Advisory Opinion in Occupied Palestinian Territory: Is the ICJ Taking on the Role of the Trustee of the International Legal Order?

Adam Nalgiev*

This Note discusses the approach to jurisdiction by the International Court of Justice in its Advisory Opinion of July 19, 2024 in Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem (Occupied Palestinian Territory). The Court rejected the objections made by Israel, and other states that submitted their written observations to the Court, based on the lack of consent of Israel to the Court’s jurisdiction over what it perceived to be a bilateral dispute between Israel and Palestine. Eventually, the Court issued a decision that effectively enforced Israel’s international responsibility for its policies and practices in the occupied territories that violated international law. The Advisory Opinion presents a suitable occasion to revisit the conceptual understanding of the Court’s role in the modern international legal order. By using the principal-agent framework developed in international relations theory, this Note argues that the Advisory Opinion can be construed as evidence of the Court’s movement toward a broader role of a “trustee court” with respect to the “constitutional” issues of the post-World War II world order. While scholars have tended to ascribe the Court the role of “interstate arbiter,” primarily concerned with the settlement of bilateral disputes, the Advisory Opinion in Occupied Palestinian Territory shows that the Court’s advisory function can enable it to take on a more prominent role as “trustee of the international legal order.”

*LL.M., Columbia Law School.