On the Effectiveness of ICJ’s Advisory Opinions in the Settlement of International Disputes:From the Perspective of the Mauritius/Maldives Case

ZHUANG Yuan

Abstract: On 28 January 2021,the Special Chamber of the International Tribunal for the Law of the Sea delivered its judgment on the preliminary objections from Maldives with regard to the case of Dispute Concerning Delimitation of the Maritime Boundary Between Mauritius and Maldives in the Indian Ocean.Whether the Chagos Archipelago advisory opinion has the validity in settling the dispute between UK and Mauritius regarding the sovereignty of the Chagos Archipelago constitutes the core issue of this case.On the one hand,the advisory opinions of the International Court of Justice (ICJ) have limited effectiveness in the settlement of disputes between States.It has no legal binding force and cannot produce the legal effect of directly settling disputes between States.On the other hand,ICJ’s advisory opinions have an authoritative influence,which can have a positive effect on the settlement of disputes between States when they meet the requirement of judicial propriety and the consent of relevant States is obtained.Accordingly,the Special Chamber expanded the effectiveness of ICJ’s advisory opinion in its judgement on the preliminary objections by deciding that the Chagos Archipelago advisory opinion directly resolved the dispute.China should prudently consider the legal effect of ICJ’s advisory opinions and avoid the tendency to expand its effectiveness.At the same time,we should pay attention to and make full use of ICJ’s advisory opinions.

Key Words:International Court of Justice;Advisory opinion;Dispute settlement;The Mauritius/Maldives Case;The Chagos Archipelago

Ⅰ.Introduction

A.Background of the Case

There has been a long-standing sovereignty dispute between the United Kingdom and Mauritius over the Chagos Archipelago.On 22 June 2017,the United Nations General Assembly (UNGA) adopted resolution 71/292,in which it requested the International Court of Justice (ICJ) to render an advisory opinion on the “l(fā)egal consequences of the separation of the Chagos Archipelago from Mauritius in 1965” (hereinafter “the Chagos Archipelago advisory opinion”).ICJ determined that it had advisory jurisdiction over the question referred to it by the UNGA,and rendered its advisory opinion on 25 February 2019: First,considering international law and the obligations stated in its resolutions,the process of decolonization of Mauritius was not lawfully completed when the country went independent in 1968,following the separation of the Chagos Archipelago;second,the United Kingdom’s continued administration of the Chagos Archipelago constitutes a wrongful act;thus,it is imperative to bring an end to its administration of the Chagos Archipelago as rapidly as possible,and all member States should cooperate with the United Nations to complete the decolonization of Mauritius.1Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965,Advisory Opinion,25 February 2019,p.49,para.183.

On 28 January 2021,the Special Chamber of the International Tribunal for the Law of the Sea (hereinafter “the Special Chamber”) rendered its judgment on the preliminary objections to the jurisdiction and admissibility in the caseDispute concerning Delimitation of the Maritime Boundary between Mauritius and Maldives in the Indian Ocean(hereinafter “the Mauritius/Maldives Case”).In this case,the maritime claims of Mauritius and Maldives overlap only on the premise that Mauritius enjoys sovereignty over the Chagos Archipelago.In accordance with paragraph 1 of Article 288 of theUnited Nations Convention on the Law of the Sea(UNCLOS),the Special Chamber shall have jurisdiction only over disputes concerning the interpretation or application of UNCLOS,and it is not competent to hear the issue of sovereignty over the Chagos Archipelago.Therefore,one of the core issues in the hearing of this case related to jurisdiction is whether the legal status of the Chagos Archipelago has been clarified by the 2019 Chagos Archipelago advisory opinion.In other words,the Special Chamber may have jurisdiction in this case only if ICJ’s advisory opinion has the legal effect of resolving the dispute between the UK and Mauritius over the sovereignty of the Chagos Archipelago.

In its preliminary objection,Maldives argued that ICJ’s advisory opinion on the Chagos Archipelago is not legally binding on the parties and that whatever authority the advisory opinion may have in jurisprudence as abstract statements of international law,it is not competent to resolve the sovereignty dispute between the UK and Mauritius.There is still a sovereignty dispute between the UK and Mauritius over the Chagos Archipelago,so the Special Chamber does not have jurisdiction in this case.2Dispute concerning delimitation of the maritime boundary between Mauritius and Maldives in the Indian Ocean (Mauritius/Maldives),Judgment of 28 January 2021,p.59,para.193-195.Mauritius,on the other hand,maintained that while the advisory opinion is not binding as such,this does not mean that it is devoid of legal effects,and that ICJ’s advisory opinion provides an authoritative legal statement in relation to the issues concerned.Scholars of law generally agree that ICJ’s advisory opinions are on an equal footing with legal statements in judicial decisions as an integral component of ICJ’s jurisprudence,and relevant States are obliged to comply with the law declared and defined by ICJ in its advisory opinions.3Id,p.60,para.197-198.Accordingly,the sovereignty dispute between the UK and Mauritius over the Chagos Archipelago has been settled by the Chagos Archipelago advisory opinion and there is thus no longer a dispute between the two States in the legal sense.4Id,p.70-71,para.237-241.

Ultimately,the Special Chamber rendered a judgment concerning the preliminary objections by 8 votes to 1,deciding that ICJ’s advisory opinion on the Chagos Archipelago had resolved the sovereignty dispute between the UK and Mauritius over the Chagos Archipelago.The Special Chamber stated that it was necessary to draw a distinction between the binding character and the authoritative nature of the advisory opinions of ICJ,which,though not legally binding,carry no less weight and authority in judicial judgment than decisions,because they are made through the same scrutiny by the principal judicial organ of the United Nations.5Id,p.61-62,para.203.Therefore,the advisory opinion rendered by ICJ has legal effect and clear implications on the legal status of the Chagos Archipelago.It can be inferred from the Chagos Archipelago advisory opinion that Mauritius has sovereignty over the Chagos Archipelago.The current claim of the UK to its sovereignty over the Chagos Archipelago cannot be considered anything more than “a mere assertion”,which is not sufficient to prove that there is a sovereignty dispute between the two States.6Id,p.71-73,para.243-246.

