Academic journal article Duke Journal of Comparative & International Law

Advisory Opinions on Human Rights: Moving beyond a Pyrrhic Victory

Academic journal article Duke Journal of Comparative & International Law

Advisory Opinions on Human Rights: Moving beyond a Pyrrhic Victory

Article excerpt

INTRODUCTION

In theory, advisory opinions are authoritative but usually nonbinding statements or interpretations of international law by an international tribunal or arbitral body. (1) Since advisory opinions do not bind states, international bodies can issue opinions relating to a state's internal affairs without obtaining that state's consent. They are also in theory less confrontational than contentious cases because states are not parties and do not have to defend themselves against formal charges. (2) Overall, advisory opinions are said to be "soft" law because they are not binding. (3) Absent a binding legal obligation, advisory opinions must encourage, but not compel, states to behave in a certain manner. (4) Yet, in practice, the recent International Court of Justice (ICJ) and the Inter-American Court of Human Rights' (IACHR) advisory opinions suggest attempts at using this soft law to impose binding obligations on states through their development of international custom and treaty norms. To the praise of some and the displeasure of others, the courts are arguably eroding state sovereignty by using advisory opinions to rule on state practice even though the state has not consented to the court's jurisdiction.

In the 1970s and 1980s, several studies were conducted regarding the general use and scope of the advisory jurisdiction of the ICJ and the IACHR. (5) Yet, a study specifically analyzing the use of advisory jurisdiction in relation to human rights cases and law is needed given the ICJ and the IACHR's recent human rights advisory opinions. These opinions include the ICJ Construction of a Wall opinion and the IACHR Vienna Convention on Consular Relations (VCCR) and Migrant Worker opinions. These opinions reflect both courts' elevation of individual rights over state rights. Yet, this active advisory jurisdiction raises questions regarding the jurisdictional power of advisory courts. These questions concern what states and entities can request advisory opinions, whether the opinions create any binding obligations on states through interpretations of binding treaty and custom norms, and how much power such opinions have on states that have not consented to the advisory courts' jurisdiction.

The Israeli Supreme Court (ISC) decision in Mara'abe v. The Prime Minister of Israel illustrates these concerns. (6) In Mara'abe, the ISC considered what obligations the ICJ's holding in the Construction of a Wall opinion placed on Israel when the ISC examined the legality of Israel's separation wall. Although eventually diverging from the ICJ's opinion, the ISC deferred to the non-binding opinion because it held that the ICJ's interpretation of international law should be given full weight. The ISC's attention to the ICJ opinion is especially important given that Israel vehemently fought against the legality of the ICJ's right to issue the opinion in the first place. Yet, ultimately, the ISC argued that the ICJ did not base its opinion on full factual information, and used this rational to disregard the ICJ opinion and invoke its own domestic law for analyzing the legality of the wall. The entire wall, as designated by the ISC, was not against international law, as the ICJ had held. This holding illustrates how the theoretical desire for advisory jurisdiction to play an important role in the development of human rights norms will fall short in the absence of states willingly accepting, adopting, and applying the norms developed in advisory opinions. Examining the weaknesses in the system will offer insight on how to achieve the desired state compliance in the absence of any binding legal or judicial enforcement.

Further, the development and use of advisory jurisdiction by the ICJ and the IACHR is important in relation to how other human rights courts will utilize their advisory power, including the European Court of Human Rights (ECHR) and the recently created African Court of Human and People's Rights (ACHPR). …

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