Advisory Opinion Research Articles

Ugovor o zabrani nuklearnog oružja - položaj, primena i značaj

Although there was a opinion that the Treaty on Prohibition of Nuclear Weapons would represent the end of the era of the development of this type of weapon and the threat of nuclear war, this did not happen, having in mind that no country possessing a nuclear arsenal have acceded to the Treaty yet. The paper analyzes the main aspects of this document, its advantages and disadvantages. Additionally, using a comparative method, we will try to determine the relationship of this treaty with other sources of international public law, primarily treaties that may refer to the use of nuclear weapons, but also customs. Special attention is given to the influence of the Advisory Opinion of the International Court of Justice on the legality of the use of nuclear weapons on the attitudes of states on the permissibility of the use of nuclear weapons. At the end, taking into account the current political and social circumstances in international relations and the opinions of international law theorists, we will try to answer the question why this treaty is still important, because nuclear weapons are the tool may be played by nuclear powers, especially in terms of their potential use in the case of self-defence.

Interaction, Appropriation and Complementarity of ILO Standards on Freedom of Association and Strike Action in Advisory Opinion OC 27/21 of the Inter-American Court of Human Rights

Interaction, Appropriation and Complementarity of ILO Standards on Freedom of Association and Strike Action in Advisory Opinion OC 27/21 of the Inter-American Court of Human Rights

International legal cases enhancing the scope of environmental protection

International jurisprudence has a crucial role in the development of international environmental law. There is a close relationship between legal cases and environmental protection in international environmental law. Legal cases address contemporary problems and include new legal principles and rules of international law that can develop the scope (principles, structures and implementation) of environmental protection. In this perspective, judgments, advisory opinions and decisions of the international courts and tribunals, especially the International Court of Justice, have shown that State sovereignty has always been a limitation of the global expansion of environmental protection scope. Moving from absolute State sovereignty to the rule-based equitable and reasonable use of land could be an excellent opportunity to develop this legal field. Environmental protection emerged in the Trail Smelter case of 1941 as an earlier environmental dispute which resulted in the development of the environmental protection concept in other legal cases. Based on selected cases in international environmental law, the research attempts to analyze three stages of the emergence, enhancement and evolution of the environmental protection principle.

The Quebec Secession Reference and the federal Clarity Act: the fascination with clarity and the value of ambiguity

This article examines the ongoing relevance of the Supreme Court of Canada’s Reference re Secession of Quebec (1998) in managing tensions arising from the coexistence of multiple political communities within a single constitutional order. It explores the lessons to be learned from this landmark case in light of recent debates such as the Scottish independence referendum and Catalonia’s “right to decide”. The article argues that, while the Reference provides a valuable framework for analysing multinational democracies and federal systems, caution should be exercised when employing the political and legal grammar associated with the federal Clarity Act. The latter, enacted by the Canadian federal Parliament after the Quebec Secession Reference, purported to clarify the Supreme Court’s advisory opinion, but actually aimed to exert control over Quebec’s potential secession. By examining the historical, political and legal context, the present article highlights the divergence between the federal Clarity Act and the spirit of the Quebec Secession Reference. It underscores the need to reassess the legacy of these events and their relevance in managing political and legal tensions within multinational democracies. It also invites scholars and political actors interested in these issues to appreciate the significance of ambiguity and avoid overestimating the advantages of clarity.

Frontier issues in international ocean governance: Japan's discharge of nuclear contaminated water into the sea

This paper aimed at explore international ocean governance issues through the perspective of Japan's nuclear contaminated water discharge to the sea. This paper analyzes the core issue of Japan's plan to discharge nuclear contaminated water into the ocean from the perspectives of Japan's international legal obligation, law enforcement issues, and judicial issues after integrated analyzing academic research paper and cases. Japan has obligations such as timely notification, information disclosure, environmental impact assessment, and avoidance of transboundary harm. Intergovernmental and non-governmental international organizations, such as IAEA, IMO and WHO should play a role in setting up an international group of experts to carry out monitoring and assessment, and whose positions and attitudes are important references for judging Japan's behavior. Cases heard before ICJ, ITLOS, and advisory opinion proceeding could provide reference from the judicial perspective on the issue of transboundary harm and proof of damages. Furthermore, this paper discusses the response strategies that the international community especially the opponents may adopt, including promoting the adoption of relevant treaties, take a combination of requesting advisory opinion and file arbitration, establish effective international monitoring mechanism, and engage in close communication with stakeholders.

