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328 Chapter 14
character, and not inconsistent with the Court’s judicial function, has
consistently been raised by disputants. However, although article 65(1) of
the ICJ Statute plainly allows plenty of room for deference towards other
organs of the UN and other international actors and the discretion to
refuse to assume jurisdiction, the ICJ has made it plain that although it has
this discretion, the Court has never refused a request to provide an Advisory
Opinion. 42
The Court stresses that when a case includes political aspects as so
often happens in the international arena, it does not serve to deprive the
case of its character as raising a ‘legal question’ or to ‘deprive the Court of
a competence expressly conferred on it by its Statute’. 43 The ICJ has
insisted that whatever its political aspects, the Court cannot refuse to admit
the legal character of a question which invites it to discharge an essentially
judicial task. 44 In Legality of the Threat or Use of Nuclear Weapons case, the
ICJ stated that its judicial function involves ascertaining the existence or
otherwise of legal principles and applicable rules, and stating the law, even
if, in stating and applying the law, the Court necessarily has to specify its
scope and content and sometimes note its general trend. 45 Critical to note is
the point that in stating and applying the law, the Court necessarily has to
specify its scope and content. It is thus submitted that if, for instance, an
issue pertaining to the right of peoples to self-determination as provided
for in article 55 of the UN Charter arose, within the exercise of its judicial
function, the ICJ would have to define the content of that right in order to
specify its scope.
In spite of being urged not to exercise its Advisory Opinion jurisdiction –
based on such arguments as legitimacy, separation of powers among the
organs of the UN, institutional competence, polycentric issues, the fact that
the General Assembly or the Security Council have the requisite
competence – the ICJ has declined to abdicate its judicial task of
determining the legal questions brought before it, or to clarify the scope of
the law, its general trend, or to spell out the legal consequences of the
conduct of subjects of international law. Indeed, the ICJ has emphasised that
as a principal organ of the UN, its decisions in such cases should not be seen
as a usurpation of the roles of other principal organs of the UN, but rather
as representing its participation in the activities of the UN. Hence, requests
to render such decisions should not be refused. 46 Thus, notwithstanding
the very permissive words of article 65(1) of the ICJ statute for the Court
42 Legal consequences of the construction of a wall in the occupied Palestinian
territory, Advisory Opinion (2004) ICJ Reports 136 156.
43 ‘Application for review of Judgment no 158 of the United Nations Administrative
Tribunal’ Advisory Opinion ICJ Reports (1973) 172 para 14.
44
(1950) ICJ Reports 6 - 7; ‘Certain expenses of the United Nations (art 17 para 2 of the
Charter)’ Advisory Opinion, ICJ Reports (1962) 155.
45 (1996) ICJ Reports 226, 237 para 18.
46
‘Interpretation of Peace Treaties with Bulgaria, Hungary and Romania’ First Phase,
Advisory Opinion, (1950) ICJ Reports 71.