Contentious Matters and the Advisory Power: The ICJ and Israel's Wall

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.1 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 ex parte. 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. I. BACKGROUND TO THE ISRAELI WALL OPINION Palestine and the General Assembly sought this advisory opinion following a failed Palestinian attempt to achieve a resolution from the Security Council. The draft of the October 2003 resolution would have "condemned as illegal the construction by Israel of a wall in the Occupied Palestinian Territory departing from the Armistice Line of 1949."2 Instead, by virtue of its "special status of observer," granted by the General Assembly, Palestine had more success in cosponsoring a resolution requesting the ICJ to issue an advisory opinion on the matter.3 Unlike Article III courts in the United States, the ICJ has competence and jurisdiction to render advisory7 opinions on "legal questions" submitted by any authorized body. By statute, such bodies include the General Assembly, the Security Council, and other organizations the General Assembly so chooses.4 Parties appearing before the Court in advisory cases need not be Members of the UN nor even states at all. The practice of issuing advisory opinions began in the Permanent Court of International Justice ("PCIJ"), predecessor to the ICJ and created along with the League of Nations. After some debate, UN founders granted advisory power to the ICJ under essentially the same terms as that of PCIJ.5 II. THE LEGAL ARGUMENT A. CONTENTIOUS NATURE OF ENTITIES INVOLVED In the procedural sense, the Court was certainly correct that this was not a contentious case. In fact, the same issue could not have been presented in a contentious case before the Court for two reasons. First, Palestine is not a member of the United Nations, a qualifier necessary to appear as a party in a contentious case before the ICJ. second, Israel has steadfastly asserted it would not submit to jurisdiction before the Court for issues related to the occupation of Palestine.6 Beyond these technical distinctions, however, the case bore many similarities to a contentious matter. Although many parties presented before the Court, this matter involved essentially two entities, engaged in a border dispute.7 Border disputes in particular are a common source of contentious cases before international courts.8 Against this backdrop, the ICJ decided a matter which looks thoroughly like a contentious case under the auspices of advisory power. By rejecting American and Israeli challenges over the undeveloped fact pattern, the Court implicidy reasoned that this case was not abstract, but rather quite specific. …