Journal articles: 'Advisory opinion'

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Paprocka, Ada, and Michał Ziółkowski. "Advisory opinions under Protocol No. 16 to the European Convention on Human Rights." European Constitutional Law Review 11, no. 2 (September 2015): 274–92. http://dx.doi.org/10.1017/s1574019615000176.

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European Court of Human Rights – Protocol No. 16 to the European Convention on Human Rights – Protocol No. 16 as part of the European Court of Human Rights reform – Advisory opinions under Protocol No. 16 – Authority requesting an advisory opinion – The subject matter of an advisory opinion – Legal consequences of advisory opinions

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Espinoza Bautista, Josselyn. "Human rights as a protection mechanism for the environment: is it possible to include IACHR’s Advisory Opinion 23/17 in the Ecuadorian legal system?" USFQ Law Review 6, no. 1 (August 12, 2019): 19. http://dx.doi.org/10.18272/lr.v6i1.1398.

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The Inter-American Court of Human Rights, on November 15th of 2017, issued an Advisory Opinion on the environment and human rights. The relevance of this Opinion is reflected in the development made by the Court on state obligations in relation to the environment. The Court recognized the “undeniable relationship between the protection of the environment and the realization of other human rights”. In this virtue, this article seeks to scrutinize and synthesize the foundations of the Advisory Opinion. Finally, since advisory opinions are not binding nor obligatory for Ecuador (or any other state), this article develops an analysis on one possible solution (conventionality control) for the inclusion of Advisory Opinion 23/17 in the Ecuadorian legal system.

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Savoie, Pierre-Olivier. "The ICJ, Advisory Opinions, and the Judicial Function: Between Adjudication and Consultation." Canadian Yearbook of international Law/Annuaire canadien de droit international 42 (2005): 35–90. http://dx.doi.org/10.1017/s0069005800008493.

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SummaryLegal commentators have not always considered advisory opinions as a legitimate judicial function. Under both national and international law, it is often considered that only ripe controversies can be legitimately decided by a court of law. Under international law, advisory opinions are also criticized for undermining sovereignty when consent is not obtained from all states affected by the matter. By examining the International Court of Justice’s (ICJ) advisory opinions in light of comparative law, the author argues that this criticism underestimates the evolution of the judicial function, as much in international as in national law. The advisory opinion is a mode of social ordering that stands somewhere between consultation and adjudication. The advisory opinion not only adopts most of adjudication’s characteristics but abo has the added flexibility of consultation because it can consider a wider spectrum of opinions than can adversary procedures. The ICJ’s advisory opinions can almost be assimilated to adjudication. Considering that they have also greatly contributed to the development of international law, the ICJ’s advisory opinions remain an integral and legitimate part of the court’s judicial function.

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VIDMAR, JURE. "The Kosovo Advisory Opinion Scrutinized." Leiden Journal of International Law 24, no. 2 (May 6, 2011): 355–83. http://dx.doi.org/10.1017/s0922156511000057.

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AbstractIn the Kosovo Advisory Opinion, the International Court of Justice took the position that Kosovo's unilateral declaration of independence did not violate any applicable rules of international law. This article does not dispute the final finding, but rather critically examines the Court's somewhat controversial reasoning and considers the added value of the opinion for the clarification of legal doctrine in relation to unilateral declarations of independence. An argument is made that the Court's interpretation of the question and the identification of the authors of the declaration had significant implications for the Court's final finding. Yet, the Court cannot be criticized for not answering the question of whether or not Kosovo is a state, whether Kosovo Albanians are beneficiaries of the right of self-determination, or even whether the ‘right to remedial secession’ is applicable. However, the Court may well have implicitly answered that recognition of Kosovo is not illegal.

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5

Mejía-Lemos, Diego. "Advisory Opinion OC-22/16." American Journal of International Law 111, no. 4 (October 2017): 1000–1006. http://dx.doi.org/10.1017/ajil.2017.91.

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On February 26, 2016, the Inter-American Court of Human Rights (Court) issued an advisory opinion requested by the Republic of Panama (Advisory Opinion). The request stemmed from “doubts among States” as to whether “legal persons, being legal fictions, are not as such entitled to rights” (Request) (para. 2). The Court unanimously held that legal persons are not entitled to rights under the American Convention on Human Rights (Convention) because Article 1.2 of the Convention establishes rights only in favor of natural persons. The Court, also unanimously, reiterated that indigenous and tribal communities are entitled to rights under the Convention. By majority vote, the Court held that labor union organizations are entitled to rights under the Protocol of San Salvador (Protocol). The Advisory Opinion is most significant for its finding regarding labor union organizations and for its analysis of how general international law relates to various aspects of the Inter-American system.

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Kuźniak, Brygida, and Danuta Kabat-Rudnicka. "Advisory Opinion or Judgment? The Case of the Chagos Archipelago." Przegląd Prawniczy Uniwersytetu im. Adama Mickiewicza 13 (December 31, 2021): 45–75. http://dx.doi.org/10.14746/ppuam.2021.13.03.

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The aim of this article is to provide an analysis of the ICJ’s advisory opinion of 25 February 2019 on the Chagos Archipelago. It will endeavour to answer the following questions: (i) is it consistent with the letter and the spirit of international law for the ICJ to issue advisory opinions in cases involving a dispute between states, which, due to the lack of consent from one of the states, cannot be brought before the ICJ and be settled by a judgment of that judicial body?; (ii) is such a ruling the right way to settle the issue of decolonization?; and (iii) did Brexit play any role in the case under discussion? The article begins by describing the background to the dispute between the UK and Mauritius. The focus of the analysis then shifts to the nature of advisory opinions and the 2019 ICJ advisory opinion on the Chagos Archipelago. Next, the authors discuss the possible impact of Brexit on the dispute between the UK and Mauritius itself, as well as on the UK’s international standing in general. The article concludes with reflections on voluntarism in international law. The authors conclude that de lege lata an authorized body or organization may ask the ICJ for an advisory opinion in situations where it believes that such an opinion would be useful for its work. However, such advisory opinions should not have the character of authoritative court statements made in pending disputes between sovereign states. As a consequence, such opinions should refer only to abstract legal problems, which means that in some cases the ICJ should refrain from issuing them.

