Advisory Opinion of ICJ – an Alternative Dispute Settlement Mechanism under International Law
Keywords:
Advisory Jurisdiction, ICJ, Alternative Dispute Resolution Mechanism.Abstract
Alternative but efficient dispute settlement mechanism is conventional under the International Law. International Court of Justice, International Tribunal of the Law of the Sea, Permanent Court of Arbitration and other Arbitration tribunals are the most prominent institutions that facilitate dispute settlement in international law by providing for an inclusive alternative mechanism. ICJ has Advisory jurisdiction over questions submitted to the court under Article 65 of the ICJ Statue. It states that the court may give an advisory opinion on any legal question at the request of body authorized by or in accordance with the Charter of the United Nations.
Alternative dispute resolution [ADR] mechanism is supported because it is cost effective, efficient and efficacious. The foundation of ADR is consensus of the parties to the procedure and outcome of the dispute settlement. Under International law, where lack of implementation always challenges the reality of international law, advisory jurisdiction of international courts ipso facto represent the reality of international law and dispute settlement of International law.
This research paper aims at addressing the following questions-
[1] Whether advisory opinion is an alternative dispute resolution mechanism?
[2] Which international courts and tribunals have advisory opinion jurisdiction? What is the nature and scope of this jurisdiction in each court respectively?
[3] What is the scope of advisory jurisdiction of ICJ?
[4] What has been the role of ICJ in advisory opinions pronounced by it?
[5] What role can the advisory jurisdiction of ICJ play in resolving dispute that may arise in the future?
References
1. Article 143, Constitution of India, 1949.
2. The Supreme Court Act, 1985 (Canada), R.S.C., c. s-26.
3. Article III of the Constitution of the United States.
4. Leslie Zines, Cowen and Zines’s Federal Jurisdiction in Australia , 3rd edn. (2002) p.16.
5. Re Judiciar y and Navigation Acts (1921) 29 CLR 257 at 265.
6. E.g. Cauvery Water Disputes Tribunal Re. AIR 1992 SC 522. Also, The legality of the threat or use of the Nuclear weapons Case, ICJ Reports, 1996 pp.226-236.
7. Alternative Dispute Resolution Practitioners guide, USAID. Available at - https://www.usaid.gov/sites/default/files/d ocuments/1868/200sbe.pdf
8. Article 65 of the Statute of ICJ.
9. Art. 64 American Convention on Human Rights. “ Other Treaties” Subject to the Consultative Jurisdiction of the Cour t, Advisory Opinion OC -1/82, September 24, 1982.
10. Article 191, United Nations Convention on the Laws of the Sea, 1982.
11. Smith Rhona KM. The Essentials of Human Rights, (2005).
12. Shaw Malcolm N. International Law . Cambridge, UK: Cambridge University Press, (2008), p. 1108.
13. Article 65 (2) of the Statute of ICJ
14. The legality of the threat or use of the Nuclear weapons Case, ICJ Reports, 1996, pp. 257 and The Construction of a Wall Case, ICJ Reports, 2004, pp. 136, 162-3.
15. The legality of the threat or use of the Nuclear weapons Case, ICJ Reports, 1996, pp. 16.
16. Ibid. pp. 15.
17. Ibid. pp. 13.
18. Article 65(2) of the ICJ statute.
19. Article 38 of the ICJ statute.
20. Article 38 (1) (d) ICJ statute.
21. Aron X. Felmeth, Maurice Horwitz, Guide to Latin in International Law, (2009)
22. In the Matter of Cauvery Water v. Unknown, AIR 1992 SC 522.
23. Merrills JG. International Dispute Settlement, Cambridge Publication (2017) pp. 142. See also, Western Sahara , Advisory Opinion (1975) ICJ rep. 12 and Interpretation of Peace Treaties with Bulgaria, Hungary and Romania , First Phase, Advisory Opinion (1950) ICJ Rep. 65.
24. Supra note, 16.
25. ICJ Reports, 1949 p.174.
26. General Assembly Resolution , December 3rd, 1948.
27. Climate Change and the ICJ: Seeking an Advisory Opinion on Transboundary Harm, Yale Law School, 2013 Available at: - https://law.yale.edu/yls- today/news/climate-change-and-icj- seeking-advisory-opinion-transboundary- harm
28. Press Conference on Request of the International Court of Justice Advisory Opinion on Climate Change, February, 2013. Available at - http://www.un.org/press/en/2012/120203_ ICJ.doc.htm
29. ICJ Reports, 1950, pp. 65 Cite this Article Bhumesh Verma, Chhaya Bhardwaj . Advisory Opinion of ICJ: An Alternative Dispute Settlement Mechanism under International Law . Journal of Constitutional Law and Jurisprudence . 2018; 1(1): 1–5p.
