An advisory opinion is an opinion issued by a court A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law. In both common law and civil law legal systems, courts are the central means for dispute that does not have the effect of adjudicating a specific legal case A legal case is a dispute between opposing parties resolved by a court, or by some equivalent legal process. A legal case may be either civil or criminal. There is a defendant and an accuser, but merely advises on the constitutionality or interpretation of a law. Some countries have procedures by which the executive On the study of political science the executive branch of government has sole authority and responsibility for the daily administration of the state bureaucracy. The division of power into separate branches of government is central to the republican idea of the separation of powers or legislative branches A legislature is a type of deliberative assembly with the power to pass, amend, and repeal laws. The law created by a legislature is called legislation or statutory law. Legislatures are known by many names, the most common being parliament and congress, although these terms also have more specific meanings. In parliamentary systems of government, may certify important questions to the judiciary The judiciary is the system of courts which interprets and applies the law in the name of the sovereign or state. The judiciary also provides a mechanism for the resolution of disputes. Under the doctrine of the separation of powers, the judiciary generally does not make law (that is, in a plenary fashion, which is the responsibility of the and obtain an advisory opinion. In other countries or specific jurisdictions, courts may be prohibited from issuing advisory opinions.

Contents

International Courts

International Court of Justice

The International Court of Justice The International Court of Justice is the primary judicial organ of the United Nations. It is based in the Peace Palace in The Hague, Netherlands. Its main functions are to settle legal disputes submitted to it by states and to give advisory opinions on legal questions submitted to it by duly authorized international organs, agencies, and the UN is empowered to give advisory opinions under Chapter IV of its Statute (an annex to the United Nations Charter The Charter of the United Nations is the foundational treaty of the international organization called the United Nations. It was signed at the San Francisco War Memorial and Performing Arts Center in San Francisco, United States, on June 26, 1945, by 50 of the 51 original member countries . It entered into force on October 24, 1945, after being) when requested to do so by certain organs or agencies of the United Nations The United Nations Organization or simply United Nations (UN) is an international organization whose stated aims are facilitating cooperation in international law, international security, economic development, social progress, human rights, and the achieving of world peace. The UN was founded in 1945 after World War II to replace the League of. These opinions are non-binding, but Pieter H.F. Bekker has argued that this non-binding character does not mean that advisory opinions are without legal effect, because the legal reasoning embodied in them reflects the Court's authoritative views on important issues of international law and, in arriving at them, the Court follows essentially the same rules and procedures that govern its binding judgments delivered in contentious cases submitted to it by sovereign states. In his view, an advisory opinion derives its status and authority from the fact that it is the official pronouncement of the principal judicial organ of the United Nations.[1]

Advisory Opinions have often been controversial, either because the questions asked were controversial, or because the case was pursued as a "backdoor" way of bringing what is really a contentious case before the Court. The full list of the court's advisory opinions can be found in the section advisory opinions in the List of International Court of Justice cases article.

Inter-American Court of Human Rights

The advisory function of the Inter-American Court of Human Rights The Inter-American Court of Human Rights is an autonomous judicial institution based in the city of San José, Costa Rica enables it to respond to consultations submitted by agencies and member states of the Organization of American States The Organization of American States is an international organization, headquartered in Washington, D.C., United States. Its members are the thirty-five independent states of the Americas, although Honduras was suspended as a result of the June 28, 2009 coup d’état that expelled President Manuel Zelaya from office regarding the interpretation of the American Convention on Human Rights The American Convention on Human Rights is an international human rights instrument. It was adopted by the nations of the Americas meeting in San José, Costa Rica, in 1969. It came into force after the eleventh instrument of ratification (that of Grenada) was deposited on 18 July 1978 or other instruments governing human rights in the Americas The Americas, or America, are lands in the Western hemisphere, also known as the New World, comprising the continents of North America and South America with their associated islands and regions. America may be ambiguous in English, as it is more commonly used to refer to the United States of America. The Americas cover 8.3% of the Earth's total. It is also empowered to give advice on domestic laws and proposed legislation, and whether or not they are compatible with the Convention's provisions.

National Courts

Canada

Under Canadian The land occupied by Canada was inhabited for millennia by various groups of Aboriginal peoples. Beginning in the late 15th century, British and French expeditions explored, and later settled, along the Atlantic coast. France ceded nearly all of its colonies in North America in 1763 after the Seven Years' War. In 1867, with the union of three Law The Canadian legal system has its foundation in the British common law system, inherited from being a former colony of the United Kingdom and later a member of the Commonwealth of Nations. Quebec, however, still retains a civil system for issues of private law. Both legal systems are subject to the Constitution of Canada, the reference question mechanism is equivalent to an advisory opinion.

The Supreme Court of Canada The Supreme Court of Canada is the highest court of Canada and is the final court of appeal in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions are stare decisis, binding upon all lower courts of will answer reference questions put forward by the Federal Government, while Provincial or Territorial government can put forward their question to their provincial/territorial highest appellate court for answer. If the provincial question was not answered or the government seek clarification on the answer, they can 'appeal' to the Supreme Court of Canada The Supreme Court of Canada is the highest court of Canada and is the final court of appeal in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions are stare decisis, binding upon all lower courts of.

