WHEBEAS the contentious jurisdiction of the International Court can only be used against a respondent State which has at some time submitted to the Court's jurisdiction, whether expressly by agreement or through a declaration under the so-called " Optional Clause," or impliedly by failing to contest the Court's jurisdiction under the principle of forum prorogatum, prima facie all that is required in order to obtain an advisory opinion from the Court is a favourable majority in a political organ with authority to set in motion the advisory procedure. In an international society in which advance acceptance of the Court's compulsory jurisdiction has never been widespread, and, if anything, is becoming gradually more restricted, it would seem, in theory at any rate, that a judicial pronouncement, even though technically one not binding on the parties, on an interState dispute could more easily be obtained through an advisory opinion than by the claimant State making application to the Court in the normal way. Stated so broadly, the suggestion that the Court's advisory function could be used to avoid irksome restrictions on its compulsory jurisdiction might well be unacceptable to most lawyers. Nevertheless, as this paper will attempt to demonstrate, there is a danger, discernible particularly in the Expenses Case, 1 that the advisory procedure has been employed in a role inconsistent both with the intended consensual basis of the Court's jurisdiction and with the proper function of a judicial tribunal. The power to give an advisory opinion was granted both to the Permanent Court and to the present International Court in the widest terms: Article 14 of the Covenant of the League of Nations referred to " an advisory opinion on any dispute or question," and under the present Statute an advisory opinion may be given on " any legal
Court left open the issue whether the right of self-defence could be invoked in the case of an imminent attack. 9. Idem, p. 105. 10. Idem, pp. 104-105. 106. Since 1988 Jordan has renounced all rights it may have had to the West Bank and East Jerusalem.
* This article, in two parts (the second of which, "Specific Exceptions to Immunity under the International Law Commission's Draft Articles", will appear in the Jury issue of I.C.L.Q.), is based upon a submission to the Australian government in response to a request for comments on the International Law Commission's Draft Articles on the Jurisdictional Immunities of States and their Property. The views expressed are entirely those of the author. 1. That this is the objective of the exercise can be seen from the way in which the Commission first broached the topic in its 1978 Report ((1978) 0-2 Yb.I.L.C. 152-155). Having referred to the memorandum, prepared in 1948 by the UN Secretary-General, entitled Survey of International Law in Relation to the Work of Codification of the International Law Commission (UN Sales No.l948.v.l(I), para.50), which stated that there appeared "to be little doubt that the question-in all its aspects-of jurisdictional immunities of foreign States is capable and in need of codification" as part of the normal activities of the Commission, the Commission endorsed a passage from the 1971 working paper, prepared by the Secretary-General, in connection with the review of the Commission's long-term programme of work, under the title "Survey of International Law" ((1971) n-2 Yb.I.L.C. 1). This paper, having observed (idem, p.18, para.68) that the "basic principle that States and their property are immune from the jurisdiction of foreign courts, although generally recognised, has not been directly stated in a multilateral convention having a universal character", went on to say that it was "doubtful whether considerations of any national interest of decisive importance stand in the way of a codified statement of the law on this topic commanding general acceptance", and that its "day-today importance" made it "suitable for codification and progressive development" (idem, p.20, para.75). 243 (1989) 38 I.C.L.Q. 2. (1812)7Cranchll6,136. 3. The observations of the arbitrator in the Island of Palmas case (1928) 2 U.N. R.I.A.A. 829, 838, are too well known to need repeating in this context. 4. (1971) 22 D.L.R. (3d) 669, 684. This was a dissenting judgment with which Hall J agreed. A majority of the Court applied the doctrine of absolute immunity but also held that, even if the doctrine of restrictive immunity were accepted, the purpose of the transaction rendered it public in nature.
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