The Advisory Function of the International Court of Justice 1946 - 2005

305 Pages·2006·1.73 MB·English

by  Mahasen M. Aljaghoub

The Advisory Function
of the International Court of Justice
−
1946 2005
Mahasen M. Aljaghoub
The Advisory
Function
of the International
Court of Justice
1946−2005
123
ProfessorMahasenM.Aljaghoub
UniversityofJordan
POBox941958
11194Amman
Jordan
e-mail:[email protected]
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To my wonderful husband, Munther, for all his love, support and en-
couragement. He has always been my inspiration, my great mentor and
my best friend in the whole world. With him by my side I have found all
that I ever wanted.
Foreword
I am pleased to write these words by way of a foreword to Dr. Mahasen Aljag-
houb’s book “The Advisory Function of the International Court of Justice”. I do
so with a sense of pride in the achievement of a fellow countrywoman and, meta-
phorically speaking, a sister in law.
My pride is coupled with hope and a nascent optimism that she – and a group
of young Jordanian academics, mostly recent graduates of universities in the
United Kingdom – will contribute further and significantly to the teaching and dis-
semination of international law in Jordan and, if I do not strain hope by hoping too
much, in a region in which, notwithstanding its past glory, the culture of law has
for too long been superceded by the logic of power politics and unbridled raison
d’état.
My only hesitation in writing this foreword is that a particularly heavy Court
schedule has permitted me only a chance at a perusal of the contents of the book.
A perusal which, whilst more than casual, falls short of the serious study that it
deserves. Yet, I can unhesitatingly concur with the verdict of the internal and ex-
ternal examiners who praised Dr. Aljaghoub’s thesis (as it then was) for “its thor-
oughness, detail and authoritativeness on this important area of international law”.
I would only add to this sentence, which sums up an objective assessment of the
book, the further observation that Dr. Aljaghoub’s book is closely argued and
draws reasonable conclusions. These are all features that commend her work as an
important reference that updates previous academic work on the Advisory juris-
diction of the Court, all the more timely in view of the more recent advisory opin-
ions emanating from the Court.
Edward Hambro, when once asked to write an introduction to a book, did so
with the following words: “A good book needs no introduction; a bad one deserves
none”. This statement is certainly witty and often true but not always. Good books
written by new authors deserve to be introduced and praised and I have no doubts
that Dr. Aljaghoub’s book falls into this category.
The Hague, May 2006 Awn Al-Khasawneh
Vice-President
International Court of Justice,
Peace Palace, The Hague
Foreword
It gives me great pleasure to write this brief foreword for Dr Aljaghoub’s book.
Her rigorous and comprehensive text fills a gap in the literature as comparatively
little scholarly attention has been paid to the Court’s advisory jurisdiction since
the early 1970s when no less than three monographs were published on the sub-
ject. In the intervening period there have been several important advisory opinions
of the ICJ touching on issues including self-determination and the legality of the
threat or use of nuclear weapons, and culminating in the politically sensitive and
high-profile Advisory Opinion on the Legal Consequences of the Construction of a
Wall in the Occupied Palestinian Territory. The need for a new book, such as this,
on the Court’s advisory jurisdiction has become increasingly apparent.
Dr Aljaghoub provides a thoughtful and careful analysis of the structure and
procedure of the Court and of its wide-ranging opinions which have contributed
to the development of international law in numerous fields. Her book also offers
a fascinating account of the historical background to the development of the
Court’s advisory jurisdiction. In addition, it considers the thorny question of
why greater use has not been made of the Court’s capacity to give advisory
opinions. Since its inception, after World War II, the Court has delivered only
twenty five such opinions.
Dr Aljaghoub’s deep commitment to international law and, in particular, to the
role of judicial settlement in the resolution of international disputes is apparent
throughout this book. Her idealism (which in the longer-term may come to be rec-
ognised as level-headed pragmatism) is commendable, particularly at a time when
international law is being flouted by certain powerful states.
Dr Aljaghoub wrote the PhD that formed the basis of this book while also car-
ing for a young and growing family in an unfamiliar environment. Her tenacity,
optimism and capacity for unrelenting hard work – as well as her good-humoured
ability to juggle the innumerable demands made on her – have elicited my admira-
tion as her supervisor.
Warwick, May 2006 Professor Istvan Pogany
Director, Legal Research Institute,
School of Law,
University of Warwick
Preface
This book originated as a thesis submitted in 2005 for the Doctor of Philosophy at
the University of Warwick, United Kingdom. My first and very great thanks go to
my doctoral supervisor Professor, Istvan Pogany. I owe him a great depth of grati-
tude for his incredible support, encouragement, and patience in reading successive
drafts and for his invaluable guidance in the development of my work throughout
my years of study. Without his vigorous and detailed comments, which were al-
ways constructive, helpful and appropriate, the writing of this book would not
have been possible.
I am also grateful to the staff of the library at the University of Warwick, espe-
cially those in charge of the legal materials on the fourth floor. For the past four
years of my research I have witnessed with admiration their professionalism, help-
fulness and dedication.
I would like also to thank Dr. Gerard Sharpling, of CELTE at the University of
Warwick, and Dr. Frank Griffith Dawson, a life Fellow of Hughes Hall, Univer-
sity of Cambridge, for reading this work in draft. They helped me to avoid numer-
ous grammatical errors, and suggested many ways in which the quality of the Eng-
lish might be improved. This work also benefited greatly from Dr. Dawson’s valu-
able comments, encouragement and suggestions. In addition, I would like to thank
the staff of Springer Press, especially, Brigitte Reschke, Senior Editor in Law, for
their care in the preparation of this book.