United States

United States federal courts

United States ^ b. English is the de facto language of American government and the sole language spoken at home by 80% of Americans age five and older. Spanish is the second most commonly spoken language Federal The federal government of the United States is the central government entity established by the United States Constitution, which shares sovereignty over the United States of America with the governments of the individual U.S. states. For official purposes in U.S. courts, the government is sued as the United States of America, and is referred to civil procedure Civil procedure is the body of law that sets out the rules and standards that courts follow when adjudicating civil lawsuits . These rules govern how a lawsuit or case may be commenced, what kind of service of process (if any) is required, the types of pleadings or statements of case, motions or applications, and orders allowed in civil cases, the doctrines
Justiciability Justiciability concerns the limits upon legal issues over which a court can exercise its judicial authority. It is not to be confused with standing, which is used to determine if the party bringing the suit is a party appropriate to establishing whether an actual adversarial issue exists; standing is thus an element of justiciability. Essentially,
Advisory opinions
Standing In United States law, the Supreme Court of the United States has stated, "In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues" · Ripeness In United States law, ripeness refers to the readiness of a case for litigation; "a claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all." For example, if a law of ambiguous quality has been enacted but never applied, a case challenging that law · Mootness In American law, a matter is moot if further legal proceedings with regard to it can have no effect, or events have placed it beyond the reach of the law. Thereby the matter has been deprived of practical significance or rendered purely academic
Political questions Recently, courts have held that Congress's impeachment procedures and the President's authority over foreign affairs, particularly the President's powers to abrogate treaties and commit troops, are political questions
Jurisdiction Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility. The term is also used to denote the geographical area or subject-matter to which such authority
Federal question jurisdiction Federal question jurisdiction is a term used in the United States law of civil procedure to refer to the situation in which a United States federal court has subject-matter jurisdiction to hear a civil case because the plaintiff has alleged a violation of the Constitution or law of the United States, or treaties to which the United States is a
Diversity jurisdiction In the law of the United States, diversity jurisdiction is a form of subject-matter jurisdiction in civil procedure in which a United States district court has to hear a civil case because the persons that are parties are "diverse" in citizenship, which generally indicates that they are citizens of different states or non-U.S. citizens. (
Supplemental jurisdiction
Removal jurisdiction In the United States, removal jurisdiction refers to the right of a defendant to move a lawsuit filed in state court to the federal district court of the original court's district. This is a general exception to the usual American rule giving the plaintiff the right to make the decision on the proper forum
Amount in controversy Amount in controversy is a term used in United States civil procedure to denote a requirement that persons seeking to bring a lawsuit in a particular court must be suing for a certain minimum amount before that court may hear the case
Class Action Fairness Act of 2005 The U.S. Class Action Fairness Act of 2005, 28 U.S.C. Sections 1332, 1453, and 1711-1715, expanded federal jurisdiction over many large class-action lawsuits and mass actions taken in the United States
Jurisdiction in rem Jurisdiction in rem is a legal term describing the power a court may exercise over property (either real or personal) or a "status" against a person over whom the court does not have "in personam jurisdiction". Jurisdiction in rem assumes the property or status is the primary object of the action, rather than personal
Minimum contacts
Federalism Federalism is a political concept in which a group of members are bound together by covenant with a governing representative head. The term federalism is also used to describe a system of the government in which sovereignty is constitutionally divided between a central governing authority and constituent political units (like states or provinces)
Erie doctrine In the law of the United States, Erie doctrine is a fundamental legal doctrine of civil procedure mandating that a federal court in diversity jurisdiction must apply state substantive law · Abstention An abstention doctrine is any of several doctrines that a court of law might apply to refuse to hear a case, when hearing the case would potentially intrude upon the powers of another court. Such doctrines are usually invoked where lawsuits involving the same issues are brought in two different courts at the same time, particularly two different
Sovereign immunity Sovereign immunity, or crown immunity, is a type of immunity that in common law jurisdictions traces its origins from early English law. Generally speaking it is the doctrine that the sovereign or state cannot commit a legal wrong and is immune from civil suit or criminal prosecution; hence the saying, the kings can do no wrong. In many cases, · Abrogation The Abrogation doctrine is a constitutional law doctrine expounding when and how the Congress may waive a state's sovereign immunity and subject it to lawsuits to which the state has not consented
Rooker-Feldman doctrine The Rooker-Feldman doctrine is a rule of civil procedure enunciated by the United States Supreme Court in two cases, Rooker v. Fidelity Trust Co., 263 U.S. 413 and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983). The doctrine holds that lower United States federal courts other than the Supreme Court have no subject matter
Adequate and independent state ground The adequate and independent state ground doctrine is a doctrine of United States law governing the power of the U.S. Supreme Court to review judgments entered by state courts

