The consultative procedure
General, historical aspects[edit | edit source]
The advisory function is regulated in article 96 of the Charter of the United Nations, which is a fundamental provision in the matter, namely the basis and articles 65 et seq. of the Statute. In reality, these are few provisions, namely from 65 to 68. In the Rules of Court, in the last part of Title IV, the advisory procedure in Articles 102 to 109.
What does an advisory procedure before the Court mean? There have been nearly 40 of them since the Court's inception. What is a consultative procedure? It is therefore different, it is opposed to a certain extent to the so-called "contentious" procedure.
In litigation, there are two or more States, plaintiffs and defendants, who oppose each other, it is the dispute and the Court settles this dispute by a judgment, by a judgment binding on the parties to Article 94§1 of the Charter and 59 of the Statute. In the advisory capacity, some United Nations organs may request the Court to provide them with a particularly authoritative legal opinion, since it will emanate from the judicial organ of the organization on a legal issue arising in the course of their activities.
What is unique about the consultative procedure is that the result is not a judgment, but an opinion that is an advisory opinion and that the advisory opinion is not as such legally binding. The advisory opinion is not enforceable, it contains a certain mechanism, but this mechanism can be analysed as a mere opinion and therefore as a recommendation made by the Court to the requesting body. It is therefore incorrect, as is relatively often done, to say that, inter alia, Israel did not comply with the Court's opinion, the Court's judgment on the 2004 wall, since that judgment was an advisory opinion and therefore it was not an enforceable judgment.
It is nevertheless unusual for a Court of Justice to give advisory opinions. This is not what is expected of a Court of Justice and there is no Swiss legal example of the Federal Court or any cantonal Court of Cassation being approached for a non-binding opinion. However, it should be noted that in other countries, precedents exist so that not all of them were invented in 1920, at the time of the creation of the International Court of Justice, which had a very similar, if not almost identical, advisory function to that of the current Court. There were already some States that had such experience, and at the time, one of the most eminent States in the matter, since it was the State promoting the League of Nations and which ironically subsequently did not join it because of the Senate, namely the United States of America, where the Supreme Court had exercised a very long-standing advisory function as early as the eighteenth century, subordinated it is truly, completely subordinate to its contentious function and practically obsolete thereafter. But in the founding years, the Court was approached in its advisory function.
This function was introduced in the Statute of the Court at the time and already in the League of Nations Covenant in Article 14, because there were certain motivations for such unique experiences: a Court that does more than give judgments, but also gives opinions. There were two main reasons in 1920 to try this experiment. The first reason was more important than the second reason in 1920, and since then things have been reversed, with the current Court, the second reason in 1920 has become more important than the first.
The first ground is the main reason for the consultative procedure was that the Covenant of the League of Nations, in particular article 15, provided that the Council of the League of Nations would be a body for the settlement of disputes between States with subsidiary competence. This means that if the parties do not agree on another procedure, ultimately the Council inherits it in the sense that each party to the dispute may bring the dispute before the Council. Indeed, the Council dealt with a whole series of disputes in the 1920s and 1930s, much more so than the General Assembly or the current Security Council. But here was an interesting problem. The Council would be seized of a whole series of disputes, disputes with political and legal aspects. For some of these disputes, they would be pure legal disputes on which the parties simply could not agree on another procedure and which would therefore eventually end up before the Council's court. Imagine the situation where the Council, composed of more or less senior diplomats, possibly people who are unfamiliar with international law, may not at all or may have only a vague and confused idea of it, as many politicians do, and who are confronted with disputes that may be exclusively legal or almost exclusively legal or at least presented as is very often the case with important legal aspects. It was therefore thought that it would still be intelligent to allow the Council to obtain an authoritative opinion on the legal aspects of the dispute referred to it by the body most authorized and having the most authority to interpret international law, namely the Permanent Court of International Justice, so that the Council is allowed to request an opinion from the Court. Therefore, it is understandable why the advisory opinions were not binding, why they were mere opinions and not decisions of the Court, because if the Council had been told that if it consulted the Court, what the Court said was binding, it would have obliged the Council to settle the dispute in law because the Court only knows the legal aspects of the dispute and does not rule on the political aspects, it cannot do so, its jurisdiction is purely legal. This means that the Court only knows the legal aspects of the dispute, but if the decision is binding, it would have amounted to saying that the Council was obliged to give a strictly and purely legal solution to the dispute, and this did not correspond to its mandate to its mandate under the League of Nations pact. Before the Council, this was a political procedure, so it meant that compromises and reconciliations had to be found. The legal aspect is important, but it is not decisive. It was necessary to be able to accommodate States by proposing compromises that would mean changing the law where necessary through new agreements. That is why we thought that the Court must enlighten, but must not change the Council's task, that the Council must not then be forced to distort its activities and become a Court of Justice bis by settling legal disputes; the mission remains political and therefore the Court's judgment has only an enlightening value for the Council.
A Court of Justice that gives opinions and not orders was not to the taste or conception of all the lawyers of the time, especially continental, namely continental and non-Anglo-Saxon Europeans. The new Court had to ensure its place, if not its survival in an extraordinarily difficult if not hostile environment. International relations in 1920 were not as good as they are today, but at the time, there were many uncertainties, one of which related to the October Revolution in 1917. The argument was therefore to conclude that in such an environment, the Court will need strength and prestige. Why cause a potentially serious attack on this prestige by having the Court issue opinions that would not be followed by the facts, so that this Court could quickly be pointed to as the Index Court by giving it the title of the honorary point title of ineffectiveness of a Court operating in the clouds. The Court needs prestige, opinions do not lead it in this direction, so it would be better to refrain from doing so.
