By Dr. Lakshman Marasinghe
With reference to my Article my colleagues have asked me to explain how an Advisory opinion could be sought from the International Court of Justice (I.C.J.) when its jurisdiction to issue such opinions excludes requests made by States and includes, roughly, only fourteen U.N. bodies.
This indeed is an important question and I must apologize for not being terribly clear in my writing. Therefore this explanation.
It is correct that “Advisory opinions” as an international law concept could only be sought by one of the named U.N. bodies. Such opinions by definition are non-binding and are devoid of sanctions listed in Chapter VII from Articles 41 onwards under that Chapter. This is necessary for obvious reasons that one U.N Body cannot seek the help of the Security Council under that chapter to virtually sanction itself.Coming to our problem we begin with the Advisory opinion rendered by the I.C.J in the Reparation for injuries suffered in the Service of the United Nations ( 1949) and the several cases that have followed it.
There the I.C.J gave the United Nations Organization an international legal identity as a body possessing “ a large measure of legal personality and the capacity to operate upon the international plane. It followed that the organization had the capacity to bring a claim and to give it the character of an international action for reparation for the damage that had been done to it.
The Court further declared that the organization can claim reparation not only in respect of damage caused to itself , but also in respect of damage suffered by the victim or persons entitled through him”.( I.C.J. – U.N. Report at page 35). These features posits upon the U.N. Organization a legal personality in the nature of which it becomes co-terminus with that of the legal personality of any Sovereign State.
Having arrived at that conclusion it is important to note that the I.C.J. has what is described as “ contentious jurisdiction” to hear disputes between states conceptualized as “ contentious matters”. Our problem as to the powers of the Secretary- General to appoint an international panel with a specific mandate, where the functions of which may or may not involve an investigation into the internal affairs of a member state is clearly a “contentious case” raising a “contentious issue” to be brought before the I.C.J under its “ contentious jurisdiction”.
In any proceedings before the I.C.J it is seems quite meaningless to obtain a binding order. Binding Orders attract sanctions and to sanction the U.N. Organization would be an arid exercise. What we need is a non- binding finding from the I.C.J. in the form of a declaration. That means a “ declaratory order as opposed to a mandatory judgment” .
Schwarzenberger ( G ) in his Manual of International Law ( 5th Edn) at page 251 wrote: “While Under the Charter and the Court’s Statute, States alone may be parties to contentious proceedings before the court, only international institutions or organs of such institutions may request advisory opinions. In practice, the distinction is less rigid than might, at first sight, appear. The applicant in contentious proceedings may ask the court for a declaratory, as distinct from a mandatory judgment. This differs from an advisory opinion merely in being formally binding on the parties”.
Therefore, if what is sought in a contentious proceeding against the U.N is a “non- binding declaratory judgment” , then that amounts to an “advisory opinion” . This may seem to be a circuitous path to take to obtain an “ Advisory opinion”. But nonetheless that is the only way that is available for States to obtain an advisory opinion from the I.C.J.
As my Master during pupilage had reminded me and others of his pupils that “ there are always more than one way to skin a cat”. His cat being the “law” which sits by the window unable to predict which way it would jump.
I hope I have been abundantly clear how a State may obtain an advisory opinion from the I.C.J.
(Dr. Lakshman Marasinghe is Emeritus Professor of Law, University of Windsor, Ontario, Canada)