Theory Of "Legal Question" In The Advisory Jurisdiction Of The International Court Of Justice

The International Court of Justice (ICJ), as the principal judicial organ of the United Nations, plays an important role in settling international legal disputes and promoting the development of international law. However, the relevant countries often raise various objections in an attempt to prevent the ICJ from exercising the advisory jurisdiction as a matter of their national interests, in which the most representative request against the ICJ’s exercise of the advisory jurisdiction is that the question requested for an advisory opinion by authorized organs is not the "legal question".The ICJ defines a question with request for an advisory opinion which refers to international issues as the legal question in a very simple way. If one question was defined to be a legal question, the question must be met with certain formal requirements and substantial elements. The General Assembly or the Security Council may request the ICJ to give an advisory opinion on any legal question. While other organs of the United Nations and specialized agencies, which may at any time be so authorized by the General Assembly, may also request advisory opinions of the Court on legal questions arising within the scope of their activities. The organs or agencies with the power to request the ICJ to give advisory opinion (the authorized organs) should submit the questions to the ICJ through appropriate legal procedures if they intend to obtain the opinions. The questions aforesaid to the ICJ would be the legal questions absolutely as long as they have the legal nature, present the issues of the international law and could be replied in accordance with principles and rules of the international law.The questions submitted to the ICJ by the authorized organs usually include the factual questions or political questions which can’t change the legal nature of these questions. The ICJ would refuse to give advisory opinion for the purely factual questions. However, it would be opposite that the questions would be the legal questions which are governed by the ICJ if the factual questions contain the legal nature when the factual questions violate the duties of the international law or are involved in issues of the international law. The questions for advisory opinion are legal questions if only the questions have connection with the issues of the international law and are required to be assessed by any principles and rules of the international law no matter how the questions encompass the political factors, have the political nature or political motive or the related political background, or involved in relevant political disputes or make a greatly political influence. In another hand, legal question is different from the legal disputes in the ICJ advisory jurisdiction. The meaning to distinguish the legal question from legal disputes is that the legal question is regulated by advisory jurisdiction with the legal disputes regulated by the contentious jurisdiction as a lawsuit between the different countries.In the practice of the ICJ advisory jurisdiction, the ICJ will initiatively follow the principle of judicial appropriateness and the principle of ascertaining law by the ICJ. The principle of judicial appropriateness refers to the standard of the ICJ should provide an advisory opinion after reviewing the factors which influenced the legal nature of the question and identifying that these factors affect the legal nature of the question. The principle of ascertaining law by the ICJ means that the ICJ itself has the right to find the applicable law that is used to ascertain the legal question. The flexible tendency is adopted to recognize the legal question, in which the questions involving the issues of the international law would be regarded as the legal question. The reason that the flexible tendency formed is mainly affected at the regulations of the ICJ Statute, the value orientation of the international law and the legal nature of the ICJ.In the future, the principle of corporation will be the overall guidance of the ICJ’s practice of the advisory opinion, and the principle of judicial appropriateness will be more applicable in ascertaining legal question process. For China, the advisory jurisdiction of the ICJ well gives a good indication of opportunities and challenges. In the ICJ’s advisory jurisdiction practice, ICJ gradually developed the determination of the constitutive requirements of the legal question and the basic principle of the determination of the legal question, which afford the significant inspiration for China’s response to deal with the challenges of the ICJ advisory opinion and for China’s active use of the advantage of the advisory jurisdiction to solve the legal disputes.