Other lawyers argued that the problems were more technical, but no less serious in their view. They considered that the Court was rightly founded in their view on the fundamental principle of the consent of individuals to its jurisdiction. However, did not the consultative procedure present itself as a wonderful way to bypass the requirement of consent? It presented itself in this way, the Court would be led to give an opinion not on the sex of angels, i.e. on perfectly abstract questions that float in the weightlessness of the atmosphere, but on very concrete questions where disputes emerge behind the apparently lenitive lineaments of the questions asked.
It is on the subject of disputes that the Council of the League of Nations would deal with that the opinion of the Court would often be sought. It is in this context that the aim was to make the Court work in an advisory capacity. However, would this not simply be a violation of the principle of consent? The States concerned by the dispute before the Council have never given their consent for the Court to express its views on the dispute, and now the Council is asking the Permanent Court to do exactly what the parties have not agreed to, namely to give a legal opinion on their dispute that would circumvent the principle of consent.
A few have gone even further, but always in the same direction. They said that the consultative procedure, as it will very often have to operate in the context of litigation between States, would create this legal monster, which is a matter of fact. The Court was seeking the Advisory would give its opinion on the dispute in question. By this, it will have already pronounced itself only by linking, or even committed with its small pejorative connotation to a certain attitude. And if the dispute were to subsequently end up before the Court, the Court obviously could not disregard itself or in any case it would not like to do so, or alternatively, if it did so, its prestige would suffer. The Court would have somewhat tied its hands in advance to the advisory, it could not, as a result of the litigation, if the dispute were to come before it at this stage, rule freely.
We could say that this is not serious, because the Court has ruled and why would it want to change its attitude. But that's not the point. The problem is that the consultative procedure is not the same as the contentious procedure. At the advisory level, the Court is confronted with a question and some materials that the requesting organisation will transmit to it in a more or less voluntary manner. But there is no burden of proof, there is no tight evidentiary procedure before the Court, so at the advisory level, the Court will rule lightly without being aware of all the facts. This is where it would be particularly unfortunate to have a kind of res judicata in fact, not in law of course, because there is no precedent in the advisory opinion, since the advisory opinion is already not binding in law.
These are some of the reasons that were put forward in 1920 against this more or less bold innovation.
The consultative function has been with us for decades, it is doing as it is, not as well as it could, but it would be superfluous to return to all these old issues. These fears, these apprehensions did not come true. The prestige of the Court has not suffered from its advisory function, sometimes it has even benefited from it, because the Court has sometimes been very cautious in contentious matters when it comes to not offending States. Cautious, sometimes even conservative, while at the advisory level, where she has less fear of an enforceable deed, she has been a little bolder and it has sometimes done her good. The main opinions are, for example, compensation for damage or certain expenses, they are major opinions which have rather given the Court a certain authority, and when there was the accident in the South West Africa case in 1966, the Court was able to redeem itself with the Namibia Advisory Opinion of 1971. So the prestige didn't suffer.
As for the circumvention of consent and res judicata, these issues have really lasted a long time, especially since they are now rarely sufficiently crystallized disputes between States that are brought before the Court, but many other issues such as, for example, whether it is legal to use nuclear weapons or is it still illegal to use them.
The consultative function is well established, and the fears of 1920 have now been completely dispelled. The problem with consultative procedures and many others is that there are no longer enough.
In the early years of the United Nations, the General Assembly regularly asked questions to the Court for advice on sensitive issues such as the admission of new members, the financing of peacekeeping operations or the United Nations' ability to formulate international claims, but this is no longer the case. Rarely is the Court solicited to the advisory body. Then there are major cases such as Kosovo, nuclear weapons, the Palestinian wall, but also very politically colourful cases. The problem is therefore that the function is no longer used to clarify United Nations law or to assist organs in the interpretation of texts, but perhaps this is no longer necessarily necessary nowadays.
We will now analyse from the point of view of positive law the advisory function in the Charter, the Statute and the Rules.
Seisin of the Court[edit | edit source]
First there is the referral. Who can apply to the Court for an advisory opinion? In litigation, the Court may only be seized by States. In the advisory capacity, it is almost exactly the opposite, States are totally excluded. To the question of who can bring an action before the Court in an advisory capacity, the answer is found in section 96 of the Charter, which is the fundamental provision in this regard.
First, it is two main organs of the United Nations, namely the General Assembly and the Security Council, which may refer the matter to the Court in an advisory capacity. Article 96§1 states that "The General Assembly or the Security Council may request an advisory opinion from the International Court of Justice on any legal question". The authorization is therefore clear for these two bodies. The singular of the "may" in this article has been chosen, as agreement can be made alternately with each or both. The choice was made to use the singular, as the singular indicates that each of these organs may individually refer the matter to the Court in an advisory capacity, so that it does not need to cooperate with the other organ. This may seem self-evident, but in the Charter, it must be said, in many matters, the two organs must act in concert, in the election of judges in article 10 of the Statute, the two organs act in concert. In a matter other than the Court, the admission of new members to the United Nations, then the two organs must act in concert. The Security Council must issue a favourable recommendation, and the General Assembly, on the basis of that favourable recommendation, decides on the admission of the new member as indicated in Article 4 of the Charter. This is not the case here. The two bodies are not required to cooperate, each has its own competence to act and the singular on the word "may" marks it. Of course, the word "may" in this context also means a freedom to grasp or not to grasp. Obviously, there is no obligation for these bodies to refer to the Court on a legally interesting question pending before them.
