|III.||The International Court of Justice|
|5.||ADVISORY OPINIONS OF THE INTERNATIONAL COURT OF JUSTICE|
|5.3.||Jurisdictional Questions and Denial |
of the Request for Advisory Opinion
Difference relating to Immunity
from Legal Process of a Special Rapporteur
of the Commission on Human Rights,
Advisory Opinion of 29 April 1999,
I.C.J. Reports 1999, p. 62
[pp. 77-78] 26. The power of the Court to give an advisory opinion is derived from Article 96, paragraph 2, of the Charter and from Article 65 of the Statute (see paragraph 22 above). Both provisions require that the question forming the subject-matter of the request should be a "legal question". This condition is satisfied in the present case, as all participants in the proceedings have acknowledged, because the advisory opinion requested relates to the interpretation of the General Convention, and to its application to the circumstances of the case of the Special Rapporteur, Dato' Param Cumaraswamy. Thus the Court held in its Advisory Opinion of 28 May 1948 that "[t]o determine the meaning of a treaty provision ... is a problem of Interpretation and consequently a legal question" (Conditions of Admission of a State to Membership in the United Nations (Article 4 of Charter), Advisory Opinion, 1948, I.C.J. Reports 1947-1948, p. 61).
27. Article 96, paragraph 2, of the Charter also requires that the legal questions forming the subject-matter of advisory opinions requested by authorized Organs of the United Nations and specialized agencies shall arise "within the scope of their activities". The fulfilment of this condition has not been questioned by any of the participants in the present proceedings. The Court finds that the legal questions submitted by the Council in its request concern the activities of the Commission, since they relate to the mandate of its Special Rapporteur appointed
"to inquire into substantial allegations concerning, and to identify and record attacks on, the independence of the judiciary, lawyers and Court officials".
Mr. Cumaraswamy's activities as Rapporteur and the legal questions arising therefrom are pertinent to the functioning of the Commission; accordingly they come within the scope of activities of the Council, since the Commission is one of its subsidiary Organs. The same conclusion was reached by the Court in an analogous case, in its Advisory Opinion of 15 December 1989, also given at the request of the Council, regarding the Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations (I.C.J. Reports 1989, p. 187, para. 28).
[pp. 78-79] 28. As the Court held in its Advisory Opinion of 30 March 1950, the permissive character of Article 65 of the Statute "gives the Court the power to examine whether the circumstances of the case are of such a character as should lead it to decline to answer the Request" (Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory Opinion, I.C.J. Reports 1950, p. 72). Such discretionary power does not exist when the Court is not competent to answer the question forming the subject-matter of the request, for example because it is not a "legal question". In such a case, "the Court has no discretion in the matter; it must decline to give the opinion requested" (Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion, I.C.J. Reports 1962, p. 155; cf., Legality of the Use by a State of Nuclear Weapons in Armed Conflict, I.C.J. Reports 1996 (I), p. 73, para. 14). However, the Court went on to state, in its Advisory Opinion of 20 July 1962, that "even if the question is a legal one, which the Court is undoubtedly competent to answer, it may nonetheless decline to do so" (I.C.J. Reports 1962, p. 155).
29. In its Advisory Opinion of 30 March 1950, the Court made it clear that, as an organ of the United Nations, its answer to a request for an advisory opinion "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); moreover, in its Advisory Opinion of 20 July 1962, citing its Advisory Opinion of 23 October 1956, the Court stressed that "only 'compelling reasons' should lead it to refuse to give a requested advisory opinion" (Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion, I.C.J. Reports 1962, p. 155). (See also, for example, Applicability of Article Vl, Section 22, of the Convention on the Privileges and Immunities of the United Nations, Advisory Opinion, I.C.J. Reports 1989, pp. 190-191, para. 37; and Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996 (I), p. 235, para. 14).
30. In the present case, the Court, having established its jurisdiction, finds no compelling reasons not to give the advisory opinion requested by the Council. Moreover, no participant in these proceedings questioned the need for the Court to exercise its advisory function in this case.
[pp. 116-117 D.O. Koroma] 15. It is also my considered opinion that this request for an advisory opinion, because of the peculiar circumstances(111) of the dispute, the issues it involves, and its implication for the judicial character and function of the Court, ought not to have been submitted to the Court. The dispute between the Organization and the Government of Malaysia should rather have been resolved on the basis of Article VIII - Settlement of Disputes - (Section 29) of the Convention which provides as follows
"Section 29. The United Nations shall make provisions for appropriate modes of settlement of:
(a) disputes arising out of contracts or other disputes of a private law character to which the United Nations is a party."
On the other hand, once the request had been submitted, the Court should have exercised its judicial discretion and declined to answer the question put to it. Nor do I find the argument persuasive that, because no party had argued against giving the advisory opinion, the Court should therefore have rendered an opinion. For the Court itself has emphasized that it is the guardian of its role as a judicial organ and has made it clear that, although it considers the rendering of an advisory opinion as a duty, at the same time, as a judicial organ, it has certain limits to its duty to reply to a request for an opinion(112). The Court should not have felt constrained to exercise its discretion of not answering the question as formulated because of the Advisory Opinion it had earlier rendered in the Mazilu case(113). In my view, not only is the instant case not identical with Mazilu, but the circumstances are entirely different. Had due account been taken of those differences as well as of the peculiar circumstances, a different conclusion might have been reached.
[pp. 119-120 D.O. Koroma] 23. As pointed out above, in this instant matter not only is the question posed by ECOSOC not identical with that which had been proposed to it by the Secretary-General of the United Nations for submission to the Court, and which had constituted the difference between the Secretary-General and Malaysia and was also the question which the majority of the States that participated in the proceedings had addressed, but there is in fact no dispute between Malaysia and the United Nations whether the Convention applies to the Special Rapporteur as such, which as we have seen is not the real question.
24. Accordingly, either the dispute should have been properly presented to the Court or the Court's judicial character should have been observed. While it is for ECOSOC to formulate the question to be submitted to the Court for an advisory opinion, the Court is, however, not obliged to answer such a question, if it would have a negative implication for its judicial character and function. The Court is enjoined by its Statute to observe the principles of judicial integrity, even in exercising its advisory jurisdiction, and not to lose sight of its judicial character. Its role as a judicial organ would come under a cloud, not to say be impaired, where a question submitted to it was formulated in such a way as to appear tendentious or ambiguous or have as its underlying purpose to support or promote a particular point of view, or merely to obtain a judicial affirmation of that viewpoint. If a question submitted to the Court were to appear to suffer from any of these defects, I consider it the Court's duty and an exercise of the judicial function as well as in the interest of justice that it should decline to answer the question as submitted and not give a judgment which cannot be obtained by the proper procedure. In other words, where it would appear that the object of a request to the Court is simply to obtain a formal endorsement of the requesting party's position, the Court, as a judicial body, should decline to answer the quest. The Court cannot dissociate itself from the effect to which its decision is going to be put.
(111) Footnote omitted.
(112) Footnote omitted.
(113) Footnote omitted.@@@