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Thèse de doctorat/ PhD Thesis Citation APA:
Narayan Basak, S. (1991). The International Court of Justice and the new-born states (Unpublished doctoral dissertation). Université libre de Bruxelles, Faculté des sciences sociales, politiques et économiques, Bruxelles.
Disponible à / Available at permalink : https://dipot.ulb.ac.be/dspace/bitstream/2013/212987/2/60b85a7f-46b8-4483-bd90-c56a5a674416.txt
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Doctorate Thesis submitted to the Faculty of Social Sciences, Politics and Economies, Free University of Brussels. '
THE INTERNATIONAL COURT OF JUSTICE AND
THE NEW-BORN STATES.
Volume II
SACHINDRA NARAYAN BASAK
THE INTERNATIONAL COURT OF JUSTICE AND
THE NEW-BORN STATES.
Volume II
674.262 V.2
SACHINDRA NARAYAN BASAK
-
436
-(B) Chapter III; Advisory Jurisdiction of the Court
(1) Provision for advisory Opinion under the United Nations Charter and the Statuts of the Court.
The question of advisory opinion by the
International Court was first dealt with by the Informai Inter-Allied Committee of Juriste which met in London.
While a minority of the members of the Committee re- garded the advisory jurisdiction of the Court as ano- malous and "incompatible with the true function of a Court of law" and wanted it to be abolished, the ma- jority were of opinion that it ought to be retained and enlarged. The report of the Committee even en- visaged direct access of States to the advisory pro
cedure. But the Committee laid stress on the Court's jurisdiction being confined to legal matters that were justiciable. (1)
A vague proposai was made in the Dumbarton Oaks Proposais. In chapter VIII, Section A, paragraph 6 of that document, proposai was made that legal disputes should normally be referred to the Court for advisory opinions. But the Dumbarton Oaks Proposais in recommen- ding the right of requesting opinion of the Court to the Security Council only envisaged a curtailment of the advisory jurisdiction. (2)
At the San Francisco Conférence there was practically no discussion as to the advisability of in- cluding the provision for advisory opinion in the scheme of the Charter. It was because of the fact that ail the States-Members had recognized that advisory procedure had become a part of the corpus of international
(1) Report of the Informai Inter-Allied Committee of Juriste, AJIL 1945, 64-75 (Document Section).
(2) RUSSELL, A History of the United Nations Charter,
the Rôle of the United States, 1940-1945, Washington
1945, 873.
jurisprudence. The working of the advisory procedure and the uses to which it lent itself in the settlement of disputes between States were ail well known and recog- nized as sound to be continued in the future scheme of things. Moreover, once the United States which had difficulties with the League in regard to advisory opinion and the Soviet Union whose lack of faith in international adjudication was well-known, had earlier consented at Dumbarton Oaks to advisory opinion being given by the Court, other raembers of the Conférence made no objection to including a provision on advisory opinion in the scheme of the Charter. Although States did split at the Conférence between those who favoured liraiting requests for advisory opinions to only "legal questions" and those favouring "any questions", no one explicitly questioned whether the advisory jurisdiction was effective for only certain kinds of non-legal or
legal questions. (3) However, Committee IV/I of the San Francisco Conférence took a bold step in proposing to vest the authority for requesting advisory opinion in the General Assembly and the Security Council which would be permitted to request an opinion on any legal question.
It also decided to insert a new paragraph in Article 65 of the Statute, making explicit provision for the Court's giving advisory opinions at the request of such bodies.
as may be authorized by the Charter to request them. (4) In their final form, the relevant texts are as follows:
(3) Australia, Netherlands and Norway were in favour of limiting requests for advisory opinion to only legal questions; Costa Rica, Ecuador and Uruguay favoured re
quests for advisory opinion on any question. See LENEFSKY, D., A successful Jurisprudence of Advisory Opinion for the International Court of Justice, lYIA, 1966-67,39.
(4) UNCIO, vol. 13, 385, 395, 411.
-
438
-Article 96 of the Charter
(1) The General Assembly or the Security Council raay request the International Court of Justice to give an advisory opinion on any legal question.
(2) Other organs of the United Nations and specialized agencies which may at any time be so authorized by the General Assembly, raay also request advisory opinions of the Court on legal questions arising within the scope of their activities.
Article 65 (1) of the Statute
The Court may give an advisory opinion on any legal
question at the request of whatever body raay be authori- Ized by or in accordance with the Charter of the United Nations to make such a request. (5)
As regards the attitudes of the Members of the Conférence towards the extention of the Court's juris- diction, it should be.noted here that the original pro
posai as embodied in Article 96 (2) of the Charter was made by the United Kingdom. (6) It was due to the skill-
ful advocacy of the United Kingdom and support of sorae of the smaller countries that the provisions of the ar
ticle had been included in the Charter. The United States and Soviet Union had voted for ail the provisions of
Article 96 of the Charter. Their vote for the extention of the Court's jurisdiction may be taken to be a con
cession to the overwhelraing views prevailing then among States and indicated their willingness to accept the
(5) The relevant provisions of the Rules of the Court are Articles 82 to 85. This provision of the Statute put the right of indirect access to the States not mem
bers of the Court in case of the Specialized Agencies not ail the members of which are parties to the Statute in a different light. See ROSENNE, op. cit, at 658
(f ootnote).
(6) UNCIO, vol. 9, 357.
advisory procedure as a suitable judicial device for assisting international bodies in the handling of legal questions.
