INTERNATIONAL
COURT OF JUSTICE
9 July 2004
General List
No. 131
LEGAL
CONSEQUENCES OF THE CONSTRUCTION OF A WALL
IN THE OCCUPIED PALESTINIAN TERRITORY
Jurisdiction of the Court to
give the advisory opinion requested.
Article 65,
paragraph 1, of the Statute - Article 96, paragraph 1,
of the Charter - Power of General Assembly to request advisory opinions - Activities of
Assembly.
Events leading to the adoption
of General Assembly resolution ES‑10/14 requesting the advisory opinion.
Contention that General
Assembly acted ultra vires under the Charter - Article 12,
paragraph 1, and Article 24 of the Charter - United Nations
practice concerning the interpretation of Article 12, paragraph 1, of Charter - General Assembly did not exceed its
competence.
Request for
opinion adopted by the Tenth Emergency Special Session of the General
Assembly - Session convened pursuant to resolution 377 A (V)
(?Uniting for Peace?) - Conditions set by that resolution - Regularity of procedure followed.
Alleged lack of clarity of the
terms of the question - Purportedly
abstract nature of the question - Political
aspects of the question - Motives said to
have inspired the request and opinion?s possible implications - ?Legal? nature of question unaffected.
Court having jurisdiction to
give advisory opinion requested.
*
*
Discretionary power of Court
to decide whether it should give an opinion.
Article 65, paragraph 1, of
Statute - Relevance of lack of consent of a State concerned - Question cannot
be regarded only as a bilateral matter between Israel and Palestine but is
directly of concern to the United Nations - Possible
effects of opinion on a political, negotiated solution to the Israeli‑Palestinian
conflict - Question representing only
one aspect of Israeli‑Palestinian conflict - Sufficiency of
information and evidence available to Court - Useful purpose
of opinion - Nullus commodum capere potest de sua
injuria propria - Opinion to be given to the General Assembly, not to a specific
State or entity.
No ?compelling reason? for
Court to use its discretionary power not to give an advisory opinion.
*
*
?Legal consequences? of the
construction of a wall in the Occupied Palestinian Territory, including in and
around East Jerusalem - Scope of question posed - Request for opinion
limited to the legal consequences of the construction of those parts of the
wall situated in Occupied Palestinian Territory - Use of the term
?wall?.
Historical background.
Description of the wall.
*
*
Applicable law.
United Nations Charter - General
Assembly resolution 2625 (XXV) - Illegality of any
territorial acquisition resulting from the threat or use of force - Right of
peoples to self‑determination.
International humanitarian
law - Regulations annexed to the Fourth Hague Convention of 1907 - Fourth Geneva
Convention of 1949 - Applicability of Fourth Geneva Convention in the Occupied
Palestinian Territory - Human rights law - International
Covenant on Civil and Political Rights - International Covenant on
Economic, Social and Cultural Rights - Convention on the Rights
of the Child - Relationship between international humanitarian law and human
rights law - Applicability of human rights instruments outside national
territory - Applicability of those instruments in the Occupied Palestinian
Territory.
*
*
Settlements established by
Israel in breach of international law in the Occupied Palestinian
Territory - Construction of the wall and its associated r?gime create a ?fait
accompli? on the ground that could well become permanent - Risk of
situation tantamount to de facto
annexation - Construction of the wall severely impedes the exercise by the
Palestinian people of its right to self‑determination and is therefore a
breach of Israel?s obligation to respect that right.
Applicable provisions of
international humanitarian law and human rights instruments relevant to the
present case - Destruction and requisition of properties - Restrictions on
freedom of movement of inhabitants of the Occupied Palestinian Territory - Impediments to
the exercise by those concerned of the right to work, to health, to education
and to an adequate standard of living - Demographic changes in the
Occupied Palestinian Territory - Provisions of
international humanitarian law enabling account to be taken of military
exigencies - Clauses in human rights instruments qualifying rights guaranteed or
providing for derogation - Construction of the wall and its associated
r?gime cannot be justified by military exigencies or by the requirements of
national security or public order - Breach by
Israel of various of its obligations under the applicable provisions of international
humanitarian law and human rights instruments.
Self-defence - Article 51 of
the Charter - Attacks against Israel not imputable to a foreign State - Threat invoked
to justify the construction of the wall originating within a territory over
which Israel exercises control - Article 51 not relevant in
the present case.
State of necessity - Customary international
law - Conditions - Construction of the wall not the only means
to safeguard Israel?s interests against the peril invoked.
Construction of the wall and
its associated r?gime are contrary to international law.
*
*
Legal consequences of the
violation by Israel of its obligations.
Israel?s international
responsibility - Israel obliged to comply with the international obligations it has
breached by the construction of the wall - Israel obliged to put an
end to the violation of its international obligations - Obligation to
cease forthwith the works of construction of the wall, to dismantle it
forthwith and to repeal or render ineffective forthwith the legislative and
regulatory acts relating to its construction, save where relevant for compliance
by Israel with its obligation to make reparation for the damage caused - Israel obliged
to make reparation for the damage caused to all natural or legal persons
affected by construction of the wall.