Following ICJ’s advisory opinion on the Chagos Archipelago,the UNGA also adopted resolution 73/295 on May 22,2019,demanding that “the United Kingdom withdraw its colonial administration from the Chagos Archipelago unconditionally within a period of no more than six months”.7UNGA,General Assembly Welcomes International Court of Justice Opinion on Chagos Archipelago,Adopts Text Calling for Mauritius Complete Decolonization,UN website (22 May 2019),https://www.un.org/press/en/2019/ga12146.doc.htm.In its judgment concerning the preliminary objections,the Special Chamber also referred to the implications of the resolution for the determination of sovereignty over the Chagos Archipelago.However,in analyzing the effectiveness of the resolution,the Special Chamber did not emphasize its importance except to note that it was relevant to the legal status of the Chagos Archipelago.Moreover,the UK’s failure to comply with the requirements of the resolution further reinforced the Special Chamber’s finding that the UK’s claim of sovereignty over the Chagos Archipelago was contrary to the authority of the Chagos Archipelago advisory opinion.8Supra note 2,p.67-68,para.227-229.It follows that it is the Chagos Archipelago advisory opinion that is the central factor in the Special Chamber’s finding that the sovereignty dispute over the Chagos Archipelago has been resolved.In the present case,the Special Chamber’s judgment concerning the preliminary objections indicates that it considered ICJ’s advisory opinion to have the legal effect of resolving international disputes.

B.Uncertain Effectiveness of ICJ’s Advisory Opinion

ICJ’s advisory opinions are primarily rendered pursuant to Article 96 of theCharter of the United Nations(hereinafter “the Charter”),Articles 65 to 68 of theStatute of the International Court of Justice(hereinafter “the Statute”),and Articles 102 to 109 of theRules of Court.In accordance with the provisions of the above articles,an ICJ’s advisory opinion means a judicial opinion of ICJ on a legal issue,which is not binding on the requesting entity or any other institution or State.9LIU Fangxiong, Research on the Advisory Jurisdiction of the International Court of Justice,Zhejiang University Press,2008,p.10.(in Chinese)There are two major categories of subjects entitled to request an advisory opinion from ICJ: first,“the General Assembly or the Security Council of the United Nations”;second,“other organs of the United Nations and specialized agencies authorized by the General Assembly”.Specifically,the former may request ICJ to provide an advisory opinion on “any legal question”,while the latter can only consult about“l(fā)egal questions arising within the scope of their work”.Giving advisory opinions is one way of providing legal assistance to other bodies for ICJ as a component of the United Nations.10See D.W.Greig,The Advisory Jurisdiction of the International Court and the Settlement of Disputes between States,International and Comparative Law Quarterly,Vol.15:2-3,p.337-338 (1966).

The international dispute referred to herein is in the narrow sense,that is,a dispute between two or more sovereign States as the parties.According to the Charter,litigation jurisdiction and advisory jurisdiction are the two ways of participating in the settlement of international disputes for ICJ.Litigation jurisdiction means that ICJ directly resolves the “l(fā)egal disputes” submitted by the States concerned through adjudication,which is legally binding on the States concerned.In advisory jurisdiction,ICJ answers “l(fā)egal questions” related to the work of international organizations by rendering advisory opinions,which cannot bind relevant States,but the legal questions answered by ICJ may be related to the settlement of disputes between specific States.Theoretically,there is a fundamental distinction between the legal effects of litigation jurisdiction and advisory jurisdiction in the settlement of international disputes.However,judicial practices have shown that the effectiveness of ICJ’s advisory opinions is often uncertain when the legal questions involved are related to legal disputes between specific States.In its report,the Permanent Court of International Justice (“PCIJ”)Committee noted that where there exist contending parties,the differences between contentious cases and advisory cases are only nominal.The main difference is the way in which the case is filed to the Court.Thus,the view that advisory opinions are not binding is more theoretical than practical.11Fourth Annual Report of the Permanent Court of International Justice,Series E.-No.4,June 15th 1927-June 15th 1928,p.76.Some jurists also argue that advisory opinions are advisory rather than determinative in nature.Nonetheless,this distinction is not evident in practice.The Court’s advisory opinion will be disadvantaged if it finds that there is an obligation while the State concerned asserts that the advisory opinion does not represent a correct judgment in relation to the law.12See Hugh Thirlway,The International Court of Justice,in Malcolm D.Evans ed.,International Law,Oxford University Press,2003,p.582.

In theMauritius/Maldivescase,the judgment of the Special Chamber found that the advisory opinion rendered by ICJ had the legal effect of directly settling the sovereignty dispute between the UK and Mauritius over the Chagos Archipelago.This conclusion,as considered in this paper,is worth further discussing as it is suspected of extending the effects of ICJ’s advisory opinion.By reviewing the effectiveness of ICJ’s advisory opinions in international dispute settlement in jurisprudence and judicial practice,this paper aims to analyze the contents of the ruling on the legal effects of ICJ’s advisory opinion in theMauritius/Maldivescase,and provides some insights for China to appropriately view the legal effects of ICJ’s advisory opinions and make full use of ICJ’s advisory opinions to safeguard our own rights and interests.

II.Limited Effectiveness of ICJ’s Advisory Opinions in Settling International Disputes

A.ICJ’s Advisory Opinion Is Not Legally Binding

Legal binding force refers to the effect of creating a mandatory legal obligation and requiring strict observance.13See Bryan A.Garner ed., Black’s Law Dictionary 10th Abridged,Thomson Reuters,2014,p.201.Opinions on the source of the binding force of international law are divided,and the prevailing view is the “general will theory” advocated by the positivist school,which holds that the binding force of international law arises from the general will of States manifested in international customs or international treaties,and that States’ consent is the basis of the effect of international law.In contrast,Chinese scholars generally believe that the basis and foundation of the binding force of international law should be “will coordination theory”.To be specific,the effectiveness of international law is based on the will of the States in the treaties they have concluded.However,this will is not the general will of the States parties,but rather an “agreement” reached by the States on the basis of common ground while reserving differences.14LIANG Xi ed., International Law (3th),Wuhan University Press,2016,p.10.(in Chinese)In the Case of the S.S.Lotus,PCIJ noted that the international legal rules binding upon States derive from their expressed free will,like the will expressed in international treaties or international customs generally accepted as legal principles.15The Case of the S.S.“Lotus”,Publications of the Permanent Court of International Justice,Series A.-No.10,7 September 1927,p.18.It is thus clear that whether ICJ’s advisory opinion is legally binding essentially depends on whether it reflects the will of the States.

