Schwebel, Stephen M.

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Widening the Advisory Jurisdiction of the International Court of Justice without Amending Its Statute

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Catholic University Law Review Volume 33 Issue 2 Winter 1984 Article 4 1984 Widening the Advisory Jurisdiction of the International Court of Justice without Amending Its Statute Stephen M. Schwebel Follow this and additional works at: https://scholarship.law.edu/lawreview Recommended Citation Stephen M. Schwebel, Widening the Advisory Jurisdiction of the International Court of Justice without Amending Its Statute, 33 Cath. U. L. Rev. 355 (1984). Available at: https://scholarship.law.edu/lawreview/vol33/iss2/4 This Article is brought to you for free and open access by CUA Law Scholarship Repository. It has been accepted for inclusion in Catholic University Law Review by an authorized editor of CUA Law Scholarship Repository. For more information, please contact edinger@law.edu. WIDENING THE ADVISORY JURISDICTIONOF THE INTERNATIONAL COURT OFJUSTICE WITHOUT AMENDINGITS STATUTE*Stephen M. Schwebel**In a world full of international legal disputes, the principal judicial or-gan of the international community, the International Court of Justice, hasparadoxically few disputes on its docket. Currently, it has three; it rarelyhas more than four; at times in recent years, it has had none.Actually, three contentious cases before the Court at one time is notinconsiderable, for contentious cases are massively briefed and lengthilyargued by the State Parties. The extent of time needed for the exchange ofpleadings and for oral argument is largely responsive to the needs of theState Parties, and the methods of deliberation and drafting of a court offifteen judges representative of the whole of the world's international legalcommunity cannot be other than deliberate. But, like other human institu-tions, the Court is responsive to demands made upon it. Should morecases be submitted to it, it is doubtless that the Court would rise to thechallenge of dealing with them.In any event, viewed over the years, the Court has not been overworked.On the contrary, the general and accurate opinion is that the Court hasbeen under-used, that its significant contributions to the settlement of in-ternational disputes and to the clarification and development of interna-tional law would be more significant if it had more business. Thusinterested States and scholars and learned societies have given thought toways of increasing recourse to the Court.In that commendable endeavor, it is fair to say that Washington is cur-rently the center of the world. It was the United States which in 1970 tookthe lead in causing the United Nations General Assembly to review therole of the International Court of Justice. It is in the Senate and House ofRepresentatives of the United States that proposals are recurrently madeand adopted. These proposals are designed to stimulate wider recourse to* The Brendan F. Brown Lecture at the Catholic University of America, Washington,D.C. (Nov. 15, 1983).** Judge of the International Court of JusticeCatholic University Law Reviewthe Court. In 1971, the American Society of International Law establisheda distinguished Panel on the International Court of Justice, under the lead-ership of Judge Philip C. Jessup and Edvard Hambro, and canvassed alarge number of ideas for invigorating the utility of the Court. This panelalso published two excellent volumes, under the editorship of ProfessorLeo Gross, on The Future of the International Court of Justice. ' Thesevolumes examine in depth and detail a remarkable variety of possibilitiesfor strengthening recourse to the Court. The Society'sAmerican Journal ofInternational Law publishes valuable articles on such possibilities. More-over, the American Bar Association, that mighty organization of Americanlawyers whose headquarters is in Chicago, has recently shown a markedand constructive interest in enhancing recourse to the International Courtof Justice. The ABA has recommended that the United States support ex-pansion of the advisory jurisdiction of the Court to include questions ofinternational law referred to it by national Courts.It should be added that the United States Government in 1979 broughtto the Court the contentious and momentous case concerning United StatesDilomatic and Consular Staff in Tehran.' It has joined Canada in submit-ting to a Chamber of the Court the important, current Gulf of Maine3 mar-itime boundary case; and it took the lead in bringing about the submissionto the Court of one of its last advisory proceedings: that in the Who case.4It is of cardinal importance that the United States continue to bring tothe Court legal disputes with other States-and the United States does notlack for such disputes-and that it remain alert to the possibilities of invo-cation of the Court's advisory jurisdiction by international organizations.At the same time, the United States will not be in the