The few Asian-African Merabers présent at the Conférence not only favoured the move for the provisions of the advisory function of the Court but also the ex- tention of its advisory jurisdiction as embodied in Ar
ticle 96 (2) of the Charter. The more important among the members of the Asian-African countries, viz, India and Egypt did not take a significant part in the dis
cussion of the Conférence as was expected of them. It was, perhaps, because of the fact that those countries were not independent in 1945. (Egypt was only nominally
indépendant in 1945) Lack of indépendance did not induce them to participate meaningfully in an international political conférence.
It must be pointed out here that under Article 96 of the Charter, the compétence of the General Assembly or the Security Council to notify the Court for advisory opinions is not obligatory. This is also established by the fact that the Court has given no encouragement to the idea that States are under some sort of legal ob
ligation in relation to the advisory compétence of the Court. (7) However, there might arise cases in which the General Assembly undertakes according to the pro
visions of a certain convention to address to the Court to obtain an advisory opinion concerning the legal in
terprétation of one or more texts of the respective convention. Such cases may occur when it cornes to the interprétation and application of certain provisions contained in conventions relating to the régulation of some relations between the United Nations Organization and its Members. In such circumstances the compulsion to apply for advisory opinion has not its source in (7) ROSENNE, S., On the Non-use of the Advisory Compé
tence of International Court of Justice, BYIL, 1963, 4.
440
Charter. The preliminary acceptance by the General Assembly of such an obligation to request for advisory opinions of the Court was provided for in the General Convention on the Privilèges and Immunities of the United Nations adopted by the General Assembly on 21 February 1946, and in the Agreement between the United Nations and the United States regarding the Headquaters of the United Nations of October 31, 1947. (8)
Under Article 65 (1) of the Statute, the Court may give an advisory opinion 'on any legal question'.
Two limitations follow from the wording of this article.
First, the Court can décidé only "legal" questions. If the dispute is "political", it falls outside the Court's jurisdiction altogether. Secondly, the Court has a dis
crétion whether or not to answer the question submitted to it. It is open to the Court to hold that a particular dispute falls outside its compétence in its advisory capacity. In other words, it should be for the Court to décidé whether in giving an opinion in a particular case it will be jeopardizing its own prestige and casting doubt on its own impartiality. (9)
The permissive character of Article 65 (1) of the Statute has also been emphasized by the Court more than once in unambiguous terms. In the Peace Treaties case it was stated by the Court that "Article 65 of the Statute is permissive. It gives the Court the power to examine whether the circumstances of the case are of such a character as should lead it to décliné to ans
wer the request". (10) In the Réservations to the Con
vention on Génocide case the same remarks were repeated by the Court. (11) In the Certain Expenses case the Court again repeated that "the power of the Court to (8) ELIAN, G., The International Court of Justice, A.W.
Sijthoff, Leiden, 1971, 78.
(9) GREIG, D.D., The Advisory Jurisdiction of the International Court and the Settlement of Disputes between States, I&CLQ, April 1966, 325-27.
(10) ICJ Reports 1950, 65.
(11) ICJ Reports 1951, 19.
give an advisory opinion is derived from Article 65 of the Statuts. The power granted is of a discretionary character". (12)
In practice, however, there has been no ob
stacles to the wide exercise by the Court of its advi
sory powers. In the Peace Treaties the Court stated:
"....the reply of the Court, itself" an organ of the United Nations", represents its participation in the activities of the Organization, and, in principle,
should not be refused". (13) The Court unanimously (14) repeated this view in the Réservations to the Conven
tion on Génocide case: "....the Court can confine itself to recalling the principles which it laid down
in its Opinion of March 30th, 1950, (ICJ Reports 1950,71).
A reply to a request for an opinion, should not, in principle, be refused". (15) Similarly in the ILO Admi
nistrative Tribunal case the Court said: "Notwithstan- ding the permissive character of article 65 of the Sta
tuts in the matter of advisory opinion, only compelling reasons could cause the Court to adopt in this matter a négative attitude which would imperil the working of the régime established by the Statuts of the Administra
tive Tribunal for the judicial protection of officiais.
Any seeming or nominal absence of equality ought not to be allowed to obscure or to defeat that primary object.
In the light of what has been said above and of the circumstances of the présent case the Court con
sidéré that it ought to comply with the Request for an Opinion".(l6)
(12) ICJ Reports 1962, 151.
(13) See supra note at 71.
(14) The dissenting judges in this case did not dissent from the quoted passage and agreed that an opinion
should be given. ICJ Report 1951, 15-31, 49.
(15) Ibid. 15,19.
(16) ICJ Reports, 1956, 77, 86-87.
442
Finally, the Court in its opinion in the Certain Expenses case referred with approval to the above quoted dicta in the Peace Treaties and ILO
Administrative Tribunal cases and went on to find that there were no "corapelling reason".(17)
The Court in exercising wide discretionary power in its advisory function has developed "a new doctrine of the duty of the Court” as a principal organ of the United Nations to participate in the activities of the organization and to cooperate with the other principal organs and indeed with the Specialized Agen- cies in the attainment of the purpose of the organi
zation. (l8) The Court has underlined its duty to reply by referring to the interest which the requesting organ has in having a reply to its request. So, in the Réser
vation to the Convention on Génocide case the Court stated:
”The object of this request for an opinion is to guide the United Nations in respect of -its ovm action.
It is beyond dispute that the General Assembly which drafted and adopted the Génocide Convention, and the Secretary General who is the depositary of the instru
ments of ratification and accession, hâve an interest in knowing the legal effects of objections to such réser
vations .
