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“Binding” Advisory Opinions of the International Court of Justice

Published online by Cambridge University Press:  27 February 2017

Roberto Ago
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Extract

The advisory opinion handed down by the International Court of Justice on December 15, 1989, Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations, has revived the topicality of the possible dual application of the Court’s advisory procedure. This procedure, provided for in Article 96 of the Charter, is governed by Articles 65-68 of the Statute of the Court.

Type
Research Article
Information
American Journal of International Law , Volume 85 , Issue 3 , July 1991 , pp. 439 - 451
Copyright
Copyright © American Society of International Law 1991

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References

1 1989 ICJ Rep. 177 (Advisory Opinion of Dec. 15).

2 See, e.g., Agreement Regulating Conditions for the Operation of the Headquarters of the United Nations Economic Commission for Latin America, Feb. 16, 1953, Art. XI, §21, United Nations-Chile, 314 UNTS 49; Agreement Relating to the Headquarters of the Economic Commission for Asia and the Far East, May 26, 1954, Art. XIII, §26, United Nations-Thailand, 260 UNTS 35; Agreement establishing a radio-isotope center in Cairo, Sept. 14, 1967, Art. XVI, §39, Egypt-International Atomic Energy Agency, UN Doc. IAEA/INFCIRC/38 (1967).

3 See, e.g., Convention on the Privileges and Immunities of the United Nations, Feb. 13, 1946, Art. VIII, §30, 21 UST 1418, TIAS No. 6900, 1 UNTS 15; Convention on the Privileges and Immunities of the Specialized Agencies, Nov. 21, 1947, Art. XI, §32, 33 UNTS 261; Agreement on the Privileges and Immunities of the International Atomic Energy Agency, July 1, 1959, Art. X, §34, 374 UNTS 147.

4 See, e.g., Statute of the United Nations Administrative Tribunal, as amended, Art. 11, para. 3, UN Doc. AT/11/Rev.4 (1972).

5 See, e.g., Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, Mar. 21, 1986, Art. 66, para. 2, UN Doc. A/CONF.129/15 (1986), reprinted in 25 ILM 543 (1986); United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, Dec. 19, 1988, Art. 32, para. 3, UN Doc. E/CONF.82/15 (1988), reprinted in 28 ILM 493 (1989).

6 S. Rosenne, The Law and Practice of the International Court of Justice 682 (1965).

7 Id. at 683.

8 1956 ICJ Rep. 77 (Advisory Opinion of Oct. 23).

9 Under Article 34 of the Statute of the International Court of Justice, “[o]nly states may be parties in cases before the Court.”

10 This view is unchanged in the recent revision of Rosenne’s book. The Law and Practice of The International Court of Justice 683 (2d rev. ed. 1985).

11 P. Benvenuti, L’accertamento del diritto mediante i pareri consultivi della Corte internazionale di Giustizia (1985).

12 Id. at 55 et seq. Obviously, Benvenuti’s position regarding the status as res judicata of an advisory opinion to which binding force has been attributed is the opposite of Rosenne’s. He later states his view that this binding force has the effect of divesting the international organization of its power to exercise other kinds of competence in the case at hand, particularly that of conciliation or mediation.

13 Bacot, Réflexions sur les clauses qui rendent obligatoires les avis consultatifs de la C.P.J.I. et de la C.I.J., 84 Revue Générale de Droit International Public 1027 (1980).

14 Report of committee appointed on September 2nd, 1927, 1927 PCIJ (ser. E) No. 4, at 75, 76.

15 Interpretation of Peace Treaties, 1950 ICJ Rep. 65, 71 (Advisory Opinion of Mar. 30) (emphasis added). Cf. Reservations to the Convention on Genocide, 1951 ICJ Rep. 15, 20 (Advisory Opinion of May 28); Certain expenses of the United Nations (Article 17, paragraph 2, of the Charter), 1962 ICJ Rep. 151, 168 (Advisory Opinion of July 20).

16 Bacot, supra note 13, at 1030.

17 Id. at 1044.

18 Id. at 1054 (emphasis added).

19 Id. at 1055.

20 See, e.g., Application for Review of Judgement No. 158 of the United Nations Administrative Tribunal, 1973 ICJ Rep. 166, 182, para. 39 (Advisory Opinion of July 12), quoted in text at note 25 infra.

21 1956 ICJ Rep. at 85. Nevertheless, it seems to me that Bacot, supra note 13, at 1038, takes too broad a view of the Court’s intentions by interpreting this statement as a “refusal to take a position” on questions he believes the Court should have examined and resolved.

22 1956 ICJ Rep. at 85.

