Chicago Journal of International Law


The International Court of Justice ("ICJ"), the judicial arm of the United Nations, recently issued an advisory opinion concerning the legal consequences of Israel's construction of a wall separating it from the Occupied Palestinian Territory. Although issued under the auspices of advisory power, this case concerned the interests of two entities: the state-like Palestinian Authority and the state of Israel. The subject matter was contentious, with the entities engaged in a politically charged border dispute. In a traditional contentious matter, the ICJ may only adjudicate cases between consenting states. However, a truly contentious proceeding was not possible in this case. Palestine was and remains incapable of consenting to contentious jurisdiction because it is not a member of the UN, and Israel has steadfastly refused to offer its consent. In choosing to resolve the legal questions submitted by the General Assembly, the ICJ has created two distinct problems. First, the legal ramifications of issuing an advisory opinion in a contentious matter establish opportunities for future entities, through the use of the General Assembly, to achieve favorable judgments exparte. Second, because Palestine may not actually appear in a contentious proceeding, the Court's opinion here can only be understood as a political statement. Each problem raises issues of the relevancy and the continued vitality of the Court, and each may give significant pause to those states who continue to consent to the ICJ's jurisdiction.