The ICJ’s Opinion is Only Advisory

The ICJ’s Opinion is Only Advisory

There seems to be a lot of confusion among journalists as to the purpose and status of advisory opinions in international law. This is hardly surprising, as the pro-Israel lobby alleges that advisory opinions are only advisory and can therefore be ignored with impunity. But this is simply not the case.

It is true that unlike judgements of the International Court of Justice, advisory opinions are only consultative and not binding as such on the requesting body. This is because their purpose is to provide authoritative guidance on points of law arising from the functions of organs and specialised agencies of the UN.

But in reality, there is no difference between a ‘non-binding’ advisory opinion and a ‘binding’ judgement. Although the requesting body is not legally obliged to do what the ICJ says, in practice it normally does so.

Blaine Sloan - Professor Emeritus of International Law and Organization at Pace Law School, and a noted expert on UN law with decades of experience as director of the UN General Legal Division - made this point in an article he wrote in 1950:

“While in a formal sense it may be true that an opinion does not have the binding force of a judgement, practically, it does, as an authoritative statement of law, have almost the same legal effect.”

André Gros, formerly a French judge at the ICJ and a member of the UN War Crimes Commission during World War II, took a similar view:

“The distinction habitually drawn between advisory opinions and judgements, whereby the former do not have the binding character of the latter, is not an absolute one.”

The ICJ is the principal judicial organ of the UN. There is no higher authority that can rule on the legal issues involved in this case.

Even if this had been a contentious case between Israel and Palestine, or between a third state such as Jordan doing what Ethiopia and Liberia tried to do regarding South West Africa in the 1960s[1], the result would have been the same - although in a contentious case Israel would have probably put in full evidence and arguments on the merits.

It should be noted that two of the obligations mentioned by the ICJ in its advisory opinion are binding in and of themselves. These are called obligations erga omnes, which are concerned with the enforcement of international law, the violation of which is deemed to be an offence not only against the state or entity in question, but against all members of the international community.

These obligations of an erga omnes character which the ICJ referred to are the Palestinian people’s right to self-determination, and certain unspecified obligations under international humanitarian law.

It is therefore incorrect to say that the ICJ’s opinion is only advisory. Rather, it is a statement of what the law is today by the world’s most authoritative judicial body.

For further reading:

Blaine Sloan, “Advisory Jurisdiction of the International Court of Justice,” in volume 38 of the California Law Review published in 1950 at pp. 830 – 859 at p. 855.

André Gros, “Concerning the Advisory Role of the International Court of Justice,” in Friedmann, Henkin and Lissitzyn (eds.) Transnational Law in a Changing Society: Essays in Honor of Philip C. Jessup (New York: Columbia University Press 1972) pp. 313 - 324 at p 315.

[1] From 1949-1971, the case of South West Africa (now Namibia) engaged the ICJ’s attention. This resulted in four advisory opinions (1950, 1955, 1956 and 1971) and two judgements (1962 and 1966). From 1949-1962, South Africa did its best to thwart the supervisory role assigned to the UN General Assembly, and just like Israel it ignored the ICJ’s advisory opinion(s). But by the 1960s, with many new African members of the UN, a new idea took root: to explore the possibility of contentious litigation through a judgment from the ICJ. However, South West Africa was not a state in the 1960s (Namibia did not attain independence until 1990), and it had to rely on Ethiopia and Liberia (who were both members of the League of Nations) to bring the case to the ICJ on its behalf. In 1966, “the white man’s court” held that Ethiopia and Liberia were not entitled to receive judgement on the merits of the case, since they had not “established any legal right or interest appertaining to them in the subject matter” of the claims. This judgement came as a surprise to many, and it is generally thought that were it not for the death of Judge Badawi, the illness of Judge Bustamante and the withdrawal of Judge Zafrullah Khan, the outcome might have been very different. Today the matter seems to be settled, as Article 42 of the International Law Commission’s Draft Articles on State Responsibility (2001) allows an injured state to invoke the responsibility of another state if the obligation breached is owed to that state, a group of states or to the international community as a whole. The ICJ found that the obligations breached by Israel are obligations erga omnes, which by their very definition are obligations owed to the international community. So although, theoretically, the Palestinians could seek a judgment from the ICJ through the aegis of Jordan, it would probably make little difference since the outcome would most likely be the same. Even with a judgment, the Palestinians would find themselves in the same predicament, as it is more than likely that Israel would ignore the ICJ’s ruling. As long as the US is willing to shield Israel, there is very little that can be done to enforce the latter’s compliance with international law.