Peaceful settlement of inter-state energy disputes: applicable law, defence arguments, and remedies in the ICC arbitration between Iraq and Turkey

Abstract At this critical juncture in the energy transition dominated by debates over armed conflicts, advisory opinions on climate changes, and investor-State arbitration, it is critical to also consider developments in the peaceful settlement of inter-State energy disputes. One central dispute between the Republic of Iraq and the Republic of Turkey arose out of the Crude Oil Pipeline Agreement for the supply and purchase of crude oil. Iraq filed a request for arbitration in May 2014 under the International Chamber of Commerce Rules of Arbitration. The Tribunal awarded Iraq nearly United States Dollars (USD) 1.5 billion. The Tribunal’s unanimous final award in 2023 discusses fascinating aspects of international energy transactions, including the choice of domestic law in a treaty dispute, defences under the law of treaties, a putative norm of jus cogens to prevent genocide, and possible remedies in an inter-State pipeline arbitration.

ICJ Advisory Opinion on Legal Consequences of the Separation of the Chagos Archipelago From Mauritius in 1965 (Chagos Advisory Opinion): A Critical Analysis

The Chagos AO is a milestone in the history of decolonization which certainly added some narratives to the jurisprudence of the right to selfdetermination, rules of identification of customary international law, and the practice of the ICJ in relation to its jurisdiction on an advisory opinion. Similarly, ICJ had missed dealing with the human rights of the inhabitants of Chagos Archipelago which was the subject matter of the opinion, whether the right to self-determination qualifies as peremptory norms or not, etc. This paper critically discusses the approach taken by the World Court in this case in five sections, e.g., the judicial propriety in the AO, the territorial aspect of the right to selfdetermination, the right to self-determination and customary international law, the right to self-determination and jus cogens, and human rights of the Chagossians. Dhaka University Law Journal, Vol. 33(1), 2023 P.95-110

The Contribution of itlos to Fight Climate Change: Prospects and Challenges of the cosis Request for an Advisory Opinion

Abstract On 12 December 2022, the International Tribunal for the Law of the Sea (itlos) received a request from the Commission of Small Island States on Climate Change and International Law (cosis) to render an advisory opinion in order to clarify the obligations of States under the 1982 United Nations Convention on the Law of the Sea (unclos) to protect and preserve the marine environment in relation to climate change, including ocean warming, sea level rise, and ocean acidification. Although itlos has dealt with environment-related issues in the past, it has not yet specifically dealt with climate change and its (in)direct impacts. This contribution, drawing on the first opinion delivered by the Tribunal in 2015, aims to scrutinize some critical legal questions that the request will inevitably face, engaging particularly with its main procedural and substantive aspects. Since it is unlikely that itlos will encounter any unsurmountable obstacles to render the opinion, it would be expected that the Tribunal will take this opportunity to shed light on the implications of climate change for the legal regime of the sea, but also on the role of the Tribunal itself, to definitively clarify its advisory function.

The Obligations of the States in Respect of Climate Change Before the International Court of Justice

Abstract This analysis discusses the advisory opinion requested by the UN General Assembly from the International Court of Justice (ICJ) in April 2023 on the obligations of states in respect of climate change. Although the ICJ’s decision cannot be expected before the autumn of 2024, important procedural anomalies have arisen, which require due regard to ensure that the ICJ can provide its advisory opinion in possession of sufficient information. In particular, firstly, not all Small Island Developing States have been notified by the ICJ and invited to submit written statements and, secondly, the amicus curiae provided by NGOs will be not accessible to the public. This analysis argues that all Small Island Developing States should have the opportunity to take part in the proceedings and the amicus curiae submitted by NGOs to the ICJ should receive proper publicity.