As provided in paragraph 1 of Article 94 of the Charter,“Each member State of the United Nations shall undertake to comply with the decision of the International Court of Justice in any case to which it is a party.” However,there is no explicit reference to whether ICJ’s advisory opinions are legally binding and therefore the will of States cannot be reflected in the treaty.In practice,ICJ has made it clear in advisory cases that its advisory opinions are advisory in nature only,requiring no consent of the relevant States and having no binding effect on the relevant States.In its advisory opinion on the Interpretation of Peace Treaties with Bulgaria,Hungary and Romania (hereinafter “Peace Treaties Interpretation Case”),for example,ICJ noted that the consent of States,parties to a dispute,is the basis for ICJ’s jurisdiction in contentious cases,and that the situation is different in regard to advisory proceedings even where the request for an advisory opinion relates to a dispute actually pending between two States.This is because ICJ’s advisory opinion is only of an advisory character;as such,it has no binding force.16Interpretation of Peace Treaties with Bulgaria,Hungary and Romania,Advisory opinion of 30 March 1950 phase),p.71.In its advisory opinion on the Applicability of Article VI,Section 22,of theConvention on the Privileges and Immunities of the United Nations,ICJ also mentioned that the advisory opinions are advisory and intended for the guidance of the United Nations,and the consent of States is not a condition precedent to the competence of ICJ to give them.17Applicability of Article VI,Section 22,of the Convention on the Privileges and Immunities of the United Nations,Advisory Opinion of 15 December 1989,p.188-189,para.31.Therefore,the advisory opinion rendered by ICJ does not presuppose State consent and cannot reflect the will of the State,nor is it legally binding on the State concerned.

At the same time,the advisory opinion rendered by ICJ may be legally binding in special circumstances where the consent of the States concerned is obtained and their will is reflected.For example,Article 34,paragraph 1,of the Statute provides that “only States may be parties in cases before the Court.” For the purpose of solving international disputes to which an international organization is a party and helping the international organization obtain a binding judgment,an“advisory conciliation clause” has been added to some treaties at the time of their formulation,prescribing that the organization may apply to ICJ for an advisory opinion and that the parties to the dispute must be legally bound by ICJ’s advisory opinion.18Supra note 9,LIU Fangxiong,p.124-125.(in Chinese)In practice,this clause can be found in Article 8 of theConvention on the Privileges and Immunities of the United Nationsin 1946,Article 9 of theConvention on the Privileges and Immunities of the Specialized Agenciesin 1947,and Article 32 of theUnited Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substancesin 1988.

In light of the foregoing,ICJ’s advisory opinions generally cannot create a mandatory legal obligation and require strict compliance by the parties,and the requesting organ and the States concerned have the discretion to decide whether to be bound by them.ICJ’s advisory opinions may be legally binding only in special circumstances where the will of the States is reflected,such as in existing treaty stipulations.

B.ICJ’s Advisory Opinions Are Not Effective in Directly Settling International Disputes

According to British scholar J.G.Merrills,a dispute is defined as a specific disagreement between different parties concerning a matter,law or policy and the claim or assertion of one party encounters refusal,counter claim or denial by the other.19J.G.Merrills,International Dispute Settlement(5th),translated by HAN Xiuli,LI Yanwen,LIN Wei &SHI Yu,Law Press China,2013,p.1.(in Chinese)In the caseDispute Concerning Coastal State Rights in the Black Sea,Sea of Azov,and Kerch Strait,the arbitration tribunal considered that the jurisprudence of international courts or tribunals shows that the threshold for ascertaining the existence of a dispute is rather low.Certainly,an assertion would be insufficient in proving the existence of a dispute.However,it does not mean that the validity or strength of the assertion should be put to a plausibility or other test in order to verify the existence of a dispute.20Dispute Concerning Coastal State Rights in the Black Sea,Sea of Azov,and Kerch Strait(Ukraine v. the Russian Federation),Award on Preliminary Objections of 21 February 2020,p.57,para.188.In his individual opinion on the caseOil Platforms (Islamic Republic of Iran v.United States of America),Judge Shahabuddeen noted that there is no dispute in the sense of law when the claim lacks any reasonably arguable legal basis or when it is manifestly meaningless and unsupportable.21Oil Platforms (Islamic Republic of Iran v. United States of America),Judgment of 12 December 1996,Separate Opinion of Judge Shahabuddeen,p.832.The settlement of a dispute is a process a dispute undergoes from“objective existence” to “extinction”.22GAO Jianjun,Who Resolved the Sovereignty Dispute over the Chagos Archipelago? — A Comment on the Preliminary Objections Judgment in the Mauritius/Maldives Case,Chinese Review of International Law,Vol.8:5,p.13 (2021).(in Chinese)Based on the above findings,the criterion for the settlement of international disputes is the elimination of disagreement between different parties concerning a matter,law or policy,so that a party’s claim loses any reasonably arguable legal basis and falls into a manifestly meaningless or unsupportable assertion.Where a party’s claim still has a reasonably arguable legal basis,even if the claim fails to reach a certain level of validity or strength,it does not prove that the legal dispute between the States has been settled.In this light,whether an ICJ’s advisory opinion has the effect of directly settling international disputes should be judged by examining whether it can completely deprive the parties of the legal basis for their claims and reduce them to mere assertions.