position of doing allthat it can and should to promote international adjudication until itremoves the self-judging provision from the terms of its acceptance of theCourt's compulsory jurisdiction. It is a mark of the recession of the WorldCourt's status that the percentage of States which subscribe to its generalcompulsory jurisdiction under the "optional clause" of article 36, para-graph 2 of its Statute is so much less today than it was before World WarII. In 1938, out of fifty-four members of the League of Nations, thirty-eight were bound by adherences under the optional clause. In 1983, just1. L. GROSS, THE FUTURE OF THE INTERNATIONAL COURT OF JUSTICE (1976).2. United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), 1979 I.C.J. 7(Order of Dec. 15).3. Delimitation of the Maritime Boundary in the Gulf of Maine Area (U.S. v. Can.),1982 I.C.J. 560 (Order of Nov. 5).4. Interpretation of the Agreements Between the World Health Organization andEgypt, (W.H.O. v. Egypt), 1980 I.C.J. 349 (Advisory Opinion of Dec. 20).[Vol. 33:355Advisory Jurisdictionforty-seven out of one hundred fifty-eight members of the United Nationsare so bound by the optional clause, and a half dozen of those have re-served to themselves, by self-judging provisions, the decision as to whetheror not they are bound.It is thought that the fundamental reason why States are reluctant tosubmit cases to the Court is a lack of a sufficient sense of internationalcommunity. States wish to keep the levers of power in their hands. Theywish to handle or mishandle international disputes as they please. Theirdiplomats and politicians are reluctant to surrender to any binding inter-national judicial authority, what they believe to be their capacity to settledisputes on their terms. Additional reasons are advanced, some of whichare not wholly consistent. It is said that States are unwilling to go to theCourt because they believe that the Court is unpredictable and that theyare unwilling to go because the law is predictable (that is, in the view ofsome, the law is unduly reflective of the interests of the older States whosepractice formed so much of customary international law). Too often theState that believes that its legal case is strong is willing to go to the Courtwhile the State that believes its case is weak is not.I do not propose to go further into the several such considerations whichcut against resorting to the Court, not only because they are inherentlyelusive but also because they have been analyzed elsewhere (as in the Soci-ety's book to which I have referred). Rather I shall talk about two possibleways of increasing the use of the Court's authority to render advisory opin-ions. But before doing so, I wish to note two encouraging trends: first, theCourt during the last few years has had three cases brought to it by rela-tively new States of Africa and the Mediterranean; and second, two cases,for the first time in the Court's history, have been submitted to Chambersof the Court rather than to the full Court. While, in principle, recourse tothe full Court may be preferable, it is understandable and desirable thatStates submit international legal disputes to chambers of some judges ofthe Court in some cases. The launching of recourse to chambers of theCourt could prove to be a departure of much promise, for it at once offersStates many of the advantages of arbitration together with the advantagesof a permanent Court-a Court of experienced judges, acting in accord-ance with established rules, serviced by an efficient secretariat, with theexpenses of the Court being met by the United Nations.Article 96 of the United Nations Charter provides:1. The General Assembly or the Security Council may re-quest the International Court of Justice to give an advisory opin-ion on any legal question.19841Catholic University Law Review2. Other organs of the United Nations and specialized agen-cies, which may at any time be so authorized by the General As-sembly, may also request advisory opinions of the Court on legalquestions arising within the scope of their activities.It is a reflection of the intensely political character of the Security Coun-cil and the General Assembly that they have resorted to the Court underparagraph one of article 96 only fourteen times between 1946 and 1983and that, for their part, the numerous specialized agencies of the UnitedNations have had recourse to the Court only three times in all. In contrast,the Council of the League of Nations has made requests to the PermanentCourt of International Justice which, in about half that period, resulted intwenty-seven advisory opinions. At the same time, it is worth noting thatthe League Council put to the Court some requests for advisory opinionsthat were initially stimulated and sought outside the Council, in additionto those it sought on behalf of the International Labor Organization (ILO).In 1922, at the outset of the Court's life, Great Britain and France in-duced the League Council to seek the opinion that led to advisory proceed-ings