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Kateka, James L. "Advisory Proceedings before the Seabed Disputes Chamber and before the ITLOS as a Full Court." Max Planck Yearbook of United Nations Law Online 17, no. 1 (2013): 159–71. http://dx.doi.org/10.1163/18757413-90000083.

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Advisory Opinions are of interest as they have the potential to develop law. The Seabed Disputes Chamber possesses such competence and has already used it. According to article 138 of its Rules the International Tribunal for the Law of the Sea has such an advisory competence and – since the beginning of 2013 – it is faced with a request for an Advisory Opinion. It will have to deal with the admissibility of this Advisory Opinion in abstracto as well as in concreto and thus shed some light on the legal parameters for such an exercise of jurisdiction.

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Orakhelashvili, Alexander. "Kosovo: The Post-advisory Opinion Stage." International Journal on Minority and Group Rights 22, no. 4 (October 27, 2015): 486–510. http://dx.doi.org/10.1163/15718115-02204003.

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The Unilateral Declaration of Independence by Kosovar authorities in Pristina in 2008 has generated heavy legal and political controversies. The delivery by the International Court of Justice of its advisory opinion on Kosovo unilateral declaration of independence in 2010 has not led to the elimination of unilateralist positions as to Kosovo’s status. Such unilateralist approach, favouring Kosovo’s independence either in principle or in practice, has since been adopted by the local Kosovar authorities, a number of governments and by the European Union. This contribution addresses the merit of such unilateralist positions and examines whether these positions could adversely affect the legal position as to Kosovo’s status under general international law as well as un Security Council resolution 1244 (1999).

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9

Tanaka, Yoshifumi. "Reflections on the Advisory Jurisdiction of itlos as a Full Court: The itlos Advisory Opinion of 2015." Law and Practice of International Courts and Tribunals 14, no. 2 (August 24, 2015): 318–39. http://dx.doi.org/10.1163/15718034-12341296.

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In its advisory opinion of 2 April 2015, the International Tribunal for the Law of the Sea (itlos) broke new ground in the itlos jurisprudence, by stating that the full Tribunal has an advisory jurisdiction. However, the legal basis of the advisory jurisdiction of itlos as a full court is not free from controversy. An issue also arises with regard to the admissibility of the request for an advisory opinion. Given that the itlos jurisprudence concerning advisory proceedings is still in its early stages, the advisory jurisdiction of itlos as a full court deserves serious consideration. Thus, this contribution will seek to examine the legal basis of the advisory jurisdiction of itlos as a full court and the admissibility of the request for an advisory opinion by focusing on the 2015 itlos advisory opinion.

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Zarikyan, Karen Barseghi. "THE ROLE OF DOMESTIC AUTHORITIES IN EFFECTIVE APPLICATION OF ADVISORY OPINION PROCEDURE UNDER THE PROTOCOL № 16 TO THE CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS." Administrative law and process, no. 3(26) (2019): 126–39. http://dx.doi.org/10.17721/2227-796x.2019.3.08.

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The purpose of the article is to underline that the comprehensive implementation of the Protocol № 16 to the Convention for the Protection of Human Rights and Fundamental Freedoms depends on the appropriate efforts of the member States. Both the parliaments and the highest courts of the member States should take certain measures to achieve the goals persuaded by the Protocol. Thus, it is important to examine the risks of the Protocol’s implementation to find out what specific activity should be performed by the member States to minimize problems and provide for maximum benefits. In particular, advisory opinions are not biding, so the opinion of the European Court’s of Human Rights may be ignored; it can lead to delays in the proceedings before the domestic courts themselves; there is a risk that it might generate additional workload for the Court. However, the risks can be managed and in the end the advantages of advisory opinion procedure’s application outweigh its disadvantages. The article involves some important recommandations for domestic parliaments to establish sufficient procedural rules and judicial bodies to make requests in proper manner. It is also argued that domestic parliaments should inter alia establish effective mechanisms of applying for advisory opinion by domestic courts and requests by domestic courts and tribunals should be based on appropriate guidelines and explanations. Sited recommandations are of great importance for Post-Soviet countries to apply the Protocol more correctly and widely. As the international experience of requesting for advisory opinion is quite poor, it makes examples of it even more significant. So, the article also introduces two sample cases of requesting for advisory opinion made by the French Court of Cassation and the Constitutional Court of Armenia accordingly. Getting acquainted with the content and the purposes of this experience will maintain the level of application of advisory opinion procedure.

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Polonskaya, Ksenia. "International Court of Justice: The Role of Consent in the Context of Judicial Propriety Deconstructed in Light of Chagos Archipelago." Law & Practice of International Courts and Tribunals 18, no. 2 (November 19, 2019): 189–218. http://dx.doi.org/10.1163/15718034-12341400.

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Abstract This article examines the notion of consent as an element of judicial propriety as defined by the International Court of Justice (ICJ) in the context of its advisory function. The article situates the issue of judicial propriety within a broader conversation on the Court’s normative outlooks in international law, and examines the most recent advisory opinion on the Chagos Archipelago to understand how the Court itself views its role in international law. The article concludes that the Court’s advisory opinions do not provide much clarity as to the circumstances in which a lack of consent will become a compelling enough reason to justify a refusal to give an advisory opinion. The Court appears to ritually recite consent as a relevant element in its assessment of judicial propriety, however, it continues to limit such relevance.