As can be seen from the foregoing,the main role of ICJ’s advisory opinions is to provide a reference in relation to legal questions for the principal organs and specialized agencies of the United Nations.In this process,ICJ interprets,explains and clarifies the legal questions raised by relevant organizations,similar to an act of “l(fā)egal interpretation”.In contrast,ICJ’s main function in litigation proceedings is to peacefully settle legal disputes between specific States,an act of “application of law”.There is a close relationship between legal interpretation and legal application,and yet there are also fundamental differences.Legal interpretation is usually abstract and theoretical in nature,not aiming at resolving substantive disputes and not involving specific rights and obligations between States.The application of law,on the other hand,is realistic and operable in nature,and linked to specific subjects,facts and acts related to international law.It is intended to judge the legality of the claims of the parties by means of adjudication and clarifies the specific rights and obligations of States.Some scholars have pointed out that ICJ’s litigation function is to settle disputes,with the legal effect directly acting on the States concerned,while its advisory function is to provide advisory services for the requesting organs,which is only advisory in nature and not targeted at specific disputes.23LUO Guoqiang,YU Minna,The Expansion Tendency of the Advisory Jurisdiction of the International Court of Justice and China’s Strategy,Academics,Vol.34:10,p.137-138(2019).(in Chinese)In principle,ICJ’s advisory opinions are not legally binding,have no authority to impose mandatory legal obligations on the States concerned,and do not involve specific legal disputes between the States concerned.Thus,ICJ’s advisory opinions cannot deprive a particular State’s claim of reasonably arguable legal basis and reduce it to a mere assertion.Even if an ICJ’s advisory opinion relates to a pending legal dispute between the States concerned,it is not possible to lead to a practical,direct settlement of the said dispute.In other words,even if an ICJ’s advisory opinion is obviously unfavorable to a State’s claim,the said claim may still have legal significance or even be supported,and there may still be a legal dispute between the States.

ICJ has also made it clear in its advisory opinions concerning disputes between States that its advisory opinions do not have the legal effect of directly settling disputes.In the 1950 Peace Treaties Interpretation Case,which involved a legal dispute between Bulgaria,Hungary and Romania,ICJ noted in its advisory opinion that this advisory opinion was solely concerned with the applicability of the settlement procedure to certain disputes instituted by the Peace Treaties,not with the substantive issues of the dispute.The settlement of the specific disputes shall be undertaken by the commission designated by the Peace Treaties.The legal position of the parties to these disputes will not be in any way compromised by this advisory opinion.24Supra note 16,p.72.In the advisory opinion on theLegal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa)notwithstanding Security Council Resolution 276 (1970)(hereinafter “the Namibia Case”) in 1971,South Africa argued that ICJ should refuse to render advisory opinions because it involved an existing dispute between South Africa and other States.25Legal Consequences for States of the Continued Presence of South Africa in Namibia(South West Africa) notwithstanding Security Council Resolution 276 (1970),Advisory Opinion of 21 June 1971,p.23,para.30.ICJ stated that the Security Council’s request for an advisory opinion was not intended for the peaceful settlement through ICJ of a pending dispute between two or more States,but rather the act of a United Nations organ seeking a legal opinion in order to perform a relevant function.26Id,p.24,para.32.The advisory opinion onWestern Sahara(hereinafter “the Western Sahara Case”) in 1975 involved a dispute between Spain,Morocco and Mauritania over territorial sovereignty.ICJ argued Spain’s objection to the advisory opinion to be unfounded,as the advisory opinion involved the rights of Morocco over the territory in the colonial period,which was a legal issue conducive to the formulation of relevant policies by the United Nations General Assembly to accelerate the decolonization process in the territory,without prejudice to the legal status and rights of Spain as the administering power.27Western Sahara,Advisory Opinion of 16 October 1975,p.27,para.42.The advisory opinion on the 2004Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory(hereinafter “the Construction of a Wall Case”) involved a bilateral dispute between Palestine and Israel.ICJ indicated that the purpose of the advisory opinion is to furnish to the requesting organs the elements of law necessary for them in their action,rather than the means to settle an international dispute.28Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,Advisory Opinion of 9 July 2004,p.162-163,para.60.In the 2019 Chagos Archipelago advisory opinion on which theMauritius/Maldivescase was based,ICJ also stated that the request for an advisory opinion raised by the UNGA was closely linked to the decolonization process of Mauritius and was intended for legal guidance in the performance of functions related to the decolonization of Mauritius,rather than for the resolution of the territorial dispute between the two States.The advisory opinion may entail a legal opinion on the different claims of Mauritius and the UK related to the Chagos Archipelago,but this does not mean that ICJ is dealing with a bilateral dispute.29Supra note 1,p.117-118,para.86-89.

It is thus clear when considering jurisprudence and judicial practice that even if an ICJ’s advisory opinion relates to the legal disputes between the States concerned,it has no legal effect of directly settling international disputes.

III.Positive Effect of ICJ’s Advisory Opinions on International Dispute Settlement

A.ICJ’s Advisory Opinions Have an Authoritative Influence

According to the definition,“effect” covers not only binding force,but also other acting forces that can produce certain results and consequences.30Supra note 13,Bryan A.Garner ed.,p.628.As noted earlier,ICJ’s advisory opinions are generally not legally binding and cannot directly settle legal disputes between States.This does not,however,affect its other legal effects,nor does it mean that it cannot have any positive effect on the settlement of international disputes.As the highest judicial authority in the international law system,ICJ is faithful to its “judicial character” and follows the necessary judicial procedures in exercising its advisory jurisdiction,and the advisory opinions it renders are not merely legal opinions for the requesting organs.Instead,ICJ’s advisory opinions will have an important influence on the interests of the States concerned and the development of international law.31See Kenneth Keith,The Advisory Jurisdiction of the International Court of Justice: Some Comparative Reflections,Australian Year Book of International Law,Vol.17,p.42 (1996).It has been noted that,while an advisory opinion cannot create a legal obligation,it will affect the general interpretation of international law and apply to all States rather than the States involved in an individual case.It may,therefore,have a broader influence than a judgment in a contentious case.32See Jo M.Pasqualucci,The Practice and Procedure of the Inter-American Court of Human Rights,Cambridge University Press,2003,p.30.In the opinion of the author,ICJ’s advisory opinions have an authoritative influence,which can have positive effects on the settlement of international disputes when certain conditions are met.On the one hand,ICJ’s advisory opinions are a “judicial decision” in international law in a broad sense,which has the same precedent value as judgments in contentious cases and can provide a certain legal basis for the settlement of international disputes.On the other hand,ICJ’s advisory opinions fall under the category of “international soft law” and can provide relevant codes of conduct for States to guide the settlement of international disputes.

