ICJ Advisory Opinion Research Articles

The Cowardice of the Restrictive Advisory Opinion Approach: A Failure of the Court to Exercise its Judicial Prerogative in the Application of General Principles of International Law in Fulfillment of International Peace and Security (An Assessment of the Kosovo Advisory Opinion)

This paper examines the ICJ Advisory Opinion 'Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo' (22 July 2010), hypothesizing that the ICJ has erroneously adopted a 'restrictive' approach in their determination and scope of advisory opinion requests. The court justifies the limitation of its approach to the question presented by relying upon a restrictive reading of the question and coupling this with an approach of restrictive application of its jurisdiction. It legitimizes this limited reading by noting that 'in past requests for advisory opinions, [the G.A.], when they have wanted the Court’s opinion on the legal consequences of an action, have framed the question in such a way that this aspect is expressly stated (see SouthWest Africa Advisory Opinion, Construction of Wall Advisory Opinion) (para. 51).' The court has two options as this point. It can adopt the restrictive approach as seen in the current opinion, answering the question on its face. Or, it can exercise its judicial prerogative to resolve the underlying legal question directly associated with the declaration. This alternative approach can be called the 'general principles approach.'

A Note on the ICJ Advisory Opinion on Kosovo

On 22 July 2010, the International Court of Justice (hereinafter the “ICJ”) delivered its advisory opinion on the accordance with international law of the unilateral declaration of independence in respect of Kosovo. The ICJ concluded that the declaration of independence dated 17 February 2008 did not violate any applicable rule of international law consisting of general international law, UNSC resolution 1244 (1999) (hereinafter the “Resolution 1244”) and the Constitutional Framework for Provisional Self-Government in Kosovo (hereinafter the “Constitutional Framework”). The ICJ delivered the advisory opinion in response to a question set out in resolution 63/3 dated 8 October 2008 of the General Assembly of the United Nations Organization (hereinafter the “General Assembly”), which asked if “the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo is in accordance with international law.”

ICJ Advisory Opinion on Kosovo: An African Perspective

ICJ Advisory Opinion on Kosovo: An African Perspective

United States Opposes Request for ICJ Advisory Opinion on Kosovo

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Discourses of Division: Law, Politics and the ICJ Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

This article undertakes a critical reading of the arguments used at the bench and the bar in the 2004 ICJ Wall advisory opinion. The Wall case included an unprecedented number of State and non-State participants and it is therefore a valuable site in which to explore the parameters and limits of legal speech. What argumentative strategies were employed at the Peace Palace? How did different participants present the relationship between law and politics? In particular, because the example of Palestine can be seen as a challenge to the post-colonial order, how did Third World States employ the language of international law in support of Palestinian self-determination? It is shown that although international legal speech is highly restrictive, many Third World States are willing to challenge its boundaries through a deep-set faith in the dividends of legal argumentation.

The Legal Status of Jerusalem Following the ICJ Advisory Opinion on the Separation Barrier

The present article analyzes the expected implications of the recent Advisory Opinion of the International Court of Justice on the legal status of East Jerusalem in accordance with international law. The Court stated that East Jerusalem is occupied territory and Israel is the occupying power in this territory. Generally, the Opinion lends support to the Palestinians' arguments and is likely to enhance their bargaining position in the future negotiations regarding the regime to be applied to East Jerusalem. Unlike the differential approach undertaken by the parties during the recent stage of negotiations (that suggested applying different legal regimes to the city's different areas), the Court's Opinion did not make distinction between the different parts of East Jerusalem. Analysis of these distinct approaches indicates that the differential approach (adopted during the recent negotiations)is more likely to enhance the prospects of attaining an agreed solution to the dispute over East Jerusalem. The Court's emphasis on the interests of third parties as well as the role of the UN tends to multilateralize the dispute between Israel and the Palestinians regarding the West Bank, including East Jerusalem. The impacts of possible multilateralization of the dispute over East Jerusalem on the prospects of achieving an agreed solution are not clear. In contrast to the Court's multilateral approach with regard to the general Israeli-Palestinian dispute, the analysis of Israel's obligation regarding access to the holy places is essentially premised on two bilateral treaties (the 1949 General Armistice Agreement and the 1994 Peace Treaty between Israel and Jordan). In light of the major importance of numerous holy places in other parts of the globe, a preferable legal analysis could have been founded on a reasonable interpretation of general international human rights instruments, particularly the 1966 Covenant on Civil and Political Rights.