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12

Pastukhova, L. V., and A. P. Shumilenko. "The Role of the Permanent Court of International Justice (PCIJ) in the Formation of Advisory Competence of International Judicial Bodies." Rossijskoe pravosudie 5 (May 25, 2021): 57–66. http://dx.doi.org/10.37399/issn2072-909x.2021.5.57-66.

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The article is dedicated to the analysis of the role of the Permanent Court of International Justice (PCIJ) in the formation of the advisory competence of modern international judicial bodies. Тhe authors emphasize the historical connection named after of the corresponding articles of the Covenant of the League of Nations, the Statute of the Court (PCIJ) and the Rules of Court (PCIJ). We present a list of reasons for rejection of the request for an advisory opinion; the authors analyze to what extent are states bound by the advisory opinions. A special attention is paid to the review of the practice of implementation by the PCIJ of its advisory function and assessment of the impact of advisory opinions on the development of norms of international law.

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13

Lapidoth, Ruth. "The Advisory Opinion and the Jewish Settlements." Israel Law Review 38, no. 1-2 (2005): 292–97. http://dx.doi.org/10.1017/s0021223700012711.

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This paper argues that the ICJ did not need to discuss the legality of the settlements in order to examine the legality of the fence. Following this argument, until the settlement issue is resolved, Israel has an obligation to protect the settlers. Thus, even those parts of the fence that are intended to protect settlements, legality does not depend on the legality of the settlements. Moreover, this article argues that the Court's analysis of the settlements' legality is unsatisfactory: its interpretation of Article 49, paragraph 6, of the Fourth 1949 Geneva Convention, deviates to a certain extent, from the meaning of the same terms used in other paragraphs of Article 49, and as such a more in depth analysis by the Court was required.

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14

Gao, Jianjun. "The ITLOS Advisory Opinion for the SRFC." Chinese Journal of International Law 14, no. 4 (November 11, 2015): 735–55. http://dx.doi.org/10.1093/chinesejil/jmv046.

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15

Azab, Ahmad. "Fatwa (Advisory Legal Opinion) Issues and Judgments." Journal of King Abdulaziz University-Arts and Humanities 17, no. 1 (2009): 471–518. http://dx.doi.org/10.4197/art.17-1.10.

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16

Oellers-Frahm, Karin. "Lawmaking Through Advisory Opinions?" German Law Journal 12, no. 5 (May 1, 2011): 1033–56. http://dx.doi.org/10.1017/s2071832200017211.

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International courts and tribunals are firstly and particularly conceived to settle legal disputes between States and/or other organs or individuals admitted as parties according to the statute of the respective court by means of a binding decision. An advisory function is not inherent in the function of a judicial body, but has to be transferred expressly upon a court or tribunal in the constituent instrument. For non-standing judicial bodies, i.e., arbitral tribunals, an advisory function is rather unusual, but not altogether ruled out: The parties to acompromismay empower the tribunal to give an advisory opinion.

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17

McCormack, Timothy L. H. "A non liquet on nuclear weapons — The ICJ avoids the application of general principles of international humanitarian law." International Review of the Red Cross 37, no. 316 (February 1997): 76–91. http://dx.doi.org/10.1017/s0020860400084321.

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The Advisory Opinion delivered by the International Court of Justice (ICJ) on the legality of the Threat or Use of Nuclear Weapons was a somewhat disappointing if not entirely unexpected decision. After the final paragraph, which constitutes the dispositif, all fourteen judges appended either personal declarations, separate opinions or dissenting opinions to indicate the extent to which they agreed or disagreed with specific findings and particular aspects of the reasoning behind the Opinion.

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18

Allen, Stephen. "SELF-DETERMINATION, THE CHAGOS ADVISORY OPINION AND THE CHAGOSSIANS." International and Comparative Law Quarterly 69, no. 1 (December 23, 2019): 203–20. http://dx.doi.org/10.1017/s0020589319000526.

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AbstractIn its Chagos Advisory Opinion, the International Court of Justice (ICJ) ruled that the UK's detachment of the Chagos Archipelago from the colony of Mauritius on the eve of independence constituted a violation of customary international law (CIL). This article analyses the Court's approach to establishing the emergence and content of the right to self-determination in this frustrated case of decolonisation. It goes on to examine the argument that self-determination's peremptory character has decisive consequences in this specific context—a contention which found favour with several judges in their Separate Opinions. The article explores the extent to which the claims and counterclaims, made during the advisory proceedings, turned on countervailing readings of not only the key sources of custom but also of the principle of inter-temporal law. The final sections consider the significance of the Chagos Opinion for the Chagossians, both in relation to the Archipelago's resettlement and for their outstanding appeal in the UK courts (where the European Convention on Human Rights performs a pivotal role).

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19

Kretzmer, David. "The Advisory Opinion: The Light Treatment of International Humanitarian Law." American Journal of International Law 99, no. 1 (January 2005): 88–102. http://dx.doi.org/10.2307/3246092.

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Ever since the occupation of the West Bank and Gaza began in 1967, the Supreme Court of Israel has entertained petitions challenging actions of the Israeli authorities in those territories. The Court has delivered dozens of judgments in which it addressed questions of international humanitarian law in a situation of belligerent occupation. For a long time the Supreme Court was the sole judicial actor in this sphere. While its judgments were subjected to scrutiny and criticism by academics, no other judicial organs, domestic or international, ruled on the difficult legal issues discussed by the Court. The request for an advisory opinion provided the International Court of Justice (ICJ) with a unique opportunity to address and clarify some of the issues that had previously remained in the exclusive domain of the Supreme Court of Israel. Unfortunately, the Court did not take full advantage of this opportunity. As Judge Rosalyn Higgins noted in her separate opinion, the Court refrained from engaging in a detailed analysis of the law, thereby failing to follow “the tradition of using advisory opinions as an opportunity to elaborate and develop international law.” The opinion is especially weak on questions of international humanitarian law (IHL), which makes it extremely difficult to know what the Court actually decided on these questions.

