2018-R

4. Article 36(2) of the Statute of the International Court of Justice was intended to
encourage states to settle their disputes by judicial means.
To what extent has Article 36(2) achieved its aims?

2019/r

5. How significant is the incorporation of a definition of the crime of aggression into the Statute of
the International Criminal Court?
2016/r
7. Article 33 of the Charter of the United Nations provides for the peaceful settlement
of international disputes by a variety of means.
Evaluate the comparative strengths and weaknesses of the means listed in Article 33.

Paragraph 1 of Article 33 of the Charter states the methods for the

pacific settlement of disputes include: negotiation, enquiry, mediation,
conciliation, arbitration, judicial settlement, and resort to regional
agencies or arrangements. Article 33 leaves the parties free to choose
the means which they consider as the most appropriate to the
circumstances and nature of their dispute. However, if the parties fail
to make any meaningful attempt to resolve a dispute which threatens
international peace and security then, under Article 33(2), the UNSC
may call upon the parties to settle the dispute but without specifying
what means to use.

Diplomatic methods of dispute settlement are negotiation, enquiry, mediation, conciliation, and good offices.

2.1. Negotiation

Negotiation is a method by which people settle differences. It is a

process by which compromise or agreement is reached while avoiding
argument and dispute. Negotiation skills can be of great benefit in
resolving any differences that arise between you and others.
Negotiation is a flexible means of peaceful settlement of disputes in
several respects. Negotiations are the most satisfactory means to
resolve disputes since the parties are so directly engaged. Negotiations,
of course, do not always succeed, since they do depend on
a certain degree of mutual goodwill, flexibility and sensitivity. Hostile
public opinion in one state may prevent the concession of certain
points and mutual distrust may fatally complicate the process. The
main drawback of negotiation is that when a party denies the existence
of a dispute or refuses to conduct meaningful negotiations or refuses to
follow through on a negotiated agreement other means of dispute
settlement must be used.Negotiation is not a zero-sum game; if there is
no cooperation, the negotiation will fail.

Inquiry

Inquiry involves third-party investigation of the facts surrounding the

dispute and as such is normally of a technical character. The two Hague
Conventions of 1899 and 1907 established commissions of inquiry as
formal institutions for the pacific settlement of international disputes.
However, the technique is limited in that it can only have relevance in
the case of international disputes, involving neither the honour nor the
vital interests of the parties, where the conflict centres around a
genuine disagreement as to particular facts which can be resolved by
recourse to an impartial and conscientious investigation. Moreover
when it comes to HRs, an inquiry is often used as a preventive measure
to serve political objectives rather than to actually investigate in a
comprehensive manner the facts of a dispute.
The value of inquiry within specified institutional frameworks,
nevertheless, has been evident. Its use has increased within the United
Nations generally and in the specialised agencies. Inquiry is also part of
other processes of dispute settlement in the context of general fact-
finding. But inquiry as a separate mechanism in accordance with the
Hague Convention of 1907 has fallen out of favour. In many disputes, of
course, the determination of the relevant circumstances would simply
not aid a settlement, whilst its nature as a third-party involvement in a
situation would discourage some states.

Conciliation

Conciliation is a quasi-judicial procedure. It occurs by agreement

between the parties, whereby a third party is appointed to investigate
the dispute and to recommend terms for a settlement. Concliliation are
extremely flexible and by clarifying the facts and discussing proposals
may stimulate negotiations between the parties. Conciliation has
frequently been used in cases of a politically delicate nature, and in
non-justiciable disputes.

Mediation

Mediation''' is a dynamic, structured, interactive process where a

neutral third party assists disputing parties in resolving conflict through
the use of specialized communication and negotiation techniques.
Mediation is a "party-centered" process in that it is focused primarily
upon the needs, rights, and interests of the parties. The process is
private and confidential, possibly enforced by law. Participation is
typically voluntary. The mediator acts as a neutral third party and
facilitates rather than directs the process. Mediation is becoming a
more peaceful and internationally accepted solution in order to end
conflict. Mediation can be used to resolve disputes of any magnitude.
Mediators use various techniques to open, or improve, between
disputants, aiming to help the parties reach an agreement. Much
depends on the mediator's skill and training. As the practice gained
popularity, training programs, certifications and licensing followed,
producing trained, professional mediators committed to the discipline.
Other benefits of mediation is that it cost friendly, confidential and
compliance with the mediated agreement is usually high

Good office

Consists of various kinds of action aiming to encourage negotiations

between the parties to a dispute. Also, in contrast to the case of
mediation or conciliation, the proffered of good offices does not meet
with the disputants jointly but separately with each of them. They are
more flexible than arbitration or judicial settlement. They leave more
room for the wishes of the disputants and the initiatives of the third
party. The disputants remain in control of the outcome. Their
proceedings can be conducted in secret. However, there are
disadvantages to mediation and conciliation. Their proceedings cannot
be started and be effective without the consent, cooperation, and
goodwill of the disputants. The proposed settlement is no more than a
recommendation with any binding force upon the disputants.