The United States Supreme Court The Supreme Court of the United States is the highest judicial body in the United States, and leads the federal judiciary. It consists of the Chief Justice of the United States and eight Associate Justices, who are nominated by the President and confirmed with the "advice and consent" of the Senate. Once appointed, Justices effectively has determined that the case or controversy The Case or Controversy Clause of Article III of the United States Constitution has been deemed to impose a requirement that United States federal courts are not permitted to hear cases that do not pose an actual controversy — that is, an actual dispute between adverse parties which is capable of being resolved by the court. The Court and legal requirement found in Article Three of the United States Constitution Article Three of the United States Constitution establishes the judicial branch of the federal government. The judicial branch comprises the Supreme Court of the United States and lower courts as created by Congress prohibits United States federal courts The United States federal courts comprises the Judiciary Branch of government organized under the Constitution and laws of the federal government of the United States. See also United States federal judge from issuing advisory opinions. Accordingly, before the court will hear a case, it must find that the parties have a tangible interest at stake in the matter, the issue presented must be "mature for judicial resolution" or ripe and a justiciable issue must remain before the court throughout the course of the lawsuit. While this doctrine is still in full force, there has been a liberalization of these requirements in recent years.

In a letter to President George Washington George Washington served as the first constitutional President of the United States from 1789 to 1797, and as the commander of the Continental Army in the American Revolutionary War from 1775 to 1783. His role in the revolution and subsequent independence and formation of the United States was significant, and is seen by Americans as the ", replying to the president's request for such an opinion, then-Chief Justice John Jay John Jay was an American politician, statesman, revolutionary, diplomat, a Founding Father of the United States, President of the Continental Congress from 1778 to 1779 and, from 1789 to 1795, the first Chief Justice of the United States. During and after the American Revolution, he was a minister (ambassador) to Spain and France, helping to replied that it would violate the separation of powers The separation of powers, also known as trias politica,is a model for the governance of democratic states. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the uncodified Constitution of the Roman Republic. Under this model, the state is divided into branches, each with separate and for the Supreme Court to provide such an opinion, noting that the president could rely on advice from anyone within the executive branch On the study of political science the executive branch of government has sole authority and responsibility for the daily administration of the state bureaucracy. The division of power into separate branches of government is central to the republican idea of the separation of powers under Article Two of the United States Constitution Article Two of the United States Constitution creates the executive branch of the government, comprising the President and other executive officers which expressly permits the President of the United States The President of the United States is the head of state and head of government of the United States. The president leads the executive branch of the federal government and is one of only two nationally elected federal officers, the other being the Vice President of the United States to "require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices." In other words, Jay informed President Washington that the President ought to turn to the Attorney General and perhaps other Cabinet secretaries when they require legal advice concerning American law. Over a century later the Court dismissed a case because there was no "actual controversy" between the parties; thus, any opinion rendered would be advisory.

United States state courts

Many state courts are similarly barred from issuing advisory opinions, although there are often specific exceptions to these limitations. Some states, like Rhode Island, permit the governor to certify questions on the constitutionality of laws to the state supreme court. Also, some states require their supreme court to give advisory opinions on particular matters, such as whether proposed amendments to the state constitution violate the U.S. Constitution.

Eight states have provisions in their constitutions permitting or requiring their supreme courts to give advisory opinions to the governor or legislature: Colorado, Florida, Maine, Massachusetts, Michigan, New Hampshire, Rhode Island and South Dakota. Two states provide for supreme court advisory opinions by statute: Alabama and Delaware. The texts of all the advisory opinion provisions are collected in M. Topf, "The Jurisprudence of the Advisory Opinion Process in Rhode Island," Roger Williams University Law Review, Vol. 2, Spring 1997, at 254-256. The article also gives a general treatment of how the advisory opinion process works. Topf also follows the story of the creation of a single Rhode Island advisory opinion (the only article to do so) in "The Advisory Opinion on Separation of Powers," Roger Williams University Law Review, vol. 5, Spring 2000, at 385-416.

Advisory opinions should not be confused with certified questions by one court to another, which are permissible. U.S. federal courts, when confronted with real cases or controversies in which the federal court's decision will turn in part on a question of state law, occasionally ask the highest court of the relevant state to give an authoritative answer to the state-law question, which the federal court will then apply to its resolution of the federal case (see e.g. Pullman abstention). Because the state court in such circumstances is giving an opinion that affects an actual case, it is not considered to be issuing an advisory opinion.

Florida

The Florida Supreme Court has two specific constitutional grants of authority to issue advisory opinions. First, it can issue an advisory opinion to the Governor of Florida on constitutional questions affecting the powers of the state's executive branch. Second, it can issue an advisory opinion to the Attorney General about two narrow legal issues affecting proposed citizens' initiatives to amend the state Constitution. These two issues are whether the ballot summary is fair and accurate and whether the initiative contains only a single subject as required by law. The Florida Supreme Court cannot include any other issue in its advisory opinion, including whether or not the initiative would be constitutional if adopted by the voters in the required statewide election.

See also

Look up advisory opinion in Wiktionary, the free dictionary.

References

  1. ^ The UN General Assembly Requests a World Court Advisory Opinion On Israel's Separation Barrier, Pieter H.F. Bekker, ASIL (American Society of International Law) Insights, December 2003.
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