Some weeks ago, Nicholas Tsagourias published a piece on Articles of War blog, analysing the International Court of Justice’s (ICJ) recent advisory opinion on Israel’s practices in the Occupied Palestinian Territory. While other blogposts examined the opinion in substance, Tsagourias devotes his words to the Court’s discretion. According to him, compelling reasons should have led the ICJ to reject the UN General Assembly’s (UNGA) request. In doing so, he adopts the arguments brought forward by Israel and its allies in the advisory proceedings and by Vice President Sebutinde in her dissenting opinion. Evidently, the Court did not follow any of those considerations. In fact, the ICJ stuck to its self-prescribed rules governing judicial propriety.
This post will assess some of the arguments which aim at a narrow reading of the ICJ’s advisory function. While Tsagourias asserts that he “will deal with the ICJ’s jurisdiction”, his arguments actually concern the Court’s discretion. As such, they are subject to the Court’s intrinsic evaluation (Art. 65 ICJ-Statute). Yet, discretion should not be perceived as a playground on which the ICJ acts as it sees fit. It is clear that “the Court is bound not to act in a manner that is contrary to judicial propriety or to its judicial character” (Akande/Tzanakopoulos). Nevertheless, drawing on previous case law allows for an assessment of the Court’s discretionary findings in the case at hand.
Read More “The ICJ’s Exercise of Judicial Propriety in its Latest Advisory Opinion – EJIL: Talk!” »