With regard to this provision 91§1, it modifies the powers of the Security Council as a lex speciali. The competences of the respective organs, i.e. the General Assembly and the Security Council, are regulated in the Charter in each of the chapters that concern each of the organs, namely article 10 for the General Assembly and article 24 for the Security Council.
One would have thought that each of these bodies could have requested an advisory opinion from the Court in the field of its competences as defined in Articles 10 for the Assembly and 24 for the Council. But this is not the case, because Article 96 changes the legal situation in this respect as a lex speciali within the Charter itself. It is written that the General Assembly and the Security Council may request an advisory opinion from the Court on any legal matter. It seems self-evident that the Assembly may submit a request on any legal question because the General Assembly has omnipotent competence within the United Nations, it may deal with any question which falls within the competence of the organization covered by Article 10 of the Charter, which stipulates that "The General Assembly may discuss any question or matter within the scope of this Charter or relating to the powers and functions of any of the organs provided for in this Charter, and, subject to the provisions of Article 12, to make recommendations on such questions or matters to the Members of the United Nations, the Security Council, or to the Members of the Organization and the Security Council". The Assembly may deal with and also make recommendations on any matter that falls within the scope of the organization. And so any legal question of interest to the United Nations also falls within the competence of the Assembly and it is only logical that the Assembly should be able to put it to the Court.
For the Security Council, this is not the case, because the Security Council is a restricted organ that does not have omnicompetence under the Charter, it has limited competence in certain areas and its field of action par excellence is the Council's field of action, which is peacekeeping and peacemaking if necessary. However, Article 96§1 extends the Security Council's power to put advisory questions to the Court, it may do so under the same conditions as the Assembly. That is to say, the Council obtains here within the Charter, an additional competence which is not mentioned in Article 24 and which comes directly from 96§1, and the content is to say that the Security Council may basically ask, provided the question is a legal one, any question along the lines of what the Assembly does. It benefits in a way from Article 10 of the Charter by the implicit reference in Article 96§1 and it is certainly not just this extension of the Council's competence.
In practice, all this is of undoubted importance, but limited for the simple reason that the Council does not ask the Court to express itself in the advisory capacity; the Assembly does so and on a regular basis, the Security Council abstains completely. Unlike the Council of the League of Nations, which has requested the Permanent Court on a very regular basis, it has requested it more often than the Assembly at the time of the League of Nations. Things have changed completely, because since 1946 and the birth of the United Nations, how many advisory opinions have been requested by the Court by the Security Council? Of the thirty opinions that were requested, the Security Council requested only one, and this is the case of Namibia, precisely where the Security Council had decided by resolution 276 to withdraw South Africa's mandate on Namibia since the period of the League of Nations for serious violation of the commitment of the mandate. The mandate was obviously an international treaty and the Security Council, which had inherited the function of controlling the League of Nations' mandates, considered that since South Africa repeatedly and blatantly violated the mandate, including through the policy of apartheid, it was not the policy of apartheid on South African territory that would pose a problem of self-determination of peoples and human rights, it was the policy of apartheid on foreign territory, that is, in Namibia. The Security Council therefore decided to withdraw the mandate and in the ensuing dispute, it was basically quite normal for it to ask the Court itself about the legal consequences of this resolution, which removed South Africa's mandate.
There are other bodies which may request an advisory opinion as mentioned in Article 96§b which stipulates that "Any other organ of the Organization and specialized agencies which may, at any time, receive authorization to this effect from the General Assembly shall also have the right to request the Court to provide advisory opinions on legal questions arising in the course of their activities".
There are therefore the other United Nations bodies mentioned in Article 7§1 which deals with principal organs and Article 7§2 which deals with subsidiary organs, as well as the specialized agencies of the United Nations family. These other bodies and institutions of the "family" do not have the inherent right to request an advisory opinion, they must be authorized by the General Assembly. What is happening, therefore, is that the General Assembly passes a resolution in which it says, and so far it has done so in exactly the same terms, but they could also vary, it could grant the competence to request advisory opinions more or less widely; the General Assembly in resolutions, therefore in a whole series of resolutions has authorized other organs of the United Nations and almost all the specialized agencies except the specialized agency for atomic energy in Vienna because it has a special status, to request advisory opinions from the Court and, moreover, these institutions have not necessarily deprived themselves, they have requested advisory opinions on a basis of regularity that is even less than that of the General Assembly. But there are requests for advice. A fairly famous example is the World Health Organization's example of nuclear weapons, where the Court replied that it could not respond.
Which other organs of the organization itself can request an opinion?
The Secretary-General has not been given the opportunity by the Assembly to request advisory opinions because the States represented in the General Assembly are obviously very concerned about giving the Secretary-General a sufficiently powerful weapon because this would mean that they would lose control over the ability to request an advisory opinion, the control they exercise in the Assembly is that a United Nations official who is not basically loyal to a particular State, but who pursues the policy and good of the organization itself, could use a weapon to unblock a particular process at a time that States may not like, in addition to arming the Secretary-General with additional power and as so often, they fear it and do not do so. The Secretary-General has therefore never received any authorization and cannot request an advisory opinion from the Court.