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Giannopoulos, Christos. "Considerations on Protocol N°16: Can the New Advisory Competence of the European Court of Human Rights Breathe New Life into the European Convention on Human Rights?" German Law Journal 16, no. 2 (May 2015): 337–50. http://dx.doi.org/10.1017/s2071832200020873.

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Protocol n°16 expands the advisory jurisdiction of the European Court of Human Rights (hereinafter ECtHR) by introducing a mechanism of litigation-related opinions (“avis contentieux”). It affords the highest national courts and tribunals the ability to ask the ECtHR for an advisory opinion on questions of principle related to the interpretation and application of the rights and freedoms defined in the European Convention on Human Rights (hereinafter Convention) and the Protocols thereto.

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Siwior, Przemysław. "The Inter-American Court of Human Rights Advisory Opinion OC-23/17 on the Relationship between Human Rights and the Environment." Review of European and Comparative Law 46, no. 3 (August 21, 2021): 177–88. http://dx.doi.org/10.31743/recl.11915.

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On 15 November 2017, the Inter-American Court of Human Rights issued an advisory opinion OC-23/17 on the relationship between human rights and the environment. The opinion responded to a request made by Colombia pursuant to Article 64(1) of the American Convention on Human Rights regarding extraterritorial jurisdiction of state parties to the Convention resulting from mega-infrastructure projects in the Greater Caribbean region. The purpose of this article is to discuss the general issues dealt with by the Court, concentrating on the significance of this Advisory Opinion for international law. The opinion contains two main interesting aspects. First, in the light of the opinion, states are responsible for the environmental damage they cause, regardless of whether it occurs within their borders or beyond them. Second, the Advisory Opinion recognizes that the right to a healthy environment is an autonomous, fundamental human right that shall be protected.

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Falk, Richard. "The Kosovo Advisory Opinion: Conflict Resolution and Precedent." American Journal of International Law 105, no. 1 (January 2011): 50–60. http://dx.doi.org/10.5305/amerjintelaw.105.1.0050.

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The somewhat surprising majority view in the advisory opinion of the International Court of Justice (ICJ) assessing Kosovo's declaration of independence has some bearingon prospects for an eventual end to the bitter conflict between Kosovo and Serbia. It may also have some relevance for a variety of political movements around the world whose leaders might be more inclined than previously to tempt fate by declaring their people and territory to be internationally independent of the sovereign state within which they are now geographically located. Significantly,the ICJ majority sidestepped the question put to it by the General Assembly, in a move objectionable to the four dissenting judges,recasting it in such a way as to limit its response to whether Kosovo's declaration of independence, issued on February 17,2008, was “in accordance with international law” to the rather bland assertion that the declaration did not violate international law. The Court did not say, and explicitly ruled out any interpretation suggesting, that Kosovo's declaration was acceptable under international law, although by Lotus reasoning, what a state is not expressly prohibited from doing is permitted.3 The majority also expressed its view that the declaration was not to be viewed as decidingupon Kosovo's final status in world diplomacy.

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Bordin, Fernando Lusa. "RECKONING WITH BRITISH COLONIALISM: THE CHAGOS ADVISORY OPINION." Cambridge Law Journal 78, no. 02 (July 2019): 253–57. http://dx.doi.org/10.1017/s0008197319000473.

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SFIKAS, PETER M. "Update: CREDENTIALS AND ADVISORY OPINION 5.I.1." Journal of the American Dental Association 130, no. 10 (October 1999): 1512–14. http://dx.doi.org/10.14219/jada.archive.1999.0067.

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25

Papantoniou, Angeliki. "Advisory Opinion on the Environment and Human Rights." American Journal of International Law 112, no. 3 (July 2018): 460–66. http://dx.doi.org/10.1017/ajil.2018.54.

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On November 15, 2017, the Inter-American Court of Human Rights (Court) rendered a historic advisory opinion (Advisory Opinion) on the relationship between human rights and the environment. The opinion was a response to a request from Colombia regarding extraterritorial jurisdiction of state parties to the American Convention, in particular their obligations under the rights to life and personal integrity, arising from the construction and operation of large-scale infrastructure projects in the Greater Caribbean region. Colombia's concern was that, due to their dimensions and permanence, such projects could cause significant environmental harm, that goes beyond national borders, and, as a consequence, adversely affect the inhabitants of the whole region and the enjoyment of their rights under the Convention (para. 2). One of the most important aspects of the Advisory Opinion is the Court's finding that in relation to large-scale transboundary infrastructure projects, state parties to the Convention can exercise extraterritorial jurisdiction under certain circumstances and thus be responsible for the human rights of the people in the affected area. Another significant finding of the Court is that Article 26 of the American Convention, which provides for the progressive realization of economic, social, and cultural rights, includes an autonomous right to a healthy environment—a right fundamental for the existence of humankind. Finally, the Court directly linked the rights to life and personal integrity with general principles of international environmental under a due diligence obligation. The Court's extensive use of international environmental law instruments, case law, and reasoning could pave the way for greater interconnection and integration between human rights and international environment law obligations.

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Ilham Mirzamammadova, Gulzada. "THE OBLIGATIONS OF DEVELOPING AND DEVELOPED STATES IN RESPECT TO ENVIRONMENTAL ISSUES WITHIN UNCLOS." SCIENTIFIC WORK 66, no. 05 (May 20, 2021): 233–36. http://dx.doi.org/10.36719/2663-4619/66/233-236.

