This is a guest post by Elizabeth Boomer, an international law consultant in the Global Legal Research Directorate. Elizabeth has previously written for In Custodia Legis on Technology & the Law of Corporate Responsibility – The Impact of Blockchain, and the 30th Anniversary of the United Nations Convention on the Rights of the Child.
Tomorrow, October 24, is United Nations Day (UN Day), which marks the 75th anniversary of the creation of the United Nations. The focus of UN Day 2020 is “The future we want, the United Nations we need: reaffirming our collective commitment to multilateralism,” which is particularly pertinent given the scope of collective action challenges confronting the multilateral system today. These include how international law can be used to respond to the legal challenges presented by COVID-19, to resolve ongoing trade wars, to manage migration flows, or to address climate change (which was the theme of UN Day 2019). While these challenges may be most commonly handled through diplomacy or advocacy, one might wonder what international law tools and institutions the UN has as part of its arsenal to contribute to the future we want.
In this post, I want to highlight the potential of the advisory opinion function of the International Court of Justice (ICJ), as a main organ of the UN. Article 33 of the United Nations Charter established the ICJ in 1945, and its governing statute was annexed to the UN Charter in 1945. As the ICJ notes, “Despite having no binding force, the Court’s advisory opinions nevertheless 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.”
While the idea of creating an international court to settle disputes between states and to offer advisory opinions may seem mostly uncontroversial now, an international court was not an obvious choice for an international legal institution in the early 1940s. Prior to the establishment of the ICJ as a principle organ of the UN, mediation and arbitration were the much more common methods for the pacific settlement of disputes between states. Among its predecessors, only the Permanent Court of International Justice (PCIJ) functioned as an international court in a non-ad hoc manner, as opposed to an arbitral tribunal. These characteristics allowed the PCIJ to have the competency to not only settle specific disputes between parties, but also to provide advisory opinions on any question referred to it by the Council or Assembly of the League of Nations. However, the PCIJ was short lived, only operating and delivering judgments for 19 years from 1921 to 1940. Thus, the creation of a new international court capable of giving advisory opinions was not a foregone conclusion.
However in the end, the committee charged with drafting the statute of the new international court decided to base it primarily on the statute of the PCIJ – many of the first judges of the ICJ were former judges of the PCIJ. One important characteristic the ICJ carried over from the PCIJ is that the court’s jurisdiction is not compulsory (an exploration of the issues of state consent and compulsory jurisdiction can be found here).
To date, the ICJ has delivered 133 judgments in contentious disputes between states and 28 advisory opinions. Currently, 15 contentious cases are pending before the court. While contentious cases have represented the majority of proceedings at the ICJ in recent years, one might wonder if the ICJ’s advisory proceedings could offer some clarity at the international level on the array of international legal issues that the COVID-19 pandemic has either caused or exacerbated? Per article 65 of the Statute of the ICJ, “the Court may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request”. Furthermore, article 96 of the UN Charter provides that, in addition to the UN General Assembly and the Security Council, other UN organs and specialized agencies may request advisory opinions on legal questions arising within the scope of their activities, if authorized by the General Assembly.
Some relevant international legal issues the ICJ may be asked to clarify are: (i) what are the international obligations of states during a pandemic, and when do these obligations arise; (ii) the ways that states should balance overlapping, and sometimes contradictory, international human rights obligations, such as national security and protection of public health vs. freedoms of expression, association, or privacy during a pandemic, or (iii) what defenses to state responsibility could be invoked due to the pandemic?
While it remains to be seen if the General Assembly, Security Council, or other UN organs and specialized agencies will request an advisory opinion from the ICJ on any of these or other legal issues mentioned, it is clear that the commitment to multilateralism through the peaceful settlement of disputes and the hope to strengthen peaceful relations between states remains a priority 75 years later.