According to Professor Kolb, the Secretary-General should be authorized to request advisory opinions because the United Nations would need to be strengthened sometimes, would need to be drawn from the inertia in which States hold it. The Secretary-General, who is elected by the States and who is a balanced personality, the States do not choose "hotheads" in the Secretariat, would only make sensible use of this right. Professor Kolb would not be afraid of an intrusive Secretary General who would do things that states could seriously condemn.
The Economic and Social Council has obtained authorization and can request advisory opinions, but it is a body that has been largely fagocited in its activities by the General Assembly, and this has been the case for some years now. There is also the Trusteeship Council, the last time it met was in 1994, the body is completely on the back burner, it concerned the former mandates inherited from the League of Nations and transformed into trusteeship. This is a historical phase linked to colonization. The fact remains that this body, which has not been formally repealed because it would require an amendment to the Charter and it is diabolically difficult to make a formal amendment to the Charter, has in any case obtained authorisation to request advisory opinions. Finally, the Court is not allowed to refer itself to the Advisory Committee and it is relatively difficult to see why it should do so. It is a legal question that arises in its activities, it is a contentious or advisory matter, it does not need to be referred to it when it is already referred.
Secondly, there are the subsidiary bodies that may also have the competence to request an advisory opinion, such as the committee established at the United Nations, which officials may use when they wish to challenge a decision of the United Nations Administrative Tribunal or the International Labour Organization Administrative Tribunal or the revised version of the United Nations Administrative Tribunal. They could appeal against these decisions, and since a staff member cannot bring the case before the Court itself since the Court has no jurisdiction over individuals either in advisory or litigation, a special committee was established within the United Nations to which these staff members' complaints are referred and which, in turn, refers the case to the Court in advisory capacity, which is a subsidiary organ of the General Assembly.
The result is that a number of bodies in the United Nations family have the power to request an advisory opinion and use it sparingly. Nor can States request an opinion. They did not want to open this possibility to them for several reasons: first of all, States do not need it, they have their own legal services, the organization also has them, but it is less "strong" in the international world, in the world, States have their sovereignty, have a long tradition of judging their own legal interests, have strong legal offices, often, at least in the West, and it might seem much less important to offer them another consultative voice at the Court. But there is more, however, we did not want States to be able to ask the Court first if they would win a contentious case before deciding whether to bring it to the Court, because it is obvious that if it were possible to request an opinion unilaterally, not only could the Court be requested and in far too many cases it would not have the capacity to follow, but also, before bringing a case to the Court, what would prevent it from already being probed in the advisory capacity?
Jurisdiction and admissibility of the application[edit | edit source]
There is a series of relatively limited points that need to be presented in this area. The Court's jurisdiction, as indicated in Article 96 of the Charter, from a substantive point of view, covers any legal question which falls within the scope of the activities of the organisation for the two principal organs in paragraph 1, or within the scope of the activity of the organ or organisation in question for paragraph 2.
The limitation is not significant for the main organs. Obviously, the legal question must fall within the framework of the activities of the United Nations, because if the United Nations does not have jurisdiction in itself, then the General Assembly and the Security Council cannot, but we see that there are few issues that the United Nations would deal with that it does not have jurisdiction over, as long as its jurisdiction extends to any international matter that may be of international interest. In English, it is called "common concerns".
The limitation is much more sensitive for organs under paragraph 2, as the issue must still arise in the context of their activities, which is indicated by the area of competence of each of those organs and its United Nations affiliated organizations. The Court is quite specific on these issues, because when WHO asked it for an advisory opinion on the question of the lawfulness, threat or use of nuclear weapons, the Court replied that it could not answer the question thus posed because it did not have jurisdiction because, in its opinion, the World Health Organization, WHO, did not even have jurisdiction to deal with questions of the lawfulness of nuclear weapons did not fall within WHO's competence; in other words that it did not arise in the course of its activities. This meant that WHO could not put an advisory question to the Court on an area that was not within its jurisdiction either. And the consequence of this construction is that since WHO does not have jurisdiction and cannot put the question to the Court, the Court does not have jurisdiction to answer it. This is how it concluded in this case, lawfulness and nuclear weapons of 1996, an opinion concerning the WHO. At the same time, the Court answered the same question put to it by the United Nations General Assembly, because the United Nations General Assembly already has jurisdiction over the legality of nuclear weapons under Article 10, but also under Article 11, which gives it jurisdiction over peacekeeping and in particular also over disarmament.
Why does WHO have no jurisdiction from the Court's point of view? To be very simple, the Court reasoned as follows: WHO deals with health, questions of lawfulness have no impact on health. To put it bluntly, whether nuclear weapons are used legally or illegally, it is exactly the same for WHO; questions of legality are not within its area of competence, as they have no impact on health.
Secondly, the political implications do not remove the jurisdiction of the Court and do not alter the legal nature of the question raised. In other words, when we ask the Court for advisory questions, we always do so politically in sensitive areas. If the issues are not at all politically sensitive, we are not going to go to the Court, the domestic legal service will settle the case and there will be the senior legal advisors. When the issues are major and clearly have a political dimension, lawfulness - nuclear weapons for example, it is not a case for the legal adviser in New York or for the office of the legal adviser in New York or Geneva, it is a case that must go back higher and the Court seems well armed.
