"We are living in crisis. This time is real."

Last October, I attended my first international law conference in New York as a second-year law student. A sense of crisis was felt everywhere. Some shared a grim outlook of international law. Yet it did not dissuade my budding interest in this field. Rather, it pushed me to think about its demanding questions. One of them was: what "new" role is the International Court of Justice (ICJ) taking at this difficult time? 

Panel Summary

Increasing Advisory Opinions

All speakers started off by pointing at the increase of advisory opinions. Under the UN Charter, the ICJ can render advisory opinions on “any legal question” at the request of UN General Assembly or other qualifying international organizations. Advisory opinons are different from normal cases. Due to its advisory nature, (1) jurisdiction is not required and (2) they are non-binding.

We have recently seen the increase of advisory opinions both in terms of volume and scope. Most recently, the Court gave an opinion about Israel’s obligations on the activities of international organizations in the Occupied Palestinian Territory. Last July, the Court gave an opinion on States’ obligations on climate change.

What is driving this move? Speakers pointed out two things. First, the deadlock in the Security Council which proved to be incapable of keeping world security when their own stakes are involved. This explains the series of advisory opinions issued on Israel-Gaza conflict. One speaker even introduced the radical voice that is urging the ICJ to issue an advisory opinion on the potential jus cogens violation by the Security Council in "abusing" their veto power. Another explanation for the increased volume of advisory opinions was a frustration coming from consent-driven treatymaking efforts. Recent climate advisory opinion could be understood in this context. Rather than going through a demanding process of creating multilateral treaty on contested matters, UN General Assembly may just reach out to the Court to set the standard.

But will advisory opinions matter? They are non-binding after all. A UN diplomat’s observation was revealing on this point. He said that in the UN meetings, state actors across the political spectrum are citing advisory opinions, positively, to support their argument including P5. The diplomat observed that advisory opinions are creating a normative environment in which political questions are discussed. Another speaker went further by stating that the advisory opinions can shape a state behavior. He made an interesting point: the more states participate in advisory opinion proceedings, the more they develop a sense of ownership over the outcome, which can lead to voluntary compliance. At the same time, there was a concern that advisory opinions may hinder tailored diplomatic negotiations that may serve better divergent interests.

Accepting Mass Intervention 

Several other points were mentioned which I think suggest a similar direction of change. One speaker referred to the trend of mass intervention. Intervention occurs when other states join a case as parties. The Court allows intervention when the legal interests of requesting states are affected by its decision. So mass intervention means that the ICJ granted many states the right to participate as parties. 

The speaker was apparently alluding to Ukraine v. Russia in which thirty-two states intervened. The number was unprecedented. These intervening states did not suffer a direct harm from Russia’s aggression. The intervention was allowed nonetheless because the Court accepted the argument that their legal interests as parties to the Geneva Convention were undermined, since Russia had misused the Convention to justify its actions.

The speaker said that allowing such intervention was a sharp turn from the ICJ’s traditional approach. The ICJ has been conservative in granting a party status for other states when the primary purpose to intervene is to show their political support over one party. Absent direct harm, the Court has been hesitant to allow intervention. The purpose was to reject political elements in the judicial forum. For the same reason, the ICJ has never allowed amicus briefs for contentious cases. 

My thoughts

I think all of this signal that the ICJ is willing to address the disputed issues even when its actions invite political elements. To influence state behavior, the Court did not hesitate to issue an opinion, despite being advisory, that outline state responsibilities and to allow mass state intervention to enhance the ruling's deterrence effect.

The type of role that the ICJ appears to be assuming feels new to me. I naturally compare the ICJ with the U.S. Supreme Court which is under a strict separation-of-power principle. Judiciary provides legal remedies ex post for specific harms. SCOTUS is generally hesitant to engage in acts that can be political: no advisory opinion can be requested; no standing will be granted without a concrete injury. Although domestic law is not comparable to international law, I find it interesting to see that the ICJ has evolved to accept the political role.

Is it problematic that the line between politics and law is blurry in international law? Should addressing such questions be tolerated if it could help promote order and peace? Or is the ICJ forcing political issues to be debated within the framework of law?

What about advisory opinions in particular? Do they really hinder diplomatic negotiations? Don't they still give states enough room to maneuver and to fill in gaps because they are just advisory in nature?

Lastly, what is driving the ICJ to take this "new" role? Perhaps we could partly attribute it to the Court's own existential crisis. The Court has struggled to seize jurisdiction of contentious cases; states have continued to withdraw from the ICJ’s optional clause; and conflicting international law principles have constrained the Court. If it can no longer serve its purpose through traditional means, the ICJ may find the role in this new space. 🔹