Unveiling the ‘author’ of international law — The ‘legal effect’ of ICJ’s advisory opinions

While it is universally accepted that the advisory opinions rendered by the International Court of Justice (ICJ or Court) are not binding as such, scholarly discourse continues to ponder upon whether these opinions can confer any definitive legal effects. The scope of the legal implications stemming from such opinions is considerably broad, encompassing statements of solely evidentiary significance, determinations demanding due consideration, through to authoritative ‘givens’ that are beyond contestation. Examples elucidating these diverse interpretations permeate both academic literature and international practice with the most recent example being the International Tribunal for the Law of the Sea (ITLOS) Special Chamber’s Mauritius/Maldives Judgment, wherein the findings presented in the Chagos Advisory Opinion were treated as authoritative pronouncements of international law with opposable legal effects. This article posits a departure from the mainstream standpoint, contending that while the ICJ’s advisory determinations are non-binding, they are capable of being authoritatively definitive in declaring what international law is in a specific context. The article also suggests that the authority vested in a judicial pronouncement, determining the content of international law, may go beyond its bindingness contingent upon the stature of the authoring entity.