Question : Explain the scope of the International Court of Justice jurisdiction in giving Advisory

Opinion on legal matters as discussed in the Legality of the Threat or Use of Nuclear Weapons on
1996.

The ICJ and its jurisdictions

The International Court of Justice (ICJ) is the principal judicial organ of the United Nations (UN)1.
The Court has two types of jurisdiction namely, contentious jurisdiction and advisory jurisdiction.
Contentious jurisdiction of the ICJ indicates that the court decides on disputes of a legal nature that are
submitted to it by States in accordance with the international law. In other word, it invloves States that
submit the dispute by consent to the Court for a binding decision.On the other hand, the court’s
advisory jurisdiction suggests that the court gives advisory opinions on legal questions upon the
request of the organs of the United Nations, specialized agencies or one related organization
authorized.

The advisory opinion of ICJ

Basically, an advisory opinion is a legal advice provided by the International Court of Justice in
response to the request made to it by the organs of United Nations or a specialized agency. Section
65 of the Statute of International Court Of Justice confers the Court with discretion to give an
advisory opinion on any legal question upon request of whatever body may be authorized by or in
accordance with the Charter of the United Nations to make such a request. This provision further
requires such body to present a written request before the court on such questions upon which the
advisory opinion of the Court is requested, in addition, it must be accompanied by all documents
likely to throw light upon the question.

The types of matter that can be referred to ICJ for advisory opinion depends on which body
requested for it. Reference can be made to Article 96 of Charter of UN. For General Assembly and
the Security Council, they may request ICJ’s advisory opinions on any legal matter, while other

1 Article 92 of Charter of United Nations (1945)

organs and specialized agencies may request advisory opinions only on legal questions arising within
the scope of their activities.2

The scope of ICJ in giving advisory opinion.

As mentioned earlier, the ICJ has a discretion to give an advisory opinion on any legal question
upon request by virtue of Article 65 of Statute of ICJ. However, this advisory jurisdiction is not
completely unfettered. The scope of such jurisdiction is limited by two rules. First, the dispute must
be of a legal question, second, the court may decide whether to answer the question referred to it or
not, it is open to the court to conclude that a particular case falls outside of its advisory
capacity/competency.

This is well reflected in the landmark case of Legality of the Threat or Use of Nuclear Weapons
on 1996.3 This is the case where the ICJ handed down its advisory opinion on the request made by
the General Assembly of the UN on the dispute. On December 20, 1994, the General Assembly of
the UN had requested to the ICJ to give an advisory opinion on the question of whether the threat or
use of nuclear weapons, in any circumstances, is permitted under international law or not? In
response to it, the Court stated that there is no source of law, customary or treaty, which expressly
prohibits the possession or use of nuclear weapons. The only requirement to be observed is that the
usage of nuclear weapons must be in accordance with the law on self - defense
and the international humanitarian law principles.

To examine the scope or extent of ICJ’s jurisdiction in giving advisory opinion, the wordings of
paragraph 13 of the case report must be read. Here, it was highlighted that the Court must satisfy
itself that the advisory opinion requested does indeed relate to a "legal question" within the meaning
of its Statute and the United Nations Charter. Hence, it can be inferred that the scope or extent of the
ICJ’S advisory opinion is only over a matter concerning legal question. If the dispute concerning
matters not relating to legal question, then it would fall outside of the jurisdiction of the ICJ.
Reference can be made to Article 96, paragraph 1, of the Charter of UN.

2 Article 96 of Charter of United Nations (1945)

3 I. C.J. Reports 1996, p. 226

 In this case, the Court is satisfied that such request is related to a legal question within the ambit
of the Statute of ICJ and the Charter of UN and that there were no compelling reasons to refuse the
request. The fact that the question regarding legality of use of nuclear weapons did not relate to a
specific dispute and was couched in abstract terms is immaterial, as long as it is a question of law,
then the jurisdiction of the Court to give an advisory opinion will come into picture. To add to that,
the Court in this case also confirmed the Assembly's competence to make such a request by virtue of
the provision of the Charter of United Nations and the Assembly's longstanding activities regarding
disarmament and nuclear weapons.

In conclusion, the scope of International Court of Justice’s advisory jurisdiction in giving

advisory opinion on legal matters is not limitless as there are two restrictions set out by the Statute of
ICJ as mentioned above. Nevertheless, in real life practice, neither limitations is posing a significant
obstacle to the ICJ’s jurisdiciton in giving advisory opinion because there could be a situation where
there is no clear dividing line between legal question and other question such as political questions.