ICJ Advisory Opinion Research Articles

The International Court of Justice Advisory Opinion on Climate Change and Future Generations

Abstract The mandate of the ICJ advisory opinion on climate change makes reference to states’ obligations in relation to both current and future generations. This note discusses options in terms of how the Court might interpret the concept of future generations, including its definition and the possibility of extending the principle of harm prevention to include harm to future generations. This is discussed in conjunction with the principle of intergenerational equity (an integral component of sustainable development), which the Court could interpret in a manner which gives it more substance. In approaching these issues, the Court will need to be impartial in terms of the interests of developed and developing countries.

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

Due Regard for Future Generations? The Obligation to Prevent Significant Environmental Harm and Sovereignty in the ICJ Advisory Opinion on Climate Change

Due Regard for Future Generations? The Obligation to Prevent Significant Environmental Harm and Sovereignty in the ICJ Advisory Opinion on Climate Change

Adjudicating Climate Change: The Prospects of An ICJ Advisory Opinion on The Obligations of States in Respect of Climate Change

Adjudicating Climate Change: The Prospects of An ICJ Advisory Opinion on The Obligations of States in Respect of Climate Change

The Authority of icj Advisory Opinions as Precedents: The Mauritius/Maldives Case

Abstract The role played by precedents in international law is usually addressed with regard to their bearing on other judicial decisions and their contribution to the development of international law. Recently, the International Tribunal for the Law of the Sea (“itlos”) has offered a novel interpretation of the legal effects of the International Court of Justice’s (“icj”) advisory opinions as precedents. In Mauritius/Maldives, the itlos rejected two of the Maldives’ preliminary objections – based on the existence of a dispute between Mauritius and the United Kingdom over the sovereignty of the Chagos Islands – , arguing that the 2019 icj advisory opinion on the separation of the Chagos Archipelago from Mauritius had resolved the dispute in favour of the latter. In light of the itlos’s decision, the present contribution is aimed to provide some reflections on the authority of icj advisory opinions as precedents and on their legal effects in international law.

Advisory Opinion or Judgment? The Case of the Chagos Archipelago

The aim of this article is to provide an analysis of the ICJ’s advisory opinion of 25 February 2019 on the Chagos Archipelago. It will endeavour to answer the following questions: (i) is it consistent with the letter and the spirit of international law for the ICJ to issue advisory opinions in cases involving a dispute between states, which, due to the lack of consent from one of the states, cannot be brought before the ICJ and be settled by a judgment of that judicial body?; (ii) is such a ruling the right way to settle the issue of decolonization?; and (iii) did Brexit play any role in the case under discussion? The article begins by describing the background to the dispute between the UK and Mauritius. The focus of the analysis then shifts to the nature of advisory opinions and the 2019 ICJ advisory opinion on the Chagos Archipelago. Next, the authors discuss the possible impact of Brexit on the dispute between the UK and Mauritius itself, as well as on the UK’s international standing in general. The article concludes with reflections on voluntarism in international law. The authors conclude that de lege lata an authorized body or organization may ask the ICJ for an advisory opinion in situations where it believes that such an opinion would be useful for its work. However, such advisory opinions should not have the character of authoritative court statements made in pending disputes between sovereign states. As a consequence, such opinions should refer only to abstract legal problems, which means that in some cases the ICJ should refrain from issuing them.

Case Study on the Dispute concerning Delimitation of the Maritime Boundary between Mauritius and Maldives in the Indian Ocean, Preliminary Objection, 28 January 2021

On 28 January 2021, the ITLOS Special Chamber delivered the judgment of preliminary objection in the case of the dispute concerning delimitation of the maritime boundary between Mauritius and Maldives in the Indian Ocean. The Special Chamber overruled five objections on the jurisdiction and admissibility raised by Maldives. This case is a kind of the dispute case related with the sovereignty of the Chagos archipelago, so-called mixed dispute. The Special Chamber took the same approach with previous precedents of the same kinds. Actually it did not focused on the how far the submission of the maritime delimitation is related with the sovereignty dispute, but on the nature of the dispute, whether it is the sovereignty dispute or not. Different from a doctrinal approach, taken by the judical academics who decided the case following the standard how much the submission is mixed with the sovereignty dispute, the jurisprudence including the judgement of the Special Chamber targeted the nature, a sovereignty dispute or not. The Special Chamber suggested the concrete and detailed meaning of the legal authority, not a legal binding force, of the ICJ advisory opinion. It is shown that the adjacent or opponent states of maritime delimitation of this case is Mauritius under the special circumstances of unfinished and continuing decolonization process. Afterwards the final judgment of the maritime delimitation will indicates the coastal State is Mauritius who can exercise the right over fishery and natural resources in the delimited maritime area. Plus the role of international judicial body has been being strengthened in the decolonization process. For the work of the CLCS, it would be Mauritius which submit the document over the continental shelf over 200 nm from the base points of the Chagos archipelago.

