Advisory Opinions of the International Court of Justice in Respect of Disputes

MASSIMO LANDO *

This Article reimagines advisory opinions of the International Court of Justice as a means for the settlement of international disputes. It is established that the Court must decline to render an advisory opinion which relates to the main point of a pending bilateral dispute between States, one of which has not consented to the third-party settlement of that dispute. The Court has upheld this position, known as the Eastern Carelia doctrine, since its 1950 advisory opinion in Interpretation of Peace Treaties. This Article argues that the Court should abandon the Eastern Carelia doctrine and start openly rendering advisory opinions that address the main points of pending bilateral disputes. To develop its principal argument, this Article shows that the Eastern Carelia doctrine stems from a misreading of judicial authority and lacks basis both in the legal framework governing the Court’s advisory function, and in the principle of consent to third-party settlement that it purports to protect. This Article also discusses the implications of rendering advisory opinions in respect of disputes, by situating its main argument in the context of broader scholarly debates concerning the Court’s judicial function and legitimacy, the promotion of the Court’s dispute settlement role, and the legal effects of advisory opinions.

Assistant Professor, School of Law, City University of Hong Kong; Global Fellow, Centre for International Law, National University of Singapore. The author thanks Mike Becker, Russell Buchan, Stephenson Chow, Fleur Johns, Asier Garrido-Muñoz, Kenneth Keith, Vladyslav Lanovoy, Rowan Nicholson, and Cecily Rose for their comments on earlier drafts. The usual caveats apply.