Politics therefore does not hold the legal or the State, the political dimensions exist, but do not alter the Court's jurisdiction. When will the Court answer only the legal aspects of the question? Thus, in the field of nuclear weapons, there are rules, and since they are legal rules, the Court has the right to apply them, to say what they mean in the context of nuclear weapons.
As to whether negotiations on the disarmament of these weapons should be conducted in a particular way, as to whether the Court's advisory opinion will have a positive or negative effect on certain negotiations, these are some of the questions that the Court will not deal with at all, because these are political issues that are not within its competence.
When the General Assembly authorizes another United Nations organ or an affiliated organization to request advisory opinions, such authorizations have so far been, in the Assembly's practice, always general authorizations; it is therefore not for a specific case that the Assembly gives an authorization to a particular organ, but generally and sine die. Of course, the Assembly could also simply give authorisation for a specific case, but so far it has not done so, it has generally authorised these other institutions to request opinions without time limits. It would therefore be necessary from a legal point of view if the Assembly wished to stop this option, if it passed a new resolution that would remove this right from an institution affiliated to the United Nations or another United Nations body. So far, she hasn't done it.
The questions put to the Court may be questions of law, but they may be either abstract or concrete. They may also relate to a specific dispute. However, it is not the dispute between two States that the United Nations organ will bring before the Court, nor will it risk it because the Court could answer that it would not answer such a question without the consent of the States, but rather the involvement of the organ in that dispute gives rise to legal questions and those legal questions will be put to the Court. There is sometimes a fine line between the two, but it is ultimately to assist United Nations bodies in the performance of their tasks and functions that this advisory function has been established. It is therefore when an organ deals with a dispute and legal questions arise in its activity that it refers these questions to the Court.
Generally and now almost always, questions about a dispute are a few mediatized parts when they are brought to court, they are raised to the next level. It is not the actual dispute that is being submitted, but a more general question is being asked about a problem encountered in the dispute. Thus, already at the very beginning, in the first advisory opinion requested from the Court on the admission of new members, the problem was an East-West problem, it was a package deal problem, it was a problem that the Western States did not want to admit because it would have created an imbalance against the Soviet bloc. The dispute was about that, but the question put to the Court was of perfect decency, namely what are the conditions for the admission of a new member; that is, interpret section 4 of the Charter.
What exactly do these terms in section 4 mean, who should assess what, should we stick to the conditions mentioned in section 4, can we add others based on political discretion? That is the question asked. Question of interpretation of Article 4. The real dispute was behind it, underlying it, known to all, but the formula for the man in March was completely decoupled from this complete dispute. The March man would not have seen the dispute behind it, he would have said that he is asking a question of interpretation of Article 4, ultimately a pure question of law in the Kesselian ectoplasm.
Nevertheless, the two types of abstract or concrete questions, i.e. questions that do not relate to a dispute, but are simply questions of interpretation of a provision of the Charter, because United Nations organs also operate outside inter-State disputes and questions of interpretation may arise as to whether immunity should be granted to a particular official, for example.
Questions of fact may also be put to the Court when they are underlying questions of law. Thus, the General Assembly did not hesitate to put a very, very direct question of fact to the Court as part of a small catalogue of questions in the 1975 Western Sahara case. Among other things, the Assembly asked whether, at any given time, Western Sahara was a territory without a master? This is a question of fact related to a legal consideration, namely, is there an owner at any given time? The Court was able to answer it because the question was closely linked to the legal questions raised, because it was necessary to draw conclusions from this fact: land, territory without a master, terra nullius, yes or no? A pure question of fact that is not related to a question of law is no longer within the jurisdiction of the Court. The Court, of course, cannot be used in the advisory capacity to do the work of historians.
If the Court is approached by an organ that asks it to take a position on a matter behind which there is a dispute between States. The Court's case law is very clear that in this case, the States concerned cannot obstruct the Court's jurisdiction by refusing to give their consent. Their consent is essential in contentious cases, consent does not apply in advisory cases simply because States are not parties to the proceedings and the requesting body is entitled to seek the Court's guidance in its own field of jurisdiction. In other words, States cannot, by refusing their consent, sterilize the organ's competence, deal with their dispute and ask the Court for guidance on its involvement and work in the dispute.
The case law is very clear on this. The first case of the current Court where it affirmed this is the case of the interpretation of the 1950 peace treaties where there was a dispute between three Eastern European and Western States over arbitration clauses relating to the guarantee of human rights contained in peace treaties. With regard to this dispute, there was a problem in the constitution of the arbitral body, and the General Assembly consulted the Court. The Court stated that the States concerned could not, by refusing the jurisdiction of an international court, remove its jurisdiction to answer the General Assembly on questions that the Assembly had referred to the Court. It is a two-stage procedure before the International Court of Justice, phase 1 and phase 2.