Legal Consequences of The Separation of the Chagos Archipelago from Mauritius in 1965 (ICJ Advisory Opinion, 25 February 2019, General List No. 169)

On 25 February 2019 the International Court of Justice (ICJ or the Court) issued its advisory opinion on legal consequences of the separation of the Chagos Archipelago from Mauritius in 1965. The request for the advisory opinion was made by the United Nations General Assembly (UNGA) through its Resolution 71/292. The Resolution adopted on 22 June 2017 with 94 votes in favor, 15 against and 65 abstantions. The Court held unanimously that it has jurisdiction to give the advisory opinion as requested and by 13 votes to one decided that the detachment of the Chagos Archipelago immediately before the final stage of decolonization was wrongful thus violating international law and specifically the right to self-determination. Inter alia the court was of the opinion that the agreement between the United Kingdom of Great Britain and Northern Ireland (United Kingdom) and Mauritius concluded in 1965 leaving Chagos Archipelago under administration of United Kingdom after completion of decolonization was flawed because it lacked the free expression of the will of the people on the side of Mauritius. Therefore according to the Court the United Kingdom is obliged to bring to an end its administration over Chagos Archipelago as rapidly as possible and that all members states are obliged to cooperate in the process. Eight judges presented their declarations among whom two presented a joint declaration, four judges presented separate opinions and one of the judges presented a dissenting opinion at the end of the proceedings. Thirty three states have submitted written statements. In addition the African Union organization was allowed to submit written statement. Eleven state have submitted comments related to written statements and 23 states have presented their oral argument before the ICJ. The Chagos Archipelago is located in the Indian Ocean about 500 km from the Maldives archipelago.

Israel, Palestine, and the Language of Genocide

Israel, Palestine, and the Language of Genocide

Hume Philosophical-Policy and the International Law of Nuclear Weapons

The goal of philosophical method is the construction of a comprehensive policy argument (CPA) for a public policy or legal issue. In addition to the conventional use of empirical models and their logic of investigation in the study of policy and law, CPA requires that an underlying philosophical logic of concepts be deciphered in terms of the ideas within the issue, their definition, overlap and systematic interdependence. In this working paper, I will employ a logic of concepts from David Hume’s Philosophical-Policy to provide a unique and more complete logic of legal investigation for the illumination of the ICJ Advisory Opinion On The Legality of Nuclear Weapons.

A Brief Analysis of the ICJ's Advisory Opinion in the Reparation for Injuries Case

This paper aims to very briefly analyse the attribution of 'Legal Personality' to the United Nations by the International Court of Justice through its Advisory Opinion. It aims to deconstruct the reasoning given by the ICJ and further give the implications of the case.

Republic of Crimea: a Two-Day State

The Crimean situation has put self-determination, secession and accession back at the top of the international law agenda. The article deals with questions of the procedure of Crimea’s self-determination and accession to the Russian Federation from the point of view of international law. Special attention is paid to the analysis of the ICJ Advisory Opinion on the question of the accordance with international law of the unilateral declaration of independence in respect of Kosovo in its interrelation with the Crimea case. The text also includes an unofficial translation of an accession treaty between Russia and the Republic of Crimea. With the Crimean Republic’s declaration of independence, it is the most important document for the legal analysis of the situation.

The 'Irrelevancy' of Self-Defence: Revisiting the 2004 ICJ 'Wall' Opinion

This article discusses the 2004 ICJ Advisory Opinion, exactly one decade after it's issue, and examines one of the core assertions made in the Opinion - namely, that Article 51 of the UN Charter (the right of self-defence) is irrelevant when determining the legality of the security barrier built by Israel.The article conducts a detailed analysis of the possible explanations for such an assertion, and ultimately argues that the conclusion was unfounded. It is emphasized that the article only examines the Court's particular claim regarding Article 51, and does not pronounce upon the entire Opinion's final conclusion.The article is presented in a unique style, written in the form of the Advisory Opinion itself, appearing as what perhaps the original discussion should have looked like.

