Some weeks ago, Nicholas Tsagourias published a piece on Articles of War blog, analysing the International Court of Justice’s (ICJ) recent advisory opinion on Israel’s practices in the Occupied Palestinian Territory. While other blogposts examined the opinion in substance, Tsagourias devotes his words to the Court’s discretion. According to him, compelling reasons should have led the ICJ to reject the UN General Assembly’s (UNGA) request. In doing so, he adopts the arguments brought forward by Israel and its allies in the advisory proceedings and by Vice President Sebutinde in her dissenting opinion. Evidently, the Court did not follow any of those considerations. In fact, the ICJ stuck to its self-prescribed rules governing judicial propriety.
This post will assess some of the arguments which aim at a narrow reading of the ICJ’s advisory function. While Tsagourias asserts that he “will deal with the ICJ’s jurisdiction”, his arguments actually concern the Court’s discretion. As such, they are subject to the Court’s intrinsic evaluation (Art. 65 ICJ-Statute). Yet, discretion should not be perceived as a playground on which the ICJ acts as it sees fit. It is clear that “the Court is bound not to act in a manner that is contrary to judicial propriety or to its judicial character” (Akande/Tzanakopoulos). Nevertheless, drawing on previous case law allows for an assessment of the Court’s discretionary findings in the case at hand.
Mis(sing )information
Tsagourias’ analysis starts with the assertion that the facts before the Court did not provide “full and balanced information in order to make well founded determinations on factual and legal issues”. Pointing to supposedly insufficient information in Israel’s written statement, he claims that there is “no agreement about the facts” and cites as an example the contested status of Gaza, under international humanitarian law (IHL) before 7 October 2023. The ICJ should for this reason alone have rejected the request.
Obviously, the ICJ will not be able to answer an advisory request in case of a manifest lack of information (para. 46). Yet, the standard of proof in advisory proceedings is different from contentious cases (Nolte, paras. 3-6). Still, in the case at hand, as Tsagourias notes himself, over 50 written statements were submitted by States and international organizations and the UN Secretary General complementarily submitted a “voluminous dossier” (para. 47). What Tsagourias (seemingly deliberately) omits are the comprehensive submissions by the UK and the US, both giving detailed background information on the situation and taking side for Israel, without, however, drawing a different factual picture. The views differ not so much on facts but, obviously, on their legal evaluation. It is a categorical confusion to argue that a disputed legal issue (like the IHL-status of Gaza) compels the Court to decline a request based on unclear facts. First, this assertion concedes that facts are presented and, second, it is exactly these instances in which the Court exercises its advisory function by clarifying the legal issue at hand based on available information. And for the clarification, the ICJ had plenty of information before it. The pretextual “lack of facts”-argument was invoked already in the Wall advisory opinion despite a 246-pages strong written statement on behalf of Israel (para. 55). In that case, the ICJ determined it sufficient that the route of the wall as well as its impact were well-established and constituted sufficient evidence to answer the question (para. 57). Likewise, in its latest opinion it was able to refer to facts that constitute the “main features of Israel’s policies and practices” (Nolte, para. 2).
Single State Veto?
Tsagourias continues by raising the bone of contention in many advisory proceedings: Israel’s lack of consent to settle the underlying dispute with Palestine by means of international adjudication should have deprived the Court from giving an advisory opinion.
It is at least contested if the questions addressed to the Court can be understood as arising from a “bilateral” dispute between Israel and Palestine at all (Tladi, paras. 6 et seq.). The ICJ already established in its Wall opinion, that the matters in dispute are placed inside a “broader frame of reference” (para. 50) and regularly renders advisory opinions on matters that fall within the requesting organ’s responsibilities despite an underlying dispute with at least one party not consenting to judicial settlement (paras. 85-88; 33-35). In Western Sahara the Court held that “when the circumstances disclose that to give a reply would have the effect of circumventing the principle that a State is not obliged to allow its disputes to be submitted to judicial settlement without its consent” (para. 33, emphasis added), then this might lead the Court to decline a request. Formalistically speaking, this is a hollow statement, as advisory opinions are, firstly, given to the requesting organ of the UN and, secondly, are non-binding (p. 71). They can accordingly never have “the effect” of “judicial settlement” to which an affected State did not consent. Though, one could assert that advisory opinions due to their authoritative force can have indirect effects on States; think for example of another international court or tribunal which relies substantially on an ICJ advisory opinion in its judgment, translating the opinion into (inter partes) binding law (here, here). Yet, this is just what other international actors make of the opinion and therefore within their sphere of responsibility. Neither the requesting organ nor the ICJ can anticipate such developments in concreto. As the ICJ put it in its Nuclear Weapons opinion, “the purpose of the advisory function is not to settle – at least directly – disputes between States” (para. 15). Indirect effects on States thus not automatically convert advisory opinions into a somehow crude tool, deployed to circumvent dispute settlement. Depriving the “principal judicial organ of the United Nations” (para. 30) of its advisory function given an underlying dispute does not do justice to its inclusive role in the overall framework of the UN. This would only allow single States to torpedo the ICJ’s functionality. A rather undesirable scenario, all the more so when the opinion deals with legal questions relating to obligations erga omnes (see para. 232).