To begin with,paragraph 1 of Article 38 of the Statute sets out the source of international law,which provides in subparagraph (d) that “under the provisions of Article 59,judicial precedent and the teachings of the most authoritative publicists of various nations can serve as supplementary materials for the determination of legal principles”.Thus,among the sources of international law,judicial precedents can be used as “supplementary materials for the determination of legal principles”.Notably,the Statute refers to judicial precedents without making any distinction between ICJ’s advisory opinions and litigation judgments,but making equal use of both types of judicial pronouncements.33Supra note 9,LIU Fangxiong,p.121-122.(in Chinese)Therefore,an ICJ’s advisory opinion has the same precedent value as that of a judgment.As scholars have argued,the non-binding nature of advisory opinions should not be confused with their value as precedents in a legal system lacking judicial pronouncements.34Thomas Buergenthal &Sean D.Murphy,International Law (3th),Law Press China,2004,p.91.(in Chinese)In accordance with Article 59 of the Statute,the principle of stare decisis does not exist in international law.In spite of this,the “argumentative path dependence” has led to a lower cost of reasoning,and it is common to apply and understand legal rules by following established precedents.35HE Zhipeng,International law,Tsinghua University Press,2014,p.50.(in Chinese)Therefore,the precedents generated by ICJ’s adjudication activities,even if they are specific only to individual cases and the parties thereto,are still of great theoretical and practical significance,and will contribute significantly to the authentication,determination and interpretation of the norms of international law and exert a significant influence on the formation and development of international customary law.36Supra note 14,LIANG Xi ed.,p.41.In short,ICJ’s advisory opinions can serve as supplementary materials for the determination of legal principles in the sources of international law and provide the same precedent value as that of judgments in contentious cases,and thus somewhat constitute the legal basis for the settlement of international disputes.

Moreover,soft law refers to rules that are not strictly binding but not entirely devoid of legal significance.International law usually includes guidelines,policy statements or codes of conduct that set standards of conduct without legal binding force.37Bryan A.Garner ed.,Black’s Law Dictionary Standard Ninth Edition,Thomson Reuters,2009,p.1519.There are also scholars who consider that international soft law refers to codified international norms that are not legally binding as a whole or in part at the time of their formulation,but have certain legal effects in practice.38See Francis Snyder,Soft Law and Institutional Practice in the European Community,in Stephen Martin ed.,The Construction of Europe-Essays in Honor of Emile Noel,Kluwer Academic Publishers,1994,p.198.As can be seen from the foregoing,ICJ’s advisory opinions,albeit not legally binding,still have significant legal significance and can produce certain legal effects,and are therefore fully consistent with the connotation of international soft law.Judicial practice has revealed that ICJ’s advisory opinions can provide standards of conduct for the settlement of international disputes.In its Chagos Archipelago Advisory Opinion,for example,ICJ clarified the relationship between the right of nations to self-determination and territorial sovereignty and the free expression of national will in the context of decolonization.It held that customary international law rules have been formed for the right of nations to self-determination,whose exercise requires the administering Power to respect the territorial sovereignty integrity.Any detachment,unless based on the freely expressed and genuine will of the people of the territory concerned,is contrary to the right of nations to selfdetermination.39Supra note 1,p.131-134,para.146-160.Despite the fact that the advisory opinion alone cannot resolve the sovereignty dispute between the UK and Mauritius over the Chagos Archipelago or directly affect the ultimate attribution of territorial sovereignty,the above argument indicates that ICJ considers the UK’s act of separating the Chagos Archipelago from Mauritius in 1965 to be inconsistent with the principle of the right of nations to self-determination,which will exert political implications and pressure from the international community on the UK’s settlement of the sovereignty dispute over the Chagos Archipelago in the future.40SONG Yan,The Competence of International Mechanism to Determine Territorial Sovereignty: From the Perspective of the Mauritius/Maldives Case,Chinese Review of International Law,Vol.8:5,p.47 (2021).(in Chinese)Furthermore,as an authoritative statement on decolonization issues,the Chagos Archipelago advisory opinion has provided legal guidance for other States in the settlement of related disputes.

In this light,ICJ’s advisory opinions,despite their inability to end disputes,lay the foundation for the peaceful and amicable settlement of disputes within the scope of international law and provide important guidance for the settlement of international disputes.41See Bhumesh Verma &Chhaya Bhardwaj,Advisory Opinion of ICJ: An Alternative Dispute Settlement Mechanism under International Law,Journal of Constitutional Law and Jurisprudence,Vol.1:1,p.2-4 (2018).It has extensive and authoritative influence and can exert a positive effect on the settlement of international disputes.

B.Prerequisites for the Generation of Positive Effect of ICJ’s Advisory Opinions

It should be noted that not in every case can an ICJ’s advisory opinion have an actual positive effect on the settlement of international disputes.Given its generally non-legally binding nature,an ICJ’s advisory opinion cannot directly settle disputes between States.Its effectiveness in promoting international dispute settlement can only be achieved when it is accepted and agreed to by the States concerned on their own initiative and meets the requirement of judicial propriety on the part of ICJ.Without meeting the above requirements,it may be ineffective in international dispute resolution and may even have a negative impact.

According to the traditional view on international dispute settlement,international decisions should be based on the consent of the State parties to the dispute.If State parties are democratic,then the presence of their consent should solve any legitimate question as long as the international judicial bodies fulfill their task of dispute settlement properly.42See Armin von Bogdandy &Ingo Venzke, On the Democratic Legitimation of International Judicial Lawmaking,German Law Journal,Vol.12:5,p.1341 (2011).As can be seen from the foregoing,the prior consent of the States concerned is not a prerequisite for ICJ to exercise its advisory jurisdiction.Nevertheless,as ICJ’s advisory opinions do not have the compulsory binding force to directly settle international disputes,their positive effect in promoting dispute settlement between States concerned derives from their authoritative influence.Such influence,unlike binding force,can bring about the practical effect of promoting international dispute settlement only if the States concerned accept it proactively.In addition,ICJ’s exercise of its advisory jurisdiction should conform to its judicial character,and the scope of its advisory opinions should meet the requirements of judicial characteristics such as passivity and appropriateness.In litigation jurisdiction,ICJ has the authority to settle only the “l(fā)egal disputes” not concerning the fundamental interests of the States concerned,but not the “political disputes” involving the fundamental interests of the States concerned,as the latter has the attribute of “non-justiciability”.43XU Chongli,The Political Nature of International Disputes and Their Legal Settlements,The Journal of International Studies,Vol.2,p.12 (2018).(in Chinese)。Similarly,ICJ should give an advisory opinion only to questions of legal nature.If the question raised has obvious political factors,ICJ should exercise its discretion to refuse to render such an opinion,otherwise,it would violate the judicial character of advisory jurisdiction.As ICJ has noted in the Western Sahara Case,the lack of consent from interested States may lead ICJ to refuse to give an advisory opinion for the consideration of judicial appropriateness.The principle of States’consent remains relevant to advisory opinions,not for ICJ’s competence,but for the appropriateness of giving an opinion.44Supra note 27,p.25,para.32.

