Selasa, 26 Agustus 2014

The Limit of Advisory Opinions



I.          Introduction
One of the functions of the International Court of Justice [ICJ] is to give an advisory opinion for authorized international organizations. It means the ICJ has an advisory jurisdiction. Although, the ICJ has jurisdiction, the existence of jurisdiction does not create its obligation to exercise it.[1] This means the ICJ has the power to decline or to accept a request. This power is called a discretionary authority. Through the case of Kosovo, it discusses whether the ICJ uses its discretionary authority. The other point is the ICJ’s assertion of advisory jurisdiction. Before giving an opinion, the ICJ will review the motives of the authorized organs or the interested states in their request for an advisory opinion. This motive has been discussed on the ICJ advisory opinion of the legality of the Use by a State of Nuclear Weapons in Armed Conflict.   
The ICJ Statute was installed, ‘annexed’, to and from an integral part of the United Nations Charter.[2] It is clear that Article 7 (1) of the United Nations Charter crystallizes the function of the ICJ as one of the principal organs of the United Nations. Although the ICJ was established as a principal judicial organ and within the legal and political frameworks of the UN, the ICJ is bound to give its decisions ‘in accordance with international law’ as is stated in Article 38 of the ICJ Statute that the ICJ ‘whose function is to decide in accordance with international law such disputes which are submitted to it’. This provision enables the ICJ to decide its case without considering the political aspects of cases even though there are political aspects within the cases, for instance, the ICJ Advisory Opinion of the ‘Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo’ and the ICJ Advisory Opinion on the ‘Legality of the Use by a State of Nuclear Weapons in Armed Conflict’ as well as on the ICJ Advisory Opinion on ‘the Western Sahara.’

