How The International Court Of Justice Applies The State Consent Into The Advisory Jurisdiction

The International Court of Justice issued an advisory opinion on the Chagos Archipelago Advisory Case on February 25,2019.Among them,the advisory opinion on the voting situation of jurisdiction:on the issue of whether or not to enjoy jurisdiction,all votes were passed;Whether the court exercises jurisdiction or not is passed by 12 votes to 2.In this case,the dispute between the International Court of Justice and various countries over whether the International Court of Justice should exercise advisory jurisdiction is concentrated.The Chagos Archipelago Advisory Opinion case is a very important and complicated case facing the International Court of Justice.Countries have paid great attention to the case and have great differences One of the core differences is how the International Court of Justice can show respect and safeguard national consent in this advisory case,which was put into the framework of "decolonization and national self-determination" by the UN General Assembly resolution,but at least apparently involves the bilateral dispute factors between Britain and Mauritius.This article focuses on the application of national consent to advisory jurisdiction of the ICJ.First of all,according to the relevant theories and practices of state consent and the advisory jurisdiction of the ICJ,the dispute over the relationship between state consent and the advisory jurisdiction of the ICJ is brought out.Secondly,it summarizes,sorts out and analyzes the relevant legal basis and practical cases to clarify the determination and exercise conditions of the court's advisory jurisdiction,the applicable conditions of the state's consent in the practice of advisory jurisdiction and the factors affecting its application.Finally,reflecting on the root causes and contradictions of the disputes between the state's consent and the advisory jurisdiction of the ICJ,the author puts forward preliminary suggestions on the practical level of the advisory jurisdiction of the ICJ and the level of China's participation.This article consists of the following six parts:In the introduction part,the author raises questions through the latest cases,explains the research significance and methods of this paper,the structure of this paper,summarizes and analyzes the domestic and foreign literatures related to this paper,and clarifies the main innovation points and deficiencies of this paper at the endThe first chapter introduces the emergence and development of state consent and the design,practice and function of the advisory jurisdiction of the ICJ,thus leading to disputes over the relationship between state consent and the advisory jurisdiction of the ICJ.The significance of state consent in the formation of international law has been affirmed by natural law school and positive law school.The state agrees that there is abundant international practice in the creation and application of international law,which is the foundation and premise of the jurisdiction of the International Court of Justice.However,with the introduction of international mandatory law and the development of international humanitarian law and international human rights law,national consent also shows its own limitations.The advisory jurisdiction of the ICJ is the power and authority of the International Court of Justice to rule on requests made by international organizations with advisory qualifications by issuing advisory opinions that are not binding in principle.In view of the changes in the advisory jurisdiction of the ICJ and the flexibility of its advisory jurisdiction function,the scope of the role played by the advisory jurisdiction of the Court has actually changed to a certain extent from the advisory domain to the litigation domain,which has led to the dispute over the state's consent to the advisory jurisdiction of the ICJ.This chapter holds that the existence of disputes is not conducive to the recognition of advisory opinions by the parties concerned,nor is it conducive to the recognition of advisory systems by various countries,thus adversely affecting the functioning and further development of advisory functions.In this regard,it is necessary to analyze the real causes of the dispute and summarize the specific application of the state's consent in the advisory jurisdiction of the ICJ.The second chapter summarizes,sorts out and analyzes the relevant legal basis and practical cases,clarifying the determination and exercise conditions of the court's advisory jurisdiction,the applicable conditions of the state's consent in the practice of advisory jurisdiction and the factors affecting its application.When the International Court of Justice determines the issue of jurisdiction,it first determines whether it has jurisdiction,and then decides whether it should exercise jurisdiction.State consent does not affect the determination of the advisory jurisdiction of the International Court of Justice,but is a discretionary power exercised as jurisdiction,that is,whether there are"convincing reasons" to refuse to give an advisory opinion.Through sorting out the six cases in the court's practice of advisory jurisdiction involving the consent of the disputing countries,this paper sums up the applicable conditions for the state's consent to affect the advisory procedure,and further finds out the following three factors that affect its application:whether the origin and scope of the dispute are beyond the bilateral nature,whether the advisory opinion affects the legal status of the parties concerned,and whether the advisory opinion has legal effect.The third chapter is to reflect on the root contradiction of the dispute between the state's consent and the advisory jurisdiction of the ICJ,and to propose a reflection on the way to resolve the dispute.The premise of dispute resolution needs to grasp the contradictions at the root of the dispute.By reflecting on the lack of judicial restraint in the form of disputes over the relationship between the state's consent and the advisory jurisdiction of the ICJ,the underlying substantive contradiction,namely the contradiction between the state's seeking to safeguard sovereignty and the International Court of Justice's seeking to play a role,is further explored.The dispute resolution path can be started from the following two aspects:on the one hand,the consultation matters can be classified and applied with the consent of the country;on the other hand,the quality and quantity of participating countries can be expanded.The fourth chapter is the enlightenment to China's participation in the advisory jurisdiction of the ICJ.From the perspective of safeguarding national sovereign interests and promoting the construction of a community of human destinies,China needs to actively participate in the advisory jurisdiction practice of the court and express its views in its actions.Considering China's current participation in the practice of advisory jurisdiction,we should further promote the classified application of advisory matters and the rational use of relevant systems of advisory jurisdiction,with a view to creating and promoting systems and models that contain China's values and are in line with China's interests through practice,thus promoting the development of Chinese discourse in international law,strengthening China's participation in international rule of law and promoting the construction of a community of human destiny.The conclusion part,combs the full text argument vein:First,raises the question The consent of the state as an exception to the sovereign immunity of the state is the basis and premise of the jurisdiction of the international court of justice.In view of the fact that the scope of the advisory jurisdiction of the International Court of Justice has actually changed to a certain extent from the advisory area to the litigation area,there has been a dispute over the state's consent to the advisory jurisdiction of the ICJ Secondly,analyze the problem.By analyzing and summarizing the legal basis and practice of the specific application of state consent in the advisory jurisdiction of the ICJ,it is found that state consent does not affect the determination of the advisory jurisdiction of the international court of justice,but is used as a discretionary power to exercise jurisdiction,that is,whether there are "convincing reasons" to refuse to give an advisory opinion.However,whether the origin and scope of the dispute are beyond the bilateral nature,whether the advisory opinion affects the legal status of the parties concerned,and whether the advisory opinion has legal effect are the factors that affect the application of the State's consent to exercise the advisory jurisdiction of the ICJ Finally,solve the problem.The dispute over the state's consent to the advisory jurisdiction of the ICJ reflects the lack of judicial restraint in form.The essence is the contradiction between the state's seeking to safeguard sovereignty and the International Court of Justice's seeking to play a role.For this reason,for the practice of advisory jurisdiction of the International Court of Justice,on the one hand,advisory matters can be classified and applied;on the other hand,the quality and quantity of participating countries can be expanded;As for China's participation in the practice of advisory jurisdiction,it will continue to actively participate in the court's practice of advisory jurisdiction and express its own views in its actions,so as to create and promote the values that contain our country through practice,thus promoting the development of Chinese discourse in international law,strengthening China's participation in the international rule of law and promoting the construction of a community of human destiny.