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World Court Digest

III. The International Court of Justice
5.3. Jurisdictional Questions and Denial
of the Request for Advisory Opinion

¤ Applicability of Article VI, Section 22,
of the Convention on the Privileges and
Immunities of the United Nations,
Advisory Opinion of 15 December 1989
I.C.J. Reports 1989, p. 177

Cf. also: Equality of Parties, supra III, 1.3.

[pp. 188-190] The jurisdiction of the Court under Article 96 of the Charter and Article 65 of the Statute, to give advisory opinions on legal questions, enables United Nations entities to seek guidance from the Court in order to conduct their activities in accordance with law. These opinions are advisory, not binding. As the opinions are intended for the guidance of the United Nations, the consent of States is not a condition precedent to the competence of the Court to give them. As the Court observed in 1950,
"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." (Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory Opinion, I.C.J. Reports 1950, p. 71.)

This reasoning is equally valid where it is suggested that a legal question is pending, not between two States, but between the United Nations and a member State.
Romania however relies on its reservation to Section 30 of the General Convention; but that Section operates on a different plane and in a different context from that of Article 96 of the Charter. When the provisions of the Section are read in their totality, it is clear that their object is to provide a dispute settlement mechanism. The first sentence of the Section provides for the case where a difference arises out of the interpretation or application of the General Convention between States parties to it, and contains two elements. The first is the treaty obligation to refer the difference to the Court, unless another mode of settlement is decided upon by the parties; the second is the object of the reference to the Court, namely to settle the difference.
The United Nations is itself intimately, and for the most part directly, concerned with the operation of the General Convention. Section 30 was therefore so framed as to take in also the settlement of differences between the United Nations and a State party to the General Convention. If such a difference arises,
"a request shall be made for an advisory opinion on any legal question involved in accordance with Article 96 of the Charter and Article 65 of the Statute of the Court. The opinion given by the Court shall be accepted as decisive by the parties."

This provision pursues the same intent as expressed in the first sentence of Section 30; the particular nature of the proceeding contemplated is attributable to the status as an international organization of one of the parties to the difference.
In case of a request for an advisory opinion made under Section 30, the Court would of course have to consider any reservation which a party to the dispute had made to that Section. In the particular case of Romania, the Court would have to consider whether the effect of its reservation could be to act as a bar to the operation of the procedure of request for advisory opinion, or merely to deprive any opinion given of the decisive effect attributed to such opinions by Section 30. But in the present case, the resolution requesting the advisory opinion made no reference to Section 30, and it is evident from the dossier that, in view of the existence of the Romanian reservation, it was not the intention of the Council to invoke Section 30. The request is not made under that Section, and the Court does not therefore need to determine the effect of the Romanian reservation to that provision.
Romania however contends that although the Council resolution 1989/75 dated 24 May 1989 does not allude to Section 30 of the General Convention as the basis of its request for advisory opinion, the question which it raises nevertheless relates to the applicability of a substantive provision of the General Convention "to a concrete case considered to be a dispute between a State party to the Convention and the United Nations". It argues that
"If it were accepted that a State party to the Convention, or the United Nations, might ask for disputes concerning the application or interpretation of the Convention to be brought before the Court on a basis other than the provisions of Section 30 of the Convention, that would disrupt the unity of the Convention, by separating the substantive provisions from those relating to dispute settlement, which would be tantamount to a modification of the content and extent of the obligations entered into by States when they consented to be bound by the Convention."

However, the nature and purpose of the present proceedings are, as explained above, that of a request for advice on the applicability of a part of the General Convention, and not the bringing of a dispute before the Court for determination. Furthermore, the "content and extent of the obligations entered into by States" - and, in particular, by Romania - "when they consented to be bound by the Convention" are not modified by the request and by the present advisory opinion.

The Court thus finds that the reservation made by Romania to Section 30 of the General Convention does not affect the Court's jurisdiction to entertain the present request.

[pp. 190-191] While, however, the absence of the consent of Romania to the present proceedings can have no effect on the jurisdiction of the Court, it is a matter to be considered when examining the propriety of the Court giving an opinion. It is well settled in the Court's jurisprudence that when a request is made under Article 96 of the Charter by an organ of the United Nations or a specialized agency for an advisory opinion by way of guidance or enlightenment on a question of law, the Court should entertain the request and give its opinion unless there are "compelling reasons" to the contrary.

[p. 191] In view of the emphasis placed by Romania on its reservation to Article 30 of the General Convention and the absence of its consent to the present request for advisory opinion, the Court must consider whether in this case "to give a reply would have the effect of circumventing the principle that a State is not obliged to allow its disputes to be submitted to judicial settlement without its consent". The Court considers that in the present case to give a reply would have no such effect. Certainly the Council, in its resolution requesting the opinion, did conclude that a difference had arisen between the United Nations and the Government of Romania as to the applicability of the Convention to Mr. Dumitru Mazilu. But this difference, and the question put to the Court in the light of it, are not to be confused with the dispute between the United Nations and Romania with respect to the application of the General Convention in the case of Mr. Mazilu.
In the present case, the Court thus does not find any compelling reason to refuse an advisory opinion.