Advisory Proceedings Research Articles

Opening the World Court to the International Community: an Empirical Analysis of Non-party Participation in the International Court of Justice

Abstract Over the last decades, the participation of State and non-State actors (NSAs) in the process of international law-making has become one of the basic features of international law. As multifunctional actors, the role of international courts and tribunals (ICTs) encompasses the protection and development of the international community. Together with ICTs’ role in the promotion, recognition and application of community interest norms, the growing participation of State and NSAs in international dispute settlement mechanisms also plays an increasingly important role in ensuring and facilitating compliance and enforcement of community interest norms. Whereas the non-party participation of State and NSAs has only very exceptionally been recognized, their influence in international dispute settlement cannot be ignored. By applying empirical research methodology for mapping the practice of the International Court of Justice (ICJ) concerning the participation of State and NSAs under the ICJ Statute and Rules of Court, this paper addresses the existing mechanisms of non-party participation in both contentious cases and advisory proceedings. There is no doubt that ICJ procedural law remains outdated and disconnected from the contemporary developments characterizing the international community nowadays. Broadening the possibilities for participation by State and NSAs would imply the recognition of the plurilateral nature of international disputes. In this context, the paper also discusses the challenges and possible alternatives for expanding participation via teleological interpretation of the ICJ Statute and potential amendments to the Rules of Court and Practice Directions.

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.”

International Advisory Proceedings on Climate Change

Several island states are expected to be severely harmed by climate change and rising sea levels. In late 2021, several island states launched two legal initiatives aimed at requesting advisory opinions of international courts on the law applicable to climate change. In the hope of fostering more action to combat climate change, these states are asking international courts to clarify the obligations of states to cut greenhouse gas emissions and pay reparations for harm already caused. This article provides the first comprehensive assessment of the feasibility and desirability of international advisory proceedings on climate change. It analyzes recent developments and engages critically with the main substantive and procedural aspects of potential advisory proceedings. This article demonstrates that, contrary to the prevailing view, these well-intended initiatives are almost certain to fall short of their goals and may even be counterproductive. The likely failure of advisory proceedings on climate change results from several factors, including jurisdictional challenges and questions of judicial propriety. A court tasked with adjudicating such an advisory proceeding would find it difficult to determine the law applicable to key aspects of the questions presented, including modalities of burden-sharing in global climate change mitigation efforts. And even if a court were to offer a meaningful advisory opinion, it is highly uncertain whether powerful states would comply. These factors raise the risk that the issuance of an advisory opinion would further erode the credibility of international institutions, undermining the foundations of future cooperation combating climate change.

Judicial Reasoning and Non-State Participation before Inter-State Courts and Tribunals

Abstract The present article explores the premise that the participation of non-State actors may in some instances be necessary to the conduct of contentious or advisory proceedings before inter-State courts and tribunals. It first considers whether such necessity may be directly asserted as a legal requirement, in the absence of lex specialis treaty mechanisms or party consent. The article thus considers the potential to apply general principles of law, customary international law, and doctrinal concepts to this question. Unsatisfied with reliance on the stated legal considerations of international courts and tribunals, however, it turns to assess the root causes of such necessity, beneath pronouncements of legal sources and doctrine. The authors identify these as practicality – which speaks to what a court or tribunal must do to fulfil its mandate today – and legitimacy, which speaks to what it should do to ensure that its mandate is respected tomorrow.

Missed Opportunities: Participation of NGOs in Advisory Proceedings of the African Court on Human and Peoples’ Rights

Abstract This article scrutinizes the participation of NGOs in advisory proceedings of the African Court on Human and Peoples’ Rights. Contrary to its regional counterparts, the Court allows NGOs to petition for advisory opinions. In addition, NGOs can contribute to its advisory proceedings as amici curiae. Surprisingly, the Court has only delivered two advisory opinions requested by an NGO within the last 15 years. Moreover, the rate of amici interventions by NGOs in this Court’s advisory cases has been exceptionally infrequent. This article views that the less productive use of ACtHPR’s advisory function by NGOs is a loss to the African human rights system and is attributable not only to the Court itself but also to NGOs and State parties to the ACtHPR. It also holds that amici NGOs have been very instrumental to advisory proceedings and having greater participation of amici NGOs would provide concrete benefits to the proceedings.

