Summaries of Judgments, Advisory Opinions and Orders of the International Court of Justice
provides that, "[w]hile the Security Council is exercising in respect of any dispute or situation the functions assigned to it in the…Charter, the General Assembly shall not make any recommendation with regard to that dispute or situation unless the Security Council so requests."
The Court observes, however, as it has done on an earlier occasion, that "[a] request for an advisory opinion is not in itself a `recommendation' by the General Assembly `with regard to [a] dispute or situation'" (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I), p. 148, para. 25). Accordingly, the Court points out that while Article 12 may limit the scope of the action which the General Assembly may take subsequent to its receipt of the Court's opinion, it does not in itself limit the authorization to request an advisory opinion which is conferred upon the General Assembly by Article 96, paragraph 1.
The Court notes that, in the present case, the question put by the General Assembly asks whether the declaration of independence to which it refers is "in accordance with international law". A question which expressly asks the Court whether or not a particular action is compatible with international law certainly appears to be a legal question. It also observes that, in the present case, it has not been asked to give an opinion on whether the declaration of independence is in accordance with any rule of domestic law but only whether it is in accordance with international law. The Court can respond to that question by reference to international law without the need to enquire into any system of domestic law.
The Court recalls that it has repeatedly stated that the fact that a question has political aspects does not suffice to deprive it of its character as a legal question (Application for Review of Judgement No. 158 of the United Nations Administrative Tribunal, Advisory Opinion, I.C.J. Reports 1973, p. 172, para. 14). The Court adds that, whatever its political aspects, it cannot refuse to respond to the legal elements of a question which invites it to discharge an essentially judicial task, namely, an assessment of an act by reference to international law. The Court has also made clear that, in determining the jurisdictional issue of whether it is confronted with a legal question, it is not concerned with the political nature of the motives which may have inspired the request or the political implications which its opinion might have (Conditions of Admission of a State in Membership of the United Nations (Article 4 of the Charter), Advisory Opinion, 1948, I.C.J. Reports 1947-1948', p. 61, and Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996 (I), p. 234, para. 13).
In light of the foregoing, "[t]he Court therefore considers that it has jurisdiction to give an advisory opinion in response to the request made by the General Assembly."
The Court then notes that "[t]he fact that [it] has jurisdiction does not mean, however, that it is obliged to exercise it";
