European Journal of International Law 9 (1998). 437-467View Journal Article / Working Paper
The International Court of Justice's 1996 Nuclear Weapons Advisory opinions raise a number of questions relating to the competence of international organizations and the Court's own advisory jurisdiction. The author argues that actions of an international organization directed at achieving the fulfilment of the purposes of the organization and which would promote its effectiveness are within the implied powers of the organization. Thus, the decision that the WHO had no competence to deal with the leglity of nuclear weapons (or other hazardous substances) departs from the established law, including the Court's previous jurisprudence. It is argued that a broad, rather than a narrow, competence for international organizations is more consistent with principle and practice as well as with the Court's jurisprudence. In relation to the Court's advisory jurisdiction, the author argues that (contrary to the implications in the WHO opinion,) it is always within the competence of UN specialized agencies to seek opinions on the interpretation of their constitutions and that requests from the General Assembly do not have to relate to the work of that organ. The concluding section sets out the circumtances in which the Court ought to exercise its discretion to refuse to render an opinion requested of it It is argued that the fact that a requestrelates to an abstract question, unrelated to any particular factual situation, ought not to debar the Court from exercising its jurisdiction. However, the Court ought to decline to provide an opinion where It does not have before it sufficient factual material to enable it to form an opinion or where It is in danger of giving an incomplete answer that can be misconstrued.