Towards Deeper Judicialisation: Explaining Thailand’s Increasing Engagement with International Adjudication

This paper calls attention to a little-noticed phenomenon about the Thai government’s increasing involvement in international adjudication over the last two decades. For the first time, it has participated in the advisory proceedings before the ITLOS, and made oral statements in the advisory proceedings before the ICJ. It has faced the first treaty-based arbitration by a German investor. There has also been an attempt to initiate the proceedings at the International Criminal Court against Thai officials. All of these parallel the government’s extensive participation in the dispute settlement mechanism of the WTO. What accounts for such developments? The paper argues that Thailand’s constantly increasing engagement with international adjudication should be understood as part of the judicialisation of international relations. Specifically, it is shaped by four main conditions. First, the Thai government has cautiously yet constantly expanded its acceptance of jurisdiction of courts and tribunals. Second, the number of potential claimants has exponentially increased. Third, the composition of the international litigator communities has changed, resulting in the significant increase in the number of lawyers willing to pursue new cases. Fourth, Thai government officials are learning to strategically make themselves more visible in the litigator communities.

The Contribution of the International Tribunal for the Law of the Sea to the Protection of the Marine Environment

Abstract In its 25 years’ history, the International Tribunal for the Law of the Sea has dealt with a number of environmental cases. This has primarily occurred in the context of proceedings relating to the prescription of provisional measures and in advisory proceedings. This article explains how the Tribunal has reaffirmed and developed the basic environmental principles in Part XII of the Law of the Sea Convention, including the obligation to protect and preserve the marine environment, the precautionary approach, the duty to conduct environmental impact assessments, and the duty to cooperate, as well as the duty of due diligence, thereby contributing to the protection of the marine environment. Part XII of the Convention is a product of the 1970s and its provisions therefore reflect the state of international environmental law at that time. However, the Tribunal has interpreted and applied the aforementioned principles consistently with the contemporary state of international environmental law.

THE IMPACT OF THE INTERNATIONAL COURT OF JUSTICE JURISPRUDENCE IN HUMAN RIGHTS COURTS:

This contribution particularly evaluates the use of the International Court of Justice’s (ICJ) jurisprudence in the case law of the Inter-American Court on Human Rights (IACtHR). It intends to identify whether, for what purpose, and to what extent the IACtHR takes into account the jurisprudence of the ICJ. This article is divided into two parts and applies quantitative and qualitative methods. The first section evaluates asymmetries and particular features that characterize the judicial dialogue between the ICJ and the IACtHR. Being aware that the ICJ and the IACtHR are placed in different levels and possess structural differences, the second part presents an empirical analysis of the most cited ICJ rulings in both IACtHR’s contentious and advisory proceedings. Ultimately, this analysis aims to identify the existence of a dialogue or a monologue between the IACtHR and the ICJ.

The Rule of Advice in International Human Rights Law

AbstractAdvisory jurisdiction is a ubiquitous feature of international human rights adjudication. Yet the attention of legal scholars is almost entirely devoted to contentious jurisdiction. This Article aims to fill that gap in the literature. By introducing two models of advisory jurisdiction, and analyzing the example of the Inter-American Court of Human Rights—the world's most active international advice-giver—the Article shows how international human rights courts may utilize advisory proceedings to influence state conduct, in a mechanism the Article calls “ruling through advice.” The Article also shows how human rights courts may attempt to guide states and national courts by means of an “anticipatory adjudication” mechanism. Using the Inter-American Court's groundbreaking advisory opinion on same-sex marriage as a case study, the Article argues that, despite the domestic implementation of its opinion, the Court misused its advisory powers, putting the regional human rights system at risk. The insights that both the conceptual model and the case study offer contribute to a broader conversation about international courts’ advisory role.

