An Advisory Opinion for Ukraine?

[Deepak Raju is a Senior Managing Associate at Sidley Austin LLP, Geneva, focusing on international disputes; he is also a visiting faculty at National University of Juridical Sciences (India), and a doctoral candidate at the University of Geneva.]

In a recent post on EJIL: Talk, I discussed Ukraine’s new dispute before the International Court of Justice (“ICJ”) against Russia, and compared it to reverse compliance proceedings in the WTO dispute settlement system.  In that piece, I speculated that the ICJ may be able to find that Russia’s allegations of genocide do not justify its use of force against Ukraine, but doubted whether the ICJ could, in light of its limited jurisdiction, go further to find that Russia’s use of force is unlawful.  Now Russia’s submission to the ICJ is publicly available.  In that submission, Russia appears to have moved the goalpost, claiming justification under Article 51 of the UN Charter.  Thus, there is an even higher likelihood that Ukraine’s “reverse compliance” case under the Genocide Convention would fail to secure conclusive findings on the legality of Russia’s use of force.

Against this background, I address the alternative of an advisory opinion by the ICJ, under a request from the UN General Assembly, which could provide a surer avenue to conclusive findings of illegality of Russian conduct.  

In the first part, I discuss the ICJ’s practice on advisory opinions where contentious issues between two States, which had not consented to submit those issues to adjudication by the ICJ, are involved.  In the second part, I discuss the merits of an advisory opinion in the current circumstances.

Advisory Opinions on Contentious Matters – Judicial Practice

The strategy of attempting to resolve contentious issues through advisory opinions predates the ICJ.  In the Eastern Careliaadvisory opinion, the Permanent Court of International Justice (PCIJ) was asked to interpret a treaty between Russia and Finland to determine the status of Eastern Carelia.  The Court declined this request, citing Russia’s lack of consent to adjudication of the dispute.  However, the Eastern Carelia advisory opinion does not stand for a general proposition that the ICJ cannot render advisory opinions on contentious issues between two States where one or both of them has not consented to adjudication of the dispute by the Court.  The key issue in Eastern Carelia was that Russia was not a member of the League of Nations.  Article 17 of the League Covenant provided a specific mechanism for disputes between a League member and a non-member to be submitted to the Court, based on consent; if such consent was achieved, other provisions of the League Covenant concerning dispute settlement (including Article 14 on advisory opinions) would become applicable.  Given that Russia had not consented under Article 17, the other provisions of the League Covenant, including Article 14, were inapplicable.

The limited implication of the Eastern Carelia advisory opinion is evident from the following observation of the PCIJ: “There has been some discussion as to whether questions for an advisory opinion, if they relate to matters which form the subject of a pending dispute between nations, should be put to the Court without the consent of the parties. It is unnecessary in the present case to deal with this topic”.  That is, the PCIJ’s refusal to grant an advisory opinion in Eastern Carelia was based on Russia’s refusal to be bound by the League Covenant and its institutions, not on the lack of consent to submit a specific dispute to adjudication.

Subsequently, in a 1950 advisory opinion on Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, the ICJ held that the lack of consent by a State to a contentious matter would not prevent it from rendering an advisory opinion on that matter.  In the words of the ICJ:

The consent of States, parties to a dispute, is the basis of the Court’s jurisdiction in contentious cases. The situation is different in regard to advisory proceedings even where the Request for an Opinion relates to a legal question actually pending between States. The Court’s reply is only of an advisory character: as such, it has no binding force. It follows that no State, whether a Member of the United Nations or not, can prevent the giving of an Advisory Opinion which the United Nations considers to be desirable in order to obtain enlightenment as to the course of action it should take. The Court’s Opinion is given not to the States, but to the organ which is entitled to request it; the reply of the Court, itself an ‘organ of the United Nations’, represents its participation in the activities of the Organization, and, in principle, should not be refused.

In the Western Sahara advisory opinion, the ICJ rejected Spain’s objection, relying on the Eastern Carelia precedent, that it had not consented to submission of contentious issues to which it was a party to adjudication.  Among other things, the ICJ distinguished Eastern Carelia, noting: “In the present case, Spain is a Member of the United Nations and has accepted the provisions of the Charter and Statute; it has thereby in general given its consent to the exercise by the Court of its advisory jurisdiction. It has not objected, and could not validly object, to the General Assembly’s exercise of its powers to deal with the decolonization of a non-self-governing territory and to seek an opinion on questions relevant to the exercise of those powers”. 

In both Interpretation of Peace Treaties and Western Sahara, the Court also noted that while the lack of consent did not affect the Court’s jurisdiction, it could dissuade the Court from exercising that jurisdiction if doing so would amount to judicial impropriety.  In neither case did the Court find that rendering the advisory opinion would, in the circumstances of the case, amount to judicial impropriety.  In Western Sahara, the Court found that there would be no judicial impropriety in granting the advisory opinion, since the legal controversy was “one which arose during the proceedings of the General Assembly and in relation to matters with which it was dealing”.

