Advisory Opinions

 4. What does an Advisory Opinion do? 

Unlike judgments of the ICJ in contentious proceedings, advisory opinions are not binding at law. Nonetheless, due to the status of the ICJ as the highest court in the world they “carry great legal weight and moral authority”. They are often an instrument of preventive diplomacy and help to keep the peace. In their own way, advisory opinions also contribute to the clarification and development of international law and thereby to the strengthening of peaceful relations between states.”

5. Purpose of Advisory Opinions more generally:

“In the Nuclear Weapons advisory opinion, the Court stated that the “purpose of the advisory function is not to settle – at least directly – disputes between States, but to offer legal advice to the organs and institutions requesting the opinion.” “

6. What do the legal experts say?

Daniel Bodansky finds Advisory Opinions generally a beneficial tool (and in some cases preferable to international adjudication) in the international law tool box for several reasons: 

1. ‘Advisory opinion[s] would have a more general effect, since judgements in contentions cases only bind the parties to the dispute’

2. ‘All states could have their voices heard, in contrast to contentious cases, which are limited to the parties to the dispute and states permitted to intervene.’

3. ‘An advisory opinion on the general rules of international law relating to climate change would not require the Court to make specific determinations of standing or causation’ [This is usually an obstacle for litigation on cross-boundary harm cases.]

4. ‘An advisory opinion could address issues at a relatively high level of generality, leaving the specifics to be worked out through negotiations’

5. And ‘an advisory opinion would allow the I.C.J to perform its most important role [...] to clarify and elaborate the relevant norms of general international law.’

7. How does the International Court of Justice arrive at their conclusion? 

Article 38 of the ICJ Statute outlines the sources of international law that the judges consider when drafting an AO. They are namely: treaty law, customary international law, general principles of international law, past decisions, and academic writings. 

That means, 

• That the court will look at other existing agreements, such as the ‘Convention on the Rights of the Child’ for example, to decide what existing international obligations state have to respect, protect and fulfill the human rights of their citizens.

• That the court will consider whether certain ways of behaving have become customary in international law and diplomacy. This means that the judges will examine whether states have consistently acted in a certain way, for a long period of time out of a sense that they ‘have to’ (i.e. it is considered like a quasi-legal obligation). An example for this is the granting of immunity for visiting heads of states. “Custom may be evidenced by numerous material sources, such as, among others, diplomatic correspondence, policy statements, press releases, official legal advisers' opinions, military manuals, state legislation, judicial decisions by national and international courts, resolutions of the UN General Assembly”.
  

• That the Court will also consider general principles of international law: “(i.e. general principles of fairness and justice which are applied universally in legal systems around the world). Examples of these general principles of law are laches, good faith, res judicata, and the impartiality of judges. International tribunals rely on these principles when they cannot find authority in other sources of international law.”
  

• That the Court will look at past decisions made in other cases either in front of the International Court of Justice, or in front of other international tribunals (such as the International Tribunals for the Law of the Seas) and courts. They might also consider very authoritative judgements from national courts, such as the Dutch Supreme Court. 
  

• That the Court might also consider academic publications by authoritative writers. This is a rather vague source of law, as it is not specified when someone would be considered an authoritative writer. It is unlikely that the Court will make a decision purely based on academic publications by legal scholars. However, if there are bounteous sources amplifying for example the existence of certain international obligations of states regarding human rights and climate change, it would be very difficult for the court to make a judgement contradictory to this.