Summary
The International Court of Justice Advisory Opinion of 1975, as Judge Owada presents it in his Wall separate opinion: probably the closest precedent to the Wall case, in the sense that there was clearly an underlying legal controversy or dispute between the parties involved, but even it does not offer a completely analogous precedent from which the Wall Court could draw its conclusion (Separate opinion of Judge Owada, Wall Advisory Opinion, PDF p.5-6).
Details
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The Court in that case stated that the object of the General Assembly had not been to bring a dispute or legal controversy before the Court in order later to exercise its powers for the peaceful settlement of that dispute; the object was an entirely different one, to obtain an opinion the Assembly deemed of assistance for the proper exercise of its functions concerning the decolonization of the territory (Advisory Opinion, I.C.J. Reports 1975, pp. 26-27, para. 39, quoted, PDF p.5-6).
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From that case Owada takes the critical test for judicial propriety: whether giving a reply would have the effect of circumventing the principle that a State is not obliged to allow its disputes to be submitted to judicial settlement without its consent (I.C.J. Reports 1975, p. 25, para. 33, as presented at PDF p.6; the passage is given without quotation marks on the Owada source page because the text copy garbles two words in it).
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From that case he also takes the statement of judicial character under Statute Article 65, paragraph 1: in exercising its discretion the Court has always been guided by the principle that, as a judicial body, it is bound to remain faithful to the requirements of its judicial character even in giving advisory opinions (I.C.J. Reports 1975, p. 21, para. 23, quoted, PDF p.6).
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On judge ad hoc: in response to a request by Morocco for the appointment of a judge ad hoc in accordance with Article 89 (i.e. present Article 102) of the Rules of Court, the Court found Morocco entitled to choose a judge ad hoc in the proceedings; a similar request by Mauritania was rejected (I.C.J. Reports 1975, p. 6, as presented at PDF p.7).
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Owada’s use of the case: in the Wall case the presumed objective of the General Assembly would not seem to be the decolonization-assistance object so much as the settlement object, so even this closest case is not completely analogous (PDF p.5-6).
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Israel’s written statement of January 2004 relies on this case for the Article 65(1) discretion and for the proposition the statement quotes, that the consent of an interested State continues to be relevant, not for the Court’s competence, but for the appreciation of the propriety of giving an opinion, and that lack of consent may make an opinion incompatible with judicial character where a reply would circumvent the consent principle; it distinguishes the case on its facts, noting the extensive documentary evidence the Court received there and that Spain had not opposed referral of the question as such (Letter of 29 January 2004 and Written Statement of the Government of Israel on Jurisdiction and Propriety, PDF p.102, p.106-108).
Related pages
Separate opinion of Judge Owada, Wall Advisory Opinion, Hisashi Owada, International Court of Justice, Status of Eastern Carelia, Namibia Advisory Opinion