A Reference to the ICJ for an Advisory Opinion over COVID-19 Pandemic

Much has been said about the ICJ’s contentious jurisdiction in the context of the COVID-19 pandemic, stressing in this respect the problem of the State’s acceptance of jurisdiction and establishing the existence of a dispute (see e.g. here, here, here , here and listen). However, while the focus has been on the Court’s contentious proceedings, advisory jurisdiction has taken an unfortunate backseat. Under Article 65 of the ICJ Statute, the ICJ may give an advisory opinion, the purpose of which is to “offer legal advice to the organs and institutions requesting the opinion.”

This post first considers whether the Court would have advisory jurisdiction and, if so, whether there is any reason why it should exercise its discretion not to give an advisory opinion.

Jurisdiction

Article 65 of the ICJ Statute provides: “the Court may give an advisory opinion on any legal question at the request of whatever body may be authorised by or in accordance with the Charter of the United Nations to make such a request” (see also Arts. 102-109 Rules of Court). Article 96 of the UN Charter states that, in addition to the UN General Assembly (UNGA) and Security Council, other UN organs and specialised agencies may request advisory opinions on “legal questions arising within the scope of their activities”, if duly authorised by the UNGA.

     Request by the UN General Assembly or the World Health Organization

In the case of a request for an advisory opinion by the UNGA, the question should be one arising within its scope of activities (Application for Review of Judgement No. 273 of the United Nations Administrative Tribunal). Article 10 of the UN Charter confers upon the UNGA competence relating to “any questions or any matters” within the scope of the Charter, that is, the question must simply be of international concern (Art. 11 of the UN Charter). It appears beyond serious doubt that questions relating to global pandemics fall within the competence of the UNGA, as confirmed by the UNGA resolutions (here and here).

The World Health Organization (WHO) is duly authorized to request such an opinion from the ICJ. Article 76 of the WHO Constitution reads:

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.

Article X, paragraphs 2-3, of the Agreement between the United Nations and the World Health Organization states, in the relevant part:

2. 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.

3. Such requests may be addressed to the Court by the Health Assembly or by the Executive Board acting in pursuance of an authorization by the Health Assembly.

On the basis of this normative framework, the WHO has previously requested the ICJ to render two advisory opinions: Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt and Legality of the Use by a State of Nuclear Weapons in Armed Conflict. Yet, the ICJ declined to render the latter opinion because, after examining the functions of the WHO in light of its Constitution and subsequent practice, the Court concluded that the WHO was not authorised to deal with matters of legality, but only with the health effects, of the use of such weapons. Accordingly, the Court held that the question asked by the WHO did not arise within the scope of activities of the WHO itself, as defined in its Constitution.

Pursuant to Article 2 of the WHO Constitution, the WHO’s competence extends to all questions related to the sphere of public health. A request for an advisory opinion relating to the COVID-19 pandemic, which is a global health crisis, would fall within the remit of the WHO and, as a result, the ICJ would have jurisdiction to comply with such a request.

     Legal Question

A request for an advisory opinion must be on a “legal question” (Art. 96 UN Charter, Art. 65 ICJ Statute). The ICJ has observed that questions “framed in terms of law and raising problems of international law … are by their very nature susceptible of a reply based on law.” Political aspects of the question do not bar the Court of its jurisdiction. (Application for Review of Judgment No. 158 of the United Nations Administrative Tribunal).

Requesting an advisory opinion from the ICJ would be a desirable route to clarify, for instance:

1. The international obligations of States in the face of an international spread of disease, and, in particular (here, here, listen, and listen):

• When these obligations arise;
• Whether the provisions of the International Health Regulations are legally binding;
• Whether the WHO guidance and recommendations fall within the scope of the International Health Regulations; and
• The extent of national legislative power in pursuance of health policies “in accordance with the Charter of the United Nations and the principles of international law” (Art. 3(4) International Health Regulations).

2. The legal consequences for both the WHO and its Members arising from the failure to perform their respective obligations owed under international law relating to the international spread of disease (here and here); and

3. The way in which States should balance their competing international obligations, such as international human rights, when confronting an international spread of disease (see e.g. here and here).

These kinds of questions do not appear to exclusively fall within the domestic jurisdiction of a State. As they are questions of international law, they fall within the sphere of issues on which the ICJ could exercise its advisory jurisdiction (see Interpretation of Peace Treaties).

The framing of the question is vital. Where the question is unclear or vague, the Court may interpret the scope and meaning of the question and a great deal will depend on how it proceeds to do so. In the Kosovo Advisory Opinion, for example, how the question was drafted enabled the ICJ to avoid inquiring into the precise status under international law of a declaration of independence and to focus on narrower questions relating to the consequences of declarations of independence (here, here and here).

Discretion

In the event that the ICJ has jurisdiction, it would then have to decide whether it should exercise its discretion not to comply with a request for an advisory opinion. The Court has consistently emphasized that having jurisdiction does not mean that it is obliged to exercise it (Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965). Mindful of the fact that its answer to a request for an advisory opinion “represents its participation in the activities of the Organization”, the Court held that only “compelling reasons” should lead the Court to decline a request (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory). Maintaining “the integrity of the Court’s judicial function as the principal judicial organ of the United Nations” has so far been the reason for refusal given by the Court. Nonetheless, the question of discretion and propriety is arguably “very much harder.” This is particularly true when referring to how close the Court got in the Kosovo Advisory Opinion to actually exercise it for the first time (here, here, here, and here). The formulation of the question would be especially important to avoid this kind of problem. In any event, the ICJ thus far has only once refused to give an advisory opinion (requested by the WHO) based upon the lack of jurisdiction rather than the question of its discretionary power.

Considering that the ICJ has till now exercised its discretion to accede to all requests for an advisory opinion which was within its jurisdiction, it would likely be the case with respect to a request from the UNGA or WHO – it is unlikely that the Court refuses to give an opinion, not impossible though.

Conclusion

Requesting an advisory opinion from the ICJ would be a desirable route “to establish some kind of narrative” as well as to gain clarity on some of the issues and uncertainties that the pandemic raises under international law. It would be a productive way of offering clarification rather than pointing fingers of blame (listen). This avenue of requesting clarifications would all the more be productive if one considers that a “pandemic [is] not a matter of ‘if’ [but] a matter of ‘when’.”

First, advisory jurisdiction does not pose the challenge of finding a title of jurisdiction for starting contentious proceedings. Second, States and organizations authorized to do so may be able to participate in the process (Art. 66 ICJ Statute). Third, advisory opinions are not legally binding but “carry great legal weight and moral authority.” An advisory opinion is a possible path forward, though it faces some hurdles as noted, one of which is the question of the sponsoring States of the UNGA/WHO Resolutions requesting such an advisory opinion. Furthermore, such an opinion may take years to conclude.

It remains to be seen whether the UNGA or WHO would ever consider requesting such an opinion. In all likelihood, dispute settlement mechanisms, including diplomatic means (Art. 56 International Health Regulations), would play a major role in the post-pandemic phase. Alternatively, apart from the ICJ, some other adjudicating bodies may step in, such as regional human rights litigation or litigation at the national level.