To date,ICJ has never obtained the consent of the States concerned in any of its advisory opinions concerning disputes between States,making them all ineffective in promoting international dispute settlement.In the Peace Treaties Interpretation Case,Bulgaria,Hungary and Romania consistently asserted that ICJ violated international law by exercising its advisory opinions without the consent of the States concerned,and therefore did not accept the legal advice provided therein.45Supra note 9,LIU Fangxiong,p.147.(in Chinese)South Africa unequivocally protested against the Namibia Case advisory opinion given by ICJ,which was hampered by the “inherent political obstacles” in the settlement of sovereignty disputes between States.46See Namibia-South Africa’s Presence Found to be Illegal — United Nations’ Measures Declared Valid,New York University Journal of International Law and Politics,Vol.5,p.138 (1972).Even after ICJ announced the Western Sahara Case,Morocco,one of the States concerned,continued to assert its sovereignty over the Western Sahara region and led 350,000 unarmed Moroccans to invade Western Sahara.47ZOU Keyuan,Review of International Court of Justice’s Trial Cases,Anhui People’s Publishing House,1991,p.273.(in Chinese)。Likewise,Israel continued to build the separation wall after the announcement of the Construction of a Wall Case,and defied ICJ’s advisory opinion through a domestic judgment of the Supreme Court that contradicted the advisory opinion.48See Francois Dubuisson,Implementation of the ICJ Advisory Opinion concerning the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,Palestine Yearbook of International Law,Vol.13,p.31-32 (2004-2005).The UK explicitly refused to be bound by the Chagos Archipelago advisory opinion after it was announced.In the view of some scholars,the existence of the advisory opinion may have substantially complicated and prolonged the sovereignty dispute with Mauritius over the Chagos Archipelago from the perspective of the UK.49See Volker Roeben &Sava Jankovic,Unpacking Sovereignty and Self-determination in ITLOS and the ICC: A Bundle of Rights?,EJILTalk (4 Mar 2021),https://www.ejiltalk.org/unpacking-sovereignty-and-self-determination-in-itlos-and-the-icc-a-bundle-of-rights/,p.5.

Admittedly,an ICJ’s advisory opinion intended for practical effect in promoting international dispute settlement should meet certain prerequisites: it should comply with its judicial character and be accepted by the States concerned on their own initiative.Otherwise,ICJ’s advisory opinion may in fact be detrimental to the settlement of disputes between the States.

IV.Summary and Implications

A.Summary

In light of the preceding analysis,the effects of ICJ’s advisory opinions in settling international disputes can be summarized as follows: On the one hand,ICJ’s advisory opinions have a limited effect on settling international disputes.They usually have no legally binding force and no authority to create compulsory legal obligations for the States concerned,except when it can reflect the will of States.The jurisprudence of international judicial bodies shows that the threshold for determining the existence of an international dispute is rather low,requiring no judgment as to the validity or strength of the claims of the States concerned.As a result,an ICJ’s advisory opinion can be shown to have the legal effect of directly settling international disputes only if it is capable of entirely depriving a particular State’s claim of reasonably arguable legal basis and reducing it to a manifestly meaningless or unsupportable assertion.The jurisprudence and judicial practice prove that ICJ’s advisory opinions are only an act of “l(fā)egal interpretation” to clarify and elucidate legal issues,but do not address legal disputes between specific States.Moreover,ICJ’s advisory opinions are not legally binding and create no legal obligation for specific States to be strictly observed,so ICJ’s advisory opinions cannot reduce the claims of specific States to assertions and have no effect on directly settling international disputes.On the other hand,ICJ’s advisory opinions can have a positive effect on the settlement of disputes between States when they meet the requirements of judicial appropriateness and the principle of States’consent.This is because ICJ’s advisory opinions have an authoritative influence and contain important legal value,and thus can exert certain legal influence.As an integral part of the international community’s legal perception,ICJ’s advisory opinions can effectively serve as a legal guide for the settlement of international disputes in specific areas.50See Mahasen M.Aljaghoub,The Advisory Function of the International Court of Justice 1946-2005,Springer,2005,p.119.In the meantime,failing to meet the prerequisites,they may in fact have a negative impact on the settlement of international disputes.Some scholars have stressed that under no circumstances should the effect of ICJ’s advisory opinions in settling international disputes be overstated.51See Andrea Samardzija,Advisory Opinion’s Contributions to International Dispute Settlement,ILG2 (15 Jun 2020),https://ilg2.org/2020/06/15/advisory-opinionscontributions-to-international-dispute-settlement/.