The Expertise Function of Amicus Curiae in International Criminal Justice

INTRODUCTION. While abroad over the past decades both comprehensive research and publications touching on individual aspects of amicus curiae in international law have been edited, it garnered only very little scholarly attention in Russian scientific literature. The frequency of its use and the nature of its impact on international judicial and quasi-judicial proceedings vary among branches of international law. This article considers one of the functions that an amicus curiae may perform in international criminal proceedings – the function of expertise.MATERIALS AND METHODS. The article is based on the existing volume of scientific knowledge in different branches of international law, such as law of international treaties, international criminal law, law of international organizations, human rights law, international economic law, history of international law and others. The research is based on the conclusions and inferences achieved mainly in the foreign doctrine of international law including publications of this year, due to the low degree of development of the topic in Russian literature. The empirical basis of the research is formed by international legal acts, internal acts of international criminal tribunals, materials of proceedings relating to interstate disputes, international advisory proceedings, practice of international criminal courts. The methodology used is a combination of general scientific methods of cognition (methods of analysis and synthesis, induction and deduction, critical and dialectical) and private scientific methods typical for legal sciences (historical, comparative).RESEARCH RESULTS. International criminal courts actively rely on the amicus curiae mechanism to obtain information, both legal and factual, on issues under consideration in criminal proceedings. The admission of amicus curiae to international criminal proceedings is entirely at the discretion of the judiciary. In practice, amicus curiae applications are submitted by subjects of international law, international non-governmental organizations, natural and legal persons and professional associations.DISCUSSION AND CONCLUSIONS. Too frequent use of amicus curiae mechanism seems to be difficult to reconcile with the iura novit curia maxima. Its current practice provides fertile ground for all kinds of abuse and needs to be reviewed. In particular, the experience of the UN International Court of Justice, the International Tribunal for the Law of the Sea and the UN Commission on International Trade Law could be instructive in this regard.

The Advisory Proceedings of the African Court on Human and Peoples’ Rights

ABSTRACT The advisory jurisdiction of the African Court on Human and Peoples’ Rights (African Court) is of significance to strengthening the protection of human rights in Africa. This article considers the Court’s advisory proceedings thus far in establishing whether it has adopted a broad and flexible or narrow and restrictive approach in the exercise of its advisory jurisdiction and interpretations of related standing rules and the implications of its approach.

SELF-DETERMINATION, THE CHAGOS ADVISORY OPINION AND THE CHAGOSSIANS

AbstractIn its Chagos Advisory Opinion, the International Court of Justice (ICJ) ruled that the UK's detachment of the Chagos Archipelago from the colony of Mauritius on the eve of independence constituted a violation of customary international law (CIL). This article analyses the Court's approach to establishing the emergence and content of the right to self-determination in this frustrated case of decolonisation. It goes on to examine the argument that self-determination's peremptory character has decisive consequences in this specific context—a contention which found favour with several judges in their Separate Opinions. The article explores the extent to which the claims and counterclaims, made during the advisory proceedings, turned on countervailing readings of not only the key sources of custom but also of the principle of inter-temporal law. The final sections consider the significance of the Chagos Opinion for the Chagossians, both in relation to the Archipelago's resettlement and for their outstanding appeal in the UK courts (where the European Convention on Human Rights performs a pivotal role).

Legal Nature of Advisory Opinions of the International Court of Justice

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.

Studying Country-Specific Engagements with the International Court of Justice

Abstract Countries engage with the International Court of Justice (ICJ) as litigants, as participants in advisory proceedings and, less directly, through contributions of nationals as judges or lawyers. A broad range of scholarship within the discipline of public international law examines this engagement. Specific regional experiences are often emphasized and grouped, for example, by western, African or Asian accounts. Yet the nature and extent of scholarship on a single country’s engagement with the Court are less commonly explored. This article surveys scholarly approaches to specific domestic engagement with the ICJ. It focuses on six countries—Australia, France, Nicaragua, Russia, the UK and the USA—and examines the scholarship generated by each of these countries’ encounters with the Court. This scholarship provides insights into politics, history, institutional practice, professional experience and international legal doctrine. Preliminary in scope, the article points to the value of empirical, historical and country-specific accounts of the work of the ICJ.

