Resort to the Court presupposes a disposition to depoliticize the issues; when this precondition is not attained on both sides of the fence, the Court's Advisory Opinions are bound to be ineffective. The Opinions will become part and parcel of the political contest and share in its outcome.
It would make a mockery of the independence of the Court if it could never “reach conclusions at variance with the conclusions stated by the General Assembly”. … It would also render the Court largely useless as an organ for giving legal advice to the Assembly.
There are some worrying signs that, far from developing traditional legal techniques in a way acceptable to old and new States, the Court may depart radically from legal patterns accepted in the West in favour of outright politicization of the Court.
[Lyndel V. Prott]
In the present case, worrisome trends that have been infecting the ICJ-General Assembly nexus peaked more overtly and ominously than ever before, recalling earlier fears that the Court's advisory pronouncements would be either ineffective political utterances or ex parte quasi-compulsory judgments rendered without the consent of a state principally concerned. The manner in which the JCJ's advisory function was exercised raises grave doubts regarding the “judicial” nature of that function, and more generally, the future role of the Court in clarifying the law and strengthening world order in the age of the global terrorist scourge.
Employing inapt analogies and formalistic, formulaic, and occasionally inconsistent reasoning, the Court evinced an unjudicial eagerness to furnish the General Assembly with the imprimatur it sought for its pre-set conclusions. The Court adopted a consistently unevenhanded posture that manifested itself, inter alia, in its embracing the assumptions and nomenclature of the Assembly resolution; ignoring the context of ongoing terrorism; minimizing the status of Israel as an objecting quasi-litigant while magnifying the role and rights of the Assembly; upholding questionable Assembly practices; presenting a sanitized and skewed version of the crucial factual and legal contexts; embracing a simplistic and Manichean view of the rights and obligations of the protagonists in conflicts bearing on self-determination; and unjustifiably restricting the Charter-affirmed inherent right of self-defense. In all this, it faithfully mirrored the perspective of the Assembly and proved itself, more patently than ever before, to be a Court of “UN Law” rather than of consensual international law. And to the extent that its “UN Law” perspective continues to spill over from the advisory to the contentious sphere, the process of “undeifying” the Court may gather strength.