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.
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