over the bilateral differences between them with regard to theNationality Decrees issued in Tunis and Morocco. The Soviet Union, incontrast to both Britain and France, "absolutely repudiated the claim ofthe so-called League of Nations to intervene in the question of the internalsituation of Carelia" and "categorically" refused to take any part in theexamination of the Eastern Carelia question by the Court.5 The Courtaccordingly gave an opinion in the Nationality Decrees case but declined todo so in the Eastern Carelia case.The Court also gave advisory opinions to international organizationsother than the League (as Judge Manley 0. Hudson pointed out when therevised Statute was being drafted in Washington in preparation for theSan Francisco Conference); to the Danube River Commission and theGreek-Bulgarian Exchange of Populations Commission, as well as theILO. Requests for these opinions were transmitted to the Court by theLeague Council.These precedents suggest that the General Assembly or Security Councilcould transmit requests for advisory opinions whether made by States orby international organizations which are not Specialized Agencies of theUnited Nations (whether universal or regional). The San Francisco Con-ference on International Organization reviewed a British proposal to ac-cord States the direct right to seek advisory opinions. This proposal,however, was rejected. From this, it could be argued that States should not5. Status of Eastern Carelia, 1923 P.C.I.J., ser. B, No. 5, at 13 (Judgment of Nov. 3).[Vol. 33:355Advisory Jurisdictionbe permitted to seek advisory opinions indirectly even if passed upon andsubmitted to the Court by the General Assembly or by a committee of it,or by the Security Council.6 Nevertheless, there appears to be no impedi-ment to their transmitting a request to the Court from an internationalorganization, if such a request is made.It has been suggested in various quarters that the General Assemblyshould establish a committee that would be charged with passing on to theCourt requests by such international organizations that are not specializedagencies.7 Such a committee would be analogous to the Committee onApplications for Review of Administrative Tribunal Judgments. Thiscommittee has submitted a few requests to the Court, and the Court hasresponded with advisory opinions.A much more far-reaching proposal would empower such a committeeto transmit to the Court questions formulated by the highest or appellatenational courts of States that wish to enter into the requisite arrange-ments.' This so-called "reference procedure" or "preliminary opinion pro-cedure" would permit specified national courts to put to the Court,through the medium of a General Assembly committee, questions of inter-national law. Like the procedure under the Treaty of Rome the case as awhole would be decided by the national Court. The national court wouldeither give binding force to the Court's opinion on the question, or treat itas advisory. Proposals differ in this regard.A like idea was put forward by Lauterpacht as long ago as 1929.' It hasmost recently been supported by the American Bar Association."° TheDepartment of State has expressed support in principle for the idea," andthe United States House of Representatives has called for itsexamination. 26. Doc. 235, 11/2/A, 13 U.N.C.I.O. Docs. 611 (1945).7. See L. GROSS, THE INTERNATIONAL COURT OF JUSTICE: CONSIDERATION OF RE-QUIREMENTS FOR ENHANCING ITS ROLE IN THE INTERNATIONAL LEGAL ORDER, reprintedin I L. GROSS, supra note 1, at 22; P. SZASZ, ENHANCING THE ADVISORY COMPETENCE OFTHE WORLD COURT, reprinted in 2 L. GROSS, supra note 1, at 499.8. Id. See also L. CAFLISCH, REFERENCE PROCEDURES AND THE INTERNATIONALCOURT OF JUSTICE, reprinted in 2 L. GROSS, supra note 1, at 572.9. Lauterpacht, Decisions of Municipal Courts as a Source of International Law, BRIT.Y.B. INT'L L. 94-95 (1929).10. See Sohn, Broadening the Advisory Jurisdiction of the International Court of Justice,77 AM. J. INT'L L. 124 (1983).11. DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 650 (1976).12. On December 17, 1982, the House of Representatives adopted H.R. Con. Res. 86, asrevised, urging the President to consider the feasibility of pursuing, through the United Na-tions, expansion of the advisory jurisdiction of the International Court of Justice, and inparticular to "explore the appropriateness of the establishment of a special committee, underUnited Nations auspices, authorized to seek an advisory opinion of the International Court1984]Catholic University Law ReviewWhether such a procedure could be validly established without amend-ment of the Statute of the Court is a question on which opinions differ.The precedents cited are capable of more than one interpretation, as arethe terms of the United Nations Charter and Statute. The Department ofState has declared that appropriate implementation of such a procedurewould require amendment of the Court's Statute. 13 But scholars of thehighest reputation have concluded that amendment is not required.' 