This paper will discuss the limit of the ICJ’s advisory jurisdiction as a judicial organ of the United Nations and it is going to emphasize the neutrality of the ICJ Advisory Opinion is based on international law; even though the ICJ is aware that the context of the cases has a political background.                      
II.        Regulation
The jurisdiction of the ICJ is to give an advisory opinion on any legal question at the request of whatever authorized bodies is based upon Article 65 of the ICJ Statute. Authorized bodies in accordance with the UN Charter that can request an advisory opinion are laid down in Article 96 (1) & (2) of the UNs Charter.            
III.      Argumentation
There are several conditions ICJ should regard before giving an advisory jurisdiction; the conditions are considered as the limits of the ICJ’ advisory proceedings. The conditions are the competence bodies which request the advisory opinion and the subject matters that formulate into a legal question. As a principle of the advisory jurisdiction and provided that the conditions are fulfilled, the ICJ will not refuse to give an advisory opinion. Under Article 65 of the ICJ Statute, the ICJ has a discretionary power either ‘may give’ or ‘may not give’ an advisory opinion on any legal question as requested by authorized bodies and to put it under its advisory jurisdiction. The ICJ may refuse to give an advisory opinion unless there are ‘compelling reasons’. The compelling reasons are the lack of jurisdiction; the lack of consent of an interested state; any decision could impede politics; the lack of adequate facts & evidence; and the lack of useful purpose.[3]  The characteristics of the advisory opinion are that it does not need a dispute for exercising the advisory jurisdiction[4] and the question should be arisen from the activities of authorized bodies.   
             The authorized bodies that may request an advisory opinion under Article 96 (1) of the United Nations Charter are the General Assembly or the Security Council. The power of the General Assembly and Security Council under Article 96 (1) of the UN Charter to request advisory opinions is absolute in any legal matters within their activities. The scopes of the Security Council’ activities are to maintain international peace and security, under Article 24 of the UN Charter, and to act with respect to threats to the peace, breach of the peace, and acts of aggression, under Chapter VII of the UN Charter; whereas the scopes of the General Assembly under Article 10, 11, and 13 of the UN Charter are wider than the Security Council. Article 10 of the UN Charter states the General Assembly may discuss any questions or any matters within the scope of the UN Charter relating to the powers and functions of any organs provided for the UN Charter.  Article 11 the General Assembly has a competence to consider the general principles in the maintenance of international peace and security. The aims of an advisory opinion are to provide legal advice and guidance to the General Assembly or Security Council or the other organs of the United Nations. Therefore, the General Assembly and Security Council hope through the advisory opinion of the ICJ it can crystallize the world opinion; in some cases it can help the General Assembly and Security Council to furnish their activities[5] and to clarify certain fields in international law.[6]
            The other organs of the United Nations and specialized agencies under Article 96 (2) of the United Nations Charter may get authorization by the General Assembly to request advisory opinions of the ICJ on legal questions arising within the scope of their activities. To define the scope of the activities of the specialized agencies, the ICJ should analyze them on the basis of the constitutive instrument of the relevant organ, as well as on its practice.[7] Therefore, the ICJ may assess whether the question arises from the activities of the requested bodies.  
In the case of Nuclear Weapons[8], it can be seen between the requested body and the question, there is no clear connection on their activities; therefore, the ICJ has a compelling reason to refuse the advisory opinion. Within this case, the specialized agency of the United Nations which requested the advisory opinion was the World Health Organization. The WHO submitted a question to the ICJ for an advisory opinion in 1993[9]. The question was ‘In view of the health and environmental effects, would the use of nuclear weapons by a State in war or other armed conflict be a breach of its obligations under international law including the WHO Constitution?’
In the view of the ICJ, according to article 2 of the WHO Constitution, ‘none of these functions has a sufficient connection with the question to be capable of being considered as arising within the scope of the activities of the WHO[10].’ Therefore, the ICJ considers the request for an advisory opinion submitted to it by the WHO does not arise within the scope of the activities of that organization in accordance with Article 96 (2) of the United Nations Charter. The Court finds that an essential condition of founding its jurisdiction in the present case is absent and therefore it cannot give the opinion. Consequently, the Court is not called upon to examine the arguments which were laid before it with regard to the exercise of its discretionary power to give an opinion[11].’ In this case, the exercise of its discretionary power was the limit of the ICJ advisory opinion.  
            In this case, the ICJ found that the question has a political dimension in the nature of the case background. However, the ICJ cannot refuse to admit the legal character of the question[12]. Therefore, ‘the court also finds that political nature of the motives which may be said to have inspired the request and the political implications that the opinion given might have are of irrelevance in the establishment of its jurisdiction to give such an opinion.[13]    
            In the case of Kosovo, even though the statehood of Kosovo was the main background of the question and the background is considered as political, the ICJ has to draw the line in accordance with Article 38 of the ICJ Statute that the advisory proceeding should focus on the legal framework and should be based on international law. In the Kosovo case, there were no compelling reasons to exercise its jurisdiction, even though several states challenged it to implement the power.  
Advisory opinion on Kosovo started from the unilateral declaration of Kosovo from Serbia. It was declared on 17 February, 2008[14] by the Kosovar authorities; then the unilateral declaration led the international community to raise a legal question. The legal question was discussed on October 8, 2008 at the General Assembly of the United Nations and released by the General Assembly through its Resolution A/63/PV.22. In the resolution, the General Assembly requested an advisory opinion of the ICJ on the question of ‘Is the unilateral declaration of independence by the Provisional Institutions of Self Government of Kosovo in accordance with international law?’[15]
The question was challenged by Serbia because Serbia was the interested state either in unilateral declaration of Kosovo being an independent state from Serbia or in publishing the General Assembly Resolution. The Serbian statement on the Resolution stated clearly that ‘…the ICJ’s advisory opinion would provide politically neutral, yet judicially authoritative guidance to many countries…’[16] including Serbia. The ICJ responded to the Serbian statement that ‘the advisory jurisdiction is not a form of judicial recourse for states, but the means by which the General Assembly, the Security Council, and other organs of the United Nations can issue a statement.’[17] However, the motive of Serbia on initiating the advisory opinion is irrelevant to the ICJ’s exercise of its discretion whether or not to respond.
            The ICJ observed the question that the question was ‘narrow and specific’; ‘it asked for the ICJ’s opinion on whether the declaration of independence is in accordance with international law; it did not ask about the legal consequences of the declaration; it did not ask about how Kosovo has achieved statehood; it did not ask about the validity or legal effects of the recognition of Kosovo by those which have recognized it as an independent state’[18].   
Although the discretionary power was challenged, the respective role of the Security Council is to exercise its responsibility for the maintenance of international peace and security, and this is not one of the respective roles of the General Assembly. The ICJ refused to accept the compelling reasons because the General Assembly was entitled to discuss the declaration within the limits of Article 12 of the UN Charter to make recommendations in respect of the situation in Kosovo without infringing on the powers of the Security Council.[19]
In the Kosovo case, the ICJ came to the conclusion that ‘the adoption of the declaration of independence of 17 February, 2008 did not violate general international law, Security Council resolution 1244 (1999) or the Constitutional Framework. Consequently, the adoption of that declaration did not violate any applicable rule of international law.’[20]
The advisory opinion on the case of Western Sahara was embodied in General Assembly resolution 1514 (XV), on the two questions that were Western Sahara at the time of colonization by Spain a territory belonging to no one (terra nullius)?; and what were the legal ties between this territory and the Kingdom of Morocco and the Mauritanian entity? The questions were naturally formulated as legal questions. The ICJ was suggested the questions were not legal questions, but they were factual in consideration of the historical background of the Western Sahara. However, the ICJ was satisfied of its competence to give an opinion and there was no compelling reason to refuse to comply with the request by the General Assembly.[21] Even though Spain did not express its consent and has made the observation that the advisory jurisdiction was used to settle a dispute so that needed the consent of the parties; the question was attributed to territorial sovereignty over Western Sahara; the Court did not possess the necessary information.[22]  
            In this case, the compelling reason was challenged ‘to what extent or degree its opinion will have an impact on the action of the General Assembly is not for the Court to decide. The function of the Court is to give an opinion based on law, once it has come to the conclusion that the questions put to it are relevant and have a practical and contemporary effect and, consequently, are not devoid of object or purpose[23].’
IV.      Conclusion
In conclusion, although the ICJ has discretionary power to decline the advisory opinions, the ICJ has rarely used its power. Furthermore, the compelling reasons in several advisory opinions have been challenged by the interested states; however, not all of the compelling reasons from the interested states have been accepted by the ICJ. By observing the three cases, it can conclude that the question must be a legal question even though the background of the question has a political dimension. Provided that there are political motives behind the legal questions, the ICJ is not concerned with any allegedly political motives behind the questions. In this regard, the ICJ has affirmed its jurisdiction on the cases of Western Sahara and Kosovo.
            Nonetheless, the ICJ is a judicial organ of the United Nations; the ICJ is bound to give its opinion under international law and should provide neutral opinions. Therefore, its opinions can be used as guidance and clarification not only for the interested states, but also the requested organizations.   

