The ICJ’s Advisory Function: A Procedural Tool to Advance Human Rights?

While jurisdictional limitations may have initially restrained the International Court of Justice (ICJ) from contributing to the development of international human rights law, it appears that its advisory function has and continues to pave the way for the further mainstreaming of human rights within its work. Pending requests for advisory opinions—including the Right to Strike under ILO Convention  No. 87, Obligations of States in respect of Climate Change, and Legal Consequences arising from the Policies and Practices of Israel in the OPT, including East Jerusalem—have signalled the increased relevance of human rights before the Court. Each of the above requests, which respectively implicate the rights to strike, to a clean, healthy, and sustainable environment, and to self-determination, are overtly human rights-related in nature. The same is true for arguably 12 of the 27 remaining advisory opinions that have been issued since the Court’s inception. While other rights advancements in contentious cases are not to be overlooked, it appears that the Court, through the exercise of its advisory function, possesses several procedural flexibilities that may allow it to elevate and advance human rights. 

Flexibility I

One flexibility lies in the ICJ’s authority to render advisory opinions without State consent. Article 65 of the ICJ Statute stipulates that the Court “may give an advisory opinion”, providing it discretion when responding to requests for its opinion. In the exercise of this prerogative, the Court has only once declined a request for an advisory opinion along jurisdictional grounds, hearing all other requests including those objected to by States. Such objections have tended to arise when questions put to the Court have been connected to an actual inter-State dispute, considered abstract, or otherwise conflicted with the political interests of a State. The Court has indeed observed that “the lack of consent of an interested State may render the giving of an advisory opinion incompatible with the Court’s judicial character”, such as in circumstances that circumvent its contentious jurisdiction requirements. Nonetheless, the Court has maintained that this lack of consent has “no bearing on [its] jurisdiction to give an advisory opinion”, evidenced by its replies to a number of requests including, Chagos, Construction of a Wall, Kosovo, Namibia, and Western Sahara, where issues of non-consent featured prominently.  

An even more recent illustration of State non-consent can be seen in the pending request on the Policies and Practices of Israel in the OPT. Although Israel voted against the UN General Assembly (UNGA) resolution that referred the question to the Court and has since objected to the ICJ’s jurisdiction over the wider dispute between Israel and Palestine, such objections do not alone deprive the Court of its discretionary power to decide whether it should give an opinion. This flexibility is considerable given the fact that consent from interested States may frequently, if not always, be withheld for certain human rights questions—such as those related to the right to self-determination—due to their inherent politicization or perceived affront to State sovereignty. The ICJ’s advisory function thereby provides a valuable pathway for it to address and develop human rights issues it may have otherwise been barred from hearing.

Flexibility II

Another, related flexibility is found in the types of entities permitted to submit requests and furnish information in advisory proceedings. As compared to its contentious jurisdiction, whereby States are the only entities authorized to submit disputes for resolution, the Court’s advisory jurisdiction permits UNGA, the Security Council, alongside 21 organs and specialized agencies to submit requests for the Court’s reply (see ICJ Statute Art. 65, UN Charter Art. 96). At first glance, these two jurisdictional forms may seem to import an inter-State lens to human rights questions—insofar as contentious cases are brought by States and advisory opinions are brought by collections of States. Upon closer examination, the Court has, in fact, exercised its advisory jurisdiction in such a way that has progressively developed points of law beyond that which concerns States (See, e.g.,  Reparations for Injuries Suffered in the Service of the UN, Judgments of the Administrative Tribunal of the ILO, Constitution of the Maritime Safety Committee of the IMCO). Not to mention that in its advisory proceedings, the Court has summoned information from States and “international organizations of States” per Article 69(4) of the Rules of Court,  alongside information from organizations that do not fall squarely within these definitions (See, for example, the IUCN in Obligations of States with respect to Climate Change). In doing so, the Court has asserted its authority to offer legal opinions and base such opinions on information outside the “States-only” paradigm.

By way of recent example, as of 11 November in its request for an advisory opinion, the ILO referred the interpretation of Convention No. 87 to the ICJ. The question specifically submitted to the Court pertains to whether the right to strike is recognized under such Convention– ie. whether the right to strike is a corollary to the right to freedom of association. This request is significant for two reasons. First, the question on the right to strike is one that would not likely arise between States, as it is a right that individual or groups of workers (both non-State entities) are entitled to enjoy vis-à-vis their employers. States certainly maintain the ability to espouse claims on behalf of individuals, however, they have not yet brought a question that explores the contours of the right to strike before the Court nor have they generally shown great willingness to litigate individual rights questions. Second, in resolving the ILO’s question, the Court can more readily base its opinion on information that is not only furnished by States and “international organizations of States”, but also on information furnished by NGOs. In general, submissions made by NGOs during advisory proceedings are “not to be considered part of the case file” and are instead treated similarly to publications in the public domain. The Court, however, in its recent order authorized six NGOs to make submissions to form part of the case file, adopting what seems to be a more permissive understanding of “international organizations” under Article 69(4) of the Rules. This being said, the Court can, to a greater extent, draw upon an array of views that place less emphasis on States and State interests when evaluating human rights questions.

Flexibility III

A final flexibility worth noting is the non-binding nature of ICJ advisory opinions. As States generally remain reticent to submit contentious issues to international third-party adjudication, particularly where the effects are binding, the Court’s advisory function may encourage rather than deter the submission of requests seeking its guidance. Such was the case in the Jurisdiction of the European Commission of the Danube provided by the Permanent Court of International Justice, whereby Romania supported an advisory opinion request after rejecting the option to engage in contentious proceedings as a form of compromise. Similar to its predecessor, the current Court may offer its opinion in instances where States support a non-binding advisory opinion rather than a binding judgment. While ICJ advisory opinions are indeed non-binding—unless the requesting entity expressly provides otherwise—they are not devoid of legal significance. The Court’s advisory opinions have been considered authoritative statements of law having “legal effect”. Through their interpretation of binding obligations under international conventions, their clarification and development of customary law, and their ability to influence the jurisprudence of other courts and tribunals, ICJ advisory opinions produce effects similar to those of its binding judgements. Accordingly, these formally non-binding advisory opinions, which may in turn attract greater support for the invocation of the Court’s advisory function and lead to a higher volume of requests, may still induce States and other entities to act in accordance with its findings. 

The upcoming advisory opinion on the Obligations of States in respect of Climate Change is notable in this regard, as there was widespread State support for the request, reflected by the 105 States co-sponsoring the UNGA resolution and its later adoption by consensus. While it is probable that some States, especially climate-vulnerable States, will embrace the Court’s opinion, others are likely to exhibit reluctance, if not outright resistance, towards its findings. Based on the anticipated interpretation of human rights conventions and multilateral environmental agreements referenced in the initial request, the Court’s legal conclusions may induce States to alter their behavior. In addition to influencing State practice, the Court may also influence opinio juris or what States recognize to be the law, contributing to the development of customary rules. Its conclusions may likewise inform the interpretative approach of other courts, which are increasingly relying on the conventions that the Court is expected to interpret. Although it remains to be seen how States will react, it remains clear that they are more inclined to bring controversial questions, including those in the human rights context, to the Court when seeking non-binding opinions. This procedural form therefore allows the Court to reply to a greater number of human rights-related requests and still have its conclusions yield practical outcomes.

Danielle Flanagan is a former Judicial Fellow at the International Court of Justice (ICJ) and is currently an Associate in the International Disputes & Litigation Practice at Hogan Lovells LLP.