The Special Chamber in theMauritius/Maldivescase believed that Mauritius enjoyed sovereignty over the Chagos Archipelago as inferred from the Chagos Archipelago advisory opinion,which directly settled the sovereignty dispute between the UK and Mauritius over the Chagos Archipelago.The main argument of the Special Chamber was that the Chagos Archipelago Advisory Opinion had the same weight and authority as ICJ’s judgment in the proceedings and had legal effect and influence on the legal status of the Chagos Archipelago,thus reducing the UK’s claim of sovereignty over the Chagos Archipelago to a frivolous or unsupportable assertion.This paper holds that it is clearly illogical for the Special Chamber to extend the authoritative influence of ICJ’s advisory opinion in its analysis that it has the legal effect of directly settling international disputes.Specifically,the Chagos Archipelago advisory opinion will inevitably have an influence on the sovereignty dispute between the UK and Mauritius over the Chagos Archipelago by,for example,providing a certain legal basis for the sovereignty claim of Mauritius,adversely affecting the sovereignty claim of the UK,and providing standards of conduct and legal guidance for the two States to settle the sovereignty dispute over the Chagos Archipelago in the future.However,this does not mean that the Chagos Archipelago advisory opinion has the authority to directly settle the sovereignty dispute between the UK and Mauritius.The Special Chamber’s judgment clearly confuses the distinction between “influence” and “binding force” and misinterprets the legal effect of ICJ’s advisory opinion.As some scholars have argued,ICJ’s advisory opinions are an authoritative legal statement entitled to an assessment of international law,but it does not mean that such an assessment can alter the rights and obligations of international legal subjects.52See Sarah Thin,The Curious Case of the “Legal Effect” of ICJ Advisory Opinions in the Mauritius/Maldives Maritime Boundary Dispute,EJILTalk (5 Feb 2021),https://www.ejiltalk.org/the-curious-case-of-the-legal-effect-of-icj-advisory-opinions-in-the-mauritiusmaldives-maritime-boundary-dispute/,p.3-4.Besides,the conclusions of the Special Chamber contradict the judgment of ICJ,which has made it clear in its Chagos Archipelago Advisory Opinion that the advisory opinion does not settle the bilateral dispute between the UK and Mauritius.Furthermore,the Chagos Archipelago advisory opinion was announced without the prior consent of the UK,so the UK is not obliged to be bound by this opinion.Under the Special Chamber’s conclusion,the Chagos Archipelago advisory opinion has made the UK’s claim to sovereignty over the Chagos Archipelago lose a reasonably arguable legal basis.The conclusion amounts to imposing a mandatory legal obligation on the UK without the consent of the UK as a party and applying the advisory opinion directly to the determination of a specific legal dispute between the States concerned,which will obviously undermine the legitimate rights and interests of the UK.

In light of the foregoing,the author maintains that the argument of the Special Chamber on the Chagos Archipelago advisory opinion in theMauritius/Maldivescase has expanded the legal effect of the advisory opinion.The UK’s claim to sovereignty over the Chagos Archipelago will not be reduced to a mere assertion solely due to ICJ’s advisory opinion,and there may still be a dispute between the UK and Mauritius in the legal sense.

B.Implications for China

1.Preventing the Tendency to Expand the Legal Effect of ICJ’s Advisory Opinions

As noted earlier herein,ICJ’s advisory opinions’ limited effect on settling international disputes means that it is not legally binding and cannot directly settle legal disputes between States.However,the ruling of the Special Chamber in theMauritius/MaldivesCase contradicts this conclusion and reflects the tendency of international judicial bodies to expand the legal effect of ICJ’s advisory opinions.The author believes that the arbitrary expansion of the legal effect of ICJ’s advisory opinions will lead to undesirable consequences.

First,it will undermine the authoritativeness and credibility of ICJ.The advisory jurisdiction is only a function of ICJ to render authoritative legal advice to international organizations.Granting ICJ’s advisory jurisdiction the legal effect of directly settling international disputes would be tantamount to giving it mandatory global jurisdiction through the “back door” of advisory jurisdiction,resulting in no difference in the nature of advisory opinions and judicial decisions related to disputes between States.This will certainly raise much dissent in the international community.53Yuval Shany, The Competing Jurisdiction of International Courts and Tribunals,translated by HAN Xiuli,Law Press China,2012,p.353.(in Chinese)Moreover,an ICJ’s advisory opinion can have a positive effect on the settlement of international disputes only when it meets the requirements of judicial appropriateness and States’ consent.If ICJ is given the legal effect to settle international disputes through its advisory opinions without regard to the attitude of the States concerned,it will inevitably lead to a crisis of confidence in ICJ,whose prestige will be threatened by the failure to be respected by the States concerned.In practice,owing to the uncertainty caused by the expansion of the effectiveness of ICJ’s advisory opinions,the actual effect of ICJ’s advisory opinions differs greatly from that in the PCIJ period,during which the given advisory opinions were in fact accepted by the States concerned and contributed to the settlement of international disputes,while the effect of ICJ’s advisory opinions on the settlement of international disputes is less satisfactory.54Supra note 9,LIU Fangxiong,p.133-134.(in Chinese)

Second,it will undermine the sovereignty and rights of relevant States.Under the conclusion of theMauritius/MaldivesCase Judgment,ICJ’s advisory opinion has the authority to directly reduce a State’s claim to a disputed territory to a meaningless or unsupportable assertion without the prior consent of the State concerned.In other words,it was held that ICJ’s advisory opinion can have the effect of directly settling legal disputes between States.This practice,as can be seen,is tantamount to depriving the States concerned of their autonomy to choose the means of dispute settlement in accordance with the law.As China stated in its written statement on the Chagos Archipelago advisory opinion,every State is free to choose the means of dispute settlement.In assessing the appropriateness of giving an opinion and deciding whether it should exercise such discretion,ICJ should consider whether the States concerned will agree to its exercise of advisory jurisdiction.55Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965,Written Statement of the People’s Republic of China,1 March 2018,p.10-11,para.15-16.More seriously,under Article 68 of the Statute,ICJ’s advisory procedure,unlike contentious cases,has greater flexibility in the choice of procedural rules.Also,the advisory procedure is not intended for the determination of the rights and obligations of the States concerned,which may not provide sufficient and necessary information,and ICJ may not conduct a comprehensive and detailed investigation of the claims of the States concerned.Should a dispute over territorial sovereignty involving the most fundamental interests of a State be settled in this way,it will obviously constitute a serious violation of the rights and interests of the States concerned.

Hence,the arbitrary expansion of the legal effect of ICJ’s advisory opinions,as in theMauritius/MaldivesCase,will lead to great disadvantages by undermining the credibility of ICJ and infringing on the legitimate rights and interests of the States concerned.For China,we should be aware of the possible adverse consequences of the tendency to expand the legal effect of ICJ’s advisory opinions,and be careful to prevent international judicial bodies from arbitrarily expanding the said legal effect.In the international arena,we should firmly oppose the abuse of,as well as emphasize the limited effect of,ICJ’s advisory opinions in the settlement of international disputes.Meanwhile,we should be wary of other States following the practice of Mauritius to directly settle disputes related to our territorial sovereignty and maritime rights and interests without our consent by means of using the relevant international organizations to request ICJ to give an advisory opinion.

