A/HRC/33/48
This suggests that the freedom to impose measures restricting trade with a targeted State is
circumscribed to situations where such measures would not involve a violation of existing
treaty obligations. This leaves the Court much to decide upon as regards unilateral coercive
measures, their legality or otherwise under public international law, and their conformity or
otherwise with human rights, including an assessment of the legal significance and
consequences of repeated resolutions of the General Assembly condemning recourse to
unilateral coercive measures.
23.
The Special Rapporteur recalls that States subject to unilateral coercive measures
may verify the existence of treaties in force with the targeting State(s). Such treaties may
provide a basis for the jurisdiction of the International Court of Justice in the event of a
dispute regarding the interpretation or application of the treaty and could thus allow for a
legal challenge of unilateral coercive measures resulting in violations of obligations set out
in the relevant treaty, customary international law or relevant rules of human rights,
including those forming part of jus cogens.
Advisory jurisdiction
24.
The International Court of Justice may render an advisory opinion on any legal
question at the request of any body or organ authorized by or in accordance with the
Charter of the United Nations to make such a request.19 In this regard, it should be noted
that further to Article 96 of the Charter, the General Assembly or the Security Council may
request the International Court of Justice to render an advisory opinion on any legal
question. In advisory cases, States are not parties and there is no claimant or defendant. The
Court invites States or international organizations to provide information to assist the Court
in its determination of the point(s) of law at issue.
25.
Despite the fact that the advisory opinions of the Court are non-binding, they are of
great practical importance and could have far-reaching implications. Indeed,
The importance of the advisory function stems from the fact that it affects the
general interpretation of International Law for the international community rather
than simply for the particular States or entities directly affected by an individual
opinion. Thus, advisory opinions of the Court, if properly implemented cannot only
guide the requesting organ but also may serve the interests of the whole international
community.20
26.
In that respect, the Special Rapporteur invites member States concerned to consider
submitting to the International Court of Justice a request for an advisory opinion on the
legality or otherwise of the unilateral coercive measures, especially under the angle of their
compliance or otherwise with human rights norms. Such advisory opinion would be of
great significance to the international community and for the advancement of the rule of
law. For the General Assembly to take a decision to submit a request for an advisory
opinion to the International Court of Justice on the legality or otherwise of unilateral
coercive measures, a resolution adopted by a simple majority vote appears to be sufficient. 21
19
20
21
On the advisory function of the International Court of Justice in general, see Mahasen M. Aljaghoub,
The Advisory Function of the International Court of Justice, 1946-2005 (Berlin/New York, Springer,
2006); and Shabtai Rosenne, The Law and Practice of the International Court, 1920-2005, 4th ed.
Vols. I-IV (Boston, Massachusetts, Nijhoff Publishers, 2006).
Ibid., p. 5.
The question of whether a request for an advisory opinion constituted an “important question” in the
meaning of Article 18 (2) of the Charter of the United Nations, thus requiring a two-thirds majority
vote in the General Assembly, seems to have been resolved by the negative, as evidenced by the
uncontroversial practice following the requests to the International Court of Justice to render advisory
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