....Not only did the General Assembly take the initiative in respect of the Génocide Convention, draw up its terms and open it for signature and accession by States, but express provisions of the Convention (Artic
les XI and XVI) associate the General Assembly with the life of the Convention; and finally .... the General Assembly actually associated itself with it by endea- vouring to secure the adoption of the Convention by as great a number of States as possible. In these circum- stances, there can be no doubt that the précisé
(17) ICJ Reports, 1962, 151, 155-156. -
(18) ROSENNE, S., The Court and the Judicial Process,
International Organization, 1965, 523.
détermination of the conditions for participation in the Convention constitutes a permanent interest of
direct concern to the United Nations which has not dis- appeared with the entry into force of the Convention".
(19)
In dealing with objection that the Court should not give the opinion in the Peace Treaties case unless the parties to the dispute consented, the Court said:
"....no State, whether a member of the United Nations or not, can prevent the giving of an Advisory Opinion which the United Nations considers to be désira
ble in order to obtain enlightenment as to the case it should take.
In the présent case the Court is dealing with a Request for an Opinion, the sole object of which is to enlighten the General Assembly as to the opportunities which the procedure contained in the Peace Treaties may afford for putting an end to a situation which has been presented to it. That being the object of the Request, the Court finds in the opposition made by Bulgaria,
Hungary and Romania no reason why it should abstain from replying to the Request". (20)
It was argued in the Admission, Compétence, and Certain Expansés cases that since the questions were obviously put for a political purpose the Court should not reply. In ail three cases the Court briefly disposed of these objections. In the first two cases, this objec
tion related both to the Court's compétence and its
discrétion. In both the argument was summarily rejected.
(21) The Court in the Admission case said:
"The Court cannot attribute a plitical character to re
quest which, framed in abstract terms, invites it to (19) ICJ Reports 1951, 15, 19-20.
(20) ICJ Reports 1950, 65-71, 72.
(21) GREIG, op.cit, 340-345.
444
undertake an essentially judicial task, the interpréta
tion of a treaty provision. It is not concerned with the motives which raay hâve inspired this request, not with the considérations which, in the concrète cases submit- ted for examination to the Security Council, formed the subject of the exchange of views which took place in that body”. (22)
The argument was also considered in the Certain Expenses case. The Court Said:
"The Court finds no "compelling reason" why it should not give the advisory opinion .... It has been argued that the question put to the Court is intertwined with political questions, and that for this reason.the Court should refuse to give an opinion. It is true that most interprétations of the Charter of the United Nations will hâve political significance, great or small. In
the nature of things it could not be otherwise. The Court, however, cannot attribute a political character to a
request which invites it to undertake an essentially judicial task, namely, the interprétation of a treaty provision". (23)
From th^ above practice of the Court it can be concluded that the Court, notwithstanding the per
missive nature of Article 65 of the Statute, consider itself under a duty to reply to any valid request for an advisory opinion unless there are any "compelling reasons" to the contrary. The Court has not yet in any actual case acknowledged the existence of sufficient reasons. It has, however, indicated that such could re
suit from its "judicial" character. (24) (22) ICJ Report, 1947-1948, 56,61.
(23) ICJ Reports, 1962, 151, 155.
(24) For an excellent treatment of the subject see
KEITH, R.J., The Extent of the Advisory Jurisdiction
of the International Court of Justice, Leyden, 1971,
pp.146-150, 223-234.
Article 96 (2) of the Charter provided that organs of the United Nations other than the General Assembly and the Security Council should be authorized by the General Assembly to request adivsory opinions of the International Court of Justice on legal questions arising within the scope of their activities. This pro
vison includes both organs and specialized agencies of the United Nations. There was no discussion in the San Francisco Conférence as to the form of authorization or condition of authorization attaching to its grant by the General Assembly. Moreover, the text of Article
96 (2) does not make it clear "whether the authorization has to be given for each individuel case or whether a general authorization can be given to any given organ or agency".- (25) However, the Preparatory Commission of the United Nations in its observations on Relationship with the Spoecialized Agencies transmitted to the first Session of the General Assembly noted the redevance of the questions and stated that it will be for the General Assembly to décidé those questions at the time of
giving the authorization to a given organ or agency.
(26) The principal organs of the United Nations other than the General Assembly, Security Council and the Court itself are the Economie and Social Council, the Trusteeship Council and the Secrétariat. The General Assembly gave authorization to the Economie and Social Council and the Trusteeship Council. (27) Two subsi- diary organs, viz, the Intérim Committee of the General Assembly and the Committee on Application for Review of the Administrative Tribunal Judgments hâve been authori
zed by the General Assembly to request advisory opinions (25) GOODRICH, L., and HAMBRO, E., Charter of the United Nations ; Commentary and Documents, Boston 1949, 266.
(26) Report of the Preparatory Commission of the United Nations 1945, 44.
(27) General Assembly Resolution 89 (1) & 171 (11) B.
446
of the Court. Theses decisions of the General Assembly leave the Secrétariat as the only principal organ of the United Nations other than the Court itself which has been authorized to request the Court for advisory opinions on legal questions arising within the scope of its activities. There appears to be little doubt that the General Assembly could give a similar authori- zation to the Secretary-General as the head of the
principal organ. (28) In view of the responsibilities which he is required to discharge from time to time, it may be considered appropriate at some stage to al- low him to request the Court for an advisory opinion (28) The Secretary-General repeatedly suggested to the General Assembly the necessity of granting such an authorization. The Secretary-General made such
suggestions to the General Assembly in 1950 when the problem of the so called Commission on Human Rights was raised in the General Assembly. On this occasion the Secretary-General contemplated to be authorized himself as a principal organ to the above mentioned Commission. The General Assembly did not comply with the suggestion. The Secretary-General repeated the same suggestion in 1955 considering that he should be autho
rized to ask the Court opinions fundamental in right of the different decisions issued by the Administra
tive Tribunal of the U.N.. Neither on this occasion did the General Assembly comply with the suggestion of the Secretary-General. The Secretary-General considered that such a authorization should include the remission in his compétence of the right to request to give ad
visory opinions only in the matters concerning the de
cisions issued by the Administrative Tribunal of the
U.N. in the name of the States which should request
him to submit such applications. See supra note 65 at
75.
on any legal question relating to such responsibilities.
