The advisory function of the International Court of Justice (1946-2004)

• Main Author: Aljaghoub, Mahasen M.
• Published: University of Warwick 2005
• Subjects: 341.552; KZ Law of Nations
• Online Access: http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.414887

This study seeks to provide a comprehensive analysis of the advisory role of the International Court of Justice in light of its jurisprudence and overall contribution over a period of more than 55 years. The last comprehensive study of the ICJ's advisory jurisdiction was published in 1973. Since then, there have been 11 more advisory opinions, some covering areas of great contemporary importance such as decolonisation, legal issues arising from the possession and possible use of nuclear weapons and international legal aspects of the Israeli Palestinian conflict. This thesis attempts to update previous work on the subject and also to reexamine the function of the advisory jurisdiction in light of these more recent opinions. The thesis highlights the "organic connection" between UN organs and the Court and the Court's contribution as one of the UN's principal organs to the Organisation. The basic argument of this thesis is that the advisory function should be understood as a two-sided process involving the interplay between UN organs and the ICJ. The request for and the giving of an advisory opinion is a collective coordinated process, involving more than one organ or part of the Organisation. Consequently, each must be mindful of the need for some degree of restraint. The collective commitment to achieving the purposes of the Charter should be the ultimate goal for all organs. The study concludes that the Court's role as a participant in the UN's work is circumscribed by its duty to act judicially. In practice, the Court has succeeded in establishing a balance between its role as a principal organ of the UN and its position as a judicial institution with a duty to administer justice impartially. Lastly, the study emphasises that since the San Francisco Conference the advisory function has proved to be a successful instrument for providing authoritative legal opinions that aid the UN in carrying out its functions. The advisory opinions rendered by the Court and by its predecessor, the PCU, have actually gone beyond the expectations of the founders of these Courts, particularly in terms of their contribution to International Law. Yet, as this thesis suggests, the advisory function can still be improved.