As an exception to this, only one case is often mentioned, which is the case of East Karelia. It is a rather heated discussion in the doctrine. This case is an old precedent dating back to the 1923 Permanent Court of International Justice. It was also governed by another legal system, namely the legal system of the League of Nations and not that of the United Nations. In this case, the Court had expressed itself a little bit briefly and this gave rise to an erroneous conclusion for readers who were not very attentive to the Court's reasoning. The somewhat superficial readers concluded that since Russia had not given its consent for the Permanent Court to deal with a consultative question put by the Council, but which concerned a dispute to which Russia was a party, and therefore, since Russia had not given its consent, the Court refused to answer the question and so it did, it refused to answer. But the reason was not that Russia had refused to give its consent, although that too is true, Russia had refused to give its consent, but that was not the reason for the Court to refuse its jurisdiction; it is a little more subtle. So the problem was elsewhere. It was that the Council of the League of Nations was dealing with a dispute between Finland and Russia. Finland had just regained its independence in 1920 and the dispute concerned a territory called East Karelia between the two states.
Russia was not a member of the League of Nations. To deal with a dispute between a member and a non-member, the League of Nations had to comply with article 17 of the League of Nations Covenant. Article 17 provided the conditions under which the Council or Assembly was required to deal with a dispute with a non-member. The main legal requirement for the Council to be competent to deal with such a dispute was that the third State had given its consent. This was the basis for the Court in 1923. She actually said it, but in such a hushed way that she didn't really say it. She said that the Council did not have jurisdiction to deal with the dispute because the conditions of Article 17 were not united, and since the Council did not have jurisdiction, it could not bring the matter before the Court, so the Court did not have jurisdiction to respond either. It is basically the same mechanism as later, the WHO and the nuclear weapons affair.
Why has the Court not been more explicit? We can only speculate. We think that the Court did not want to slap the Council at the beginning of its activity by telling it that it is ultra vires. They have formulated it in such a "soft" way so as not to disavow the Council that the essential link in the reasoning is a little missing. So the problem of consent was a problem of the Council, not a problem of the Court's jurisdiction. Thus, therefore, on the merits, the Court was able to decide perfectly as it did in 1950 in the peace treaty case without losing its way. It should be noted that Article 17 of the Covenant of the League of Nations is no longer applicable to the dispute in 1950.
The United Nations General Assembly may always request an advisory opinion from the Court even if the case is referred to the Security Council. Normally, according to the Charter, but it must be said that this provision has been considerably weakened by subsequent practice, but finally, nevertheless, normally, according to the Charter, when a question is submitted to the Security Council, that is, when it is on its agenda, the General Assembly cannot, as long as this continues, as long as the question is on the agenda of the Council, make recommendations on it. The reason is very clear, we want to avoid, to speak popularly, cacophony between the main organs. As long as one is seized, the other defers. It's a kind of lis pendens.
The Court considered that this provision did not apply to an advisory request, as, for example, in 2010 in paragraph 24 of the Advisory Opinion on Kosovo, so the Court reiterated it once again, but also in the 2004 Wall case, 12§1 does not apply for material and formal reasons. The formal reason is simply that when the Assembly refers a matter to the Court, it does not make a recommendation. The referral to the Court by the General Assembly is not a recommendation, therefore Article 12§1 does not formally apply to a legal act that is not a recommendation. The Court refuses to imagine here a broad interpretation by analogy in order to equate acts other than recommendations with recommendations within the meaning of Article 12§1 and thus further close access to the Court, which the Court does not do. The material reason is quite understandable, given that the Palestinian question, and therefore the question of the wall that led to the 2004 opinion, but also the question of Kosovo, have for years been dealt with in parallel by both bodies. They are dealt with by the Security Council, but also by the General Assembly, and it is therefore only logical to give both sides an opportunity to consult the Court in the course of their work.
Discretion of the Court to respond to the request?[edit | edit source]
It should be noted here that Professor Kolb's opinions in this regard may not be completely in line with those of the majority. Professor Kolb is in the doctrinal minority on this issue and it seems correct to point this out. Professor Kolb does not want to convey his opinion as the opinion of the majority or as true, it must be taken for what it is worth.
The dominant opinion which is simply dominant by inertia also because it refers to what the Court itself says all the time and does not question that. Indeed, the Court, in a case law whose clarity is only equalled by the venerable age, has always said that it has a discretionary power to respond or not to respond to the request for an opinion made to it. Unlike litigation, where it is necessary to respond when States bring cases before the Court because it is not possible to deny the right, it would be possible to see the merits of the advisory opinion. It is peculiar for a Court of Justice to claim discretion, it is a little bit, "I answer or not to the client's head according to my instant menstrual period", it is strange. One wonders, first of all, where the Court gets this idea from, quite frankly, a little bit surprising for a Court of Justice. That a political body has a certain discretion is fine, but a Court of Justice....
In this respect, the Court invokes Article 65(1) of the Statute, which reads as follows: "The Court may give an advisory opinion on any legal question at the request of any organ or agency authorized by the Charter of the United Nations or in accordance with its provisions to request such an opinion". The main thing is at the beginning: the Court can give an advisory opinion. For the Court, this means that the Court should not give, but it can. "May", it takes it to mean "discretionary power". When we "may", it also means that we "may not".
However, in its own case law, the Court adds each time, after having trumpeted its discretion, it adds another recital generally in the same paragraph so that the link between the two is maintained even numerically, it adds the recital which consists in saying that, but since the response to a request for an advisory opinion is a contribution of the Court to the proper functioning of the United Nations - it actually has a slightly more neutral vocabulary in this respect - since it is therefore a contribution to the functioning of the United Nations, in principle, the Court should not refuse to give an advisory opinion. In principle, one should not refuse, the Court cannot avoid when it comes to contributing to the proper functioning of the organisation.