(29)
Article 96 (2) of the Charter also provides that the General Assembly may authorize Specialized Agencies to request advisory opinions of the Court within the scope of their activities. Such authoriza-
tion is contained in the Agreemens between the United Nations and the International Labour Organization, the Food and Agricultural Organization, the United Nations Economie Scientific and Cultural Organization, the International Civil Aviation Organization, the World Health Organization, the International Bank for Reconstruction and Development, the International Mone- tary Fund, the International Télécommunication Union, the World Metereological Organization and the Inter- Governmental Maritime Consultative Oragnization. There are similar authorizations in the Agreements with the International Atomic Energy Angency and the Interna
tional Finance Corporation. (30)
.(29) JENKS, C. W., The Prospects of International Adju
dication , London 1964, 195. Professor Kelsen is of the opinion that under Article 65 of the Statute, the Court
is authorized to give advisory opinions only to a 'body', that is to say, to a Collegiate Organ, conse- quently not to the Secretary-General who under Article 96 (2) of the Charter may be authorized by the General Assembly to request such advisory opinion of the
Court. (The Law of the United Nations 1951, 54?.)
(30) See Appendix II.
-
448
-(2) Attitude of the New-Born States Towards Certain Spécifie Questions in Relation to the Advisory Jurisdiction of the Court.
Requesting an advisory opinion by any organ or agency of the United Nations carries an implication that the question in respect of which an advisory opi
nion of the Court is requested is a legal one under the provisions of the Charter and in terms of the rules of international law. (31) The request must be appro- priate both in form and substance to enable the Court to give an opinion. Questions raay therefore be raised as to how far the provisions of the Charter impose re
strictions on the General Assembly or the Security Council in regard to the right of requesting the Court for advisory opinions. Though the right of the General Assembly and the Security Council to request advisory opinion of the Court on any legal question is not sub- ject to material limitation, (32) yet as may be expected,
(31) The jurisprudence of the présent Court on the raeaning of 'legal question' discloses that the Court has used language closely resembling that used in con
nection with the contentions jurisdiction. Thus, in the Peace Treaties case, the Court said that a question re- lating to the interprétation of the terms of a treaty was one which 'by its very nature' lies within the compétence of the Court. ICJ Reports 1950, 70-71.
(32) ROSENNE, S., The Law and Practice of the Interna
tional Court, vol II, 707.' - The General Assembly has
also given a wide interprétation to the word 'any' by
refusing to accept as a general proposition that only
'difficult' or 'important' legal questions may be put
to the Court provided they were not 'hypothetical' or
'futile'. UN Repertory of Practice, Article 96, paras
74-76.
due to diverse interests and ideological différences of States, différence of opinion araong the Members of the United Nations may arise as to the extent to which the limitations iraposed by the Charter preclude the General Assembly and the Security Council from requesting the Court's advisory opinion. Three questions hâve raised such différences:
(a) Whether in view of the principle of sovereignty (33) the consent of the States is necessary for advisory
proceedings in cases where the legal interests of States are directly concerned»
As earlier pointed out in this study that it is a general principle of international law that the States are not subject to international adjudication without their consent. The Comraittee of Juriste which prepared the Statute of the Permanent Court was of the opinion that such consent would be necessary. (3^)
The question of what constitutes a legal interest has never been directly settled either by the Permanent Court or by the présent Court. (35) However, in the Eastern Carelia case though the Permanent Court did not directly State that its refusai to give advisory opinion requested by the Council’ of the League was the refusai of the Soviet Government to participate, it is clear from the reason given by the Court that this in fact was the reason. (36) Moreover, as earlier (33) Article 2 (1) of the Charter.
(3^) See PCIJ Advisory Committee of Jurists, PVS of
The Proceedings of the Committee, 16 June - 24 July 1920 with Annexes , p 731.
(35) HAMBRO, E., The Authority of the Advisory Opinions of the International Court of Justice, I&CLQ., January 1954, 11.
(36) PCIJ, B5, 27-28. Also see KEITH, op.cit, pp. 87-97.
-
450
-pointed out, the League's practice was to obtain the consent of an interested State before requesting the Court for an advisory opinion. Only three times was this practice violated.
In the United Nations practice, the consent of interested States was not obtained in the five cases in which the Court gave opinions. In the Admission and Certain Expansés cases, the Soviet Union objected to the request. (37) In the Peace Treaties case, Bulgaria, Hungary and Remania and the Soviet Union objected. (38) When the General Assembly was considering whether or not to request an advisory opinion on the Status of South-West Africa, the Union of South Africa certainly did not acquiesce in the request. (39) Spain did not give her consent for requesting an advisory opinion of the Court in the Western Sahara question. (40)
The leading case in this respect in the pré
sent Court is the Peace Treaties case-in connection with which the question of the legal necessity of the in
terested States' consent to the requesting and giving of advisory opinions was considered at some length in the Ad Hoc Political Committee of the General Assembly.
(37) United Nations, General Assembly, Official Records, Second Session, First Committee, 360 (A/C.1/242). -
United Nations, General Assembly, Official Records, Second Session, Plenary, 1048-1051 (A/471). - United Nations, General Assembly, Official Records, Sixteenth Session, Fifth Committee, Agenda item No 62 at 289.
(A/4971).
(38) ICJ Ple'adings 1950, 196-97; 202-203, 210-212.