Arbitration

Arbitration is a process used by agreement of the parties to resolve

disputes. In arbitration, disputes are resolved, with binding effect, by a
person or persons acting in a judicial manner in private, rather than by
a national court of law that would have jurisdiction but for the
agreement of the parties to exclude it. Arbitration is a well-established
and widely used means to end disputes. It is one of several kinds of
Alternative Dispute Resolution, which provide parties to a controversy
with a choice other than litigation. Arbitration cannot be initiated
without the agreement of the parties to a dispute. An agreement of
arbitration may be concluded for settling a particular dispute, or a
series of disputes that have arisen between the parties. It may be in the
form of a general treaty of arbitration. Arbitration is considered the
most effective and equitable means of dispute settlement. It combines
elements of both diplomatic and judicial procedures. However, it is
much more flexible than judicial settlement. It gives the parties to a
dispute the choices to appoint the arbitrators, to designate the seat of
the tribunal, and to specify the procedures to be followed and the law
to be applied by the tribunal. Moreover, the arbitration proceedings
can be kept confidential.

Judicial settlement

Judicial settlement is a settlement of dispute between States by an

international tribunal in accordance with the rules of International Law

Peaceful Settlement of Dispute by the United Nations

The Charter of the United Nations stipulates that it is the task of the
United Nations “to bring about by peaceful means, and in conformity
with the principles of justice and international law. The Security Council
is given the primary responsibility in this regard. It is entitled to
intervene either on its own initiative, upon invitation of any member of
the United Nations, upon invitation by the General Assembly, or upon a
complaint of a party to a dispute ( UN charter arts. 11(3)). The Security
Council may follow three courses of action. First, it may call upon the
parties to a dispute to settle their dispute by any of the peaceful means
listed in Article 33(1) (UN charter art. 33 (2) ). Second, it may
recommend to the parties appropriate procedures or method of
settlement ( UN charter art. 36(1) ). Third, it may recommend terms of
settlement, as it may consider appropriate (UN charterart. 37(2). ).

Peaceful Settlement of Dispute by Regional Organizations:

Article 52 of the Charter recognizes the right of the members of the
United Nations to establish regional arrangements or agencies “for
dealing with such matters related to the maintenance of international
peace and security”. Article 52 imposes two explicit limitations with
regard to the utilization of regional arrangements and agencies. First, it
requires that the matters dealt with must be “appropriate for regional
action”. Second, it requires that the “arrangements or agencies and
their activities are consistent with the Purposes and Principles of the
United Nations”. Moreover, a third explicit limitation is imposed by
Article 54 which requires that the Security Council should “at all times
be kept fully informed of activities undertaken or in contemplation
under regional arrangements or by regional agencies for the
maintenance of international peace and security”. No similar explicit
limitations are imposed with regard to the utilization of other
procedures for pacific settlement. Article 52 is not only confined to
legitimizing regional arrangements or agencies and imposing an
obligation upon the member States, but goes beyond such
legitimization and obligation by pacing a duty on the Security Council
itself.
2020-A

5. With reference to one or more advisory opinions of the International Court of

Justice, explain the purpose and significance of such opinions.

2017-A
Question 6
Using one or more cases as examples, consider and explain the scope and
significance of the advisory jurisdiction of the International Court of Justice.
General remarks
This question required significant knowledge of the cases considered by the ICJ
pursuant to its power to give advisory opinions.
Law cases, reports and other references the examiners would expect you to use
Article 96 of the UN Charter, the Statute of the ICJ, and major cases illustrating the
Court’s exercise of its advisory jurisdiction.
Common errors
Regrettably, a number of candidates actually confused advisory jurisdiction with
jurisdiction in contentious cases.
A good answer to this question would…

begin by explaining the meaning and purpose of the Court’s power to give advisory
opinions. This would have been done with reference to Article 96 of the Charter and
Chapter IV of the Statute of the ICJ. Some discussion of this power would then
have been appropriate.

