Christoph Saake on his research stay at Oslo University

Research Assistant and PhD student Christoph Saake on his research stay at the PluriCourts Centre of Excellence at the University of Oslo, Norway

What is your field of research? For how long have you been working on your doctoral thesis and who is your supervising professor?

My field of research is public international law in general and the law of the United Nations in particular. In my doctoral thesis, which is supervised by Professor Dr. Mehrdad Payandeh, LL.M. (Yale) and which I started in 2019, I examine the advisory opinion procedure of the International Court of Justice (ICJ) on inter-State disputes. The ICJ is an international court located in The Hague that decides on all matters of international law. Additionally to being a court of justice, the ICJ is a principal organ of the United Nations. As an organ it is obliged to participate in the activities of the UN and to assist the other organs in their work. It does so by giving advisory opinions on any legal questions which authorised organs refer to the Court.

The other organs may ask from the Court advice on abstract legal questions, such as the interpretation of a multilateral treaty or the existence of a rule of customary international law. However, they may also refer to the Court specific legal questions relating to matters that are in dispute between States. It is the latter constellation which exemplifies most acutely the tension between the two characteristics of the Court being a court of justice and an organ of an international organisation.

 

Why is your research topic relevant in this day and age?

The relevance of my research topic is best exemplified by the Chagos advisory opinion which the Court issued in 2019. The UN General Assembly requested an advisory opinion from the ICJ on the question of whether the decolonization process of Mauritius had been completed when it gained its independence in 1968 or whether this would also require the return of the Chagos Archipelago by Great Britain to Mauritius. The group of islands located in the middle of the Indian Ocean is of significant geo-political importance to Great Britain as it has leased the main island, Diego Garcia, to the United States since the 1970s for the maintenance of a military base. From here, the United States Navy has been conducting several major operations in the Gulf region.

Great Britain sought to prevent the Court from giving the requested advisory opinion, arguing that the Court would by means of the advisory opinion decide a pending territorial dispute between Great Britain and Mauritius without British consent. It relied on a principle that was first recognised by the Court’s predecessor, the Permanent Court of International Justice, in 1923 according to which no State may be compelled against its will to submit its dispute with other States to judicial dispute settlement.

The advisory opinion, it was argued, constituted a circumvention of this principle. The UK argued that bilateral disputes should be the sole subject of the contentious procedure –  the second type of procedure before the ICJ – and that the settlement of such disputes required the consent of all parties to the dispute. The ICJ recognised that giving an advisory opinion with the sole purpose of settling a bilateral dispute would constitute a circumvention of the Court’s contentious procedure. However, the advisory opinion at hand was not directed at settling the territorial dispute but at providing legal guidance to the General Assembly on matters of decolonisation, a matter which has been of direct concern to the United Nations since its founding in 1945. The Chagos case exemplifies the tension between the Court’s character as a court of justice and as an organ of the UN.

As a court, the ICJ has to protect the integrity of its procedures. As an organ, it must support the other organs in any way possible. The promise of international law and of international adjudication is to objectivise highly political conflicts and by doing so decrease the tensions between States. An extensive use of the advisory opinion procedure could on the one hand extend this promise to more areas and possible make the organs of the UN better equipped to tackle current challenges, on the other hand it could make States wary of international organisations as they may be perceived as encroaching too much on their interests.

 

How do you hope to contribute to international legal discourse with your work?

In my doctoral thesis, I examine whether, and if so to what extent, the Court’s advisory function is subject to limits that result from the Court’s judicial function and from the interests of affected states. By analysing the Court’s jurisprudence and by examining the underlying legal doctrines, I hope to increase the understanding of how the Court operates and how the advisory opinion procedure may be used in the future.

 

What motivated you to pursue a research stay in Norway? Which results do you hope your research will yield?

From November 1 to December 17, 2021, I was a Visiting Researcher at the PluriCourts Centre for the Study of the Legitimate Roles of the Judiciary in the Global Order. PluriCourts is a research institute based at the Faculty of Law at the University of Oslo in Norway. At PluriCourts legal scholars, philosophers, and political scientists conduct research on the performance and legitimacy of international courts and tribunals.

It was the interdisciplinarity of the centre that made me pack my bags and move my research to the Oslo Fjord for two months. During my research stay in Oslo, I focused on two aspects: the effects of ICJ advisory opinions and the advisory opinion procedures of other international courts and tribunals. PluriCourts provided the ideal setting for both projects. Although most of the institute’s publications focus on the ECtHR, other courts and tribunals are also among the research topics of the nearly 20 scholars on site.

 

Could you share some impressions from your time abroad? How did you find the experience?

Right at the beginning of my research stay, I had the opportunity to present my research project and my previous research results to the institute during the weekly Monday meeting. This gave me the opportunity to re-sort my thoughts and at the same time get valuable feedback. In particular, feedback from Professor Geir Ulfstein on possible comparisons with other international courts and from Professor Andreas Føllesdal on the impact of advisory opinions and the legitimacy of international courts, gave me new perspectives on my topic.

In addition, a post-doc at the Institute was able to put me in touch with a researcher who is conducting research on domination in international law and State consent, through whom I gained access to additional sources. Even beyond the immediate exchange on my topic, the research stay contributed to broadening my perspective. Every Wednesday, for example, an interdisciplinary seminar was held in which lawyers, philosophers, and political scientists took turns presenting excerpts of current drafts or recently published works.

Seminar topics included Kant’s perspective on international courts and the legitimating interplay between national, international, and cosmopolitan courts (i.e., human rights courts), as well as strategically dealing with the peer review process of major international publishers. I also had the opportunity to participate in some Norwegian traditions like the traditional Christmas party of the Public Law Department of the University of Oslo – the so-called Julebord – as well as the PluriCourts Christmas party with gløgg and stick bread in the forest of Oslo.

I would like to thank Bucerius Law School for funding my research stay and Professor Mehrdad Payandeh and PluriCourts for making it possible.

Author

Christoph Saake

Hamburg