jueves, 9 de abril de 2009

The ICJ advisory jurisdiction: the "wall" case


The advisory jurisdiction is different from the contentious. The most relevant difference is that the Court – any - does not have to solve a problem between two parties. It has to give on opinion about a question. Nonetheless, it has been an option which has had more success in the international legal order.  The application of the advisory function has encountered more problems in the national sphere, the own nature of what is the function of the courts has impede its proper implementation[1]. But a reflection of those difficulties can be traced back in the ICJ. Despite using the advisory function, the Court has used the procedure rules of the contentious process, maintaining the jurisdictional nature of the Tribunal[2]. This can be showed in article 68 of the Court’s statute:

“In the exercise of its advisory functions the Court shall further be guided by the provisions of the present Statute which apply in contentious cases to the extent to which it recognizes them to be applicable”.

But the own particularity of the international legal framework has allowed its development and, because of the Court, it has had an important impact. This is done in a two-step process. The first thing judges have to see is if they have jurisdiction for hearing the case and then, if that is the case, they have to analyze if there are not compelling reasons to not giving the opinion.

The two relevant articles are article 96 of the UN Charter, which allows the General Assembly or the Security Council to request an advisory opinion on any legal question, and to other organs of UN and specialized agencies only if this arise within the scope of their activities, and article 65.1 of the Statute which says that the Court may give an advisory opinion on any legal question.

The purpose of this assignment is to analyze the application of that jurisdiction, paying more attention to the legal nature of the question, in respect with the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory[3] case.




In order to give an opinion the Court has to see if there is jurisdiction. There are two requisites: rationae personae, that is, that the organ who requested the opinion was competent to do so and rationae materiae, which means that the judicial organ can only answer those questions of legal character[4].


2.1. Rationae Personae


The General Assembly, which was the organ who requested the advisory opinion of the Court in Resolution ES-10/13, had the competence to ask for an opinion in the Wall case. As the ICJ stated in the Legality of the Threat or Use Nuclear Weapons case “the General Assembly has competence in any event to seize the Court. Indeed, Article 10 of the Charter has conferred upon the General Assembly a competence relating to ‘any questions or any matters’ within the scope of the Charter”[5]. The Court would repeat the same in the Wall case, namely, that the construction of the wall in the Occupied Palestinian Territory was considered a threat to international peace and security, which is part of the General Assembly’s functions according to article 11 of the Charter[6]. The Court also concluded, despite the contentions, that it did not exceed its competence because of requiring an opinion and in spite of the fact that the Security Council was also treating the issue[7].


2.2. Rationae Materiae


Maybe the organ who submitted the question had the competence to do so, but the Court can only answer legal questions otherwise it will not have jurisdiction. It was expressly stated in Certain Expenses case that if “a question is not a legal one, the Court has no discretion in the matter; it must decline to give the opinion requested”[8]. But the terms alone does not help to comprehend what is a legal question. According to Visscher is about any problem susceptible of receive an answer based in law[9], but let’s observe how the Court has treated the matter and in the Wall case.


2.2.1 Any legal question?


The Court will answer any legal question within the realm of International Law. That is a limitation in accordance with the limits of the system[10].


2.2.2 Only Law?


As we can observe, the expression any legal question can be interpreted in the sense that excludes any legal question entangled with facts. The problem was solved in the Namibia case. The Court established that “the contingency that there may be factual issues underlying the question posed does not alter its character as a ‘legal question’”[11]. So there is no need for a pure legal one[12].


2.2.3 The Abstract Nature of the Question


Due to the different nature of the advisory procedure, the Court has answered any type of question it did not matter if it was an abstract one or related to a factual situation[13]. This was one of the issues raised by Israel objecting the Court’s jurisdiction, which rejected it stating its own jurisprudence. The Court said that “to contend that it should not deal with a question couched in abstract terms is a ‘mere affirmation devoid of any justification’ and that ‘the Court may give an advisory opinion on any legal question, abstract or otherwise’”[14].


2.2.4 A Political Question


Another recurrent argument used by States against the Court’s jurisdiction is that the question posed is political, not a legal one and, therefore, the Court cannot treat it. As a jurisdictional organ and according to its statute can only solve those problems limited in the legal sphere. However, the Court has never rejected a request on these grounds. Quite the contrary, it expressed that “as, in the nature of things, is the case with so many questions which arise in international life, does not suffice to deprive it of its character as a ‘legal question’ and to ‘deprive the Court of a competence expressly conferred on it by its Statute’”[15]. “Whatever its political aspects, the Court cannot refuse to admit the legal character of a question which invites it to discharge an essentially judicial task (…) an assessment of the legality of the possible conduct of States with regard to the obligations imposed upon them by International Law”[16]. This would be the constant attitude of the Court about these allegations, including in the Wall.