The Israeli Supreme Court Case on Israeli Quarrying Licenses in the West Bank: Why a Second ICJ Advisory Opinion on Palestine is Needed

The Israeli Supreme Court Case on Israeli Quarrying Licenses in the West Bank: Why a Second ICJ Advisory Opinion on Palestine is Needed

The Application of International Human Rights Law in Non-International Armed Conflicts

Since the end of the Cold War, the world has experienced a decrease in international conflict and a significant increase in non-international armed conflict (niac). Despite this change, however, international law has been very slow in adapting its laws that initially were crafted with international armed conflict in mind to the new niac environment. There is a growing recognition that international humanitarian law (ihl) is not well equipped to deal with issues of human rights violations committed during niac. New efforts to make international human rights law (ihrl) applicable in such conflicts have, however, raised more questions than answers. There is still no consensus on whether international human rights law applies to niac. Furthermore, the question on whether non-international armed groups are bound by international human rights obligations remains controversial. This article tries to analyze where international law stands now of these questions. It proposes steps international law could follow to move from its current rhetoric to a more practical solution on these questions. The three solutions proposed are: individual agreements to respect human rights during armed conflict, the possibility of an icj advisory opinion and the option of a protocol additional to international human rights treaties relating to their application in niac.

The ICJ Advisory Opinion on Kosovo: Has International Law Something to Say about Secession?

AbstractThe objective of this paper is to examine how the Court has dealt with existing general international law governing secession and to evaluate the effects that this opinion could have on future developments in this field. The narrow interpretation of the question submitted by the UN General Assembly permitted the Court to avoid many important questions. The Court made no statements concerning Kosovo's statehood and recognition by third states and made no mention of statehood requirements or the ‘principle of effectiveness’. The Court also refused to examine whether Kosovo (or any other entity outside the colonial context) had a ‘right’ to secession, but gave no endorsement to attempts to apply external self-determination outside the colonial context or to the theory of ‘remedial secession’. This paper explains why the Court did not apply the ‘Lotus’ freedom principle in the Kosovo case. It welcomes the indirect, but clear, position of the Court that a declaration of independence can, in some situations (and especially in the case of external aggression), be illegal – a position that contradicts the old theory, stemming from Jellinek, that the creation of a state is nothing but a ‘simple fact’. While the Court correctly found that outside these exceptional circumstances, no general prohibition against unilateral declarations of independence exists in international law, it should have added that international law is not ‘neutral’ in this field, that it disfavors secession, and that it creates a presumption against the effectiveness of secession. The ‘legal-neutrality’ stance adopted by the Court is not without risks. Indeed, the Court should have been more cautious in its assertion that ‘the scope of the principle of territorial integrity is confined to the sphere of relations between states’, not only because recent practice clearly indicates the contrary, but also because its position could have an unwelcome effect in resolving future separatist conflicts by rendering countries extremely sceptical of solutions of autonomy or international administration.

Symposium: The ICJ Advisory Opinion on the Unilateral Declaration of Independence of Kosovo: Editors' Introduction

The present symposium follows on from a workshop held at the University of Cambridge on 2 September 2010 by the Interest Group on Peace and Security (IGPS) of the European Society of International Law, in collaboration with the Centre for International Security and European Studies (CESICE) of the University of Grenoble II and the International Law Centre of the Université Libre de Bruxelles.

The Advisory Opinion on Kosovo: An Opportunity Lost, or a Poisoned Chalice Refused?

AbstractThe ICJ's Advisory Opinion adopted a very narrow approach to the question posed by the General Assembly, but its basic response – that Kosovo's declaration of independence did not violate general international law – was correct. While it might have been preferable if the Court had given more guidance regarding the contemporary scope of self-determination, neither supporters nor opponents of Kosovo's independence gained much from the opinion. No definitive conclusion about Kosovo's status can be drawn without agreement between Pristina and Belgrade, and outsiders should avoid prejudging or interfering in that outcome.

The ICJ Advisory Opinion on Kosovo: Different Perspectives of a Delicate Question

When the ICJ on 22 July 2010 finally handed down the much-awaited opinion on Kosovo´s declaration of independence the reaction was mostly disappointment. In fact, the question referred by the UN General Assembly to the ICJ in 2008 had the ingredients to pave the way for a stock-taking on some of the most controversial questions of modern international law, first of all on the meaning of self-determination in the 21th century. Some hoped that the ICJ would decline jurisdiction for this case, others hoped to receive all-encompassing guidance on the many thorny subjects the question touched upon. The ICJ sought for a compromise: It declared that it had jurisdiction but it shied away from addressing the substance of the question posed. It appears to be doubtful whether the ICJ, acting this way, really has come up to its duty to cooperate within the UN system. In fact, the line of arguments presented by the ICJ is too shaky and as a consequence status and function of the ICJ end up damaged from this proceeding. On the other hand, the ICJ deserves praise for having handled a thoroughly political issue with great sense of responsibility. It is argued here, that notwithstanding all the ambiguities surrounding the distinction between the legal and the political, this distinction still matters - judges should not be asked to do the undone jobs of politicians.

A Review on the ICJ Advisory Opinion on the Legality of Unilateral Declaration of Independence of Kosovo under International Law

A Review on the ICJ Advisory Opinion on the Legality of Unilateral Declaration of Independence of Kosovo under International Law