Advisory Opinion on Obligations of States in Respect of Climate Change: Potential Contribution of Human Rights Bodies

Abstract On 29 March 2023, the UN General Assembly adopted a resolution requesting an advisory opinion from the International Court of Justice on the obligations of states in respect of climate change. The icj’s opinion, if given, will be the first of an international court determining the elements of human rights obligations in the context of climate change. These issues have already been grappled with by UN human rights treaty bodies. I argue that the icj is entitled to take account of these jurisprudential developments, and should do so.

CRIMEAN OCCUPATION AND UNCLOS DISPUTE SETTLEMENT: NAVIGATING TERRITORIAL SOVEREIGNTY AND NON-RECOGNITION

Abstract. The article examines the interplay between the Crimean occupation and UNCLOS compulsory dispute settlement procedures, exploring how the fact of Crimea’s occupation can be established and UNCLOS dispute settlement procedures applied. It also investigates the contradiction within the Annex VII Arbitral Tribunal’s award in the Coastal State Rights Dispute due to Crimea’s occupation. The study concludes that to address violations made by the Russian Federation under the provision of UNCLOS Crimea’s occupation, Ukraine can seek an advisory opinion from the International Court of Justice. Strengthening Ukraine’s position requires a legally binding decision on Crimea’s occupied status and Ukraine’s coastal state status, possibly through an ad hoc tribunal with jurisdiction. Supporting evidence from other courts may be valuable, despite their lack of direct jurisdiction over the matter of occupation. The article also discusses the principle of nonrecognition and the tribunal’s neutral approach to accommodate both parties in its award in Coastal State Rights Dispute.

Decriminalising vagrancy offences in Africa beyond the African Court’s Advisory Opinion: quo vadis?

The African Court on Human and Peoples’ Rights (African Court) advisory opinion in Pan African Lawyers Union on the compatibility of vagrancy laws with the African Charter on Human and Peoples’ Rights and other human rights instruments in Africa (PALU opinion) 1/2018 recommends that states amend or repeal vagrancy offences that criminalise the life-sustaining activities of many persons targeted by these laws. The Court’s main opinion is that states’ national laws and by-lawscontaining vagrancy offences are vague, overly broad and ambiguous, conferring broad discretion on the police for their enforcement and targets people in terms of their status, not their conduct. These laws violate articles 2, 3, 5, 6, 7, 12 and 18 of the African Charter on Human and Peoples’ Rights; articles 3 and 17 of the African Charter on the Rights and Welfare of theChild; and article 24 of the Protocol to the African Charter on the Rights of Women in Africa. The main opinion insufficiently addresses the colonial root of vagrancy. A separate concurring opinion elaborates on the margin of appreciation and good faith principle that allow states to formulate contextspecific answers to amend and repeal vagrancy offences. This article identifies the impact of the COVID-19 pandemic on petty offences enforcement and draws lessons from litigation such as Gwanda v The State and interventions from national human rights institutions such as the South African Human Rights Commission; as well as guidance from the African Commission on Human and Peoples’ Rights Principles on Decriminalisation of Petty Offences in Africa (2017). It is argued that specific institutional and non-material interventions are needed to bring the systemic change required, in tandem with the banning of vagrancy offences, for cities that promote inclusion and sustainable development for all.

Concept of Rights and Security of Nagorno-Karabakh People in Light of ICJ’s Advisory Opinion on Kosovo

This article is dedicated to the comparative analysis of the advisory opinion of the International Court of Justice on Kosovo, thereby revealing the criteria of the legality of realization of the right of peoples to self-determination and clarifying the question of their applicability to the Artsakh case. Historical and comparative methods of scientific research were used in the article, by means of which positive and negative aspects of the advisory opinion of the UN Court were highlighted. The analysis has shown that perhaps for the first time, an attempt was made by the International Court of Justice to define the criteria of the legality of the act of declaration of independence by a national community seeking self-determination, which aims to remove the right of peoples to self-determination from the sphere of political speculation and place it in the realm of legal certainty. The analysis also showed that the standards developed by the UN Court are fully applicable to Artsakh as well. The article also made an important record that even in the seemingly non-pro-Armenian stance of the ongoing negotiation process, new negotiation approaches being formed by Armenia are within the context of the legal logic of the UN court and thus have the potential to achieve legal confirmation of the independence of the people of Artsakh, if appropriate diplomatic and military-political work is carried out.