We can say then that the Court “regards all questions submitted to it as ‘legal’ regardless of their political implications as long as the requested question can be answered by the application of legal rules”[17].


2.2.5 The Clarity of the Question


Another requirement about the legal question is that it has to be drafted with enough clarity. Article 65.2 of the Statute clearly states that the written request must contain an exact statement (en términos precisos in spanish) of the question. That is why one of the reasons laid down against the jurisdiction of the Court was as regards the lack of clarity thereof. Despite that the Court rejected the argument[18]. It has been a normal pattern of the jurisdictional organ to reformulate or to ascertain the relevant legal question. Despite the request being, in Judge Kooijmans’ words, “phrased in a way which can be called odd, to put it mildly”[19] there was no reason to dismiss the request in these grounds.


We can observe, therefore, that the Court applied correctly the requirements for having jurisdiction. The arguments against it were not strong enough in the light of the previous jurisprudence.




In the Court’s own words:

“When seized of a request for an advisory opinion, the Court must first consider whether it has jurisdiction to give the opinion requested and whether, should the answer be affirmative, there is any reason why it should decline to exercise any such jurisdiction”[20].

That means that after analyzing its own jurisdiction the Court maybe has found that it has it, but that does not mean that there will be automatically a discussion of the request. As article 65.1 points out, the Court may give an opinion, so it leaves up to the organ whether to render a decision or not. Since saying in 1950, in the Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, that “Article 65.2 of the Statute is permissive. It gives the Court the power to examine whether the circumstances of the case are of such character as should lead it to decline to answer the request”[21], the Court has maintained the same approach.

As a result, the Court has argued that, because of its “responsibilities as the principal judicial organ of the United Nations (Article 92 of the Charter), the Court should in principle not decline to give an advisory opinion. Only due to compelling reasons could the Court disregard a request[22]. More difficult is to ascertain what those reasons are by which the Court would decide not to render an opinion because until now it has never rejected one. That has not stopped the Court to explain when would that occurred and to States to convince the jurisdictional organ not to continue.


3.1 The consent of the parties with regards to an advisory opinion related with the controversy


In order to explain it is unavoidable to refer to the Eastern Carelia case, where the PCIJ refused to give an advisory opinion. The relevant paragraph is the following:

“It is well established in international law that no State can, without its consent, be compelled to submit its disputes with other States to submit its disputes with other States either to mediation or to arbitration, or to any other kind of pacific settlement”[23].

States have relied on that paragraph in order to avoid an opinion of the Courts for matter related to disputes between States. The clearest example is the Western Sahara case, and similar to the Wall case. Spain argued that because the Court would give its opinion about an issue that was contentious between Morocco, Mauritania and Spanish itself and because it did not consent to the Court hearing the case. The ICJ would reject the argument stating, quoting the Peace Treaties case that:

“The consent of States, parties to a dispute, is the basis of the Court's jurisdiction in contentious cases. The situation is different in regard to advisory proceedings even where the Request for an Opinion relates to a legal question actually pending between States. The Court's reply is only of an advisory character: as such, it has no binding force. It follows that no State, whether a Member of the United Nations or not, can prevent the giving of an Advisory Opinion which the United Nations considers to be desirable in order to obtain enlightenment as to the course of action it should take. The Court's Opinion is given not to the States, but to the organ which is entitled to request it”[24].

And that the lack of consent could in some circumstances “constitute a ground for declining to give the opinion requested if, in the circumstances of a given case, considerations of judicial propriety should oblige the Court to refuse an opinion”, especially when the effect would be the circumventing of the consent of the State[25].

Based on that, the Court would reject Israel’s contention, considering that the judicial organ should assistance the General Assembly and that it was not circumventing Israel’s consent. But we could add that here the problem was also that the issue was not between two States, because Palestine is still not one, and therefore not a subject of International Law which would mean that there is a contentious issue as such, due to Palestine’s lack of subjectivity[26].


3.2 Lack of Information


In this case, the Court might not render an opinion because of the lack of information, which would impede to have all the facts and thus would lead to an invalid decision. This requirement is a subjective one; there is no standard definition that can help to dilucidate if there is enough information. Moreover, this has to be linked with the principle of equality. Because if all parties are not hear that would mean that the Court would only decide by the facts and arguments presented by one party.