23 Id. at 84.

24 1973 ICJ Rep. 166 (Advisory Opinion of July 12).

25 Id. at 182, para. 39.

26 Id. at 183.

27 1982 ICJ Rep. 325 (Advisory Opinion of July 20).

28 Id. at 336, para. 25.

29 1987 ICJ Rep. 18 (Advisory Opinion of May 27).

30 Id. at 32, para. 26.

31 Id. at 32–33.

32 Id. (quoting 1973 ICJ Rep. at 176, para. 25).

33 1987 ICJ Rep. 109, para. 6 (Ago, J., sep. op.). For a tull exposition of my views, see id. at 107–09.

34 ESC Res. 1989/75 (May 24, 1989).

35 Convention on the Privileges and Immunities of the United Nations, supra note 3, Art. VIII, §30.

36 Id. (emphasis added). The language of Article VIII, section 30 of this Convention is also found in the corresponding provisions of the Conventions on the same subject concerning the specialized agencies and the IAEA, supra note 3. See P. Benvenuti, supra note 11, at 54 et seq.

37 Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations, 1989 ICJ REP. 177, 189, para. 32 (Advisory Opinion of Dec. 15).

38 Id., para. 33.

39 Id. at 188, para. 29. Analogous reservations are contained in the instruments of accession deposited by Bulgaria, the Byelorussian Soviet Socialist Republic, Cuba, Czechoslovakia, the former German Democratic Republic, Hungary, Mongolia (which withdrew it in February 1990), Poland, the Soviet Union and the Ukrainian SSR. These states made the same reservation to the parallel provision of the Convention on the specialized agencies, supra note 3. Other reservations to the same provisions are contained in the instruments of accession of China and Indonesia. The United Kingdom objected to these reservations. See [1985] 2 Y.B. Int’l L. Comm’n, pt. 1 at 209, para. 237, UN Doc. A/CN.4/SER.A/1985/Add.1 (Part 1/Add.1).

40 1989 ICJ Rep. at 190, para. 34.

41 As well as under General Assembly Resolution 89 (I) of December 11, 1946. 1 UN GAOR (Res.) at 163(1946).

42 1989 ICJ Rep. at 191, para. 38.

43 See text following note 32 supra.

44 In addition to the agreements cited in note 2 supra, Benvenuti mentions other headquarters agreements, as well as Article 37, paragraph 2 of the ILO Constitution; the latter, however, provide for a more complex procedure, involving an ad hoc tribunal, with respect to which the binding force of an opinion of the Court could come into play. P. Benvenuti, supra note 11, at 55. See also N. Valticos, Droit International du Travail 134 (2d ed. 1983); Valticos, Les Commissions d’enquête de l’Organisation internationale du Travail, 91 Revue Générale de Droit International Public 847, 877 (1987); E. Osieke, Constitutional Law and Practice in the International Labour Organisation 206 (1985). As regards the ILO, however, the tribunal in question has never seen the light of day, and any request by the ILO Governing Body to the International Court of Justice could accordingly lead only to an advisory opinion, which, as such, would not have decisive effect.

45 Article 66, paragraph 2 of the Convention, supra note 5, provides in relevant part:

2. With respect to a dispute concerning the application or the interpretation of Article 53 or 64:

…

(b) if a State is a party to the dispute to which one or more international organizations are parties, the State may, through a Member State of the United Nations if necessary, request the General Assembly or the Security Council or, where appropriate, the competent organ of an international organization which is a party to the dispute and is authorized in accordance with Article 96 of the Charter of the United Nations, to request an advisory opinion of the International Court of Justice in accordance with Article 65 of the Statute of the Court;

(c) if the United Nations or an international organization that is authorized in accordance with Article 96 of the Charter of the United Nations is a party to the dispute, it may request an advisory opinion of the International Court of Justice in accordance with Article 65 of the Statute of the Court;

(d) if an international organization other than those referred to in sub-paragraph (c) is a party to the dispute, it may, through a Member State of the United Nations, follow the procedure specified in sub-paragraph (b);

(e) the advisory opinion given pursuant to sub-paragraph (b), (c) or (d) shall be accepted as decisive by all the parties to the dispute concerned ….

46 Article 32, paragraph 3 of the Convention, supra note 5, reads as follows:

If a regional economic integration organization referred to in article 26, subparagraph (c) is a Party to a dispute which cannot be settled in the manner prescribed in paragraph 1 of this article, it may, through a State Member of the United Nations, request the Council to request an advisory opinion of the International Court of Justice in accordance with article 65 of the Statute of the Court, which opinion shall be regarded as decisive.