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This article discusses one of the major concerns of the ISA which is to provide the marine environment is protected from harmful effects that may occur during mining activities in the Area. In 2011, the ITLOS Seabed Disputes Chambers, at the request of the Council of the ISA, ensured its first advisory opinion regarding the responsibilities and obligations of States and their sponsored entities with regard to activities in the Area. It will be explored some of the implications of the Advisory Opinion of the Chambers on developing States herein. Key words: United Nations Convention on the Law of the Sea, seabed area, developing states, marine environment, advisory opinion, sponsorship.

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Folk, Richard A. "Toward Authoritativeness: The ICJ Ruling on Israel’s Security Wall." American Journal of International Law 99, no. 1 (January 2005): 42–52. http://dx.doi.org/10.2307/3246088.

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On July 9, 2004, the International Court of Justice issued its advisory opinion on the legal consequences of Israel’s construction of a security wall on occupied Palestinian territory, declaring that the wall was in violation of international law. The advisory opinion also indicated that Israel should forthwith cease construction of the wall, dismantle what had been so far constructed, and make reparations to the Palestinians for all damages caused by the project. On July 20, 2004, at the Tenth Emergency Session of the General Assembly, Resolution ES-10/15 was adopted by a vote of 150 in favor, 6 opposed, and 10 abstentions, demanding that Israel comply with the legal obligations as specified by the advisory opinion.

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Carrillo-Santarelli, Nicolás. "Gender Identity, and Equality and Non-discrimination of Same Sex Couples." American Journal of International Law 112, no. 3 (July 2018): 479–85. http://dx.doi.org/10.1017/ajil.2018.51.

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In its advisory opinion, OC-24/17 (Advisory Opinion), the Inter-American Court of Human Rights (IACtHR or Court) addressed globally debated issues concerning gender identity, same-sex relationships, and the rights of LGBTI persons. As discussed below, the Court reached conclusions more progressive than those of its European counterpart, due to its finding that the principle of individual autonomy is embedded in the foundations of human rights law and permeates individual self-determination, the free development of one's personality, and the protection of different models of the family. In line with an apparent trend in the Court's case law, the Advisory Opinion rejects the idea that domestic societies are sometimes entitled, by virtue of a margin of appreciation, to choose among different possibilities for protecting human rights, provided that certain international legal limits are observed—an idea addressed in the dissenting opinion.

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Weismann, Paul. "Peoples’ Right to Self-Determination." International Community Law Review 21, no. 5 (November 12, 2019): 463–79. http://dx.doi.org/10.1163/18719732-12341414.

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Abstract The Chagos Archipelago is a small group of islands and atolls in the Indian Ocean which traditionally has belonged to Mauritius. In 1965, when Mauritius was still a colony of the UK, the Chagos Archipelago was detached from Mauritius and the UK allowed the US to establish a military base on this territory. These occurrences have been highly disputed ever since. In February 2019, the International Court of Justice (ICJ), upon request by the UN General Assembly, has rendered its Advisory Opinion on a number of legal issues concerning the case. This contribution aims at presenting and discussing the facts of the case and its main legal aspects, encompassing material questions on the peoples’ right to self-determination, on territorial integrity and on international responsibility, but also procedural questions relating to the scope of the jurisdiction of the ICJ. In this context, not only the Advisory Opinion of the Court shall be analysed, but also the Separate Opinions and Declarations and in particular the Dissenting Opinion rendered by Judge Donoghue will be taken into account.

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Doswald-Beck, Louise. "International humanitarian law and the Advisory Opinion of the International Court of Justice on the legality of the threat or use of nuclear weapons." International Review of the Red Cross 37, no. 316 (February 1997): 35–55. http://dx.doi.org/10.1017/s0020860400084291.

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The Advisory Opinion of the International Court of Justice represents the first time that the Court's judges have been called upon to analyse in some detail rules of international humanitarian law. Other instances, for example, the Nicaragua case, involved nowhere near such an extensive analysis. The Advisory Opinion is therefore of particular interest in that it contains important findings on the customary nature of a number of humanitarian law rules and interesting pronouncements on the interpretation of these rules and their relationship with other rules. Most judges based their final decision on the legality of the threat or use of nuclear weapons on teleological interpretations of the law, choosing either the right of self-defence as being the most fundamental value, or the survival of civilization and the planet as a whole as paramount. Unfortunately, space does not permit a comment on these highly important analyses of the underpinnings of humanitarian law and its purpose in the international order. Therefore, rather than focusing primarily on the Court's conclusion as to the legality of the threat or use of nuclear weapons, this short comment will concentrate on the various pronouncements made on humanitarian law rules. Reference to the Court's finding on the legality of the use of nuclear weapons will only be made from the point of view of how it has contributed to the interpretation of those rules. For this purpose, reference will be made not only to the Advisory Opinion as such (hereafter referred to as the “Opinion”), but also to the various Separate and Dissenting Opinions.

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Stojanowska, Wanda. "DOWÓD Z OPINII RODZINNEGO OŚRODKA DIAGNOSTYCZNO-KONSULTACYJNEGO W SPRAWACH O ROZWÓD I JEGO WPŁYW NA TREŚĆ WYROKU W ŚWIETLE WYNIKÓW BADAŃ AKTOWYCH." Zeszyty Prawnicze 2, no. 1 (March 19, 2017): 7. http://dx.doi.org/10.21697/zp.2012.2.1.01.

