Shadowing Adversarial Proceedings? The ICJ’s Lesser-Known Discretion in Advisory Procedure

Abstract The advisory proceedings of the ICJ and its predecessor, the PCIJ , have traditionally drawn upon the procedural rules and practices established in contentious proceedings. However, this process of assimilation has never been automatic; rather, it reflects a discretionary authority exercised by the Courts, now explicitly enshrined in Article 68 of the ICJ Statute. Departing from prior scholarship that primarily catalogues instances of such assimilation, this article examines the broader factors influencing the ICJ ’s discretion in assimilating its two distinct procedures. Beyond institutional principles, the analysis underscores the significant influence of a pending dispute underlying the questions submitted for advisory opinions, illustrating its role in shaping the Court’s discretionary choices. Furthermore, the study focuses on the ICJ ’s interpretation of its discretion and argues that the Court does not confine itself to the assimilation of provisions but also incorporates adversarial procedural concepts and practices into its advisory procedure.