           



[1] Capps, Evans, Konstadinidis, Asserting Jurisdiction, International and European Legal Perspective, Oxford, 2003, p. 198.
[2] Article 92 of the UNs Charter and Article 1 of the ICJ Statute.
[3] Brabandere, The Kosovo Advisory Proceedings and the Court’s Advisory Jurisdiction as a Method of Dispute Settlement, www.haguejusticeportal.net, p 3-4
[4] Singh, The Role and Record of the International Court of Justice, p 84.
[5] See supra note No. 4, p. 26.
[6] Capps, Evans, Konstadinidis, Asserting Jurisdiction, International and European Legal Perspective, p 197.
[7] See supra note No. 6, p 197.
[8] ICJ Advisory Opinion, Legality of the Use by A State of Nuclear Weapons in Armed Conflict, 1996, No. 93, at 20.
[9] See Supra Note No. 8, at 1.
[10] See supra note No. 8 at 31.
[11] See supra note No. 8 at 26.
[12] See supra note No. 8 at 16.
[13] See supra note No. 8 at 17.
[14] General Assembly Resolution Sixty-third session, A/63/P.22 paras. 3.
[15] ICJ Advisory Opinion, Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, 22 July 2010, at 21.
[16] See supra note No, 14 p. 1, paras. 7.
[17] See supra note No. 15 at 33.
[18] See supra note No. 15 at 51.
[19] See supra note No. 15 at 44.
[20] See supra note No. 15 at 122.
[21] ICJ Advisory Opinion, Western Sahara, 16 October, 1975, No. 414, at 74.
[22] See supra note No. 21 at 25.
[23] [23] See supra note No. 21 at 73.

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