established under treaties might be able to consult the Court by these means or that national courts faced with a question of public international law should be enabled to use the advisory opinion procedure in order to obtain a ruling on a point arising in a current case as is possible for the courts of EC Member States with regard to the ECJ. Even individuals might, it was suggested, have some degree of access to the Court in an advisory procedure to the limited extent necessary in order to ensure justice in cases coming from the UNAT and ILOAT.

41  From a rather different viewpoint, it was, however, also suggested that the difficulties arising in cases where the request for an opinion was related to a pending dispute could be avoided if the Court were required to decline to give an opinion unless the parties to the dispute agreed in advance to accept it as binding.

42  A suggestion that has regularly been put forward is that the Secretary-General of the UN should be authorized to request advisory opinions on his own responsibility. However, there is controversy both over the conformity of such an authorization with Art. 96 UN Charter—since the Secretary-General is not an ‘organ’—and as to the political wisdom of such a step so that no formal proposal to that effect has ever yet been made.

F.  Conclusion

43  While the determination of the PCIJ as well as the ICJ to preserve the character and procedures of a court in exercising the functions of legal adviser conferred by the statute is entirely commendable, the effect has been to forge a more unwieldy instrument than was probably foreseen in 1922. The sheer amount of time required for the judicial process may, in itself, account to some extent for the comparative paucity of cases in which the procedure has been resorted to. Furthermore, the solemnity of the Court’s decision in advisory cases and its close formal resemblance to a judgment make it difficult for an international body to contemplate seeking an opinion as a mere matter of routine in order to assist in the consideration of the legal aspect of a current problem. There are, however, some recent examples of the use of the procedure to deal with a comparatively minor problem—though in each case, one which related to an important issue of principle—eg the PLO observer case (Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947 [Advisory Opinion] [1988] ICJ Rep 12; Observers), the Mazilu case (Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations), and the Cumaraswamy case (Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights).

44  The post-war court has dealt with virtually no cases of the kind that were staple fare for the PCIJ, those in which it was asked to regulate an inter-State dispute by advisory opinion with the consent of the States concerned (but see Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, and the Western Sahara case which was, to a large extent, a dispute among Spain, Morocco, and Mauritania). It has dealt with disputes between States and international organizations, but perhaps its major role has been responding to requests arising out of intensely politicized controversies where its aid has been invoked more as a supporter of other UN organs than as a detached legal adviser.

45  Just as a potential plaintiff State will not institute contentious proceedings unless it has considerable confidence of success, there is inevitably a tendency, on any issue of real political significance, for the requesting body to put to the Court only questions the answer to which is regarded as safely predictable. If their prognostications are correct, there may be an uncomfortable feeling abroad that the Court is being used as a mere political instrument. If their expectations are disappointed, the authority of the Court is, regrettably, not sufficiently highly respected to silence criticism and prevent disappointment from affecting the popularity of the advisory opinion procedure.

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