The ICJ Advisory Opinion on the Israeli Security Fence and the Limits of Self-Defense

On December 8, 2003, the International Court of Justice was requested by the United Nations General Assembly to give an advisory opinion on the “legal consequences” of the security fence under construction by Israel in the West Bank, also variously called “security barrier” and “wall.” The General Assembly sought referral to the Court by a vote of 90 states—but another 74 states abstained, and 8 states voted in opposition. Careful consideration of the case was rendered especially difficult by the decision of the Court to set a truncated briefing schedule, permitting only six weeks for written submissions on jurisdiction and the merits. An even greater concern was the danger, perhaps realized, that the Court’s opinion might be read as prejudging issues central to negotiations in the “Roadmap” political process seeking peace in the Middle East. The hope for some coherence in the approach of the international community to the resolution of a difficult and violent conflict is not otiose, especially where a stable settlement will require ongoing diplomatic, economic, and security support. For that very reason, two of the road map’s sponsors—the United States and the Russian Federation—urged the Court to take account of the impact that any decision might have on the negotiating process. The European Union, as a third member of the “Quartet” sponsoring the road map, together with the ten acceding states to the European Union and fifteen other states, urged the Court to decline to render any advisor)’ opinion at all because of the “compelling” circumstances of the peacemaking process.

More than a Huge Imbalance: The ICJ's Advisory Opinion on the Legal Consequences of the Construction of the Barrier

This note deals with some of the procedural and substantive issues raised by the Legal Opinion rendered by International Court of Justice on the legality of the separation barrier. In the note it is argued that the motivations behind the General Assembly's request where political and not legal. It is contended that he partiality of the choice of the dossiers' material as submitted, issues relevant to propriety and the judicial character of the Court, should have led it to decline to give the requested opinion. The note is critical on the participation of Judge Elaraby, which the note argues affects the fairness and impartiality of the proceedings and affect the value of the Advisory Opinion. Israel did not consent to the exercise of jurisdiction by the Court. The problems inherent in the lack of relevant factual basis and in the fact-finding function of the Court, its total disregard of Israel's needs to protect its citizens against Palestinian terrorism, and the categorical and unmotivated rejection of Israel's security claims, led to an unbalanced and unjust result. Basic humanitarian law principles relating to the protection of civilians and international human rights are disregarded by the Court when it comes to the right to life of Israeli civilians and to their right to be protected against terror attacks. The note contends that the Court's denial of Israel's right to self-defense lacks legal and factual basis. The procedural and substantive deficiencies of the Advisory Opinion affect its value and persuasiveness.

Human Rights, Democracy, and the Inescapability of Politics; or, Human Dignity Thick and Thin

The essay places the ICJ opinion in a broader legal and political context and argues that the failure to distinguish between democratic and non-democratic regimes characterizing the ICJ advisory opinion reflects broader trends with potentially ruinous consequences for the enterprise of human rights promotion itself. The ICJ opinion's willful ignoring of Israel's democratic character yielded a tendentious and inconsistent ruling. By contrast the Israel High Court of Justice's decision invalidating portions of Israel's security wall reflects a healthy understanding of a democracy's needs and limitations, as reflected in that court's proportionality standard of review. The ICJ willingly blurred crucial distinctions between democratic regimes that genuinely adhere, however imperfectly, to principles of human rights in their own governance, and those states and actors that do not, a distinction made all the more imperative by the events of September 11.The judicialization of human rights in the post-Cold War era takes place against the background of a tensile relationship between human rights advocacy and democracy promotion during the Cold War. While human rights represent an essentially legal idea, democracy a political idea. In closing, the essay lays out one basic, hopefully workable, conceptual division of labor between human rights and democracy as complementary elements of a broader project of human dignity, in which human rights represents a “thin” universal conception of human dignity, while democracy offers a process whereby that conception can be “thickened” in various political, social and cultural contexts around the globe.

Graffiti on the Wall—A Critique of the ICJ Advisory Opinion on the Israeli Security Wall

(2005). Graffiti on the Wall—A Critique of the ICJ Advisory Opinion on the Israeli Security Wall. King's Law Journal: Vol. 16, No. 1, pp. 157-165.

ICJ Advisory Opinion on Israeli Security Fence

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