Already at this stage, it is possible to notice that the two recitals do not marry very well, because to start by saying that there is an opportunity, that one can or cannot not continue afterwards by saying that in principle "I must", basically, one wants to answer "you should choose", it is one or the other. The majority of the authors therefore conclude with the Court that it has discretion.
Professor Kolb's opinion is that he does not believe, and has not believed for a long time in this so-called discretionary power. At the time of the nuclear weapons advisory opinion case, Professor Kolb had worked with Georges Abi-Saab, both of whom were in tune with this point, preparing the exhibits that Abi-Saab read on behalf of Egypt in court. First of all, the Court has never used this discretionary power. Since 1922, the year in which the Permanent Court began operating, until today, there has never been a case in which the Court has refused to give an advisory opinion on the basis of discretion. It refused to respond to a request for advice only twice and both cases were jurisdictional issues with the case of East Karelia and the case of nuclear weapons with WHO.
It still seems surprising to postulate a discretionary power that in more than a hundred years, it has never been necessary to exercise. Rather, Professor Kolb believes that this discretionary power is nothing more than a condition for the admissibility of the claim. What lawyers sometimes call a problem of general admissibility. There are special admissibility grounds such as lis pendens and others, and there is a general admissibility ground, which is that of judicial integrity. If a request for an advisory opinion is made in this way, that the Court cannot respond to it without discrediting itself as a judicial body, i.e. without violating its judicial integrity, then it cannot refuse to respond, but it must refuse to respond and therefore the discretionary power disappears in any case which is sometimes referred to in English as "judicial property".
What are the cases in which one could imagine that the judicial integrity of the Court could be put to a severe test, so that the judicial act it produced would undermine its judicial integrity. There is a whole series of possible cases, but they are very marginal, of course, and marginal, have they remained so in practice since we do not have a single case so far where the Court has refused to respond. Some hypotheses can be considered, one can consider the hypothesis that the requesting body would try to circumvent the consent of the States involved in a dispute. This would probably be the case if the requesting organ placed the dispute between the two States directly before the Court and not issues relating to its own role in its dispute.
If, therefore, the organ receives the dispute and rather than deal with it itself, it refers it back to the Court as it stands, saying "go" and the States have not given their consent; in that case, it could not be seen as a straightforward circumvention of the contentious procedure procedure and the requirement of consent, as no substantive response that must be given to the requesting organ on its own activities, but simply as a backdoor means of obtaining a position on a dispute on which States do not want me to adopt a position. This could be a problem of judicial integrity because the judge would give the impression that he or she is not taking the consent test seriously. That he is an accomplice in a hijacking procedure.
Alternatively, it could well be imagined that the requesting body would submit a question to the Court, but not give it the necessary factual elements in order to be able to give a sufficiently balanced answer. The Court may feel uncomfortable because how to take a position on this legal issue when it considers that it does not have the necessary factual elements to be able to give an answer that makes sense. If the Court gives an answer on the basis of facts it has, it could give an answer that is also seriously incorrect and this would of course retroactively affect the prestige and integrity of the Court and therefore it could be led to refuse to meet these conditions and it must be led to do so if it is convinced that it cannot do justice to the question raised as long as the information given to it is what it is. The requesting body could of course simply be asked to provide more information, but depending on the case, if it is a question of military secrets, it has already happened that documents, particularly in the genocide case, have been submitted to the Court, blackened documents have been submitted and the question may arise. If in an advisory case the main question revolves around an issue where there is a lot of blackening in the documents, is there not a risk of giving a biased opinion? If the Court is convinced, it should have refused the opinion, but this is not a discretionary question, it is a question of admissibility. Either there is sufficient information and the opinion must be given and there is no need for political manipulation, or the information is not available and at that moment, it is not possible to give the opinion.
Another example could be a procedural inequality before the Court. The question has often been asked, but so far the Court has managed to get around the problem, but sometimes with a very powerful exercise of judicial intervention. If both parties to a dispute were placed in a position of inequality before the Court, which is obviously completely contrary to the fundamental principles of the judicial process, the problem arose with regard to appeals by civil servants. With the case concerning the judgements of administrative tribunals within the United Nations, the staff member wants to appeal and goes through a committee that refers the matter to the Court for advice. The problem is that there is inequality before the Court because the applicant organisation through the committee can present its arguments before the Court while the official cannot present its arguments, he cannot go before the Court and read, neither he nor his lawyer, his own statement. This results in a rather unfortunate procedural inequality because it gives the impression of hearing one side and not the other. For the judge, there is no worse than that. So obviously, the arguments of the official were transmitted by the committee that referred them to us, but the committee is a subsidiary body of the General Assembly, so it is an organ of the organization against which the official is in dispute. In the 2012 agricultural fund case, the Court was extremely violent in this respect and for the first time in its jurisprudence refused to hear the organisation concerned. So she filled the gap from above, she did not make her refuse to give the opinion because there is an inequality that she could not support, she tried to reduce the inequality by refusing to hear the organization. It did not have a statutory basis to do so, so it has made significant progress. Here are some examples where there may be a problem of judicial integrity. In these cases, the Court is required not to respond.
