The Legitimacy of the ICJ's Advisory Competence in the Shadow of the Wall

Abstract

This comment relates to a more universal aspect of the Wall opinion, asking whether the ICJ has promoted or undermined international law in its conduct, more particularly the legitimacy of the ICJ's advisory function. The comment argues that the Wall displays two conflicting tendencies in this respect. If one examines the opinion's procedural ‘inputs’ (even setting aside the issues of jurisdiction and propriety), the ICJ may have robbed the advisory procedure of some of its legitimacy by unfairly ignoring the case's contentious aspects on the procedural level. However, if one focuses on the opinion's ‘outputs’, it may have marked a significant, if imperfect, legitimate stage in the ongoing modernization of the ICJ, towards a supra-national, compulsory judiciary that allows a degree of effective access to non-state interests. Which of these evaluations will ultimately hold sway (or how they will weld together), remains to be seen.