Advisory opinions by ICJ/Separation wall – Sixth Cttee debate/Statement by ICJ President – Summary records (excerpts)

Sixth Committee

Summary record of the 21st meeting

Held at Headquarters, New York, on Friday, 5 November 2004, at 9.30 a.m.

 Chairman:   Mr. Diaz Paniagua (Vice Chairman) …………………………………………..  (Costa Rica)

 later:   Mr. Bennouna (Chairman) …………………………………………………………………..   (Morocco)

Contents

…

Statement by the President of the International Court of Justice

In the absence of Mr. Bennouna (Morocco), Mr Diaz Paniagua (Costa Rica), Vice-Chairman, took the Chair.

The meeting was called to order at 9.40 a.m.

…

Statement by the President of the International Court of Justice 

65.  Mr. Shi Jiuyong (President of the International Court of Justice) …

…

68.   Article 65 of the Statute of the International Court of Justice had always been interpreted as conferring discretion upon the Court whether to give the opinion requested, but the Court, like its predecessor, had always considered that there must be compelling reasons for it to exercise its discretion not to render an advisory opinion. Concerns about the propriety of the Court’s exercise of its advisory function arose when the subject matter of the request was connected with an actual dispute between States or a legal question actually pending between two or more States. While consent of the parties was required for contentious proceedings, it was not set out in Article 96 of the Charter as a condition for advisory jurisdiction. However, the Court had always held that it was obliged, even when giving advisory opinions, to respect the essential rules guiding its activities as a court of justice, including the principle that a State was not obliged to allow its disputes to be submitted to judicial settlement without its consent.

69.   Nonetheless, the Court had never declined to give its opinion simply because there was some connection between a dispute involving States and the subject of the request. In a number of cases, the Court had construed the question before it as relating to the exercise of the functions of the requesting United Nations organ rather than to any ongoing dispute. In its most recent advisory opinion on Legal consequences of the construction of a wall in the Occupied Palestinian Territory , the Court had decided that its pronouncement would not have the effect of circumventing the principle of consent to judicial settlement, on the grounds that the question put by the General Assembly was far broader than the bilateral dispute and was of particularly acute concern to the United Nations.

70.   When considering its advisory jurisdiction, the Court was subject to the requirement of Article 96 of the Charter that the question put to it should be a legal question. However, the fact that such a question might arise in a political context was not sufficient to deprive the Court of jurisdiction. In its famous dictum in its advisory opinion on Western Sahara , it had held that questions framed in terms of law and raising problems of international law were by their very nature susceptible of a reply based on law. The Court to date had never found that political arguments surrounding a legal question put to it constituted a compelling reason for it to decline to exercise its advisory jurisdiction.

71.   Advisory opinions were non-binding: even the requesting body was not obliged to accept the Court’s conclusions, although in fact both the Council of the League of Nations and the various agencies of the United Nations had always done so. States and other international entities were also entitled to agree among themselves that the opinion would be binding on them. Some treaties even stipulated that, in the event of a dispute, an advisory opinion of the Court would be considered decisive or binding. One such was the advisory opinion on the Difference relating to immunity from legal process of a Special Rapporteur of the Commission on Human Rights , in which the Court had distinguished between the advisory nature of the Court’s task and the particular effects that parties to an existing dispute might wish to attribute, in their mutual relations, to an advisory opinion of the Court.

72.   With that background, a pertinent question was why recourse to the Court’s advisory function should be encouraged and how it might be developed. The advisory procedure enabled the Court to contribute to the overall objectives of the United Nations by playing a role in international dispute resolution and prevention and by clarifying and developing international law. Thus, for example, having asserted that the construction of the wall by Israel in the Occupied Palestinian Territory was contrary to international law, the Court had found that the United Nations, and especially the General Assembly and the Security Council, should consider what further action was required to bring the situation to an end, taking due account of the advisory opinion. Moreover, in the past, there had been instances in which States had found it more acceptable for an advisory opinion to be requested than for contentious proceedings to be instituted. Thus, in the European Commission of the Danube case, Romania had rejected the option of seeking adjudication via the contentious procedure but had agreed to the request for an advisory opinion as a compromise.

…

78.   He did not claim that any of the options put forward represented a definitive way of reinvigorating the Court’s advisory procedure. He merely drew attention to them in order to stimulate debate among policy makers. The advisory procedure had some clear advantages: it could contribute to the progress of international law but combined the judicial approach with the flexibility offered by the fact that its opinions were not binding.

79.  Mr. Kanu (Sierra Leone) said that the President of the International Court of Justice had made a number of extremely thought-provoking suggestions. In particular, with regard to the fact that the parties requesting an advisory opinion were not obliged to accept that opinion, the United Nations should find some way of addressing the question. There was no point in requesting an advisory opinion unless some way could be found of ensuring that it was respected by the parties concerned.

80.  Mr. Shi Jiuyong (President of the International Court of Justice) said that the Court adhered strictly to its Statute, under which advisory opinions had no binding force. Nonetheless, international organizations — and, in particular, the General Assembly — had always fully respected the Court’s advisory opinions.

The meeting rose at 12.45 p.m.

This record is subject to correction. Corrections should be sent under the signature of a member of the delegation concerned within one week of the date of publication to the Chief of the Official Records Editing Section, room DC2-750, 2 United Nations Plaza, and incorporated in a copy of the record.

Corrections will be issued after the end of the session, in a separate corrigendum for each Committee.