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Legal findings of interest in the Israeli Practices Opinion will be discussed in a multi-part series titled: “Review of the Israeli Practices Opinion”. This post serves as the third entry, and will focus on the breadth of the ICJ’s discretion to decline to answer a request for an advisory opinion.
Part 1, which is concerned with whether the Court’s advisory jurisdiction extends to pronouncing upon Israel’s international responsibility without its consent, can be found here.
Part 2, which is concerned with whether there existed a bilateral dispute between Israel and Palestine that would bar the ICJ’s exercise of advisory jurisdiction, can be found here.
This post is co-authored by Sabina Kirana Zildj and Dylan Jesse Andrian.
In his Declaration appended to the International Court of Justice’s (“ICJ”) 19 July 2024 Israeli Practices Advisory Opinion, Judge Tladi proposes: “[f]or the Court to refuse to respond to a request from the General Assembly or the Security Council when it has jurisdiction to do so would, in my view, amount to the Court second-guessing the decisions of the other principal organs in a way that would be legally problematic”. Unfortunately, Judge Tladi did not get around to explaining why such “second-guessing” would be legally problematic, instead going on to discuss two situations in which the Court was entitled to exercise its, in his words, “very narrow discretion to decline to render an opinion”, (namely if the answer had become moot as in Lockerbie or if the organ from whom the request originated no longer enjoyed the support of its individual members in obtaining the opinion (para. 9)). Another idea implicit in his statement was that if the Court was not satisfied that it had jurisdiction in a given case, it could reject the jurisdiction conferred upon it by the GA and the SC.
To respond to the explicit assertion, it is clear that the ICJ, pursuant to Article 65(1) of the ICJ Statute, possesses unfettered statutory powers to decline a request for an advisory opinion in limine. In this respect, the ICJ would not be second-guessing a decision of the GA or SC, because, firstly, the request is not a decision itself, but rather, a product of a preliminary decision to seek a request, and, secondly, Article 65(1) of the ICJ Statute clearly envisioned such second-guessing as one of the ICJ’s statutory discretionary powers.
The second, implicit assertion, however, raises more complex questions, and therefore will serve as the focus of this piece. Indeed, it appears that the ICJ’s advisory jurisdiction is contingent on a decision by the GA or SC (or any other UN body authorized by the GA) to submit what it perceives to be a legal question to the Court. Should then the Court shrug off its jurisdiction by proclaiming the absence of a legal question, what it is simultaneously doing is judicially reviewing a decision of the requesting body and opining that such a body’s decision to make a request was incompatible with the UN Charter. This, to borrow Judge Tladi’s words, is a situation that is “legally problematic” because, as will be shown below, (1) the ICJ does not possess powers of judicial review. Accordingly, (2) it will be shown how the ICJ can deal with and indeed has dealt with such issues so as to avoid conducting a judicial review while ensuring that the only questions that come before it, are truly legal questions.
The ICJ does not possess powers of judicial review
In international law, judicial review involves a determination of the validity of decisions adopted by UN organs based on whether the UN organ concerned acted ultra vires when adopting such a decision. This was ICJ’s the view in its 1971 Namibia Advisory Opinion when it was faced with an objection that the GA had acted ultra vires when adopting resolution 2145 (XXI). In response, the Court concluded that: “[u]ndoubtedly, the Court does not possess powers of judicial review or appeal in respect of the decisions taken by the United Nations organs concerned” (Namibia, para. 89). This holding is consistent with a plain reading of the UN Charter, which contains no specific procedure for determining the validity of an act of a UN organ, let alone a provision prescribing to the ICJ such constitutionally granted competence (See Certain Expenses p. 168).
Scholars have nonetheless pointed to the Court’s 1992 Lockerbie Provisional Measures Order as evidence of the Court’s ability to conduct judicial review. There, the Court implied that at a later stage of the proceedings, it could be “called upon to determine definitively the legal effect of Security Council resolution 748 (1992)” (para. 40). However, a closer look at the other cases in which the Court examined the legal effects arising from decisions of other UN organs (as it has done in Namibia, Certain Expenses, and Kosovo) reveals that a determination of legal effect differs from a determination of validity: the question of legal effect assumes the instrument is valid and simply asks what are the consequences arising from such an instrument.
To conclude, while the ICJ can determine the legal effects arising from a decision from other UN organs, it cannot review their validity.
How the ICJ can deal with and has dealt with advisory jurisdictional issues without conducting judicial review
The question therefore arises: what happens if the Security Council (“SC”) or General Assembly (“GA”) decides to confer upon the Court advisory jurisdiction, but their decision to do so is incompatible with the UN Charter? The first step to answering this question is to ascertain what that kind of situation would look like. According to Article 96(1) of the UN Charter, “[t]he General Assembly or the Security Council may request the International Court of Justice to give an advisory opinion on any legal question”. The SC or GA would therefore be acting ultra vires if the question they pose to the ICJ is not a legal question.
However, in such cases, the Court cannot simply say it is bereft of jurisdiction due to the absence of a legal question, because to do so would involve a review of the GA or SC’s decision. What then should the Court do?
In cases like these, the ICJ has always presumed that the actions taken by other UN organs are valid. As recognized by the Court in Namibia: “A resolution of a properly constituted organ of the United Nations which is passed in accordance with that organ's rules of procedure, and is declared by its President to have been so passed, must be presumed to have been validly adopted” (Namibia, para. 20. See also Certain Expenses, where the Court considered that when the SC takes actions which it considers appropriate for the fulfillment of the purposes of the UN, then the SC shall be presumed to have not acted ultra vires).
Thus, no matter the question before it, the Court must begin with the presumption that such a question is of a legal nature. Implicitly, the Court has already done this in other advisory cases that have come before it. For example, when objections were raised against the GA’s request for the Court to issue an opinion on the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo, (particularly that a declaration of independence is a political act that is not regulated under international law, (Kosovo, para. 26)), the Court affirmed that “the fact that a question has political aspects does not suffice to deprive it of its character as a legal question” (Kosovo, para. 27. See also Nuclear Weapons, para. 13). The ICJ went on further to assert that irrespective of its political aspects, the Court “cannot refuse” to respond to the legal elements of a question allowing it to discharge its judicial functions (ibid).
In a similar vein, the Court has also noted that obscure questions, by virtue of their lack of clarity, would not deprive the Court of jurisdiction (Wall, para. 38); instead, such questions merely require clarification in interpretation (Ibid). Indeed, the ICJ has often been required to “broaden, interpret and even reformulate the questions put” to it (Wall, para. 38. See also Review of Judgment No. 273, para. 46; Certain Expenses, pp. 157-162; WHO and Egypt, paras. 34-36).
Hence, when faced with a question posed by the GA and SC ostensibly lacking a legal dimension, the Court’s practice has always been to assume that they, as other UN organs competent to determine their own jurisdiction, have actually asked a legal question that may simply be improperly formulated. Accordingly, the Court should seek to understand the true legal question underlying their request and answer that question to the best of its ability.
Conclusion
In conclusion, Judge Tladi’s off-handed statement in his Declaration mentioned above actually broaches a complex discussion on the ICJ’s power to second-guess and review the actions taken by the other principal organs of the UN. Indeed, while the ICJ can freely reject any request for an advisory opinion that comes before it, at the same time, it must be careful to ensure that it does not judicially review the SC and GA’s decisions to request an advisory opinion. To avoid such judicial review, the Court can, instead of denying it has advisory jurisdiction at all, try to peel the layers back of that question to try to understand what legal inquiry really underlies the GA or SC’s request.
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