These are the reasons why Professor Kolb does not believe in discretion. The opportunity for a judge to do something if he or she wants to do it or not, on grounds that are not explained, is a weapon that should be abandoned. It is preferable to turn this into a fairly general reason of admissibility or inadmissibility revolving around judicial integrity, but then with a duty to act accordingly, either to give the opinion when judicial integrity is not achieved or not to give it when it is achieved. The only question is an assessment, but it is not discretionary, it is an assessment of what constitutes judicial integrity. This is an assessment that is not as certain as a 30-day period.
Effect of advisory opinions[edit | edit source]
There are three very quick remarks.
The advisory opinion is not enforceable, i.e. it does not oblige the requesting body to comply with the Court's findings. The reasons for this choice were discussed last time. However, an obligation to implement the advisory opinion may arise from a particular source of international law. It may be provided in a legally binding text that the Court's advisory opinion shall be considered binding. This is the case in the Statute of Administrative Tribunals, where provision is made for the possibility of appeal to the International Court if the official wishes to challenge the decision of the Administrative Tribunal, and it is provided in the Statute of these Tribunals that the opinion of the Court will be binding. It is therefore by a particular legal text, namely the Statutes of these Courts, that the binding nature of advisory opinions is stipulated for this particular case. It is also possible that the organ may agree to consider the advisory opinion as binding either in advance or ex-post, and it has even happened in the Court's case law that the States concerned by the dispute before the Council of the League of Nations may agree that the Council may submit the matter to the Court and at the same time agree to bow to the Court's opinion.
This happened in the former case of the 1923 Tunisian and Moroccan nationality decrees of 1923 between the United Kingdom and France on issues of nationality of certain nationals and jurisdiction. Both States agreed before the Council's negotiations to allow the Court to express its views on the matter and to bow to what the Court would say and therefore to accept the advisory opinion as final and binding on them. If there are no such specific legal bases, the notice is not enforceable.
On the legal point dealt with by the Court, the political body that referred the matter to it cannot disavow it. Of course, the political body is not obliged to implement what the Court says because, as we have already said, it must be able to deal with these issues also in the context of political considerations. If there is a dispute, one should not necessarily be obliged to settle it in law, it is also possible to seek compromises, i.e. the modification of the law. But on the legal issues that the Court has dealt with and determined, according to Professor Kolb, the political body cannot say that what the International Court says about the law is false; if the political body wishes to do so, when it does not solicit the Court at all. Therefore, the Court's legal considerations are final and cannot be challenged by the requesting body, but that is the end of the story and there is nothing to execute; as for States, they are even less obliged because if they have not requested the Council, they are therefore under no obligation either to implement the Court's conclusions or to accept them legally.
Procedure[edit | edit source]
The general rule is found in article 68 of the Statute, which provides that, as far as possible, the Court shall apply the provisions of the contentious procedure to the advisory procedure by analogy. It is understandable that the advisory opinion is not discount justice, it is justice in the full sense of the word and therefore with a procedure that itself is not discount justice. The procedure that is not discounted is in litigation. It is quite possible to say that the principle is the analogy, "you take from the advisory what you do in litigation from the advisory".
But, of course, there are still some necessary changes, because in the consultative procedure, there are no parties to the proceedings and this still has certain consequences. So what are these consequences?
It is not necessary, except in very special cases provided for in Rule 102 of the Rules of Procedure, to appoint a judge ad hoc as there are precisely no parties to the proceedings. Nor, for the same reason, is there any burden of proof in the strict sense of the term, because there is no contradictory burden in litigation and the burden of proof only makes sense in the contradictory and the Western Sahara case reminds us otherwise in paragraph 44 of that opinion, where the Court recalls that there is no burden of proof in the formal sense of the term. Obviously, when States present arguments to the Court, in an advisory procedure, there is no pleading because there is no litigation, but there is an oral statement that States can request. If an oral argument is made to persuade the Court of something, it is better to submit sufficient and solid evidence because it will be more persuasive. It is not a question of the burden of proof, it is simply a question of the credibility of the argument put forward.
Can we set up chambers in a consultative case? Chambers of the Court with five judges within the meaning of Article 26 of the Statute. This has never been done before. The grounds for establishing a chamber are mainly grounds that exist in litigation proceedings, such as speeding up the proceedings or reducing them. The consultative procedure is not long anyway, so it is not certain that we need chambers in this procedure, but if the requesting body wishes to have a chamber, could it by analogy in the contentious procedure or not? The answer is not clear and there is no case law.
Can a precautionary procedure be requested in an advisory procedure? Does it make sense to request provisional measures when the advisory opinion is not binding, unlike the final judgment of the Court, is there sufficient grounds to have provisional measures since there is no binding judicial pronouncement, should it be said that since the opinion is not binding, provisional measures would also simply be a recommendation in this context? There was a request for provisional measures in an old case of the unknown Ecumenical Patriarch because the case was immediately discontinued, i.e. the requesting body withdrew the case. If he had not withdrawn it because a solution had been found, there might have been some interesting indications because once he had brought the matter before the Court, the requesting body immediately requested provisional measures and it would have been interesting to see what the Court would have had to do. Can it, should it not indicate such measures in the context of these procedures, we also do not know because since the old case of the Ecumenical Patriarch in the 1920s, there has never been a precedent again.
All this, in a practical way, is not very interesting, but these are interesting questions that could suddenly arise before the Court at some point. It will be very interesting to see how it will be determined if they arise at some point.