ADVISORY OPINIONS’ CONTRIBUTIONS TO INTERNATIONAL DISPUTE SETTLEMENT

The intended purpose of advisory opinions is to provide the elements of law necessary for requesting United Nations (U.N.) bodies to carry out their actions, rather than delivering a method of international dispute settlement (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136, para 60). In practice, however, U.N. bodies have requested advisory opinions in situations where there is an underlying dispute between states. As a result, this blog post argues that advisory opinions can contribute to dispute settlement in both positive and negative ways.

For example, advisory opinions provide guidance to the requesting U.N. bodies on the ways in which a solution to their problem may be reached. Despite their nonbinding nature, advisory opinions have important legal effects (Jochen A Frowein and Karin Oellers-Frahm, ‘Part Three Statute of the International Court of Justice, Ch IV Advisory Opinions Article 65’, Max Planck Encyclopaedia (2nd edn, 2012) para 45). Whilst other courts and tribunals may have the jurisdiction to provide advisory opinions as well, this paper will primarily focus on those given by the International Court of Justice (ICJ). The ICJ has the scope to provide advisory opinions, which are intended to assist and guide the U.N in how it carries out its functions rather than providing a long-term solution for a particular issue. For instance, in Western Sahara Advisory Opinion (“Western Sahara”), the ICJ said that settling the issue would not affect the rights of Spain but may assist the U.N. General Assembly in deciding the policy to accelerate the decolonization process in the territory (Western Sahara Advisory Opinion [1975] ICJ Reports 12, para.42 (Western Sahara). In the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (“Wall Opinion”), where an advisory opinion was sought in relation to Israel constructing a wall partially along the Green Line boundary between Israel and the West Bank, the ICJ intended to address the construction of the wall and not the broader issues concerning the Israel and Palestine conflict. Furthermore, in Accordance with international law of the unilateral declaration of independence in respect of Kosovo (“Kosovo Opinion”), the opinion imposed an obligation on the General Assembly to adopt a resolution acknowledging the opinion. This latter example further supports the argument that an advisory opinion provides an additional support to a resolution, particularly in the situation where there is an underlying dispute involving the requesting organ. In such circumstances, a resolution alone does not have as much of an influence as an additional advisory opinion could on reaching a solution (Rosalyn Higgins, ‘A Comment on the current health of advisory opinions’ in M Fitzmaurice, A V Lowe and R Y Jennings (eds), Fifty Years of the International Court of Justice: Essays in Honour of Sir Robert Jennings (Cambridge University Press 1996) 576).

The Inter-American Court of Human Rights’ advisory opinion on the Environment and Human Rights (The Environment and Human Rights (State Obligations in Relation to the Environment in the Context of the Protection and Guarantee of the Rights to Life and to Personal Integrity – Interpretation and Scope of Articles 4(1) and 5(1) of the American Convention on Human Rights), Advisory Opinion OC-23/18, Inter-Am. Ct. H.R.  (ser. A) No. 23 (Nov. 15, 2017)) demonstrated the way in which an advisory opinion can prevent disputes (Monica Feria-Tinta and Simon Milnes, ‘The Rise of Environmental Law in International Dispute Resolution: Inter-American Court of Human Rights issues Landmark Advisory Opinion on Environment and Human Rights’ (EJIL Talk, 26 February 2018) <www.ejiltalk.org/the-rise-of-environmental-law-in-international-dispute-resolution-inter-american-court-of-humanrights-issues-landmark-advisory-opinion-on-environment-and-human-rights/> accessed 24 March 2019). The advisory opinion broadened the scope of human rights claims with respect to environmental damage and transboundary pollution. It also drew attention to debates about regulating multinational corporations to protect human rights. The opinion provided a guide to states concerned about development in the region on how to approach potential disputes in the future regarding human rights claims arising out of environmental damage.

In certain circumstances, however, advisory opinions have done more harm than good to dispute settlement. States can reject advisory opinions when they object to a court’s use of its advisory jurisdiction to comment on a dispute in which they are involved. As a result, consent has been an issue in some ICJ advisory opinions and the ICJ, in these circumstances, has reaffirmed that the need for advisory jurisdiction originates from a requesting organ of the U.N. rather than the disputing parties (Sienho Yee, ‘Notes on the International Court of Justice (Part 7) – The Upcoming Separation of the Chagos Archipelago Advisory Opinion: Between the Court’s Participation in the UN’s Work on Decolonization and the Consent Principle in International Dispute Settlement’ (2017) Chinese JIL 623, 634). This is because the advisory jurisdiction relates to the U.N.’s Chapter 7 powers to maintain international peace and security and the proper exercise of an organ’s functions (United Nations, Charter of the United Nations, 1945, 1 UNTS XVI). However, objecting states have nevertheless criticized and failed to take into consideration the ICJ’s findings, as evidenced by the Wall and Kosovo opinions. For example, one argument in the Wall opinion was that, in giving this advisory opinion, the ICJ is impeding a political and negotiated solution to the conflict. Despite the fact that the ICJ has the discretion to exercise its advisory jurisdiction, in this particular case the ICJ acknowledged that they were uncertain as to how the opinion may affect the negotiations between Palestine and Israel but this was not a compelling reason for them to decide not to exercise this advisory jurisdiction. Similarly, the outcome of the Western Sahara opinion has yet to resolve completely the issue of self-determination of the people of Western Sahara (Rens Steenhard, ‘What Future for Western Sahara?’ (Peace Palace Library, 26 April 2010) <https://www.peacepalacelibrary.nl/2010/04/what-future-for-western-sahara/> accessed 23 March 2019). Therefore, it is apparent that in some circumstances advisory opinions negatively affect the progress of reaching a settlement.

It is apparent that in practice, advisory opinions have had both positive and negative effects on dispute settlement. In certain situations, advisory opinions have created more criticism than positive developments. Nevertheless, it is important to remember that advisory opinions in any case have a limited contribution to dispute settlement.


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