INTERNATIONAL LAW
W.B. Fisch Fall 2008
Assignment #12

                        3) Advisory Opinions at the International Court

 

ADVISORY OPINION ON THE WESTER SAHARA, p. 312 (ICJ 1975).

1.                  Is this a proper advisory opinion case, or is it a contentious case (Spain v. Morocco v. Mauritania) not cognizable by the Court for lack of Spain’s consent, transformed by the General Assembly into an advisory?  Does it matter?

a.                   does the General Assembly have an independent interest in the situation?  what is it?

b.                  if the case had been presented to the Court by Morocco, how would the issue have been framed?  would that have been more adversarial?

c.                  would the principal effect of the Court’s decision on the issues presented to it be to resolve the dispute between the particular parties, or to help the GA meet its responsibilities?

d.                  Is the Court being asked to decide to which claimant the Western Sahara belongs?  If not, what is the purpose of the opinion?

2.                  Who has authority to request advisory opinions?  UN Charter art. 96, set forth p. 284

a.                   SC & GA: “any legal question”

b.                  other UN agencies: within the scope of their responsibilities

 

 

                        4) Chambers at the International Court

 

Types of chambers

 

1.                  Summary procedure, art. 29 statute

2.                  Special subject-matter, art. 26(1)

3.                  Ad hoc, art. 26(2) – only one used (6 times, says Court’s website)

 

THE ELSI CASE, p. 303 (US v. Italy, 1989).

 

1.                  what are the advantages of a chamber, that would motivate parties to request it?

 

a.                   do the parties get to choose how many judges will be assigned to the chamber?

b.                  are they still entitled to have a judge ad hoc of their own nationality?

c.                  do they otherwise get to choose which judges will be assigned?

2.                  were the issues in this case such as to make the chamber procedure more attractive?

3.                  what was the basis of contentious jurisdiction in this case?

4.                  does it help to understand this choice by the U.S., to recall that the U.S. had withdrawn its submission to the Court’s optional clause jurisdiction just three years before submitting this application?