Prof Pierre Klein and Dr Lorenzo Palestini discussed whether, notwithstanding their distinctive features and purposes, the advisory and contentious functions of the International Court of Justice have been blurred in international practice. The event focused on the so-called non-circumvention principle, which compels the Court to decline giving an opinion when that amounts to eluding lack of consent. The discussions showed that the line between answering legal questions with a view to assisting international organisations and essentially resolving State-to-State disputes is subtle to say the least. A sovereignty dispute and the broader multilateral frame that is the law of decolonization and the right to self-determination may well be two sides of the same coin. Is the way legal questions are framed important, or should the Court look past formulations to assess the concrete impact of it opinions on disputes? To what extent can advisory opinions, which by definition have no binding effect, nonetheless bring disputes to an end? By looking at the Chagos Archipelago and the contentious and advisory proceedings it prompted, the event considered the boundaries of the advisory function and evaluated jurisdictional strategies. It showed that, while there are bilateral disputes which should not be brought through the advisory door absent the consent of the interested parties, there are also controversies that fall within the mandate of the UN in respect of which the non-circumvention principle should no longer apply.
Presenters: Dr Pierre Klein, Professor at the Université Libre de Bruxelles. Dr Lorenzo Palestini, Lecturer at the Graduate Institute of International and Development Studies of Geneva.
SNF Project: The International Judicial Function Under Pressure: Do Courts and Tribunals Go Off the Rails?