My thanks also go to my parents, brothers and sisters, who have displayed
ceaseless support and love and whom I can never repay in full.
Above all, I am greatly indebted to Munther Hattab, my husband, to whom I
dedicate this book. He shouldered a great deal of the burden and encouraged me to
persevere at all times. Words cannot adequately express my appreciation to him
for the great and countless sacrifices that he has made, which have not gone unap-
preciated. My thanks go to him for always being there for me. Our two little sons,
Rashid and Mohammad, also helped to sustain my strength and motivation and
were a much needed source of comfort and encouragement. Their understanding
and their amiable tolerance of their mother’s long days and late nights of work,
which I hope I can make up to them, have been an inspiration throughout.
Finally, I am deeply grateful to Judge Awn Shawket Al-khasawneh, the Vice
President of the International Court of Justice, for kindly consenting to write
foreword for this book.
Amman, May 2006 Mahasen Aljaghoub
Table of Contents
Foreword by Awn Al-Khasawneh.......................................................................VII
Foreword by Istvan Pogany..................................................................................IX
Preface..................................................................................................................XI
List of Abbreviations.........................................................................................XXI
Glossary of Terms............................................................................................XXIII
Table of Cases...................................................................................................XXV
Table of Treaties and Other International Instruments...................................XXIX
Introduction....................................................................................1
1 Origin and Purpose of the Advisory Function...................................................1
2 General Features of the Existing Literature.......................................................3
3 The Contemporary Relevance of the Advisory Function..................................6
4 The Structure of the Work.................................................................................7
5 Methodology and Methodological Issues..........................................................9
CHAPTER ONE
The Advisory Function of the International Court of
Justice in an Historical Context..................................................11
1 Introduction.....................................................................................................11
2 Advisory Opinions in General.........................................................................12
3 The Advisory Function Prior to the Inception of International Courts............14
4 The Advisory Function and the Permanent Court of International
Justice..............................................................................................................15
5 The Advisory Function at the Drafting Stage..................................................16
6 The PCIJ Advisory Opinions and the Nature of the Requests for
Advisory Opinions..........................................................................................22
7 Sources of Requests for Advisory Opinions During the League Era..............23
8 Assimilation of the Advisory Procedure to the Contentious Procedure
Before the PCIJ...............................................................................................23
9 Voting in the League Council and Assembly to Request Advisory
Opinions..........................................................................................................25
10 The PCIJ and the ICJ: Their Institutional Status.............................................25
XIV Table of Contents
11 The Advisory Function of the ICJ: How Much Is It Changing?.....................28
12 The Drafting Stage..........................................................................................28
12.1 The Rights of the General Assembly and the Security Council to
Request an Advisory Opinion.................................................................30
12.2 Proposals That Were Not Adopted..........................................................32
13 Concluding Remarks.......................................................................................34
CHAPTER TWO
The Advisory Jurisdiction of the ICJ: Compliance with
Requests and the Court’s Discretion in Giving Advisory
Opinions........................................................................................35
1 Introduction.....................................................................................................35
2 The Jurisdiction of the ICJ..............................................................................35
2.1 Distinction Between Jurisdiction and Competence.................................36
2.2 The Court’s compétence de la compétence.............................................37
3 The Elements of Jurisdiction to Give an Advisory Opinion............................38
3.1 Jurisdiction ratione personae..................................................................40
3.1.1 Organs with an ‘Original Right’ to Request Advisory
Opinions: The General Assembly and the Security Council..........40
3.1.2 Organs with a “Derivative Right” to Request Advisory
Opinions: Other UN Organs and the Specialised Agencies...........45
(i) Authorised Organs..................................................................46
(a) The Economic and Social Council (ECOSOC)................48
(b) The Trusteeship Council...................................................48
(c) The Secretariat..................................................................49
(ii) Specialised Agencies..............................................................51
3.2 Jurisdiction ratione materiae, or Subject Matter Jurisdiction.................56
3.2.1 The Political Nature or Motivation of Questions Referred for
Advisory Opinions.........................................................................58
3.2.2 Factual Questions...........................................................................61
3.2.3 Abstract Questions.........................................................................61
4 The Advisory Jurisdiction as Subject to the Court’s Discretion......................63
5 Concluding Remarks.......................................................................................67