A request for an opinion must relate to a “question of law” (Article 96 of the Charter of the United Nations, Article 65 of the Statute of the ICJ). The ICJ noted that questions that are “legally formulated and raise issues of international law. are inherently capable of obtaining a response based on the law. The political aspects of the issue do not exclude the Court of Justice from its jurisdiction. (Request for review of Judgment No 158 of the United Nations Administrative Tribunal). A few days after the lodging of the Application, the Court shall draw up a list of States and international organizations which may be in a position to provide information on the matter before it. These States are not in the same situation as the parties to the dispute: their representatives before the Court are not known as agents and their participation in the advisory procedure does not make the Court`s opinion binding on them. As a general rule, the States listed are the member States of the organization requesting comments. Any State which has not been consulted by the Court may request the Court: The ICJ added, however, that some States had expressed concern that the abstract nature of the issue might lead the ICJ to make hypothetical or speculative statements outside its judicial function. However, the ICJ did not consider that, when issuing an opinion on the legality of the threat or use of nuclear weapons, it necessarily had to draft “scenarios”, examine different types of nuclear weapons and evaluate highly complex and politically controversial technological, strategic and scientific information. The ICJ would only have to deal with all aspects of the issues arising by applying the relevant legislation. As the ICJ had to see, it was anything but easy.
In their written submissions, some participants also argued that the ICJ should decline to issue the requested opinion because it had no useful use. They argued that ICJ opinions should be seen as a means of enabling an institution or body in need of legal clarification to obtain such clarification for its future action. In the present case, the argument continues, the General Assembly would not need an advisory opinion from the ICJ because it had already declared the construction of the wall illegal and had already determined its legal consequences by requesting Israel to halt and cancel the construction, and furthermore because the General Assembly had never specified how it intended to use that declaration. The ICJ stated that the statement asserted that the matter submitted to the ICJ was vague and abstract, meaning that there was no specific dispute over the subject matter of the question. The ICJ considered it necessary to draw a distinction between the requirements of the contested procedure and those applicable to expert reports. The purpose of the advisory function was not to settle, at least directly, disputes between States, but to provide legal advice to the institutions and bodies requesting the opinion.58 Therefore, the fact that the matter before the ICJ does not relate to a specific dispute should not lead the ICJ to refuse to issue the requested opinion. Moreover, the ICJ was clearly of the view that the statement that it should not deal with an abstract issue was “a mere confirmation without any justification” and that “the Court may give an opinion on any point of law, abstract or not”.59 This was a very broad statement. Article 48 provides that the Court of Justice shall decide whether a request for an opinion falls within its jurisdiction within the meaning of Article 47. This Article precludes the Court from dealing with questions relating to the content or scope of the rights and freedoms set out in the ECHR or the Protocols annexed thereto, or any other question which the Court or the Committee may have to examine on the basis of proceedings under the ECHR (i.e. questions: that could arise in the context of litigation). These matters do not seem to fall exclusively within the domestic competence of a State.
As these are questions of international law, they fall within the scope of matters over which the ICJ could exercise its advisory competence (see Interpretation of Peace Treaties). Some international organizations provide that the opinions they request are legally binding. This is usually the interpretation or application of the constituent instrument of the organization or a contract related to the organization. An example is the Convention on the Privileges and Immunities of the Specialized Agencies (1947).20 Section 32 of Article IX provides that any dispute arising out of the interpretation or application of this Convention shall be submitted to the ICJ unless the parties agree to have recourse to another method of settlement. In the event of a disagreement between one of the specialized agencies and a Member, advice on all relevant legal issues shall be sought. This would be done in accordance with Article 96 of the Charter of the United Nations and Article 65 of the Statute of ICJ, as well as the relevant provisions of the agreements concluded between the United Nations and the specialized agency concerned. The parties to the dispute shall regard the opinion of the expert as decisive. What are the legal consequences of the construction of the wall by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem, as described in the report of the Secretary-General, taking into account the rules and principles of international law, including the Fourth Geneva Convention of 1949, and relevant Security Council and General Assembly resolutions81? 85 In paragraphs 138-42, the ICJ rejected in less than a page the argument that the wall was legal because it was intended to protect the citizens of Israel from terrorist attacks. The ICJ referred to the wording of Article 51 of the Charter of the United Nations, which safeguards the right to self-defence and reflects the rule of customary international law.