Study On The Reform Of Jurisdiction Of International Court Of Justice

The jurisdiction of the International Court of Justice consists of contentious jurisdiction and advisory jurisdiction. Advisory jurisdiction refers to the power or capacity whereby the International Court of Justice, by giving a generally non-binding advisory opinion, resolves a legal questions submitted by an entity that is eligible for an advisory proceeding.2 Advisory jurisdiction was initially introduced to mitigate the judicial deficiency in the era of the Permanent Court of International Justice, where only a sovereign state might appear before the Court whereas an international organization was unable to resort to the Court to resolve a dispute or legal questions pertaining to it. The emergence of advisory jurisdiction has witnessed its significant role in(i) providing advisory opinions in connection with the petitioning entities’ performance of their duties and functions,(ii) resolving disputes between international organizations and their member states, and(iii) further developing international law. Unfortunately, however, in the era of the International Court of Justice, despite the remarkably expanded scope of entities that are eligible for an advisory proceeding, advisory jurisdiction has been less frequently resorted to than in the era of the Permanent Court of International Justice. Therefore, there is a pressing urge to push forward the International Court of Justice’s advisory jurisdiction reform.Based on this premise, this article intends to avail itself of several case studies to analyze the manner and impact factors in connection with the International Court of Justice’s exercise of its advisory jurisdiction, and thus unbundle its deficiencies in exercising the advisory jurisdiction. In addition, by examining the merits, drawbacks and outcomes of the current reform proposals and initiatives, this article endeavors to propose the procedural objectives and substantive objectives of the International Court of Justice’s advisory jurisdiction reform. Lastly, this article analyzes the only case where the People’s Republic of China participated in the International Court of Justice’s advisory proceeding ever since the country’s founding, so as to inquire into the necessity and feasibility of China’s involvement in the practice and reform of the International Court of Justice’s advisory jurisdiction.This article is comprised of seven chapters.Chapter One starts with the genesis of the Permanent Court of International Justice’s advisory jurisdiction, maps out the advisory jurisdiction’s emergence and developmental history, identifies the characteristics and exercising principles of the Court’s advisory jurisdiction in different times, and ascertains the systemic value of advisory jurisdiction upon a comparison between contentious jurisdiction and advisory jurisdiction.Chapter Two examines how the International Court of Justice determines whether it has jurisdiction to give the opinion requested. The author uses the International Court of Justice’s advisory opinions on “Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory” and “Legality of the Use by a State of Nuclear Weapons in Armed Conflict” as examples, approaches such aspects as(i) the ascertainment of an entity that is eligible for an advisory proceeding, and(ii) definitions of “legal questions” and “scope of activities”, and analyzes in details how the Court determines whether it has jurisdiction to give the opinion requested.Chapter Three discusses how the Court determine whether it would indeed exercise its advisory jurisdiction. The author takes the International Court of Justice’s advisory opinions on “Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo” and “Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory” as examples, identifies various factors that influence the Court’s exercise of its discretionary power, and attaches importance to the discussions of(i) the evolution of the “state consent” issue between the times of the Permanent Court of International Justice and the International Court of Justice, and(ii) the impact of “a state’s intervention” on the Court’s determination as to whether it would indeed exercise its discretionary power as well as the content of the advisory opinion.Chapter Four bases its discussions on Chapter Two and Chapter Three. It takes the International Court of Justice’s advisory opinions on “Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory”, “Western Sahara” and“Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo” as examples, and examines the problems that arose out of the International Court of Justice’s exercise of its advisory jurisdiction, including the undesirably low frequency in which advisory proceedings were resorted to, theInternational Court of Justice’s lack of restraint in exercising its advisory jurisdiction,the “re-interpretation” of the issues submitted for advisory proceedings, as well as problems pertaining to certain procedural matters.Chapter Five identifies a number of existing proposals in connection with the International Court of Justice’s advisory jurisdiction reform. These proposals focus on jurisdiction in personam, and are nevertheless difficult to adopt as they entail further amendments to the Charter of the United Nations and the Statute of the International Court of Justice. The reform initiatives that have been adopted focus on procedural reform, and these initiatives have led to little achievement as they are stuck in the macroscopic level without addressing the necessary specificity. Synergizing with the status quo and the analyses in relation to the problems arising out of the International Court of Justice’s exercise of its advisory jurisdiction, the author classifies the objectives of the International Court of Justice’s advisory jurisdiction reform into procedural objectives and substantive objectives by inquiring whether a reform objective would entail amendments to the Charter of the United Nations and the Statute of the International Court of Justice, and carries out discussions and analyses thereof.Chapter Six focuses on China. It identifies the development of the relationship between China, the international justice and the International Court of Justice, and concludes that China has gradually accepted the international justice as a recognized means of dispute resolution. Moreover, it examined China’s role in the advisory proceeding in connection with “Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo”, and further discussed the necessity and feasibility of China’s participation in the International Court of Justice’s advisory jurisdiction practices and reform.To conclude, currently, the greatest challenge faced with the International Court of Justice’s advisory jurisdiction is that the advisory proceedings are resorted to at an undesirably low frequency. The existing reform initiatives are intended to streamline the advisory procedures to achieve flexibility and avoid delay. Yet these initiatives revealed little achievement upon a study on the relevant cases. Currently, the author believes that the practically feasible reform objectives shall be classified into procedural objectives and substantive objectives. The former includes the mandate of the Secretariat to request advisory proceeding and the promotion of ad hoc judgeengagements, and does not entail amendment to the Charter of the United Nations and the Statute of the International Court of Justice; whereas the latter involves the International Court of Justice’s proper exercise of its advisory jurisdiction and reform initiatives at petitioning entities’ level.