4 Noris there agreement on the merits of the proposal. Only a few States outsidethe United States have endorsed it, though it has not attracted opposition.And, in the best American tradition of governmental division of views, theUnited States Department of Justice has indicated its opposition to theplan.' 5 Its supporters maintain that such a procedure not only would in-crease resort to the Court, but also would promote uniformity in rulings bynational courts on questions of international law that arise in the ordinarycourse of human affairs.Another step could be more easily taken: authorizing the Secretary-General of the United Nations to seek advisory opinions of the Court.The Secretary-General is the chief executive officer of the Secretariat. TheSecretariat is, by the terms of the Charter, an "organ" of the United Na-tions. In fact, it is the only principal organ apart from the Court itself thatis not authorized to seek advisory opinions. The Secretary-General him-self has evinced no doubt about the capacity of the General Assembly toauthorize the Secretariat to roquest advisory opinions, nor is any StateMember recorded as objecting to the exercise of that capacity. The Secre-tary-General could be so authorized only with respect to legal questionsarising within the scope of the Secretariat's (and the Secretary-General's)activities. A review of such questions demonstrates that there are a multi-plicity of legal questions on which the Secretary-General might havesought, and in some instances might still seek, the Court's advice. Yet theactivities of the Secretariat and Secretary-General do not equate with thework of the Organization and affording the Secretary-General the author-ity to request advisory opinions would not be tantamount to empoweringhim to seek an opinion "on any legal question."Thus the issue is not whether there are questions which the Secretary-of Justice, upon request by a national court or tribunal which is duly authorized by nationallegislation to make such a request, regarding any question of international law of whichsuch court or tribunal has jurisdiction." See H.R. Con. Res. 86, 97th Cong., 2d Sess. (1982).13. DIGEST, supra note 11, at 652.14. See C. JENKS, THE PROSPECTS OF INTERNATIONAL ADJUDICATION 161 (1964); seegenerally, L. GROSS, supra note 8; Sohn, supra note 10.15. Goldklang, House Approves Proposal Permitting IC/ to Advise Domestic Courts, 77AM. J. INT'L L. 338 (1983).[Vol. 33:355Advisory JurisdictionGeneral could be authorized to put to the Court, or whether the GeneralAssembly has the capacity to endow the Secretary-General with the au-thority to request advisory opinions. Rather, the issue is whether the Gen-eral Assembly wishes to exercise its capacity in this way. Some believethat, since the Secretariat is not composed of States, and since the Secre-tary-General is responsible only to the Organization, members of the Gen-eral Assembly might be reluctant to accord such authority to the Secretary-General. But it may be pointed out that under article 99 of the Charter,the Secretary-General has the authority to bring to the attention of theSecurity Council any matter that, in his opinion, may threaten interna-tional peace and security. If the Secretary-General can be endowed withthat politically delicate right, why should it be thought that the GeneralAssembly would be unwilling to entrust him with the less sensitive author-ity to seek advisory opinions of the Court? In almost forty years, no Secre-tary-General has used article 99 slightly or excessively. On the contrary, ithas been used with extreme caution. Nevertheless it is believed that if theSecretary-General were to be authorized to request advisory opinions, hewould be pursuaded by States to seek opinions in politicized cases whichmight be better left aside. It is also believed, however, that any risks of thisorder are worth taking.Statesmen and international lawyers of the distinction of Philip Jessupand C. Wilfred Jenks have supported authorizing the Secretary-General torequest advisory opinions of the Court.' 6 The possibility has been posi-tively referred to by a few States and scholars but not put to the GeneralAssembly. Perhaps the time is approaching when the current Secretary-General, an international lawyer of attainments, may find it appropriate toexplore the ground in the General Assembly. Should such explorationsprove fruitful, it may be anticipated that an authorized Secretary-Generalwould, over the years, request the Court to deliver a series of opinions thatwould contribute both to the solution of United Nations legal problemsand to the progressive development of international law.16. Jessup, To Form a More Perfect United Nations, 9 COLUM. J. TRANSNAT'L L. 177,187 (1970); see C. JENKS, supra note 14, at 195.1984]

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Widening the Advisory Jurisdiction of the International Court of Justice without Amending Its Statute

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