An advisory opinion of a court or other government authority, such as an election commission, is a decision or opinion of the body but which is non-binding in law and does not have the effect of adjudicating a specific legal case, but which merely legally advises on its opinion as to the constitutionality or interpretation of a law. The International Law Association is one such commission that provides non binding opinions and advisory documents regarding aspects of international law. Some countries have procedures by which the executive or legislative branches may refer questions to the judiciary for an advisory opinion. In other countries or specific jurisdictions, courts may be prohibited from issuing advisory opinions.
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👉 Advisory opinion in the context of International Court of Justice
The International Court of Justice (ICJ; French: Cour internationale de justice, CIJ), or colloquially the World Court, is the principal judicial organ of the United Nations (UN). It settles legal disputes submitted to it by states and provides advisory opinions on legal questions referred to it by other UN organs and specialized agencies. The ICJ is the only international court that adjudicates general disputes between countries, with its rulings and opinions serving as primary sources of international law. It is one of the six principal organs of the United Nations.
Established in June 1945 by the Charter of the United Nations, the Court began work in April 1946. It is the successor to the Permanent Court of International Justice (PCIJ), which was established by the League of Nations in 1920. Its founding statute is an integral part of the UN Charter and draws heavily from that of its predecessor. All UN member states are automatically parties to the ICJ Statute. However, the Court's jurisdiction in contentious cases is founded upon the consent of the states party to a dispute, which may be given through special agreements or declarations accepting the Court's compulsory jurisdiction.
In this Dossier
- ⭐ Core Definition: Advisory opinion
- 👉 Advisory opinion in the context of International Court of Justice
- Advisory opinion in the context of Declaratory judgment
- Advisory opinion in the context of Advisory opinion on Kosovo's declaration of independence
- Advisory opinion in the context of Supreme Court of India
- Advisory opinion in the context of Case or controversy
- Advisory opinion in the context of ICJ case on Israel's occupation of the Palestinian territories
Advisory opinion in the context of Declaratory judgment
A declaratory judgment, also called a declaration, is the legal determination of a court that resolves legal uncertainty for the litigants. It is a form of legally binding preventive by which a party involved in an actual or possible legal matter can ask a court to conclusively rule on and affirm the rights, duties, or obligations of one or more parties in a civil dispute (subject to any appeal). The declaratory judgment is generally considered a statutory remedy and not an equitable remedy in the United States, and is thus not subject to equitable requirements, though there are analogies that can be found in the remedies granted by courts of equity. A declaratory judgment does not by itself order any action by a party, or imply damages or an injunction, although it may be accompanied by one or more other remedies.
A declaratory judgment is generally distinguished from an advisory opinion because the latter does not resolve an actual case or controversy. Declaratory judgments can provide legal certainty to each party in a matter when this could resolve or assist in a disagreement. Often an early resolution of legal rights will resolve some or all of the other issues in a matter.
Advisory opinion in the context of Advisory opinion on Kosovo's declaration of independence
Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo was a request in 2008 for an advisory opinion referred to the International Court of Justice by the United Nations General Assembly regarding the 2008 Kosovo declaration of independence. The territory of Kosovo is the subject of a dispute between Serbia and the Republic of Kosovo established by the declaration. This was the first case regarding a unilateral declaration of independence to be brought before the court.
The court delivered its advisory opinion on 22 July 2010; by a vote of 10 to 4, it declared that "the adoption of the declaration of independence of 17 February 2008 did not violate general international law because international law contains no 'prohibition on declarations of independence', nor did the adoption of the declaration of independence violate UN Security Council Resolution 1244, since this did not describe Kosovo's final status, nor had the Security Council reserved for itself the decision on final status." Reactions to the decision were mixed, with most countries which already recognised Kosovo hailing the decision and saying it was "unique" and does not set a precedent; while many countries which do not recognise Kosovo said they would not be doing so as such recognition could set a precedent of endorsing secession in other places.
Advisory opinion in the context of Supreme Court of India
The Supreme Court of India is the supreme judicial authority and the highest court of the Republic of India. It is the final court of appeal for all civil and criminal cases in India. It also has the power of judicial review. The Supreme Court, which consists of the chief justice of India and a maximum of fellow 33 judges, has extensive powers in the form of original, appellate and advisory jurisdictions.
As the apex constitutional court, it takes up appeals primarily against verdicts of the High Courts of various states and tribunals. As an advisory court, it hears matters which are referred by the president of India. Under judicial review, the court invalidates both ordinary laws as well as constitutional amendments as per the basic structure doctrine that it developed in the 1960s and 1970s.
Advisory opinion in the context of Case or controversy
The Supreme Court of the United States has interpreted the Case or Controversy Clause of Article III of the United States Constitution (found in Art. III, Section 2, Clause 1) as embodying two distinct limitations on exercise of judicial review: a bar on the issuance of advisory opinions, and a requirement that parties must have standing.
In this context, "controversy" means an actual dispute between the parties.
Advisory opinion in the context of ICJ case on Israel's occupation of the Palestinian territories
Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem, was a proceeding before the International Court of Justice (ICJ), the highest legal body of the United Nations (UN), stemming from a resolution adopted by the United Nations General Assembly (UNGA) in December 2022 requesting the Court to render an advisory opinion relating to the legality of the Israeli occupation of the Palestinian territories.
Israel has occupied the Palestinian territories, which comprise the West Bank (including East Jerusalem) and the Gaza Strip, since 1967, making it the longest military occupation in modern history. In 2004, the ICJ delivered an advisory opinion on the Israeli West Bank barrier, deciding that it contravened international law and should be removed. In January 2023, the ICJ acknowledged the UNGA's request for an advisory opinion on the legal consequences arising from Israel's policies and practices in the occupied Palestinian territories.