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INTERNATIONAL LAW AND PRACTICE
*. Assistant Professor of international law, Ghent University, Ghent Rolin-Jaequemyns International Law Institute (GRILI) [
].
**. Assistant and PhD candidate, Ghent University, Ghent Rolin-Jaequemyns International Law Institute (GRILI) [
].
1.
Introduction
Over the past 20 years, the exercise by several international courts and tribunals of the advisory jurisdiction conferred on them has attracted renewed academic attention for the use (and possible abuse) of advisory proceedings. Advisory jurisdiction can count on strong believers. It has been claimed to have the 'advantage that it does not stigmatize a government as a violator . . . . At the same time, however, it makes the abstract legal issue perfectly clear for any government wishing to avoid being held in violation of international legal obligations.'1It stands beyond doubt that various Opinions of the International Court of Justice (ICJ) have contributed immensely to the clarification of international law, e.g. in relation to questions of international legal personality2or the permissibility of reservations to treaties.3On the other hand, there are also more critical sounds, with some warning against the use of advisory procedures to tackle questions that essentially touch upon contentious disputes and/or highly politicized issues.4It is no coincidence that in the procedures preceding the ICJ's advisory opinions on the Legality of the threat or use of nuclear weapons,5on the Palestinian wall,6and on the Unilateral declaration of independence in respect of Kosovo,7- which all dealt with highly sensitive issues - numerous states took the view that the Court did not have jurisdiction, or should use its discretion to dismiss the request for an advisory opinion. Accusations of 'creeping' jurisdiction are never far away.
History suggests that the recourse to advisory proceedings has sometimes functioned as a way to test the quality of a newly established international tribunal.8The experience of the International Tribunal for the Law of the Sea (ITLOS, or the Tribunal) follows a different path. Since its inception in 1996-97, the Tribunal has developed a strong track record in contentious proceedings.9By contrast, the Tribunal's advisory jurisdiction has come to blossom only recently. It took until May 2010 for the Tribunal to first...