The Role of Advisory Opinions in International Justice and in the Practice of the EAEU Court

Abstract

The article addressed the issue of the regulatory foundation and a current practice of the use of advisory jurisdiction by international courts authorized to perform it. In the absence of universally accepted international rules governing advisory jurisdiction, international courts vary significantly regarding to a list of entities authorized to seek an advisory opinion, as well as a scope of the rules of international law which might be a subject of the opinion sought. Current practice of advisory opinions of international courts reveals that their advisory jurisdiction might be effectively used not for the interpretation of the existing rules of international law, but also as a tool for problem solving in international organizations where relevant courts have been established as well as to circumvent or neutralize limitations or omissions in contentious jurisdiction of the relevant court. The article expresses a rather unpopular view that advisory opinion could not only develop international law but also cause a range of significant problems including attempts to use judicial opinions to solve interstate disputes despite a lack of consent and objections of disputing parties. Talking about legal force or legal effect of advisory opinions which as a rule could not have biding force, it is submitted that such opinions have a force of persuasion (res interpretata) which by no means is a priori given and constant feature. Such force of judicial opinions varies from court to court and inside the court from opinion to opinion depending from the authority of the court in question, from the persuasiveness of arguments. Despite from the fact that a practice of advisory opinions is still emerging in the activity of the Court of the Eurasian Economic Union, all specific features of the use of advisory jurisdiction of international courts and all risks connected to them are fully relevant to this Court.
For citation: Kadysheva O.V. (2022) The Role of Advisory Opinions in International Justice and in the Practice of the EAEU Court. Law. Journal of the Higher School of Economics, vol. 15, no 1, pp. 208–231 (in Russ.). DOI:10.17323/2072-8166.2022.1.208.231.