It might be expected therefore that a good answer would

explain which bodies have the right to request such an opinion and would also
observe the discretion of the Court in acceding to such a request.
Whichever case or cases are referred to in an answer,

it is important that they

illustrate purpose and scope, explaining that the objective of the Court is to answer
a question intended to elicit a statement of the legal answer to a posed question.

Most examples will probably highlight that this answer does not in itself require
action from any state even though the advisory opinion might conclude, at least
implicitly, that a state’s actions are, or are not contrary to international law. This
clearly affects the significance of the decision and could be exemplified by such
decisions as the advisory opinion concerning the Legality of the Threat or Use of
Nuclear Weapons, or the Palestinian Wall, or the most recent significant opinion
concerning the Accordance with International Law of the Unilateral Declaration of
Independence in Respect of Kosovo. Good answers varied in their scepticism of the
utility of the advisory opinion. The most common conclusion was that it was difficult
to demonstrate any real effect of advisory opinions, although they might at least
affect subsequent political discussions.
Poor answers to this question…
either confused advisory and contentious decisions, or failed to recognise that the
purpose of advisory opinions was to make an authoritative statement of
international law rather than to resolve disputes.

Advisory jurisdiction
1. The ICJ has jurisdiction to give advisory opinions at the request of:
• UNSC and UNGA in all legal matters;
• other UN organs and bodies if the following conditions are met:
the UNSC must authorise an international organisation to submit such a
request;
the opinion requested must concern a legal question;

the question must be one arising within the scope of activities of the

requesting agency (the Legality of the Threat or Use of Nuclear

Weapons).

2. The purpose of an advisory opinion is to provide legal advice, i.e. to give a nonbinding
opinion in respect of the submitted matter and not to settle any particular
dispute; thus an advisory opinion is not, strictly speaking, a method of settlement of
international disputes.
An advisory opinion must be confined to a legal question (Article 65(1) of the
Statute). The term a ‘legal question’ was defined in the Western Sahara Case
(Advisory Opinion) by the ICJ as a question ‘framed in terms of law and raising
problems of international law susceptible by its very nature of a reply based on law
and which appears to be a question of a legal character’. The ICJ’s jurisdiction is not
affected if:
• the question submitted has political aspects or has been raised in a politicised
context (the Legality of the Threat or Use of Nuclear Weapons);
• the terms of request lack clarity (the Legal Consequences of the Construction
of a Wall by Israel in the Occupied Palestinian Territory (Advisory Opinion));
• the question is an abstract one (the Conditions of Admission of a State to
Membership in the United Nations (Advisory Opinion));
• the question is of a legal nature but also involves the consideration of the
existence and relevance of certain facts (the Namibia Case).

3. By virtue of Article 65(1) of the ICJ Statute, the ICJ enjoys discretionary
power to decline to give an advisory opinion even if the requirements for jurisdiction
are satisfied. This refers to the propriety of the exercise of the Court’s judicial

Article 65(1) of the Statute allows the ICJ to give advisory opinions on
any legal question at the request of any body so authorised by or in
accordance with the UN Charter. The General Assembly and the
Security Council are authorised by Article 96 of the UN Charter to
request advisory opinions and a large proportion of the specialized
agencies of the UN have been authorised in accordance with the
Charter. States are not able to request advisory opinions themselves.
Although advisory opinions are not binding in law on the requesting
body, they have generally been accepted and acted upon by any state
concerned. In exercising jurisdiction to give advisory opinions the ICJ is
keen to avoid situations where an answer to a question would have the
effect of deciding a specific dispute between two states since to do so
would infringe the general requirement of the consent of states to the
Resolution of contentious cases.

