Our Plan For Establishing Referral Jurisdiction
The primary barrier to expanding the jurisdiction of the ICJ is the great difficulty of amending the jurisdictional provisions in the Court’s Statute. In addition to requiring approval by two-thirds of the United Nations (UN) General Assembly and ratification by two-thirds of the members of the UN, a proposed amendment can be vetoed by any one of the five permanent members of the Security Council.
As a viable way around the amendment requirements, we are advocating for the implementation of the plan proposed by Professor Andrew Strauss, which would allow for the General Assembly to establish Referral Jurisdiction on its own authority. The Assembly has the power to create a subsidiary organ that could refer aggrieved states’ requests for advisory opinions to the ICJ.
This power derives from the combined force of two articles of the UN Charter. The first is Article 22, which authorizes the Assembly to establish subsidiary organs “as it deems necessary for the performance of its functions.” The second is Article 96(2), which provides that the Assembly could empower that subsidiary organ to “request advisory opinions of the Court on legal questions that arise within the scope of [its] activities.”
Once the General Assembly establishes the subsidiary organ, to be called the Judicial Commission (and to be composed of independent legal experts), any state wishing to pursue an action against another state could petition that Commission to have its case heard by the Court. If the petition met certain criteria of justiciability and standing established by the General Assembly, the Commission would refer the action to the Court for an advisory opinion.