|III.||The International Court of Justice|
|5.||ADVISORY OPINIONS OF THE INTERNATIONAL COURT OF JUSTICE|
Legality of the Use by a State
of Nuclear Weapons in Armed
Conflict (Request by WHO)
Advisory Opinion of 8 July 1996,
I.C.J. Reports 1996, p. 66
[pp. 71-72] 10. The Court has the authority to give advisory Opinions by virtue of Article 65 of its Statute, paragraph 1 of which reads as follows
"The Court may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request."
It is also stated, in Article 96, paragraph 2. of the Charter that the
"specialized agencies, which may at any time be so authorized by the General Assembly, may also request advisory opinions of the Court on legal questions arising within the scope of their activities".
Consequently, three conditions must be satisfied in order to found the jurisdiction of the Court when a request for an advisory opinion is submitted to it by a specialized agency: the agency requesting the opinion must be duly authorized, under the Charter, to request opinions from the Court; the opinion requested must be on a legal question: and this question must be one arising within the scope of the activities of the requesting agency (cf. Application for Review of Judgement No. 273 of the United Nations Administrative Tribunal, Advisory Opinion. I.C.J. Reports 1982, pp. 333-334).
11. Where the WHO is concerned, the above-mentioned texts are reflected in two other provisions, to which World Health Assembly resolution WHA46.40 expressly refers in paragraph 1 of its operative part. These are, on the one hand, Article 76 of that Organization's Constitution. under which:
"Upon authorization by the General Assembly of the United Nations or upon authorization in accordance with any agreement between the Organization and the United Nations, the Organization may request the International Court of Justice for an advisory opinion on any legal question arising within the competence of the Organization."
And on the other hand, paragraph 2 of Article X of the Agreement of 10 July 1948 between the United Nations and the WHO, under which:
"The General Assembly authorizes the World Health Organization to request advisory opinions of the International Court of Justice on legal questions arising within the scope of its competence other than questions concerning the mutual relationships of the Organization and the United Nations or other specialized agencies."
This agreement was approved by the United Nations General Assembly on 15 November 1947 (resolution 124 (II)) and by the World Health Assembly on 10 July 1948 (resolution [WHAI.102]).
12. There is thus no doubt that the WHO has been duly authorized. in accordance with Article 96, paragraph 2, of the Charter, to request advisory opinions of the Court. The first condition which must be met in order to found the competence of the Court in this case is thus fulfilled. Moreover, this point has not been disputed; and the Court has in the past agreed to deal with a request for an advisory opinion submitted by the WHO (see Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, Advisory Opinion, I.C.J. Reports 198,. pp. 73 et seq.).
[pp. 83-84] 30. Nor can the Court accept the argument that the General Assembly of the United Nations, as the source from which the WHO derives its power to request advisory opinions, has, in its resolution 49/75 K, confirmed the competence of that organization to request an opinion on the question submitted to the Court. In the last preambular paragraph of that resolution, the General Assembly
"[welcomed] resolution 46/40 of 14 May 1993 of the Assembly of the World Health Organization, in which the organization requested the International Court of Justice to give an advisory opinion on whether the use of nuclear weapons by a State in war or other armed conflict would be a breach of its obligations under international law, including the Constitution of the World Health Organization".
In expressing this opinion the General Assembly clearly reflected the wish of a majority of States that the Assembly should lend its political support to the action taken by the WHO, which it welcomed. However, the Court does not consider that, in doing so, the General Assembly meant to pass upon the competence of the WHO to request an opinion on the question raised. Moreover, the General Assembly could evidently not have intended to disregard the limits within which Article 96 paragraph 2, of the Charter allows it to authorize the specialized agencies to request opinions from the Court - limits which were reaffirmed in Article X of the relationship agreement of 10 July 1948.
[p. 89 S.O. Oda] 3. My particular reason for writing this opinion is that I am personally very much afraid that if encouragement is given or invitations are extended for a greater use of the advisory function of the Court - as has recently been advocated on more than one occasion by some authorities - it may well be seised of more requests for advisory opinions which may in essence be unnecessary and over-simplistic. I firmly believe that the International Court of Justice should primarily function as a judicial institution to provide solutions to inter-State disputes of a contentious nature and should neither be expected to act as a legislature (although new developments in international law may well be crystallized through the jurisprudence of the Court) nor to function as an organ giving legal advice (except that the Court may give opinions on legal questions which arise within the scope of activities of the authorized international organizations) in circumstances in which there is no conflict or dispute concerning legal questions between States or between States and international organizations.
Requests for advisory opinion should, before they are brought to the Court, be more prudently considered by the international organizations authorized under Article 96 of the Charter to submit such requests to the Court, and the Court should in general give the most careful consideration to the way in which it exercises its advisory function.
[p. 220 D.O.Koroma] Admittedly, the WHO can only ask a question which is not outside its ambit or competence, and the General Assembly can also restrict the power of the agency by limiting its competence or the scope of its activities. In other words, since it is the Assembly that originally granted the authorization to request an opinion for matters within the Organization's competence, the Assembly would, in my view, have been in a position - if it had considered that the agency, by adopting resolution WHA46.40, had acted ultra vires - to bring this to the attention of the agency or to exercise its discretionary powers and bring the irregularity to an end. Evidently, the Assembly exercised neither of those options but it rather welcomed resolution WHA46.40, with the implication that the agency had not acted ultra vires.