Keeping with this pattern, in the Wall advisory opinion, the ICJ reiterated that “the lack of consent to the Court’s contentious jurisdiction by interested States has no bearing on the Court’s jurisdiction to give an advisory opinion”.  As for the propriety of rendering an advisory opinion, the Court held, among other reasons, that “[g]iven the powers and responsibilities of the United Nations in questions relating to international peace and security, it is the Court’s view that the construction of the wall must be deemed to be directly of concern to the United Nations”.

Most recently, in the Chagos advisory opinion, the ICJ found that the UK’s lack of consent did not prevent it from rendering an advisory opinion.  As for the propriety of rendering the opinion, the ICJ recalled the General Assembly’s role in decolonization, and the utility of the “General Assembly receiv[ing] the Court’s assistance so that it may be guided in the discharge of its functions relating to the decolonization of Mauritius”.

In view of these cases, the fact that Russia does not consent to the adjudication of the legality of its conduct does not prevent the ICJ from rendering an advisory opinion if the UN General Assembly requests one.  As for propriety, the role of the General Assembly in matters of international peace and security should, like in Wall and Chagos, weigh in favour of rendering an advisory opinion.

Merits of an Advisory Opinion

Ukraine’s choice to bring a “reverse compliance” case under the Genocide Convention is understandable.  In a world with courts and tribunals of limited jurisdiction, litigants can’t always directly litigate the claims they want.  If Ukraine cannot find a jurisdictional basis to challenge the legality of Russia’s use of force itself, then challenging Russia’s purported justification is not a bad alternative.

That said, there is utility in supplementing the ongoing proceedings with an advisory opinion from the ICJ, through the UN General Assembly.  If the voting pattern on the UNGA resolution demanding that Russia “immediately, completely and unconditionally withdraw all of its military forces from the territory of Ukraine within its internationally recognized borders” is any indication, Ukraine should not find it unduly difficult to secure the support of the General Assembly for an advisory opinion.

Advisory proceedings have their demerits.  The most obvious one is the advisory nature of the decision, which means it lacks binding force.  The time taken in securing a resolution from the UNGA (or other competent organ) and the (apparent) unavailability of provisional measures would make advisory proceedings ill-suited for a situation, like the one at hand, where a party requires urgent relief.  That said, as a contentious case is already underway and a request for provisional measures is now under judicial consideration, there remains one key attraction to an advisory opinion.

Specifically, in an advisory proceeding, the ICJ will be able to assess the legality of Russia’s conduct without having to walk the tightrope of staying within its limited jurisdiction under the Genocide Convention.  I refer to the ICJ’s conclusions in the Wall advisory opinion:

… The construction of the wall being built by Israel …., and its associated regime, are contrary to international law; […]

Israel is under an obligation to terminate its breaches of international law; it is under an obligation to cease forthwith the works of construction of the wall being built in the Occupied Palestinian Territory, including in and around East Jerusalem, to dismantle forthwith the structure therein situated, and to repeal or render ineffective forthwith all legislative and regulatory acts relating thereto […]

Israel is under an obligation to make reparation for all damage caused by the construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem; […]

All States are under an obligation not to recognize the illegal situation resulting from the construction of the wall and not to render aid or assistance in maintaining the situation created by such construction […]

In the Wall advisory opinion, the fact that there was no jurisdictional basis for the ICJ to decide a dispute between Israel and Palestine did not prevent the ICJ from setting out an unequivocal finding that Israel violated the law, accompanied by extensive clarifications on what Israel should do, what other States should do, and what the UN and its organs should do.  In doing this, unlike in a contentious case, the ICJ was not constrained by boundaries imposed by the instrument conferring jurisdiction upon it.  Referring back to its prior advisory opinions, the ICJ clarified, “the lack of consent to the Court’s contentious jurisdiction by interested States has no bearing on the Court’s jurisdiction to give an advisory opinion”.

Skeptics will question the value of a non-binding opinion from the ICJ in the face of an armed attack.  But, then, one could equally question the value of a binding ICJ judgment (or of international law itself) in the face of a flagrant violation of the jus cogens prohibition against the use of force by a permanent member of the Security Council.  Ukraine seems to have placed its faith in international law in its most difficult hour; pursuing an advisory opinion would be a further step in reliance on that faith.  An advisory opinion from the ICJ could be a good basis to catalog accusations of international law violations committed by Russia, and could serve as guidance for the conduct of third countries who share Ukraine’s faith in international law.

An advisory proceeding, with a carefully and comprehensively drafted reference from the General Assembly, would squarely place Russia’s conduct – as opposed to Russia’s purported justifications for that conduct – before the ICJ.  If Ukraine wants the ICJ to affirmatively say that Russia violated the law, the advisory proceedings may offer better chances than the ICJ exercising jurisdiction under the Genocide Convention.

[The views expressed in this article are exclusively those of the author and do not necessarily reflect those of Sidley Austin LLP and its partners. This article has been prepared for informational purposes only and does not constitute legal advice. This information is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. Readers should not act upon this without seeking advice from professional advisers.]