Evitare di pronunciarsi? Questioni di giurisdizione e propriety nell’ottica delle relazioni istituzionali tra gli organi delle Nazioni Unite

This contribution examines the treatment of preliminary questions of competence and propriety in the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory opinion. These aspects rises some important problems which concern the relationships among the principal organs of the United Nations: a) between General Assembly and Security Council as to the validity of the request according to article 12 of the Charter (and hence as to the competence of the Court to issue the opinion); and b) between the International Court of Justice and the Security Council as to the propriety of the exercise by the Court of its consultative function on a question which is also relevant for the Security Council's responsibility to maintain international peace and security. While some commentators note that the principle that the ICJ must participate in the work of the Organisation might sometimes conflict with its judicial character, the author argues that "the delivery of the advisory opinion by the court should be positively valued in the perspective of enhancing the main role of the ICJ's advisory function in clarifying the law and providing guidance for future action by the UN organs.