Selection of the International Court of Justice as a Forum for Contentious and Advisory Proceedings (Including Jurisdiction)Le choix de recourir à la Cour internationale de Justice en matières contentieuses et consultatives (y compris la question de la compétence)

This article identifies trends relating to the selection of the Court as a forum for contentious and advisory proceedings. It compares the use of the Court with other judicial or arbitral mechanisms and identifies how the use of the Court is affected by newer adjudicatory mechanisms. The article considers developments with regard to the invocation of the Court’s jurisdiction under Article 36 of its Statute and examines the factors that might influence states in selecting mechanisms for adjudicating inter-State disputes. The article also examines the significant increase in the use of the Court’s incidental jurisdiction to indicate provisional measures. In this regard, it analyses the ‘plausibility of rights’ criterion, as well as the issues that are likely to arise as the Court seeks to balance competing considerations of preventing misuse of provisional measures and the need to preserve the integrity of the final judgment. Finally, the article considers the use (or lack thereof) of the advisory jurisdiction of the Court, categorizing the types of questions that have been put to the Court and explaining why requests relating to some categories of questions have declined.

Reflections on the Advisory Jurisdiction of itlos as a Full Court: The itlos Advisory Opinion of 2015

In its advisory opinion of 2 April 2015, the International Tribunal for the Law of the Sea (itlos) broke new ground in the itlos jurisprudence, by stating that the full Tribunal has an advisory jurisdiction. However, the legal basis of the advisory jurisdiction of itlos as a full court is not free from controversy. An issue also arises with regard to the admissibility of the request for an advisory opinion. Given that the itlos jurisprudence concerning advisory proceedings is still in its early stages, the advisory jurisdiction of itlos as a full court deserves serious consideration. Thus, this contribution will seek to examine the legal basis of the advisory jurisdiction of itlos as a full court and the admissibility of the request for an advisory opinion by focusing on the 2015 itlos advisory opinion.

Not Our Salvation: Israel, the Genocide Convention, and the World Court 1950–1951

Jewish individuals and organisations played a cardinal role in making and promoting the 1948 Genocide Convention. The early attitude of the Jewish state—established a few months before the Convention’s conclusion—has not hitherto been explored. This analysis reconstructs Israel’s involvement in the 1951 advisory proceedings at the International Court of Justice concerning the Convention. Based on Ministry of Foreign Affairs archives and Court records, it demonstrates that contrary to what scholarship on subsequent episodes assumes or implies, Israel had no particular attachment to, nor was it vested in, the Convention. Rather, its attitude ranged from indifference and disinterest to scepticism and hostility. It allowed Israeli diplomats to utilise the Convention as a means to affect other neither urgent nor imperative foreign policy ends.

Advisory Proceedings before the Seabed Disputes Chamber and before the ITLOS as a Full Court

Advisory Opinions are of interest as they have the potential to develop law. The Seabed Disputes Chamber possesses such competence and has already used it. According to article 138 of its Rules the International Tribunal for the Law of the Sea has such an advisory competence and – since the beginning of 2013 – it is faced with a request for an Advisory Opinion. It will have to deal with the admissibility of this Advisory Opinion in abstracto as well as in concreto and thus shed some light on the legal parameters for such an exercise of jurisdiction.

Individuals in Advisory Proceedings Before the International Court of Justice: Equality of the Parties and the Court’s Discretionary Authority

Abstract The recent IFAD Advisory Opinion of the ICJ has resuscitated the long-standing question of the access of individuals to the Court in advisory proceedings when the Court is acting as a ‘review’ body for judgements rendered by administrative tribunals of international organizations. Under such circumstance, the ICJ is confronted with the existence of an actual underlying dispute between two parties, although only one of the parties to the original dispute may appear before the Court, thus creating an obvious inequality before the Court. This article examines the review procedure before the ICJ, and the position of the individuals before the ICJ in such proceedings. In particular, this article discusses the different inequalities resulting from such procedures, and how the ICJ has remedied these in order not to use its discretion to not reply to the request for an advisory opinion.

Advisory Proceedings before the International Tribunal for the Law of the Sea as an Alternative Procedure to Supplement the Dispute-Settlement Mechanism under Part XV of the United Nations Convention on the Law of the Sea

Advisory Proceedings before the International Tribunal for the Law of the Sea as an Alternative Procedure to Supplement the Dispute-Settlement Mechanism under Part XV of the United Nations Convention on the Law of the Sea