Chapter 12 Guidance on Answering the Questions in the Book

Question 1:

Why is arbitration often a more tempting choice than the ICJ for states that seek to settle their disputes in a peaceful manner?

Guidance:

The question asks the students to consider the advantages of arbitration. The book notes that arbitration is generally a much more flexible and speedy method of adjudicatory dispute settlement than bringing a case before the ICJ. In addition, the parties to the arbitration have substantial influence over the judicial process, including the composition of the tribunal and the number and identity of the arbitrators. They may also decide on the applicable legal sources and procedural rules and determine that the proceedings should be conducted confidentially.

Question 2:

What are the conditions that must be fulfilled before a state can successfully bring proceedings against another state before the ICJ?

Guidance:

The question asks the students to determine the criteria for bringing a case before the ICJ. The book notes that there is an important distinction between access to the Court and the Court’s jurisdiction over a dispute. For successfully starting a case before the ICJ, the conditions for both access and jurisdiction must be fulfilled. While access concerns the issue of who may bring or be brought before the Court, jurisdiction concerns whether the Court has the power to settle a dispute that is brought before it by parties with access. The question of access is dealt with in art. 35 of the ICJ Statute and the jurisdiction in art. 36. The students should discuss the individual avenues for acquiring access and jurisdiction and they should note the important role played by consent by the parties. 

Question 3:

The text notes that a state is entitled to make reservations to a declaration under article 36(2). Is that problematic with regard to making states utilize the ICJ?

Guidance:

The question asks students to engage with the so-called optional clause system in art. 36(2) of the ICJ Statute according to which a state can declare that it accepts the jurisdiction of the Court in relation to international legal disputes that may arise in the future with another state ‘accepting the same obligation’. The book notes that the operation of this system is complicated by the possibility of making reservations to declarations under article 36 and that the system therefore in practice is a patchwork of bilateral obligations. But while the reservations can make it hard to determine the extent to which a state has accepted the jurisdiction of the ICJ, it also makes it more acceptable for states to commit to jurisdiction in at least some circumstances. 

Question 4:

What is the interpretative value of an advisory opinion issued by the ICJ?

Guidance:

The question asks the students to consider the legal status of the ICJ’s advisory opinions. The book notes that the purpose of an advisory opinion is not to settle a particular dispute but rather to assist the requesting organ and that the opinions are not binding. It also notes that the opinions provide important contributions to identifying the status of international law and for that reason carry great interpretive weight.