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THE OPINION OF THE FAMILY DIAGNOSTIC-ADVISORY CENTRE AS THE EVIDENCE IN DIVORCE CASES AND ITS INFLUENCE ON JUDGEMENTS (IN THE LIGHT OF C OURT RECORDS)Summary The present article contains results of studies conducted in the Institute of Justice in Warsaw. Basis for the research was 100 judgments in divorce cases by Polish provincial courts from 1997 to 1998. Each of the examined judgments was done after hearing by court of the Family Diagnostic - Advisory Centre (FDAC) opinion in cases including decision as to the guilt for breaking up of marriage and subsequent granting of the paternal authority to the innocent party. The study is going to establish relation between opinions by the FDAC and judgments.The study contains complex and detailed analysis of court decision and its grounds. It shows that opinion given by FDAC is very influential for courts granting judgments which followed it in 80% of analyzed cases. However not all of the suggestions given by experts were relevant. In the majority of the examined cases a mistake made by the expert consisted of the ignorance of law and consequendy of the ambiguous wording of the opinion. Such an opinion was then followed by the judge who usually chose the simplest solution granting the full parental authority to both of the divorced spouses thus avoiding the time consuming and laborious procedure based on the article 58 of the Code of Family and Guardianship Law determining possibility of limitation of the parental authority.Such approach could be declared as an opportunistic one, and provokes postulate de lege ferenda for abolishment of the institution of granting the full parental authority to both of the divorced spouses. Proposed change should simplify courts procedure as well as enable the FDEC to develop its activity as family advisory centers which until now does not exist in Polish legal system.

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Muharremi, Robert. "A Note on the ICJ Advisory Opinion on Kosovo." German Law Journal 11, no. 7-8 (August 1, 2010): 867–80. http://dx.doi.org/10.1017/s2071832200018885.

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On 22 July 2010, the International Court of Justice (hereinafter the “ICJ”) delivered its advisory opinion on the accordance with international law of the unilateral declaration of independence in respect of Kosovo. The ICJ concluded that the declaration of independence dated 17 February 2008 did not violate any applicable rule of international law consisting of general international law, UNSC resolution 1244 (1999) (hereinafter the “Resolution 1244”) and the Constitutional Framework for Provisional Self-Government in Kosovo (hereinafter the “Constitutional Framework”). The ICJ delivered the advisory opinion in response to a question set out in resolution 63/3 dated 8 October 2008 of the General Assembly of the United Nations Organization (hereinafter the “General Assembly”), which asked if “the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo is in accordance with international law.”

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McCorquodale, Robert, Jennifer Robinson, and Nicola Peart. "TERRITORIAL INTEGRITY AND CONSENT IN THE CHAGOS ADVISORY OPINION." International and Comparative Law Quarterly 69, no. 1 (January 2020): 221–38. http://dx.doi.org/10.1017/s0020589319000551.

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AbstractA key element of the right to self-determination is territorial integrity. This has usually been considered solely in relation to the territorial integrity of an existing State seeking to resist claims by peoples for the right to self-determination. Yet the Chagos Opinion by the International Court of Justice examines a different type of territorial integrity—that of the colonial territory itself. This article explores the consequence of the Court's view that the territorial integrity of the colonial territory is a matter of customary international law, and that any division, integration or other disruption of that colonial territory after December 1960 is unlawful, without the free and genuine consent of the people of the colonial territory. In particular this article seeks to explore what the Chagos Opinion means in terms of the territorial integrity of a colonial territory. It also examines the required conditions for ascertaining a free and genuine consent of the people of that territory, and the legal effects of not complying with them. There is also consideration of the implications for other situations from the clarification of customary international law in the Chagos Opinion, with a special focus on West Papua.

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Feldkamp, Janet K. "Advisory Opinion Addresses Feasibility of Providing Free Local Transportation." Caring for the Ages 10, no. 6 (June 2009): 18. http://dx.doi.org/10.1016/s1526-4114(09)60159-1.

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Niewenhous, M. Daria, Deborah A. Daccord, and Melissa O'Neill. "OIG Issues Advisory Opinion on Joint Venture Buy-Outs." Oncology Issues 22, no. 5 (September 2007): 17. http://dx.doi.org/10.1080/10463356.2007.11883354.

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Gabriel, Kathleen. "Fraud and Abuse: OIG Advisory Opinion No. 00-3." Journal of Law, Medicine & Ethics 28, no. 2 (2000): 193–94. http://dx.doi.org/10.1111/j.1748-720x.2000.tb00014.x.

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The Office of the Inspector General issued an advisory opinion in April announcing that an arrangement to provide various services free of charge to patients with terminal illnesses who have a prognosis of one year or less to live (the “Program”) does not constitute grounds for sanctions under either the anti-kickback statute, section 1128(b) of the Social Security Act, or under section 1128A(a)(5) of the Act, which prohibits offering of inducements to beneficiaries to influence their selection of a provider for Medicare or Medicaid covered services.The Hospice Foundation of Martin & St. Lucie, Inc., is a Florida nonprofit organization that acts as the supporting foundation for the Hospice of Martin & St. Lucie, Inc., a nonprofit organization that provides various end-of-life services.

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Georgiadou, Stella. "The Law and Politics of the Kosovo Advisory Opinion." Europe-Asia Studies 68, no. 6 (July 2, 2016): 1100–1101. http://dx.doi.org/10.1080/09668136.2016.1202532.

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Donadio, Luciano, and Carlos Espósito. "Inter-jurisdictional Co-operation in the MERCOSUR: The First Request for an Advisory Opinion of the MERCOSUR’s Permanent Review Tribunal by Argentina’s Supreme Court of Justice." Law & Practice of International Courts and Tribunals 10, no. 2 (2011): 261–84. http://dx.doi.org/10.1163/157180311x582152.

