Advisory Opinion (International Court of Justice) Definition
The advisory opinion is a historically integral part of some state courts (coming out of the Civil War and dating back to the English system), as well as a relatively new part of business law enforcement by the FTC (since 1962). Its use is coming under question given it’s non-binding nature and higher demand facing state courts from a “law explosion” and state school finance decisions. At the level of the United Nations, the action is used to help clear doubt or disagreement over politically difficult cases; however, it is rarely used and largely considered dangerous when expanded from international crisis to constitutional interpretations.
A Little More on What is an Advisory Opinion (International Court of Justice)
An advisory opinion is an interpretation of Law or subject matter provided to the United Nations or a specialized agency by the International Court of Justice (hereon referred to as the Court) on “any legal matter” when requested (in accordance with Article 96 of the UN Charter). It is then signed by the Secretary General of the UN (Article 88 of the Rules of the Court).
A Little More on Advisory Opinion to the United Nations
The Court does not view the authority of an advisory opinion as drastically different from a judgment. The opinion of the Court is expected in principle to clarify doubts or disagreements different organs of international organizations have on points of law and remain unbiased. A judge may add his or her own individual/dissident viewpoint if he desires (Article 90 of the Rules of the Court). It is important to note that most of the time, these opinions are requested for politically motivated reasons.
With that in mind, the Court is rarely requested to give an advisory opinion. The request typically comes under very specific circumstances such as when there are great political difficulties in a case that cannot be resolved by the General Assembly or the Security Council of the UN. Because the advisory function is not often called upon, the Court is still considered outside of the regular/organic system of the United Nations.
References for Advisory Opinion
Academic Research for Advisory Opinion
- • A Note on Advisory Opinions, Frankfurter, F. (1924). A Note on Advisory Opinions. Harvard Law Review, 37(8), 1002-1009. While the advisory opinion is needed in international controversies, there is a danger in extending the device onto constitutional controversies.
- • The Advisory Opinion–An Analysis, Field, O. P. (1948). The Advisory Opinion–An Analysis. Ind. LJ, 24, 203. There has always been some agency with the power to accuse legislative bodies of acting out of their power. Coming from English history, calling upon a court for an opinion has been adopted and become integral in many American states. The study debates whether the advisory opinion is a procedure that remedies the defects that have come out of a legislation after it becomes law.
- • The Federal Courts—A Century After Appomattox, Wright, C. A., & McCormick, C. T. (1966). The Federal Courts—A Century After Appomattox. American Bar Association Journal, 742-748. The federal court system came out of the Civil War, and – while it has worked well – it faces a “law explosion” that has been difficult to respond to. Work loads have been increasing with demand and jurisdictional grants, and the future of the system’s ability to keep up is under question.
- • Binding Advisory Opinions: A Federal Courts Perspective on the State School Finance Decisions, Brown, G. D. (1993). Binding Advisory Opinions: A Federal Courts Perspective on the State School Finance Decisions. BCL Rev., 35, 543. The role of state courts in making state school finance decisions has entered its “third wave,” as they are seen as the protectors of individual rights in places where federal judicial relief is unavailable. The most recent discussion around McDuffy v Secretary of the Executive office of Education is important to note, as the case gives insight into the current approach and methodology of state courts.
- • E-business audit: Advisory jurisdiction or occupational invasion?, Kotb, A., Roberts, C., & Sian, S. (2012). E-business audit: Advisory jurisdiction or occupational invasion?. Critical Perspectives on Accounting, 23(6), 468-482. This study examines the technological changes affecting professionals in the external audit function of e-businesses. Through interviews and a survey, the paper has found that the authority traditionally held by external financial auditors is being strongly challenged by IT audit specialists. There is a growing need for education and training of financial audit professionals if they want to survive disruption and keep jurisdictional control.
- • First report of the select advisory committee on business reorganization, Smith, G. K., & Director, F. D. (2001). First report of the select advisory committee on business reorganization. Business Lawyer, 57. Select advisory committee on business reorganization (SABRE) has members drawn from bankruptcy, public service, academia, and private sectors. They reflect a large diversity of views concerning bankruptcy laws.
- • Federal Trade Commission Advisory Opinions, Dixon, W. D. (1965). Federal Trade Commission Advisory Opinions. Administrative Law Review, 65-79. In 1962, the FTC allowed for any person, partnership, or corporation to request an advisory opinion on whether their actions would violate any laws of the FTC. An opinion would be given as long as the action had not started, a similar action is under investigation, if there is a precedent, or if the process of producing such an opinion was too extensive. This is a relatively new procedure, so careful consideration must be given to distinguish the differences between opinions (non-binding) and declaratory orders.
- • The Role of Advisory Opinions and the Business Review Procedure, Brebbia, J. H. (1973). The Role of Advisory Opinions and the Business Review Procedure. Antitrust Bull., 18, 191. The “business advisory service” is part of the enforcement abilities of the FTC, concerning the legality of practices various businesses may want to pursue. It’s helpful for determining whether an intended course of action would violate any FTC laws.
- • Advisory Opinions by Federal Courts, Kannan, P. M. (1998). Advisory Opinions by Federal Courts. U. Rich. L. Rev., 32, 769. Not enough to write about
- • The EEA Agreement and Norwegian Law, Bull, H. (1994). The EEA Agreement and Norwegian Law. European Business Law Review, 5(12), 291-296. The EEA Agreeement is supposed to make the EFTA States part of the market created by the EC. Complete legal uniformity was never a guarantee, however various steps have been taken in an attempt to conform laws to legal effects of similar laws in the EC.