United Nations General Assembly, Official Records, Fourth Session, Ad Hoc Political Committee 48,60
(A/985, Corr. I., A/990 (1949) )
(39) See infra notes 139, 140 and 142.
(40) See infra note 146.
The Soviet Union and other Communiât States allied to that country (4l) opposed the proposai by which the Court was asked to give its opinion on the question, inter alia, whether the three States were obliged under the relevant provisions of the Peace Treaties to appoint the Treaty Commissioners. They argued that the General Assembly could not request the opinion as Bulgaria, Hungary and Romania had not given their consent to the request. (42) This contention was repeated by the
Governments of Byelorussia, Czechoslovakia, USSR and the Ukraine in their respective communications to the Court. (43) The Bulgarian and the Romanian Governments concurred in this contention. (44)
The Members wh.o supported the proposai for seeking the Court's opinion argued that so far the question of consent was related to the issue of domes- tic jurisdiction of the three interested States, the Court was not requested to pronounce on the substance of the dispute relat-ing to the observance of human rights in those three States. They also argued that only the question of procedure for setting up the Treaty Commissioners was involved. But those Members failed to make it clear in their argumentation whether consent of Bulgaria, Hungary and Romania was necessary for requesting an opinion of the Court.
The proposai for requesting the Court's
opinion was adopted by 47 votes to 5 with 7 abstentions.
The five négative votes were those of the Soviet Union (41) USSR, Byelorussia, Ukraine, Poland, Bulgaria, Romania, Hungary and Czechoslovakia.
(42) United Nations, General Assembly, Fourth Session, Ad Hoc Political Committee, Official Records, 12th Mtg, p. 49.
(43) ICJ Pleadings 1950, 201, 204, 198, 199.
(44) Ibid, 196-197, 202.
-
452
-and other Communist States allied to that country. The seven abstaining Members were Afghanistan, India, Israël, Pakistan, Saudi Arabia, Yemen and Yugoslovia. (45)
The Governments of the United States and the United Kingdom in their respective written submission to the Court dealt with the question on non-consent of Bulgaria and Romania to the request for an advisory opinion. They emphasized that the présent case before the Court had no ressemblance with the Eastern Carelia case. (46) In their opinion the Court was only asked to give an opinion on the "Preliminary question” of setting up the Commissioners under the Peace Treaties with the three countries which would not ”be substan- tially équivalent to deciding the dispute between the parties”.
The Government of the United Kingdom conten- ded that in the Mosul case the Permanent Court inspite of the Eastern Carelia precedent rendered the opinion over the protest of Turkey, because the Permanent Court was asked to advice, not on the merits of the dispute,
but as -to the authority conferred by treaty on the Council to décidé the dispute. The Government of the United Kingdom in its submission emphasized that
"this is also true of the présent case in relation to the compétence of the General Assembly”, (4?) and as such the présent case before the Court was essentially similar to the Mosul case. (48)
The Governments of the United States and the United Kingdom urged the Court to render opinion in the présent case without the consent of the three countries pointing out to the constitutional fact of being the pricipal judicial organ of the United Nations, it had a duty to render opinions to the other organs of the United Nations. (49) The United States Government in its submission reminded the Court that the provisions of the Charter and the Statute contained no limitations
(45) A/PV/235 & A/1023; (46) ICJ Pleadings 1950, 273,304.
(47) Ibid, 274; (48) Ibid,274; (49) Ibid, 304.
on the Court's jurisdiction to render an opinion on 'any legal question' at the request of the General Assembly. (50)
The Court in its judgment rejected the con
tention that advisory opinions relating to legal ques
tions between States cannot be given without their consent. The Court expressed the opinion that the ob
jection of the three States to the Court's rendering advisory opinion was due to a confusion between the principles governing the contentions procedure and
those applicable to advisory opinions. The Court stated;
"The consent of States, parties to a dispute, is the basis of the Court's jurisdiction in contentions cases.
The situation is different in regard to advisory pro- ceedings even where the request for an opinion relates to a legal question actually pendlng between States.
The Courts's reply is only of art advisory character, as such it has no binding force. It follows that no State, whether a Member of the United Nations or not, can pre- vent the giving of an advisory opinion which the United Nations considers to be désirable in order to obtain enlightenment as to the course of action it should take. The Court's opinion is given not to the States, but the organ which is entitled to request it; the reply of the Court, itself an 'organ of the United
Nations' represents its participation in the activities of the Organization, and, in priciple, should not be refused". (51) Later on the Court stated; "In the pré
sent case, the Court is dealing with a request for an opinion, the sole object is to enlighten the General Assembly as to the opportunities which the procedure
in the Peace Treaties may afford for putting an end to a situation which has been presented to it. That being the object of the request, the Court finds in the
opposition to it made by Bulgaria, Hungary and Romania, no reason why it should abstain from replying to the request". (52)
(50) Ibid, 272; (51) ICJ Reports 1950, 71.
(52) Ibid, 72.
- 454 -
The Court by emphasizing its ”duty'* to give an opinion, perhaps, did not purport to set aside the Eastern Carelia precedent. But the Court, by implica
tion, definitely expressed the opinion that the con
sent of the States immediately concerned in an ad- visory opinion porocedure, will only, if ever, be con- sidered necessary in exceptional cases.
The issue whether consent of States whose le
gal interests are involved is a condition of the valid exercise of the advisory function of the Court was raised again in the question concerning the Effects of Réservations to the Génocide Convention. When the
question was referred to the Court, the Government of the Philippines in its written submission argued that a dispute between Australie and the Philippines had arisen as a resuit of the two Governments contentions
in regard to the effect of réservations made by the latter to the Convention. The Philippine Government in its written submission requested the Court to décliné to give its opinion in the case as the question put to it "directly related to the main point of a dispute actually pending between the Philippines and Australia”
(53) The Philippines Government also emphasized the point that Article IX of the Génocide Convention pro- vided that disputes relating to the interprétation of the Convention shall be referred to the Court "at the request of any of the parties to the dispute" which meant a contentious case and not an advisory one.
