Legal Nature of Advisory Opinions of the International Court of Justice

Abstract

The article explores the legal nature of advisory opinions of the International Court of Justice. It has been established that advisory jurisdiction consists of at least two main elements – ratione personae and ratione materiae. The original power to request advisory opinions is given to the General Assembly and the Security Council. The Court’s case-law demonstrates that political aspects of question or political motives don’t give any grounds to refuse the request for an advisory opinion. The advisory opinions de jure are not legally binding. However, in practice, due to its quality and the status of the International Court of Justice, the advisory opinions are authoritative. In order for the advisory opinion to be authoritative, it is important that the Court’s position is not divided. Advisory proceedings in its form are similar to the proceedings in disputes, indicating the judicial nature of the advisory opinions. It has been found that in practice, the bodies that requested an advisory opinions of the ICJ, as a rule, follow them. An analysis of the interpretation and application by the Court of the international treaties in the advisory opinions demonstrates that the Court acts as the main judicial organ of the United Nations. There has been established the indirect influence of the ICJ on the formation of an international custom through the use of resolutions of the UN agencies as proof of opinio juris. In the advisory opinion Reparation for Injuries Suffered in the Service of the United Nations International Court of Justice has created a new rule of international customary law regarding the status of a legal entity in international organizations and, consequently, personal legal personality. It is also worth mentioning the advisory opinion Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, by which the Court has given an impetus to the development of international customary law in the area of reservations to multilateral treaties, in particular with humanitarian purposes. In the advisory opinion of the Western Sahara, the Court not only substantiated the universality of the principle of self-determination, but also clarified what features, in it’s opinion, should have the will of the people. In the advisory opinion Legality of the Threat or Use of Nuclear Weapons the Court substantiated that the rules of international humanitarian law became part of international customary law. Advisory opinion Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory has contributed to the understanding of a number of norms as customary. In particular, the Court confirmed the customary nature of the Hague Convention Respecting the Laws and Customs of War on Land of 1907. In addition, the Court noted that the obligation to respect the right of other peoples to self-determination was a commitment erga omnes. Key words: court; law; justice; dispute; advisory opinion; case-law; custom.