This was an important factor in the Wall case. Israel, due to its refusal to collaborate, did not participate in the merits of the case. That is why it was argued that the Court should not continue, it would not have listened to all the parties. As with many other issues raised against the proceedings, the Court rejected it. It considered that it had enough information[27]. Judge Buergenthal was the only judge who considered that there was not enough information. He stated that the lack of information vitiated the Court’s findings on the merits[28].

This can be one of the most debatable issues of the case. We need to bear in mind that if one of the parties do not collaborate or do not participate on the process that would lead to a not very legitimate solution[29]. The fact that all the judges except one supported giving an advisory opinion and thus considering that there was enough information could have helped to avoid the undesirable consequence of having an opinion with a lack of legitimacy.


3.3. Usefulness


The function of the Court, through the advisory opinions, has been to guide the UN organs in several matters, to clarify a situation in order to take action. That is why it was argued that the Court should not discuss the merits because the General Assembly had already declared that the Wall was illegal and as a result there was no need for assistance. This was rejected on the grounds that it was up to the General Assembly to decide what to do with the findings; it was not the Court’s role to decide that[30]. This reasoning is also a debatable one. If we analyze to past opinions we can observe that the organ which requested the opinion did not prejudice beforehand the merits of the case. A clear example is the Certain Expenses case where the General Assembly requested the opinion of the Court about what was consider part of the budget according to article 17.2; it did not say what the interpretation of the precept was. It left it to the Court. Accordingly, it can be argued that it undermines the reasoning if the organ has decided beforehand about the issue.


3.4. Political Influence


Another argument usually used in order to convince the Court that it should its discretionary power and not rendering an opinion is that it released would impede a political solution; it would interfere with the discussions between the actors. In our case, the Court decided that it was not sufficient. It considered that because of the divergent views of the actors about the opinion it was not possible to really appreciate the impact of it[31].




Using Falk’s words we can say, with regards to jurisdiction, that “the advisory opinion seems on extremely solid ground, relying on past patterns of practice and widely accepted views of the institutional role of the ICJ within the United Nations system”[32]. Another conclusion is that the supposedly unfettered discretion of the Court deciding to render an opinion is not that clear. Article 65 is “significantly offset by other Charter articles that oblige the organs of the United Nations to cooperate with each other”[33].

[1] C.D. Esposito, La jurisdicción consultiva de la Corte Internacional de Justicia, at xxvii-xxx (1996).

[2] Id. 103 et seq.

[3] Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Rep. 2004, at 136 (hereinafter Wall).

[4] M.M. Aljaghoub, The Advisory Function of the International Court of Justice 1946-2005, at 38 et seq. (2006); and Application for Review of Judgement No. 273 of the United Nations Administrative Tribunal, Advisory Opinion, ICJ Rep. 1982, 333-334.

[5] Legality of the Threat or Use Nuclear Weapons, Advisory Opinion, ICJ Rep., 1996, at 22.

[6] Wall, 145.

[7] Ibid. 148-150.

[8] Certain Expenses of the United Nations (Article 17, paragraph 2 of the Charter), Advisory Opinion, ICJ Rep. 1962, at 155.

[9] C. de Visscher, Teorías y realidades en Derecho Internacional Público 387 (1962).

[10] Esposito, 82 and note 90.

[11] Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Rep. 1971, at 27.

[12] I. Scobbie, “Issues of competence and procedure in the Wall advisory opinion” available at COMPLETE, at 13.

[13] See Esposito, 89-91 and  Aljaghoub, 61-63.

[14] Wall, 154.

[15] Application for Review of Judgement No. 158 of the United Nations Administrative Tribunal, Advisory Opinion, ICJ Rep. 1973, at 172.

[16] Legality of the Threat or Use Nuclear Weapons, 234.

[17] Aljaghoub, 59.

[18] Wall, 153-154.


[20] Wall, 144.

[21] Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, Advisory Opinion, ICJ Rep. 1950, at 72.

[22] Wall, 44 and the jurisprudence cited.


[24] Western Sahara, Advisory Opinion, ICJ Rep. 1975, at 24.

[25] Ibid., 25.

[26] Scobbie, at 9.

[27] Wall, 160-162.

[28] Declaration of Judge Buergenthal, COMPLETE.

[29] Esposito, 100.

[30] Wall, 162-163.

[31] Ibid., 159-160.

[32] R.A. Falk, “Toward Authoritativeness: The ICJ Ruling on Israel’s Security Wall”, 99 AJIL 42, at 44 (2005).

[33] Aljaghoub, 67.

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