The Soviet Union and other Communiât States allied to that country also opposed the proposai by which questions concerning réservations to the Génocide Convention were referred to the Court. The représenta
tive of the Soviet Union said that the Court's opinion would inevitably hâve the effect of inserting new
clauses in the convention with the conséquence that
(53) ICJ Pleadings 1951, 296.
"States had submitted réservations to conventions such as that on Génocide might suddenly find their whole legal position altered arbitrarily when they had not even been consulted in the matter". (54) The représen
tatives of Poland, Byelorussia, Czechoslovakia and the Ukraine also expressed similar views and emphasized the "Sovereign power rôle" of making réservations to a treaty. (55)
While the représentative of the United King- dom convincingly dealt with the misconceived argument of the Philippines that her dispute with Australie could be dealt with only as a contentious case under the provision of Article IX of the Génocide Convention,
(56) the représentative of the United States contradicted the "Sovereign power rule" of States in normal inter
national relations. The représentative of the United States said: "When a considérable number of States through their représentatives at a conférence hâve formulated a treaty which sets forth the points of agreement, .... it hardly seems reasonable to say that each of those States has a basic sovereign right to make such modifications or amendments in the treaty as it desires, in the form of réservations without regard to the rights of the other States concerned to détermine whether the treaty so modified or amended
(54) United Nations, General Assembly, Fifth Session, Sixth Committee, Official Records, 224th Mtg. p. 78.
(55) Ibid at 80 and ICJ Pleadings 1951, 294, 286-287.
(56) The Représentative of the U.K. rightly pointed out that the article only applied to disputes between the contracting parties. The very question involved on the présent occasion was whether countries could be re- garded as contracting parties to the convention if they entered réservations which other interested coun
tries objected to. ICJ Pleadings 1951, 362-363.
-
456
-would be acceptable”. (57)
In this connection it may be pointed out here that though the alleged dispute between the Philippines and Australia lost much of its significance after Austra- lia had, well in advance of the hearing of'the Court, withdrawn its statement that did not regard as valid any ratification of the Génocide Convention maintaining réservations such as those made by the Philippines to the Convention, yet the submission of the Government of the Philippines that in the absence of its consent, the Court should not give an opinion on the main points of the dispute, had some merit in view of the lack of cla- rity of the Court's opinion on the issue of consent. It may be recalled here that in the Peace Treaties case it was emphasized that the Court was not requested to pro- nounce on the substance of the dispute. While maintain
ing that it could render an opinion even on a question actually pending between States, the Court held that the circumstances of the Peace Treaties case were
"profoundly different” from those of the Eastern Carelia case. After stating that the opinion which it had been requested to give to precedent matters, the Court had pointed out that its predecessor declined to give an opinion in the case ”because it found that the question put to it was directly related to the main point of a dispute actually pending between two States, so that answering the question would be substantially équivalent to deciding the dispute between the parties and that at the same time it raised a question of fact which could not be elucidated without hearing both parties”. (58) The distinction thus made by the Court, (59) might hâve led the Government of the Philippines to believe that
(57) Ibid, 41.
(58) ICJ Reports 1950, 72.
(59) It has been rightly said by Lauterpacht ”that it may be easy to follow in ail its implication the distinc
tion thus expressed". (The Development of International
Law by the International Court of Justice, p. 355).
since the questions put to the Court in respect of the réservations to the Génocide Convention related to the main point of the alleged dispute, the Court in line with Eastern Carelia precedent should refrain from giving its opinion.
There are some commentators who believe that the Court did raodify the Eastern Carelia principle by its opinion in the Peace Treaties case. Rosenne pointed out that this évolution of the Court's opinion has not for itself general political approval and indeed some quarters hold serions réservations towards it. (60) But as it has been rightly pointed by Keith that
"consent or otherwise of States parties to a dispute which has been referred to the Court for an advisory opinion has no direct effect on the Court's advisory compétence. Lack of consent may render the requesting organ incompetent and if this is the case then the Court will, according to Eastern Carelia, refuse to give opinion. If, however, the request is made in the course of a valid considération of the issue, as it was in Peace Treaties, then the Court is competent regard- less of the non-consent of interested States to reply to any legal questions". (6l)
However the Court in line with its previous views held that the request for an opinion on the
Effects of Réservations to the Génocide Convention rela
ted to a legal question and stated: "It is indeed beyond dispute that the General Assembly which drafted
and adopted the Génocide Convention and the Secretary- General who is the depositary of the instrument of rati
fication and accession hâve an interest in knowing the legal effects of réservations to the convention, and more particularly the legal effects of objections to some réservations". (62)
(60) See supra note 18 at 525.
(61) See supra note 24 at 15-16.
(62) ICJ Reports 1951, 19-20.
-
458
-While a raajority of the Western and Latin American Members deemphasized the element of consent as a condition for there questing of advisory opinions and maintained that consent of the disputants was not essen-
tial when the United Nations itself had an interest in obtaining an advisory opinion of the Court, the Soviet Union and other Communiât States allied to that country held the view that in the event of non-consent of a party to a dispute no over-riding considération was va- lid to justify the requesting of an opinion of the Court.
As we hâve seen, except the Philippines, the Asian and African Members did not express their views on the
issue of consent of the interested States as a condition for the requesting of advisory opinions of the Court.
