ARE LEGAL ADVISORY OPINIONS BINDING? A COMPARATIVE ANALYSIS

ARE LEGAL ADVISORY OPINIONS BINDING? A COMPARATIVE ANALYSIS

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INTRODUCTION

Legal advisory opinions serve as crucial instruments in clarifying legal issues, interpreting statutes, and guiding decision-making processes. However, the question of whether such opinions are binding remains a subject of debate and often varies across jurisdictions. This essay evaluates the stance of the International Court of Justice (ICJ), explores international best practices and examines the status of legal advisory opinions in Kenya, with regard to their binding nature.

1. Legal Advisory Opinions of the ICJ and International Best Practices

With regard to the International Court of Justice, (ICJ), advisory opinions are official judicial statements regarding legal questions brought before the Court by authorized organs of the United Nations and other international entities. According to the ICJ Statute;

“The decision of the Court has no binding force except between the parties and in respect of that particular case.”

Advisory opinions, as per the meaning in Article 59 of the ICJ Statute, do not qualify as formal decisions. Unlike contentious cases, advisory proceedings don't involve parties engaged in a state-to-state conflict and do not carry res judicata implications. In simpler terms, advisory opinions don't lead to final and unappealable judgments that prevent the same issue from being re-litigated between the same parties.

“Contrary to judgments, and except in rare cases where it is expressly provided that they shall have binding force, […] the Court’s advisory opinions are not binding. The requesting organ, agency or organization remains free to decide, as it sees fit, what effect to give to these opinions.”

In the Mauritius/Maldives case in 2021, the International Tribunal for the Law of the Sea (ITLOS) dismissed two preliminary objections raised by the Maldives. These objections were centered around the existence of a disagreement between Mauritius and the United Kingdom (UK) regarding the sovereignty of the Chagos Islands. The Maldives argued that such a dispute should be addressed before ITLOS. However, ITLOS ruled against the objections, citing the 2019 advisory opinion from the International Court of Justice (ICJ) concerning the legal ramifications of the separation of the Chagos Archipelago from Mauritius. The ITLOS decision favored Mauritius, indicating that the ICJ opinion had settled the dispute in Mauritius' favor. The ITLOS decision in this case emphasized the “authority” of such advisory opinions. However, it failed to clarify the concept of authority or explain why ICJ advisory opinions, while authoritative, can have legal effects similar to binding decisions. This is especially when one of the involved parties opposes the giving of the advisory opinion, and in a different jurisdiction altogether.

“Stricto sensu authority” represents an inherent quality of a subject, often regarded as authority in its purest form. This type of authority is content-independent, deriving legitimacy solely from its source as a particularly authoritative entity. The ICJ holds such esteemed authority in the global legal realm due to various reasons such as its status as the principal judicial body of the United Nations. Additionally, the ICJ's decision-making process serves as a benchmark for procedural fairness, with other international courts frequently citing its decisions to uphold principles of justice. As per the ICJ's explanation in Peace Treaties, the court's jurisdiction in contentious cases hinges upon the consent of the disputing states. However, in advisory proceedings, the court's response holds only advisory significance and lacks binding force, as outlined by Article 38(1)(d) of the ICJ Statute.

In countries like the United States, the Court is constitutionally empowered to decide specific cases rather than address abstract legal issues. Advisory Opinions, which reflect the individual justices' views rather than the Court's decision, are considered an extra-judicial function. As a result, they do not legally bind the requesting branch of government to follow the advice given. Neither the justices nor the involved parties are obligated to adhere to the conclusions reached in an advisory opinion when similar issues arise in future legal proceedings. Consequently, because Advisory Opinions are typically non-binding and solely advisory in nature, principles like stare decisis and res judicata do not apply to them.

2. Legal Advisory Opinions in Kenya

In Kenya, legal advisory opinions are typically issued by the Supreme Court to provide guidance on matters of law. The Constitution of Kenya states that;

“The Supreme Court may give an advisory opinion at the request of the national government, any State organ, or any county government with respect to any matter concerning county government.”

In the Matter of Interim Independent Electoral Commission, the Supreme Court established that the advisory opinions issued by the court are binding. At paragraph 93 it stated that;

“…it is inappropriate that the Supreme Court’s Advisory Opinion should be sought as mere advice. Where a government or State organ makes a request for an Opinion, it is to be supposed that such organ would abide by that Opinion; the Opinion is sought to clarify a doubt, and to enable it to act in accordance with the law.”

Further in In the Matter of the National Land Commission, the Supreme Court stated that;

“All these aspects of the Constitution are critical, in considering the effect of an Advisory Opinion. We, therefore, hold that an Advisory Opinion, in this context, is a ‘decision’ of the Court, within the terms of Article 163(7), and is thus binding on those who bring the issue before the Court, and upon lower Courts, in the same way as other decisions.”

CONCLUSION

In conclusion, legal advisory opinions serve as valuable tools for legal interpretation and guidance in various jurisdictions. At the international level, advisory opinions issued by bodies like the ICJ are advisory rather than binding, although they hold significant influence in shaping international law and practice. While they provide expert analysis and insight into complex legal issues, they are generally not binding in nature. Instead, they offer persuasive authority that courts and decision-makers may consider in their deliberations. In Kenya, however, advisory opinions issued by the Supreme Court are binding decisions as per the jurisprudence above.