Res. 77/276 on Request for an Advisory Opinion of the I.C.J. on the Obligations of States in Respect of Climate Change (U.N.G.A.)

Over the course of the period from the end of 2022 to early 2023, requests for advisory opinions on climate change were, for the first time, made to the International Court of Justice (ICJ), the International Tribunal for the Law of the Sea (ITLOS), and the Inter-American Court of Human Rights (IACtHR).

The climate advisory opinion: A medicine with side-effects?

The Commission of Small Island States on Climate Change and International Law in December 2022 requested for an advisory opinion to the International Tribunal for the Law of the Sea (ITLOS) for holding States responsible for failure to protect the marine environment caused by climate change and greenhouse gas emissions. This article first examines the dilemma climate regime is facing. Then the article explores why the advisory opinion can serve as “medicine” by examining the potential positive and negative spillover effects of the advisory opinion from the perspective of both jurisdiction and merits. Just like all medicines have side-effects, the climate advisory opinion brings both challenges or opportunities to current climate negotiations, which the article calls for stakeholders to utilize and proceed carefully and cautiously.

The Legitimacy of the International Court of Justice from the Vantage Point of UN Members

Abstract Significant scholarly commentary exists on the legal aspects of the relationship between the International Court of Justice and the UN General Assembly. Legal scholars have mused about the role of General Assembly resolutions in the jurisprudence of the Court and dissected the General Assembly’s (mis)use of requests for advisory opinions from the Peace Palace. Yet one essential aspect of the interaction between the two institutions tends to be overlooked. Each fall, UN Members meet in the hall of the General Assembly to offer their comments on the annual Report of the ICJ. The debate constitutes one of few occasions on which UN Members get the opportunity to express views on the Court’s activities and exercise of authority. Taking government statements issued in General Assembly debates over the past thirty years as its point of departure, the article teases out factors that, in the eyes of UN Members, contribute to or detract from the Court’s legitimacy. The article finds that four sets of sources affect UN Members’ assessments of the institution: 1) the Court’s outreach efforts and access to its various outputs, 2) diversity, representativeness, and the quality of its jurisprudence, 3) independence and impartiality of its judges, and 4) its efficiency, flexibility, and transparency. In so doing, the article contributes novel and empirically grounded perspectives to ongoing debates about the legitimacy of the principal judicial organ of the UN from the vantage point of its primary constituents, UN Members.

Two cases of nursing older nursing home residents during COVID-19.

Two ethical challenges of nursing home nurses during the COVID-19 pandemic in Sweden are discussed in this paper. Historically, the nurse's primary concern is for the person who is ill, which is the core of nurses' moral responsibility and identity. In Sweden, person-centered care is generally deemed important in nursing older nursing home residents. To chart moral responsibilities of nursing home nurses in two cases involving older residents during the COVID-19 pandemic in Sweden. We used Margaret Urban Walker's framework for moral responsibilities and the International Council of Nurses (ICN) code of ethics for nurses (2021) for our normative analysis. Written and verbal consent was obtained before the interviews, and information was given that participation was entirely voluntary and possible to cancel at any time before the work was published. The Swedish Ethical Review Agency gave an advisory opinion stating that there were no ethical objections to this research project (Dnr. 2020-05649). Case #1: a palliative older nursing home resident who was coercively tested for COVID-19, and case #2: a COVID-19-infected resident with dementia who was isolated using sedation. The decision that was finally made in the respective case was analyzed in the light of either consequentialist/utilitarian or non-consequentialist/deontological reasons. Empowerment of nurses as moral agents is required for the application of practical wisdom in the balancing of different care relationships (responsibilities), moral identities (professional virtues), and competing moral values. This requires resources and opens possibilities for profound ethical reflection in nursing education and at work. During the COVID-19 pandemic, the moral and professional responsibility of nursing home nurses to deliver person-centered care was sometimes problematically abandoned in favor of a more utilitarian manner of ethical decision-making.

