CYIL vol. 10 (2019)

RAINER HOFMANN – CORNELIA KIRCHBACH CYIL 10 ȍ2019Ȏ because a “lack of clarity in the drafting of a question does not deprive the Court of jurisdiction.” 28 On the contrary, giving necessary clarifications by means of interpretation would be the Court ’ s responsibility. 29 Therefore the Court confirmed its jurisdiction to give an advisory opinion. But even if the Court has jurisdiction, it is not necessarily obliged to exercise it. It has a power of discretion to decline advisory opinions even if the conditions of jurisdiction are met in order to protect the integrity of the Court´s judicial function as the principle judicial organ of the UN 30 According to the consistent jurisprudence of the Court, it may only refuse an advisory opinion falling in its jurisdiction if there are “compelling reasons” to do so. 31 The Court examined four potential reasons to refuse the request for an advisory opinion. It began with the argument that there was no sufficient information on the factual issues available. 32 Based on the Advisory Opinions on Western Sahara and South West Africa it held that what is decisive is the question if there are sufficient information and evidence to enable the Court to come to a judicial conclusion, even if it is still necessary to make findings on relevant factual issues. 33 In the present case there was an abundance of material concerning the factual background and therefore sufficient material to give an advisory opinion. 34 Moreover, the advisory opinion must assist the General Assembly in the performance of its functions. 35 The Court stated that it is left to the requesting organ itself to determine the usefulness of an advisory opinion for the proper performance of its functions. 36 Therefore, the Court cannot decline to answer the questions posed merely on the ground that it would not assist the General Assembly in the performance of its functions. 37 Furthermore, answering the questions posed will not reopen the findings of the Arbitral Tribunal in the Arbitration regarding the Chagos Marine Protected Area that are binding on Mauritius and the United Kingdom. 38 On the one hand, the answers to the questions posed 28 Id. at para. 61; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I), p. 153-154, para. 38. 29 Id. 30 Opinion at paras. 63 et seq.; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I), p. 156, para. 44; Accordance with International Law of the Unilateral Declaration of Independence in respect of Kosovo, Advisory Opinion, I.C.J. Reports 2010 (II), p. 415-416, para. 29. 31 Opinion at para. 65; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I), p. 156, para. 44; Accordance with International Law of the Unilateral Declaration of Independence in respect of Kosovo, Advisory Opinion, I.C.J. Reports 2010 (II), p. 416, para. 30. 32 Opinion at paras. 69 et seq. 33 Id. at paras. 71 et seq.; Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 28-29, para. 46; Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Res. 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 27, para. 40. 34 Opinion at paras. 73 et seq. 35 Id. at para. 78. 36 Id. at para. 76; Accordance with International Law of the Unilateral Declaration of Independence in respect of Kosovo, Advisory Opinion, I.C.J. Reports 2010 (II), p. 417, para. 34. 37 Opinion at para. 78. 38 Id. at para. 82.

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