Advisory Opinions of the International Court of Justice

Abstract

The International Court of Justice’s most recent advisory opinion on the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 brings to the surface two important questions in respect of the Court’s advisory jurisdiction. First, should the Court be issuing advisory opinions in the context of a highly political dispute between states? Second, can other international organisations treat the advisory opinion as the basis of a binding legal obligation? This article delves into the implications of different answers to these questions. I conclude that, in respect of the second question, it would be problematic for an international organisation to treat an advisory opinion as the basis of a binding legal obligation. This is because the Court’s advisory opinions are only capable of conveying a moral force under the international law that creates them. Further, it would jeopardise the principle of state consent as it risks a dispute between two states being settled on the basis of an advisory opinion, without their explicit agreement. Following this conclusion, I argue that it is otherwise beneficial for the Court to issue opinions on highly political disputes. However, the caveat to this argument is that the Court should make it clear that its advisory opinions are not capable of forming the basis of a legal obligation. Otherwise, an international organisation could treat the advisory opinion as capable of having legal effect, as exemplified by the Special Chamber of the International Tribunal of the Law of the Sea’s treatment of the Chagos Archipelago opinion.