The Normative Value of Human Rights Treaty Bodies’ Interpretations at the International Court of Justice

Although the International Court of Justice (ICJ) is not a human rights court, it has recently addressed human rights issues, which has prompted interaction with the opinions of human rights mechanisms. This article will analyze the normative value of human rights treaty monitoring bodies’ interpretations recognized by the ICJ in three cases of its jurisprudence: the Wall Advisory Opinion, the case of Ahmadou Sadio Diallo, and the case of Qatar v. the United Arab Emirates. This analysis indicates that the ICJ has ascribed great normative weight to these interpretations, but it has been reluctant to adopt their views without conducting its own interpretative assessment of the norms. In its most recent case, the ICJ took an approach that completely departs from the interpretation adopted by the relevant treaty body. This article argues that such a position must be considered in light of the growing criticism that treaty bodies are facing about the quality of their reasonings and command of general international law. Accordingly, treaty bodies could enhance their legitimacy by learning from the ICJ’s approach to treaty interpretation, and in addition, could take advantage of the positive aspects of their non-binding character to develop meta-juridical discussions.

The Right of Ownership and Legal Protection in Kosovo’

Background: The Republic of Kosovo is a country located in Southeast Europe with partial diplomatic recognition. Kosovo declared its independence on 17 February 2008, and has since gained diplomatic recognition from 116 member states of the United Nations. On 22 July 2010, the International Court of Justice rendered an advisory opinion on the legality of Kosovo’s declaration of independence, which was not in violation of neither general principles of international law, nor specific international law. In 2022, Kosovo filed a formal application to become a member of the European Union. In the Republic of Kosovo, the Constitution is the highest legal act. Laws and other legal acts shall be in accordance with this Constitution. Civil law is not codified but divided into separate laws. The property right is regulated by the Law on Property and Other Real Rights Law No. 03/ L-154. Property rights and other real rights in the Republic of Kosovo originate from this law. Keeping this in mind, in our article, we are going to highlight the range of problems related to property rights’ regulation and protection, including gaps in primary and secondary legislation, analysing case law, courts, state attorneys, and administrative authorities’ activities. Methods: In this paper, we analyse the institution of property rights. We used comparative and analytical methods based on the current legislation in Kosovo, utilising resources from the former Yugoslavia. Additionally, we used some historical methods to derive concrete results. Kosovo has inherited the relics of the former Yugoslav legal system; building a new system is a challenge in and of itself. In the context of property law in general, its legal protection is crucial for the owner to use and dispose of his property. Results and Conclusions: With the knowledge that the institution of property law is one of the main institutions of civil law, and is the fundamental institution of real law, we have analysed this law institution as a constitutional principle, regulated by special laws in Kosovo. Additionally, given the importance of the property institution, Kosovo has adopted laws that protect property rights, enjoying civil legal protection, criminal legal protection, and international protection. These laws should be in accordance with the country’s Constitution, with international human rights instruments, as well as with EU legislation.

Not Just a Participation Trophy? Advancing Public Interests through Advisory Opinions at the International Court of Justice

Abstract International procedural law remains largely party-oriented and directed at the preservation of individual interests. A tension therefore arises when the ICJ is asked to adjudicate “public interest norms”. Against this background, one might ask whether advisory opinions by the ICJ might serve as a more appropriate forum for protecting and enforcing public interests. Among others, they might prove better equipped for, e.g., clarifying and interpreting public interest obligations without a breach thereof necessarily having already occurred, or in the case of breaches by multiple parties. However, among the generally low numbers of requests for opinions by the ICJ so far only two can be classified as “traditional public interest litigation”. Recent initiatives on “community-oriented” interests have not (yet) moved forward, leaving their true potential open for debate. The article focuses on the ICJ’s procedural framework in advisory proceedings and its suitability as a forum for enforcing public interests. The argument is made that while indeed several rationales can be identified which make this procedure a seemingly well-suited format for public interest litigation, the filing of requests is often subject to political hurdles and dependent on the overall perception of the Court’s exercise of its judicial function. This is rounded off by a discussion of different proposals and an assessment whether these might lead to a strengthening of the Court’s competence when it comes to serving as a forum for “public interest litigation.”