ICJ President on role of advisory opinion – Sixth Cttee debate – UN press release (excerpts)

PRESIDENT OF INTERNATIONAL COURT TELLS LEGAL COMMITTEE

‘ADVISORY OPINION’ FUNCTION COULD PLAY STRONGER ROLE

More Direct Contribution Seen to Settling Disputes;

Committee Continues Review of Topics from Law Commission Report

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Background

The Sixth Committee (Legal) met today to continue deliberations on the report of the International Law Commission by taking up “responsibility of international organizations” and “shared natural resources”, and also expecting the annual visit of the President of the International Court of Justice.  (For background on the report, see Press Release GA/L/3263 of 1 November.)

The Committee has before it the Commission’s report on its fifty-ninth session (Geneva, 3 May to 4 June and 6 July to 6 August) (document A/59/10).

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Address by President of International Court of Justice

SHI JIUYONG, President of the International Court of Justice, said the 2003-2004 annual report he had just delivered proved that the principal judicial organ of the United Nations had enjoyed another year of great activity.  It had begun with 25 cases and ended with 20 as at 31 July, now having 21 cases on its docket originating from all over the world on a wide range of subjects.  In the year under review, it had held five sets of hearings related to 12 cases; eight cases concerning the legality of the use of force being dealt with simultaneously.  Three final judgments had been delivered and one advisory opinion.

Because historical context limited United Nations authority in requesting legal opinions of the Court, he said that the last potential of the Court’s advisory function was being under-utilized.  Front page coverage of the Advisory Opinion on the Legal Consequences of the Construction of a Wall in the occupied Palestinian territory had demonstrated the importance of the function.  Now the Court’s opinion could be requested only through the two principal organs.  The Security Council had exercised that authority only once, in the case of Namibia.  One third of advisory opinion requests, on the other hand, had come from the General Assembly, as had the case involving the wall.

When considering its jurisdiction, the Court was subject to the Charter’s Article 96, requiring that a question put to the Court be of a legal nature, regardless of political context.  Advisory opinions were not binding.  Even the requesting body was not obliged to accept the Court’s conclusions.  So why should recourse to the advisory function be encouraged, and how might its potential be fulfilled?

The Court could play a role in international dispute resolution and prevention, he said.  It could also clarify and develop international law.  There had been instances where States had found it more acceptable for an advisory opinion to be requested than for contentious proceedings to be instituted.  The advisory procedure had also played indirect parts in preventing disputes and conflicts by clarifying legal parameters within which a problem could be resolved.  Advisory opinions had also allowed the Court to determine the status of principles and rules of international law, thereby contributing to a more cohesive rule of law.  They had established and settled points of law related to international organizations, particularly since non-State entities had no recourse to its jurisdiction.  Many more international problems could be resolved than on the 24 occasions in its 58 years of existence when the Court had been asked to exercise its advisory function.

That function could be more fully exploited in a number of ways, he said.  The field of applying the Court’s jurisdiction could be broadened, such as by authorizing inter-governmental organizations to request opinions, directly through Security Council or General Assembly resolutions.  Either of those bodies could ask for legal opinions on behalf of organizations, which would be most useful for regional bodies with their recognized role in maintaining international peace and security.

Also, he said the Secretary-General could be empowered to request advisory opinions on his own initiative.  At present, the Secretariat, as represented by the Secretary-General, was the only main organ not authorized to request an opinion.  The Secretary-General could only place a question on an organ’s agenda, and suggest it become the object of a request for an advisory opinion.  Further, national supreme courts, international courts and tribunals could be authorized to request advisory opinions on difficult or disputed questions of international law, thereby also having the advantage of allowing for a uniform interpretation in those areas.

Sierra Leone’s representative asked the Committee to devote time to considering this proposal.  He also asked the Committee to consider ways in which respect for the Court’s opinions could be enhanced.

The Committee Chairman noted that the Security Council had never taken steps to enforce the Court’s opinion.  He said that was part of the debate on how to implement international law.

The President of the Court said the non-binding nature of its opinions was one reason why the Court was respected.

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