2.Placing Emphasis on and Utilizing ICJ’s Advisory Opinions

As can be seen from the foregoing,an ICJ’s advisory opinion—notwithstanding its lack of legally binding force and effect on the direct settlement of international disputes—still has a practical influence that cannot be ignored and can positively promote the settlement of international disputes upon meeting the prerequisites.In this regard,China should attach importance to and make full use of the ICJ’s advisory opinions for the following reasons:

First of all,ICJ’s advisory opinions can have a significant influence on the settlement of international disputes and promote the development of international law,provided that certain conditions are met.56CHEN Binsheng,On Making Full Use of the Advisory Jurisdiction of the International Court of Justice,Contemporary Law Review,Vol.15:8,p.51 (2001).(in Chinese)According to the foregoing,ICJ’s advisory opinions are “supplementary materials for the determination of legal principle” in the source of international law and can have the same precedent value as that of judgments.They can also serve as international soft law to provide standards of conduct and legal guidance for the settlement of international disputes.For this reason,a State which is armed with legal advice and a basis in its favor through an ICJ advisory opinion is bound to exert public opinion or moral pressure on the other party to the dispute and thus gain an advantage in the settlement of international disputes.Mauritius,for example,has created favorable conditions for itself in the settlement of the sovereignty dispute over the Chagos Archipelago by proving the illegality of the UK’s continued administration of the Chagos Archipelago through the Chagos Archipelago advisory opinion.In view of this,China should attach importance to ICJ’s advisory function and seek legal advice advantageous to our claim of rights.When necessary,we can request the ICJ to give an advisory opinion with the help of international organizations in order to obtain a legal basis advantageous to us.Nevertheless,this practice is risky and should be done with caution.

Second,ICJ’s advisory function has unique advantages in international dispute settlement by virtue of its great flexibility,which can facilitate effective negotiations between States and the peaceful settlement of international disputes.In contrast to contentious cases,it is less difficult to initiate ICJ advisory procedure as it requires only an application from an international organization and does not presuppose the consent of the States concerned.As can be seen from ICJ’s judicial practice,ICJ usually maintains that it has jurisdiction over the matters falling within the purview of United Nations bodies in advisory cases,even including the cases involving pending disputes between States,and there is usually no jurisdictional obstacle in the advisory procedure.In terms of the purview of its advisory function,ICJ’s advisory opinions address both disputes arising from the rights and obligations between States and legal issues that are of general concern to the international community and involve a wide range of interests.57See Christian J.Tams &James Sloan,The Development of International Law by the International Court of Justice,Oxford University Press,2013,p.13-14.In terms of nature,advisory opinions are not legally binding and cannot impose mandatory legal obligations on the States concerned,but they have an authoritative influence and can facilitate the settlement of international disputes in a flexible way.It follows that ICJ’s advisory opinions are less difficult to initiate,cover a wide scope,and play an irreplaceable role in international dispute settlement.In this regard,we should attach importance to the possible important role of,as well as make full use of the advantages of ICJ’s advisory opinions in the settlement of international disputes.

Finally,as the international rule of law develops,it has become an inevitable trend to settle international disputes by judicial means.For China,we should attach importance to the advisory function of ICJ in international justice,and seek legal advice advantageous to us for international disputes involving China.At the same time,we should voice our opinions actively in cases where ICJ’s advisory opinions are unfavorable to our claim,so as to avoid the possible disadvantages arising from silence in the legal dimension.58HE Zhipeng,China’s Position on International Justice,Studies in Law and Business,Vol.33:2,p.55 (2016).(in Chinese)In addition,we must continue to increase our participation in international legal matters for the sake of enhancing our voice in the international arena.Given the authoritative influence of ICJ’s advisory opinions,we should take full advantage of this important way of strengthening our discourse power.For example,we can actively make China’s voice heard and express our position on ICJ’s advisory opinions by issuing written opinions.

In conclusion,ICJ’s advisory opinions have an important position and unique advantages in the settlement of international disputes,and can function in many aspects of international dispute settlement.Moreover,it is in line with the development trend of international rule of law to emphasize and leverage ICJ’s advisory opinions.Therefore,we should value the advisory function of ICJ and avail ourselves of ICJ’s advisory opinions to protect our rights and interests.

V.Conclusion

TheMauritius/Maldivescase marks the first case in international judicial practice where a detailed judgment was rendered on the effectiveness of an ICJ’s advisory opinion in international dispute settlement,which has been described as a “a landmark judgment”.59Fabian Simon Eichberger,The Legal Effect of ICJ Advisory Opinions Redefined? The Mauritius/Maldives Delimitation Case -Judgment on Preliminary Objections,Melbourne Journal of International Law,Vol.22:2,p.393 (2021).However,the Special Chamber’s decision that the Chagos Archipelago advisory opinion has the effect of settling the sovereignty dispute between the UK and Mauritius over the Chagos Archipelago is controversial.Drawing on this case,this paper probes into the interaction between ICJ’s advisory opinions and international dispute settlement,and analyzes the role of ICJ’s advisory opinions in international dispute settlement,which has both theoretical and practical significance.The study shows that the limited effect of ICJ’s advisory opinions in settling international disputes means that it is not legally binding and cannot directly settle legal disputes between States;the positive effect of ICJ’s advisory opinions in settling international disputes means that they can promote the settlement of international disputes through its authoritative influence on the premise of meeting the requirements of judicial appropriateness and States’consent.Therefore,the judgment concerning the preliminary objections in theMauritius/Maldivescase wrongly determined the legal effect of ICJ’s advisory opinion.

China,as a staunch defender and active builder of the international rule of law,should have a correct understanding of the legal effect of ICJ’s advisory opinions in settling international disputes.On the one hand,the arbitrary expansion of the legal effect of ICJ’s advisory opinions may undermine ICJ’s authoritativeness and credibility,as well as the sovereignty and related rights of the States concerned.In this regard,we should guard against the tendency of international judicial institutions to abuse ICJ’s advisory opinion to settle international disputes,and be wary of States in a dispute seeking the endorsement of ICJ’s advisory opinions following the practice of Mauritius.On the other hand,we should attach importance to the unique advantages of ICJ’s advisory jurisdiction,and avail ourselves of ICJ’s advisory opinions to defend our rights and interests,so as to promote the peaceful settlement of international disputes involving China.