Though the over-emphasis of the Soviet Union,and other Communiât States allied to that country on the principle of sovereignty of States may appear undesirable, yet the fact remains that the United Nations is based on the principle of sovereign equality of States. Many of the new-born Asian-African States, like the Philippines, perhaps would like to retain their sovereign rights and emphasize that the Court should render opinion only — after the consent of the disputants had been obtained
in concrète cases. It may be asserted that it was un- likely that the new-born Asian-African States would hold the view that the consent of South Africa was necessary for requesting advisory opinions of the Court concerning the South-West Africa had the issue of consent been
raised in the General Assembly or the Security Council.
It may therefore be said that the views of the Asian- African States regarding the principle of consent of States in relation to the Court's advisory function would dépend on the nature of question involved for the advisory opinion. In other words, their views in a
concrète case will be determined from the point of view
of their national interests. It will be too sweeping a
général!zation to hold the view that ail the Asian-
African States would like to see the Court render its
advisory opinion only when in each case the disputants' consent had been obtained.
In this connection it must be emphasized the point that the accentuation of the Court's discretionary power to give advisory opinion may be a possible source of détriment to the general standing of the Court. The Court acts as a jurisdictional unity and expresses its opinion with the prestige acquired by this most impor
tant organ of international justice of the contemporary World. If it is so and if it is wished for that the jurisdictional authority of the Court should hâve re
percussions on the observance of its advisory opinions, the certitude that those opinions will be respected must be ensured on the part of ail States concerned. This certitude can be obtained only through the preliminary agreement of the State-parties concerning the opportunity of the application for an advisory opinion. The question naturally arises, if a request for an advisory opinion can be adopted over the opposition of States, how can those States be afterwards held to be obliged by the contents of the advisory opinion. A substantial opinion hold the view that some requests such as ones regarding Admission of Members to the United Nations and the
Interprétation of Peace Treaties should not hâve been made since the attitude of the Soviet Union ( The State which was involved) that she could not accept the
opinion of the Court, foreshadowed the futility of the opinion. (63)
(b) Interprétation of the Charter.
As the Charter of the United Nations does not contain any provision concerning the interprétation of
its provisions, différence of views may arise among the State-Members of the United Nations whether the Court,
(63) RAO, K.K., The Advisory Jurisdiction of the Inter
national Court of Justice, IJIL, July I960, 59.
-
460
-being the principal judicial organ, has the power to interpret the Charter provisions.
It will not be out of place to dwell into the League expérience in this regard, since the interpré
tation of the Covenant of the League had raised similar problem. It is a fact that the Commission which drafted the Covenant had rejected a proposai by which questions of interprétation of the Covenant would hâve referred to the Permanent Court. Hudson mentions a few instances where the Council of the League refrained from referring question involving interprétation of the Covenant to the Permanent Court. Thus in 1923, in the Corfu dispute between Greece and Italy and in the Vilna dispute between Poland and Lithuania, the Council refrained from re-
questing the Court's opinion on the ground that the questions to be put to the Court would involve requests for interprétation of the Covenant. (64) However, in general practice the Council' referred several questions to the Permanent Court which involved interprétation of the Covenant.
With the above precedent created by the League practice, the San Francisco Conférence deliberated over the question of employment of the advisory compétence of the new Court for the purpose of obtaining authoritative interprétation of the Charter provisions. Committee IV/2 of the Conférence in its final report reached the fol- lowing conclusions on the question of the authoritative interprétation of the Charter:
"In the course of the operations from day to day of the varions organs of the organization, it is in
évitable that each organ will interpret such parts of the Charter as are applicable to its particular func- tions. This process is inhérent in the functioning of any body which opérâtes under an instrument defining
its functions and powers. It will be manifested in the (64) HUDSON, M.O., The Advisory Opinions of the
Permanent Court of International Justice, International
Conciliation, No 214. November 1925, 347-349.
functioning of such a body as the General Assembly, the Security Council or the International Court of Justice.
Accordingly, it is not necessary to include in the
Charter a provision either authorizing or approving the normal operation of this principle".
"Difficulties may conceivably arise in the
event that there should be a différence of opinions among the organs of the Organization concerning the correct interprétation of a provision of the Charter. Thus two organs may conceivably hold and may express or even act upon different views. Under unitary forms of national Government the final détermination of such a question may be vested in the highest Court or in some other na
tional authority. However, the nature of the Organization and of its operation would not seem to be such as to
invite the inclusion in the Charter of any provision of this nature. If two Member-States are at variance concerning correct interprétation of the Charter, they are of course free to submit the dispute to the Inter
national Court of Justice as in the case of any other treaty. Similarly, it would always be open to the
General Assembly or to the Security Council, in appro- priate circumstances, to ask the International Court of Justice for an advisory opinion concerning the meaning of a provision of the Charter. Should the General Assemb
ly or the Security Council prefer another course, an ad hoc committee of juriste might be set up to examine the question and report its views, or recourse might be had a joint conférence. In brief, the members or the
organs of the Organization might hâve recourse to various expédients in order to obtain an appropriate interpré
tation. It would appear neither necessary nor désirable to list or to describe in the Charter the various pos
sible expédients".
"It is to be understood, of course, that if
an interprétation made by any organ of the Organization
or by a Committee of juriste is not generally acceptable,
it will be without binding force. In such circumstances.
462 -
or in cases where it is desired to establish an autho- ritative interprétation as a precedent for the future, it raay be necessary to erabody the interprétation in an amendment to the Charter. This may always be accoraplished by recourse to the procedure provided for amendment”.
