This chapter examines the advisory procedure ascribed to some non-compliance mechanisms of multilateral environmental agreements (MEAs). Given its entirely facilitative nature, this chapter argues that the advisory procedure is an efficient implementation/compliance technique while preventing environmental harm and disputes between States. To that aim, this chapter presents three sections. First, the chapter presents a brief comparative overview of the nature of non-compliance mechanisms across MEAs. Second, it examines the architecture of the UNECE Water Convention’s advisory procedure and studies its practice in the recent Cijevna/Cem River advisory procedure (Montenegro/Albania). Third, it identifies areas of opportunity for adopting a similar advisory procedure to help improve the implementation of other existing and future multilateral agreements, such as the BBNJ Agreement, the Global Treaty on Plastics Pollution or the Pandemic Treaty.

Chapter 6 is devoted to the functioning of the EAEU Court and its ability to fulfil its aim of ensuring uniform application of EAEU law, and eventual aptitude to ensure the formation and continued existence of the autonomous legal order. The Court relies significantly on EU case-law as its main source of inspiration, making references to it and at times adopting similar doctrines. Some basic judicial remedies available in the EAEU are similar to those in the EU, however the focus is on the remedies that are absent while of paramount importance for legal order autonomy. Thus, the chapter reviews the special case of preliminary ruling as a mechanism ensuring uniform application and interpretation of law throughout the organization, and in the absence thereof, looks for a substitute. It reviews some other limitations that the Court has suffered and explores the reasons for that, including the analysis of some highly controversial decisions of the Court. It also addresses the issue of exclusive jurisdiction of the Court. It is argued that these challenges are the hardest to overcome. Nevertheless, it is demonstrated that there are ways out and that certain treaty-imposed limitations are virtually impossible to uphold in practice.

This chapter addresses the Court’s jurisdiction in contentious cases and its jurisdiction in advisory opinions, using specific examples from the Court’s judgments and opinions. It considers whether a novel approach is needed to confer on the Court compulsory jurisdiction across a wider range of disputes.

The Security Council was called into session to discuss Syria’s proposal, with a view to voting on it. Prior to the session, delegates for the Provisional Government of Israel asked the United States to make the main speech against the proposal. The United States declined but indicated it would support Aubrey Eban when he spoke against Syria. Eban did make the major argument. The main speech in favor of the proposal was made by Syria. The proposal was put to a vote. Of the eleven states on the Security Council, six voted in favor of Syria’s proposal, one state voted against, while four abstained. In the Security Council, a qualified majority of seven was required for any resolution to be adopted. Syria’s proposal thus fell one vote short of passage.

While the General Assembly was considering whether to recommend partitioning Palestine, the Arab states that were UN members asked the General Assembly to submit to the UN judicial arm, the International Court of Justice, the question of the legitimacy of partition. This proposal was backed by nearly half of the UN membership but failed of passage. The International Court of Justice has the power to issue a non-binding opinion on any legal question put to it by the General Assembly or Security Council. After a Jewish state was declared, Syria made a proposal in the Security Council to seek such an advisory opinion on the legal status of Palestine upon Britain’s withdrawal, and the legitimacy of the Jewish state that was declared at that time. Syria’s view was that Palestine as a single entity automatically acquired independence upon Britain’s withdrawal. It proposed an advisory opinion in the expectation that the International Court of Justice would agree. In initial discussion of this proposal in the Security Council, several members spoke in its support. A vote on the proposal was put off to a future meeting.

Following the initial Security Council discussion of Syria’s proposal for an advisory opinion, the Legal Advisor for the Provisional Government of Israel, Jacob Robinson, approached Hersch Lauterpacht, Professor of international law at the University of Cambridge, asking him to suggest arguments to make in opposition to Syria. A few months earlier, at the request of the political body proposing Jewish statehood, Lauterpacht had drafted a declaration for a Jewish state in Palestine. Lauterpacht answered with a series of reasons why members of the Security Council should defeat Syria’s proposal. Lauterpacht stressed the complexity of the issue as a reason against seeking an advisory opinion. He also suggested saying that the issues on which Syria wanted an opinion were political rather than legal in nature. Lauterpacht’s responses reflected both his legal advice and his personal opposition to Syria’s proposal. His reasons were conveyed to Aubrey Eban, who was the main spokesperson for the PGI at the United Nations.

In late 1948, the General Assembly scheduled a major debate to consider what the General Assembly might do to resolve the conflict. Syria and the other Arab states again proposed that the International Court of Justice be asked for an advisory opinion. Twenty-one states voted in favor, the same number, twenty-one, voted against, and four abstained. That split meant there was not a majority in favor, so the proposal failed. In December 1948 in the Security Council, Syria again forced a vote on the issue but again fell short.

This chapter examines the ECtHR’s supranational authority in detail analyzing the Court’s classical function of providing judicial review, its remedial practice as well as the new advisory jurisdiction as introduced by Protocol 16. Acknowledging that the ECHR system cannot be connected to a larger autonomous political unit, the claim is put forward is that the ECtHR nonetheless provides for a complementary layer of public authority which directly operates on individuals alongside that of domestic legal systems. The ECtHR enjoys a broad measure of autonomy over states and may circumvent the state veil by placing individuals under international protection or responsibilizing domestic authorities. The direct interaction with domestic actors not only represents part of the Court’s supranational authority but informs, at the same time, its legitimacy as the Convention community feeds on domestic actors, individuals especially, directly submitting their arguments to the Court.

This chapter makes the case that it is appropriate, and justified, to revisit – based on existing international legal obligations – the problem of veto use in the face of genocide, crimes against humanity, and/or war crimes. The chapter presents three main legal arguments that indicate there are legal limits (or constraints) on the use of the veto in the face of genocide, crimes against humanity, and/or war crimes. First, the chapter argues that the veto power, which is conferred by the UN Charter, is subordinate to the highest-level jus cogens norms; as a consequence, the veto should not be used (i) where it has the effect of facilitating ongoing jus cogens violations, (ii) where it undermines the duty of other Security Council members to cooperate to make an appropriate response to a serious breach of a jus cogens norm, or (iii) where its use is inconsistent with jus cogens protections. Second, the chapter argues that the veto power sits within the context of the UN Charter, which states that the Security Council must act pursuant to the UN’s “Purposes and Principles”; a veto in the face of genocide, crimes against humanity, and/or war crimes does not accord with the UN’s “Purposes and Principles.” Third, the chapter argues that there are also treaty obligations that bind individual permanent member states, such as those under the Genocide Convention and 1949 Geneva Conventions, and veto use should not be contrary to obligations created under these treaties.

In light of the issues raised, the chapter considers the scope of judicial review by the International Court of Justice (“ICJ”), concluding that the above legal questions are ones on which the ICJ could, and should, opine. Ultimately, the chapter suggests that the General Assembly consider requesting an advisory opinion from the ICJ on a question such as: does existing international law contain limitations on the use of the veto power by permanent members of the UN Security Council in situations where there is ongoing genocide, crimes against humanity, and/or war crimes?