Advisory Proceedings
Advisory proceedings are less confrontational than contentious proceedings in that States are not parties and do not have to defend themselves.
For “The Elgar Companion to the International Court of Justice” (Elgar Companions to International Courts and Tribunals series, Robert Kolb), they are “something of a peculiarity for a court of justice. The power is given to certain organs of the United Nations (UN) and affiliated agencies to request legal advice from the Court on a question that arises within the scope of their activities or competencies. This legal advice is certainly authoritative, but is not binding or executory. A court of justice that not only decides cases but also gives advice is not unique in the various municipal law systems. However, it is certainly a very particular function to which a judge is not necessarily accustomed. There were essentially two reasons for instituting the system of advisory proceedings in 1920. First, the Court (at that time the PCIJ) was called upon to assist the League Council and Assembly in the context of their dispute settlement objective. The League was essentially a system for the peaceful settlement of disputes, which it was believed would naturally prevent war. Hence, in the League Covenant of 1919, the provisions relating to dispute settlement (articles 12-15) were strong, whereas the provisions on sanctions and military enforcement were weak (article 16). The organs of the League called upon to settle political disputes were the Council and the Assembly, the PCIJ or arbitration for legal disputes. It was acknowledged that a political dispute is never devoid of legal aspects, and that each legal dispute also has its political elements.”
Advisory Proceedings referred to the International Court of Justice
Advisory proceedings are requests for opinions on legal questions submitted to the ICJ by any of the five organs or the sixteen specialized.
The following is a list of Advisory Proceedings referred to the International Court of Justice since 1946 by Organs/specialized agencies of the United Nations involved:
Economic and Social Council
- Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations
- Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights
General Assembly
Security Council
- Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970)
International Fund for Agricultural Development
- Judgment No.2867 of the Administrative Tribunal of the International Labour Organization upon a Complaint Filed against the International Fund for Agricultural Development (Request for Advisory Opinion)
International Maritime Organization
- Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organization
United Nations Educational, Scientific and Cultural Organization
- Judgments of the Administrative Tribunal of the ILO upon Complaints Made against Unesco
World Health Organization
- Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt
Legality of the Use by a State of Nuclear Weapons in Armed Conflict
PART FIVE THE ADVISORY PRACTICE AND PROCEDURE
The Advisory Practice and Procedure: the initiation of advisory proceedings
In the context of the International Court of Justice:
The Experience of the League of Nations
This subsection covers The Experience of the League of Nations in relation to the initiation of advisory proceedings .
The San Francisco Conference
This subsection covers The San Francisco Conference in relation to the initiation of advisory proceedings .
Comparison of Covenant and Charter
This subsection covers Comparison of Covenant and Charter in relation to the initiation of advisory proceedings .
The Principal Organs (the General Assembly, the Security Council, ECOSOC and the the Trusteeship Council)
This subsection covers The Principal Organs (the General Assembly, the Security Council, ECOSOC and the the Trusteeship Council) in relation to the initiation of advisory proceedings .
Other Organs of the United Nations
This subsection covers Other Organs of the United Nations in relation to the initiation of advisory proceedings .
The Specialized Agencies
This subsection covers The Specialized Agencies in relation to the initiation of advisory proceedings .
The International Atomic Energy Agency
This subsection covers The International Atomic Energy Agency in relation to the initiation of advisory proceedings .
Special Advisory Procedures: ‘Compulsive’ Opinions and Recourse from Administrative Tribunals
This subsection covers Special Advisory Procedures: ‘Compulsive’ Opinions and Recourse from Administrative Tribunals in relation to the initiation of advisory proceedings .
The Request
This subsection covers The Request in relation to the initiation of advisory proceedings .
The Drafting of the Request
This subsection covers The Drafting of the Request in relation to the initiation of advisory proceedings .
The Advisory Practice and Procedure: advisory jurisdiction
In the context of the International Court of Justice:
General Concepts
This subsection covers General Concepts in relation to advisory jurisdiction .
Legal Question
This subsection covers Legal Question in relation to advisory jurisdiction .
The International Court of Justice’s Discretion
This subsection covers The International Court of Justice’s Discretion in relation to advisory jurisdiction .
Discretion based on International Court of Justice’s Judicial Character
This subsection covers Discretion based on International Court of Justice’s Judicial Character in relation to advisory jurisdiction .
Discretion based on International Court of Justice’s Status of Principal Organ
This subsection covers Discretion based on International Court of Justice’s Status of Principal Organ in relation to advisory jurisdiction .
Jurisdiction in Special Advisory Procedures
This subsection covers Jurisdiction in Special Advisory Procedures in relation to advisory jurisdiction .
Judicial Interpretation of Advisory Opinions
This subsection covers Judicial Interpretation of Advisory Opinions in relation to advisory jurisdiction .
Revision of Advisory Opinion
This subsection covers Revision of Advisory Opinion in relation to advisory jurisdiction .
Treatment of Preliminary Questions
This subsection covers Treatment of Preliminary Questions in relation to advisory jurisdiction .
The Advisory Practice and Procedure: advisory proceedings
In the context of the International Court of Justice:
The Composition of the International Court of Justice
This subsection covers The Composition of the International Court of Justice in relation to advisory proceedings .
Accompanying Documents
This subsection covers Accompanying Documents in relation to advisory proceedings .
Principal Features of Advisory Procedure
This subsection covers Principal Features of Advisory Procedure in relation to advisory proceedings .
Right of Participation
This subsection covers Right of Participation in relation to advisory proceedings .
Individuals
This subsection covers Individuals in relation to advisory proceedings .
The Proceedings
This subsection covers The Proceedings in relation to advisory proceedings .
The Role of the Secretary-General
This subsection covers The Role of the Secretary-General in relation to advisory proceedings .
The Opinion
This subsection covers The Opinion in relation to advisory proceedings .
Legal Effect of Advisory Opinion
This subsection covers Legal Effect of Advisory Opinion in relation to advisory proceedings .
Reception of Advisory Opinions
This subsection covers Reception of Advisory Opinions in relation to advisory proceedings .
Evaluation
This subsection covers Evaluation in relation to advisory proceedings .
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