The Court in the request for an advisory opinion by the World Health
Organisation on the (Legality of the Use by a State of Nuclear
Weapons case) in armed Conflict stated that in order to found the
jurisdiction of the Court in such circumstances three conditions should
be met; 1) the UNSC must authorise an international organisation to
submit such a request; 2) the opinion requested must concern a legal
question; 3) the question must be one arising within the scope of
activities of the requesting agency. Court examined the functions of the
WHO in the light of its Constitution and subsequent practice, and
concluded that the organisation was authorised to deal with the effects
on health of the use of nuclear weapons and of other hazardous
activities and to take preventive measures with the aim of protecting
the health of populations in the event of such weapons being used or
such activities engaged in. However, the question put to the Court, it
was emphasised, concerned not the effects of the use of nuclear
weapons on health, but the legality of the use of such weapons in view
of their health and environmental effects. Accordingly, the Court held
that although the matters of the effects on health of the use of nuclear
weapons and the issue regarding preventive measures to be taken in
order to protect the health of populations in the event of such weapons
being used were within the scope of the WHO’s activities, the
requested opinion did not concern these matters but focused on the
legality of the use of nuclear weapons in the context of their health and
environmental effects, a matter which was outside the scope of
activities of the WHO. For that reason the Court held the WHO’s
request for an advisory opinion was inadmissible. It is to be noted that
the ICJ did deliver an advisory opinion on this issue when asked by the
UNGA.

If court would have decided on this and criminalize the use of nuclear
weapons in the context of their impact then it is certainly clear from
current geopolitics that no country would have surrendered its nuclear
arsenal as countries do use these weapon as weapon of final
deterrence when their existence is at stake so for their own survival
they are sure to use such weapons regardless of international
consequences.

Contrary to contentious cases, the aim of the Court’s advisory

jurisdiction is not to settle disputes, but rather to ‘offer legal advice to
the organs and institutions requesting the opinion’. In the (Western
Sahara Case) the ICJ provided a definition of a legal question. It held
that questions ‘framed in terms of law and raising problems of
international law are by their very nature susceptible of a reply based
on law appear to be questions of a legal character”. Moreover, the
fact that the matter put to the Court does not relate to a particular
dispute does not impact on the competence of the Court, nor does it
concern with the question posed in its abstract nature. Likewise, the
fact that a legal question also has political aspects will not deprive the
Court of its jurisdiction, nor of its function, which is to assess the
legality of the possible conduct of states with regard to obligations
imposed upon them by international law (Conditions of Admission of a
State to Membership of the United Nations Case).

The Court has accepted on a number of occasions that it is the nature

of things that international law and international politics are inter-
associated, but it always emphasized that whatever the political
aspects of the question ‘the Court cannot refuse to admit the legal
character of a question which invites it to discharge an essentially
judicial task, namely, an assessment of the legality of the possible
conduct of states with regard to the obligations imposed upon them by
international law’. In the (Certain Expenses of the United Nations Case)
court confirmed this by stating that “the political factors did not
constitute sufficiently compelling reasons to refuse an Opinion”.

By virtue of Article 65(1), on the ground of judicial propriety, the ICJ

enjoys a discretionary power to decline to give an advisory opinion
even if the requirements for jurisdiction are satisfied. Only ‘compelling
reasons’ would force the Court to use this discretionary power. Further,
the lack of clarity in the drafting of the question would not deprive the
Court of jurisdiction. Any such ambiguity can be clarified by the Court
by doing interpretation of a question. This was seen in the (Legal
Consequences of the Construction of a Wall by Israel in the Occupied
Palestinian Territory) in which it was argued that ICJ had no jurisdiction
to give an advisory opinion due to the lack of clarity of the terms of the
request, and because the request did not raise a ‘legal question’ as per
Article 96(1) of the UN Charter and Article 65(1) of the Statute of the
ICJ. These arguments were dismissed by ICJ. Court stressed that any
ambiguity can be clarified by interpreting a particular question.
Following the verdict the general assembly passed the resolution calling
on Israel to oblige with verdict by ending its illegal occupation but
Israel didn’t pay the heed due to the fact that it knew US will veto any
measures against Israel by UNSC.

In the Advisory Opinion on the Legal Consequences of the Construction

of a Wall by Israel in the Occupied Palestinian Territory the ICJ stressed
that, the Court should not decline to give an advisory opinion given its
responsibilities as the principal judicial organ of the UN whereas, in the
Legality of the Use by a State of Nuclear Weapons in Armed Conflict the
ICJ refused to accept a request from the WHO for an advisory opinion
because it lacked jurisdiction and not because it considered that it
would be improper and inconsistent to do so.

Our answer demonstrates when states are sufficiently powerful they

can choose to either oblige or disoblige with international law and as
we know advisory opinions are non-binding so states may escape legal
consequences of their breach, secondly it also shows advisory opinion
can may apply law on facts but it cant change political realities on
ground and state interest will triumph everything and anything.