(65)
The above principle of Charter interprétation enunciated by the San Francisco Conférence received en- dorsement in the Certain Expenses case where the Court said: ”As anticipated in 1945 .... each organ must, in the first place at least, détermine its own jurisdic- tion”. (66) However, the discussion of the question whether it was possible under the Charter to seek an advisory opinion on the interprétation of a provision of the Charter centred for the first time during the Second Session of the General Assembly around an
Australian proposai, (67) for encouraging the greater use of the Court. During the considération of the proposai in the Sixth Committee, an Ad Hoc Sub-Com- mittee of the Committee recommended a draft resolu
tion (68) which provided that points of law relating to the interprétation of the Charter or the Constitu
tions of the Specialized Agencies should be referred to the Court for advisory opinions. As was expected, the représentative of the Soviet Union availed of the first opportunity to oppose the proposai and argued that the adoption of the proposai would give the Court ”a prior right” in interpreting the Charter. The Soviet représentative further argued that the Court had no
(65) UNCIO, vol. XIII, 703 & 709. For the report of the spécial Sub-Committee of the Committee IV/2 on the
interprétation of the Charter of the United Nations Doc. 750, IV/2/13/1, pp. 831-832.
(66) ICJ Reports 1962, 168.
(67) United Nations Doc. A/C.6/165.
(68) United Nations Doc. A/C/6/167, Rev.I.
jurisdiction for interpreting the Charter and that a recommendation by the Committee in this respect would be contrary to the Charter and therefore illégal in as much as it would amount to adding to the Charter a provision which was not in it and which in fact has been rejected at San Francisco. (69) It was not, how- ever, made clear by the Soviet représentative whether he had in mind a rejection of the Belgian proposai by which différences between the United Nations organs on the interprétation of the Charter would hâve been re- ferred to the Court. (70)
In reply to the Soviet Objection that the adoption of the draft resolution would confer "a prior right" on the Court to interpret the Charter or that
it would make it "obligatory” to seek the Court's opinion, the représentative of Australie pointed out that the draft resolution did not constitute the Court
"as the sole agency" to interpret the Charter and that legal questions would be referred to it only when the United Nations organs or agencies decided to do so. (71)
Participating in the debate on the draft re
solution, the représentative of the United Kingdora rightly pointed out that there was nothing in the Char
ter to suggest that the Court lacked the jurisdiction to interpret the Charter. Referring to the rejection of the Belgian proposai at San Francisco Conférence as raentioned earlier, he said that it indicated only that the question of interprétation of the Charter
(69) United Nations Doc. A/459 Also see United Nations, General Assembly, Second Session, Sixth Committee,
Official Records, Annexes, Doc. A/C 6/155/Add I, 320.
(70) UNCIO vol. XIII, Summary Report of l4th Meeting of Committee IV/2, Doc. 843, IV/2/37, p. 645.
(71) United Nations, General Assembly, Official Records,
Second Session, Sixth Committee, 52nd Meeting, p.l08.
464
"was left open". The principal judicial organ of the United Nations could surely be requested to give an opinion on the interprétation of a provision of the Charter. Such an opinion by the Court could in no way be construed to changing the Charter. (72)
Speaking in the Sixth Committee on the Austra
lien draft proposai, India's représentative while not questioning the Court's authority to interpret the Charter provision, argued that the adoption of the pro
posai may cause the Court to deal with abstract legal aspects of various problems without having before it ail the facts of a case. (73) India's views on the mat- ter, therefore, differed from that of the majority as well as the Soviet Bloc Members. It should be mentioned here that India had already supported a proposai for requesting an advisory opinion on the meaning of the Word "meeting" in Article 11 and 12 of the Statute of the Court in the Sixth Committee during the second part of the First General Assembly Session. (74) However, India objected to the advisability of adopting the Australien draft proposai urging the organs of the United Nations to seek the Court's interprétation of Charter provisions.
It should be noted here that the majority of the Members shared the view that while the Belgian pro
posai at San Francisco would make the Court the consti- tutional organ for the interprétation of the Charter, the présent question before the Committee was whether the Charter or the Statute prevented advisory opinions from being requested or given simply because theÿ
related to a point of interprétation of the Charter. The (72) Ibid, 101.
(73) Ibid, 45th Meeting, p. 53.
(74) United Nations General Assembly, First Session,
Second Part, Official Records, l6th Meeting, p. 75.
majority of the Members felt that neither the Charter nor the Statute contained any restriction of that kind.
(75)
The Sixth Committee adopted the draft reso
lution submitted by the ad hoc Sub-Committee and recora- mended it for adoption by the General Assembly. The General Assembly adopted the draft resolution by 46 to 6 with 4 abstentions. Thus under it's resolution 171 (II) of 14 November 1947 the General Assembly recommended
that points of law relating to the Charter of the United Nations or the Constitutions of the Specialized Agencies
"should be referred to the Court for an advisory opinion".
There are a few instances in which the General Assembly requested advisory opinions involving interpré
tation of certain provisions of the Charter. The re- quest for an opinion of the Court was initiated by a
Belgian proposai in the First Committee during the debate on the question of admission of new members to the Uni
ted Nations. The Belgian proposai provided for an
opinion of the Court on whether a Member was juridically entitled to make its consent to the admission of a
new member dépendent on conditions not expressly men- tioned in the Charter. (76) In opposing the proposai the Argentine représentative argued that the General Assembly was the sole body authorized to interpret its powers and functions and that the right should be safe- guarded if the organization was to survive. (77) No wonder, the Soviet représentative echoed the views of
(75) For summary view on the question of interprétation see United Nations Doc. A/C/6&215, Add.I.
(76) United Nations Doc. A/C.I./242.
(77) United Nations, General Assembly, Second Session, First Committee, Official Records, lOOth Meeting,
p. 370.
•3*