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AbstractThis comment discusses the request for an advisory opinion that originated in the case Sancor c/ Dirección General de Aduanas. This case emerged from the resolution of the Argentine Ministry of Economy which set export duties of 5% to certain milk products, without discriminating with regard to the destination of them, i.e. including members as well as non-members of the Southern Common Market (MERCOSUR). In this way, and after a long judicial process, in October 2009 Argentina’s Supreme Court of Justice (CSJN) requested an advisory opinion from the Permanent Review Tribunal of the MERCOSUR, ‐ Tribunal Permanente de Revisión ‐ asking the question “Does the Treaty of Asunción require Member States of MERCOSUR the obligation not to impose duties on exports of goods which are originated in one of them and which have another Member State as its final destination?” This article describes the historical circumstances surrounding the Argentine governmental measure, and then analyzes three specific issues related to the request of the advisory opinion by the Supreme Court: 1) the place of international law in the Argentine legal system; 2) the procedural legitimacy of the decision of the Court; and 3) some substantive issues involved in the requested advisory opinion.

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-. "Agreed recommendations on the use of FDC budesonide/formoterol in a single inhaler (SMART) for the treatment of patients with bronchial asthma." Russian Journal of Allergy 13, no. 3 (December 15, 2016): 15–29. http://dx.doi.org/10.36691/rja355.

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Conclusion paragraphs were discussed at the Advisory Board and adopted by majority of votes during voting. After Advisory Board the initiative group edited the draft opinion in accordance with the received comments and suggestions. The final draft of conclusion has been agreed by all experts of the Advisory Board.

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Gavouneli, Maria. "Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC) (ITLOS)." International Legal Materials 54, no. 5 (October 2015): 890–926. http://dx.doi.org/10.5305/intelegamate.54.5.0890.

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On April 2, 2015, the International Tribunal for the Law of the Sea (ITLOS) rendered its first ever advisory opinion by the full Tribunal in response to a request for an advisory opinion submitted by the Sub-Regional Fisheries Commission (SRFC), a regional fisheries organization comprised of seven West-African States. The Tribunal was asked to address four substantive questions relating to the obligations of the flag and coastal states regarding fisheries management and the ensuing responsibility of both states and competent organizations for illegal, unreported, and unregulated (IUU) fishing. In doing so, it also had occasion to clarify whether ITLOS indeed has plenary advisory jurisdiction.

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van den Driest, Simone F. "From Kosovo to Crimea and Beyond: On Territorial Integrity, Unilateral Secession and Legal Neutrality in International Law." International Journal on Minority and Group Rights 22, no. 4 (October 27, 2015): 467–85. http://dx.doi.org/10.1163/15718115-02204002.

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In the aftermath of the Ukrainian Revolution, Ukraine’s autonomous region of Crimea declared independence and filed an application to subsequently join the Russian Federation. In seeking to justify these acts, both the Crimean authorities and the Russian Federation referred to international law, including the International Court of Justice’s Advisory Opinion on Kosovo’s unilateral declaration of independence. In this Advisory Opinion, the Court indeed found that the principle of territorial integrity merely applies in the relationship between States and concluded that general international law does not contain a prohibition on unilateral declarations of independence. These findings and the interpretation of the Advisory Opinion as put forward by the Crimean and Russian authorities, however, raise pertinent questions. This article therefore aims to shed light on the scope of the principle of territorial integrity of States and its implications for the legality of and perceived legal neutrality concerning unilateral secession under international law.

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Aljaghoub, Mahasen. "The Absence of State Consent to Advisory Opinions of the International Court of Justice: Judicial and Political Restraints." Arab Law Quarterly 24, no. 2 (2010): 191–207. http://dx.doi.org/10.1163/157302510x497330.

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The International Court of Justice (ICJ) is the principal judicial organ of the United Nations, (UN) and its Statute is an integral part of the UN's Charter. The court's integral role within the UN has largely been misunderstood especially in the way the court has viewed its advisory jurisdiction. The ICJ always asserts that the delivery of an advisory opinion represents its participation in the UN's work and thus, in the absence of compelling reasons, a request for an opinion ought not to be refused. Some commentators note that the principle that the ICJ must participate in the work of the Organisation might sometimes conflict with its judicial character, which might result in not embracing the philosophy of “judicial restraint” in the court's advisory jurisdiction. They also contend that the absence of consent in advisory cases has led the court to overlook its judicial restraint. This article argues that those commentators have overlooked the main role of the ICJ's advisory function in clarifying the law and providing guidance for future action by the UN organs, and has consequently called for applying the principle of consent as a condition for giving an advisory opinion on questions relating to disputes pending between States. In the present article, the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory opinion is analysed to see whether the absence of Israeli consent has undermined the ICJ's judicial character. The author is of the view that the court, as the principal judicial organ of the UN, should, by a cautious judicial policy, provide enlightenment to the UN and participate to achieving its goals while at the same time adhering to its judicial character.

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Kirgis, Frederic L. "He Got It Almost Right." AJIL Unbound 108 (2014): 116–17. http://dx.doi.org/10.1017/s2398772300001987.

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Larry Johnson’s answer to his own question is a qualified “no.” Surely he is correct when he says that the General Assembly does not need the Uniting for Peace resolution in order to consider a matter that is on the UN Security Council’s agenda. The International Court of Justice made that clear in its Advisory Opinion on the Construction of a Wall. It is only when the Security Council is actively pursuing the matter that UN Charter Article 12(1) requires the General Assembly to defer to the Council.Johnson is also correct when he says that Uniting for Peace does not serve to enhance the authority that the UN Charter itself supplies to the Assembly to adopt non-binding resolutions intended to keep or restore peace. The ICJ also made that clear in its Advisory Opinion on the Construction of a Wall. Without relying on the Uniting for Peace resolution, the ICJ in paragraphs 27 and 28 of its Opinion approved the practice of the General Assembly to deal with matters concerning maintenance of international peace and security. The Court turned to the Uniting for Peace resolution only in the ensuing paragraphs of its Opinion, dealing with procedural matters related to the Assembly’s request for an Advisory Opinion.