Likewise, declaring the “mirroring” (Tsagourias) of a dispute in the advisory request as being indicative for a circumvention of dispute resolution is misleading. First, the ICJ never refused to give an opinion on questions that reflected underlying disputes (also, this seems to be rather a matter of the Court’s jurisdiction than of its discretion) and, second, the Court can rephrase the question so as to dismantle any hidden suggestive questions (para. 50).
Level Playing Field
Another contestation by Tsagourias is that the “failure to consider Israel’s views undermines the principle of equality”. While he is right that equality plays a crucial role also in advisory proceedings (by implication Art. 35 (1) & Art. 68 ICJ-Statute; para. 77), this statement does not reflect the reality. Just as every other State, Israel had the same participatory rights to appear before the ICJ and make its arguments throughout the proceedings (Cleveland, para. 4). And indeed, the Court dealt with the arguments which Israel and its allies made during the proceedings (paras. 30 et seq.). The Court also took into account Israel’s security interests, which can be said to constitute common knowledge presumptively accessible to the judges (see Sebutinde, paras. 23 et seq.). Those interests were evidently part of judicial deliberation, as reflected in Separate Opinions and Declarations (Nolte, para. 7; Cleveland; Brant, para. 13; Charlesworth, paras. 16, 22). Yet, the Court did not infer from their existence that Israel’s security concerns can be a justification for Israel’s illegal practices and policies (para. 205). One can certainly argue about the degree to which the Court considered Israel’s interests – but that is, again, a legal evaluation bestowed on the Court.
Regretting that Israel deliberately did not partake in the (oral) proceedings poorly supports Tsagourias’ arguments: waiving procedural rights only depicts the voluntary participation of States in proceedings before international courts (Nicaragua v. USA, para. 27). Also, the fact that Israel did only submit “a few pages mainly dealing with jurisdictional matters” (Tsagourias) is certainly not to blame on the Court.
External Considerations
In the end, Tsagourias comes up with an old hat when demanding that the Court should have refused the answer due to its political coating. While acknowledging that the ICJ would actually not dismiss a request on the basis of political aspects (see also p. 155), Tsagourias asserts that everything was different this time. By accumulating some circumstantial arguments, he tries to prove that the UNGA did not have “any legitimate interest to obtain an advisory opinion” and “the facts surrounding the case and the request itself” allegedly support this claim. He reaches that conclusion by firstly denying the request’s legitimacy in light of a simple though not “overwhelming” majority within the UNGA. This is plainly an extra-legal argument and calls upon the ICJ to disregard Art. 18 (3) UNCh when exercising its discretion (on legitimacy see Lando, pp. 113 et seq.). Secondly, and as Tsagourias has noted himself, the ICJ is blind for underlying political aspects (para. 13) as well as for the creative process within the UNGA when formulating the legal question (para. 16). It is settled that the motives which led to the request are not decisive (para. 33). Being a “Court of Law” (Tsagourias), it is likewise clear that the ICJ cannot adhere to adverse (adverse to whom?) political consequences (para. 35). Brushing off these judicial considerations seems to be political in itself and not at all based on law. The fact that the ICJ deals with a great variety of legal issues in the opinion at hand shows that the request was carried by legal concerns that could be judicially clarified.
Role of the Court
Tsagourias’ text is underscored by a reactionary understanding of the ICJ’s role in international adjudication. Concerns about the instrumentalization and politicization of advisory proceedings induce him to demand the ICJ to be “very cautious” when acting in its advisory role and to refuse advisory requests more frequently. While there are certainly legitimate questions about the scope of the ICJ’s advisory functions, criticism should be exercised diligently and need not be guided by political preference. Trying to deny the legitimacy of requests and describing the UNGA as a highly manipulative forum does not help in this regard.
It is rather commensurate to put the ICJ’s advisory function into its traditional perspective: international disputes will oftentimes affect international peace and security as is undeniably the case with the conflict between Israel and Palestine. Excluding the international community – best represented by the UNGA – from engaging with such disputes before the ICJ – the principal judicial organ of the UN – sticks with an outdated appreciation of international law in a strict State-centred fashion. This is all the more so because the ICJ in its advisory function “serves” the requesting organ. While the reproach of “strategic litigation” is close at hand, understanding advisory proceedings as a multilateral endeavour in order to channel disputed matters through the UNGA does not necessarily have to be a bad thing. Some recent scholarly debate engages with the liberal and alternative use of advisory proceedings as a means of dispute settlement or “ruling through advice” (Lando, Hofbauer, Stavridi, Wolfrum, and Contesse). Following this track might lead to a truly multilateral international judiciary. This is promising especially with a view to public interest litigation. The latest request for an advisory opinion concerning State obligations regarding climate change might be the next stage on the track.
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