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Žuber, Bruna, and Špela Lovšin. "Judicial dialogue in the light of Protocol no. 16 to the European convention on human rights." Zbornik Pravnog fakulteta Sveučilišta u Rijeci 40, no. 2 (2019): 899–925. http://dx.doi.org/10.30925/zpfsr.40.2.10.

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The authors discuss legal nature of the Protocol No. 16 to the European Convention on Human Rights (ECHR) which entered into force on 1 August 2018. With the aim of improving the judicial dialogue between European Court of Human Rights (ECtHR) and highest national courts, the Protocol No. 16 introduced the advisory opinion procedure at the ECtHR level. A detailed analysis of the impact of advisory opinion procedure on the judicial dialogue is included and is further supported by the reviews of cases at the ECtHR against Slovenia, Belgium and Italy, which illustrate how a possibility to request an advisory opinion could have prevented finding of a human right’s violation on the Strasbourg level and raised the effectiveness of human rights standards. The authors believe the Protocol No. 16 has brought a lot of potential for improvement of the judicial dialogue, which could lead to better understanding of ECHR standards, as interpreted by the ECtHR, and therefore prevent human rights violations already on a national level.

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KATTAN, Victor. "The Chagos Advisory Opinion and the Law of Self-Determination." Asian Journal of International Law 10, no. 1 (November 4, 2019): 12–22. http://dx.doi.org/10.1017/s2044251319000195.

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AbstractThe Advisory Opinion of the International Court of Justice [ICJ] on the Separation of the Chagos Archipelago from Mauritius in 1965 has been hailed as a major victory by the government of Mauritius and by representatives of the Chagossians who were forcibly removed from the islands to make way for the establishment of an American military facility on the island of Diego Garcia at the height of the Cold War. The opinion was categorical: the process of decolonization of Mauritius was not lawfully completed when that country acceded to independence in 1968. The UK lost on every single argument it made before the Court and is under an obligation to bring its administration of the Chagos Archipelago to an end “as rapidly as possible”. This comment focuses on what the ICJ said about self-determination, and whether the Advisory Opinion could have consequences for future cases at the Court.

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PETERS, ANNE. "Does Kosovo Lie in the Lotus-Land of Freedom?" Leiden Journal of International Law 24, no. 1 (February 11, 2011): 95–108. http://dx.doi.org/10.1017/s0922156510000622.

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AbstractThis paper finds that the ICJ's Kosovo Advisory Opinion reached the right result, but in a methodologically not fully satisfactory way. It examines five aspects that underpin the opinion: the temporal (purely ex post) perspective; the Court's equation of legal conformity and non-prohibition and the idea of a deliberate silence of international law; the applicability of the Lotus principle that was evoked by numerous states in the proceedings; the structural analogies between international law and private, criminal, or public law; and the oscillation between legal positivist and jusnaturalist paradigms. Finally, the paper argues in favour of procedural requirements for the international lawfulness of secession, and claims that this approach is compatible with the findings of the Advisory Opinion.

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Ingravallo, Ivan. "Kosovo after the ICJ Advisory Opinion: Towards a European Perspective?" International Community Law Review 14, no. 3 (2012): 219–41. http://dx.doi.org/10.1163/187197312x650523.

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Abstract The article deals with the advisory opinion given on 22 July 2010 by the International Court of Justice (ICJ) on the accordance with international law of the declaration of independence from Serbia adopted by Kosovo authorities on 17 February 2008. The advisory opinion is critically examined in the light of international law and of United Nations Security Council resolution 1244 (1999). The responsibilities of the European Union in Kosovo are also scrutinized, with regard to the mandate of EULEX Kosovo, the role of the EU as a facilitator of the dialogue between Belgrade and Pristina, and the European perspective for Kosovo and the Western Balkans.

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Gao, J. "The Responsibilities and Obligations of the Sponsoring States Advisory Opinion." Chinese Journal of International Law 12, no. 4 (December 1, 2013): 771–86. http://dx.doi.org/10.1093/chinesejil/jmt037.

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Arp, Björn. "The ICJ Advisory Opinion on theAccordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovoand the International Protection of Minorities." German Law Journal 11, no. 7-8 (August 1, 2010): 847–65. http://dx.doi.org/10.1017/s2071832200018873.

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Very seldom has a judgment or advisory opinion of the International Court of Justice (ICJ) received so much media coverage as the recent Advisory Opinion on theAccordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovorendered on 22 July 2010 in response to a question posed by the General Assembly. The question had been forwarded on behalf of a request by Serbia and was phrased in the following way: “Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?”

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Kamau, Ndanga. "Advisory Opinion on the Request by the Pan African Lawyers Union Regarding the Compatibility of Vagrancy Laws with the African Charter of Human and Peoples' Rights and other Human Rights Instruments Applicable in Africa (Afr. Ct. H.P.R.)." International Legal Materials 61, no. 1 (November 15, 2021): 142–68. http://dx.doi.org/10.1017/ilm.2021.43.

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On December 4, 2020, the African Court on Human and Peoples' Rights (the Court) issued an advisory opinion on the compatibility of vagrancy laws with the African Charter on Human and Peoples' Rights (African Charter), the African Charter on the Rights and Welfare of the Child (Children's Rights Charter), and the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa (Protocol on Women's Rights). In this landmark advisory opinion, the Court considered an important social issue on the African continent.

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Journal articles on the topic 'Advisory opinion'

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