Legal consequences for States
other than Israel - Erga omnes character of certain
obligations violated by Israel - Obligation for all States not to recognize the illegal situation resulting
from construction of the wall and not to render aid or assistance in
maintaining the situation created by such construction - Obligation for
all States, while respecting the Charter and international law, to see to it
that any impediment, resulting from the construction of the wall, to the
exercise by the Palestinian people of its right to self‑determination is
brought to an end - Obligation for all States parties to the Fourth Geneva
Convention, while respecting the Charter and international law, to ensure
compliance by Israel with international humanitarian law as embodied in
that Convention - Need for the United Nations, and especially the General Assembly
and the Security Council, to consider what further action is required to bring
to an end the illegal situation resulting from the construction of the wall and
its associated r?gime, taking due account of the Advisory Opinion.
*
*
Construction of the wall must
be placed in a more general context - Obligation of Israel and
Palestine scrupulously to observe international humanitarian law - Implementation in good
faith of all relevant Security Council resolutions, in particular
resolutions 242 (1967) and 338 (1973) - ?Roadmap? - Need for
efforts to be encouraged with a view to achieving as soon as possible, on the
basis of international law, a negotiated solution to the outstanding problems and the
establishment of a Palestinian State, with peace and security for all in the
region.
ADVISORY
OPINION
Present: President Shi; Vice-President Ranjeva; Judges Guillaume, Koroma, Vereshchetin, Higgins,
Parra‑Aranguren, Kooijmans, Rezek, Al‑Khasawneh, Buergenthal,
Elaraby, Owada, Simma, Tomka; Registrar Couvreur.
On the legal consequences of the
construction of a wall in the Occupied Palestinian Territory,
The Court,
Composed as above,
Gives the following Advisory
Opinion:
1. The question on which the advisory
opinion of the Court has been requested is set forth in resolution ES‑10/14
adopted by the General Assembly of the United Nations (hereinafter the ?General
Assembly?) on 8 December 2003 at its Tenth Emergency Special
Session. By a letter dated 8 December 2003 and received in the
Registry by facsimile on 10 December 2003, the original of which
reached the Registry subsequently, the Secretary‑General of the United
Nations officially communicated to the Court the decision taken by the General
Assembly to submit the question for an advisory opinion. Certified true copies
of the English and French versions of resolution ES‑10/14 were
enclosed with the letter. The resolution reads as follows:
?The General Assembly,
Reaffirming its
resolution ES‑10/13 of 21 October 2003,
Guided by the principles of
the Charter of the United Nations,
Aware of the established
principle of international law on the inadmissibility of the acquisition of
territory by force,
Aware also that developing
friendly relations among nations based on respect for the principle of equal
rights and self‑determination of peoples is among the purposes and
principles of the Charter of the United Nations,
Recalling relevant General
Assembly resolutions, including resolution 181 (II) of 29 November 1947,
which partitioned mandated Palestine into two States, one Arab and one Jewish,
Recalling also the resolutions
of the tenth emergency special session of the General Assembly,
Recalling further relevant
Security Council resolutions, including resolutions 242 (1967) of
22 November 1967, 338 (1973) of 22 October 1973,
267 (1969) of 3 July 1969, 298 (1971) of
25 September 1971, 446 (1979) of 22 March 1979,
452 (1979) of 20 July 1979, 465 (1980) of
1 March 1980, 476 (1980) of 30 June 1980,
478 (1980) of 20 August 1980, 904 (1994) of
18 March 1994, 1073 (1996) of 28 September 1996,
1397 (2002) of 12 March 2002 and 1515 (2003) of
19 November 2003,
Reaffirming the applicability
of the Fourth Geneva Convention1 as well as Additional
Protocol I to the Geneva Conventions2 to the Occupied
Palestinian Territory, including East Jerusalem,
Recalling the Regulations
annexed to the Hague Convention Respecting the Laws and Customs of War on Land
of 19073,
Welcoming the convening of the Conference of High Contracting Parties to the
Fourth Geneva Convention on measures to enforce the Convention in the Occupied
Palestinian Territory, including Jerusalem, at Geneva on
15 July 1999,
Expressing its support
for the declaration adopted by the reconvened Conference of High Contracting
Parties at Geneva on 5 December 2001,
Recalling in particular
relevant United Nations resolutions affirming that Israeli settlements in the
Occupied Palestinian Territory, including East Jerusalem, are illegal and an
obstacle to peace and to economic and social development as well as those
demanding the complete cessation of settlement activities,
Recalling relevant United
Nations resolutions affirming that actions taken by Israel, the occupying
Power, to change the status and demographic composition of Occupied East
Jerusalem have no legal validity and are null and void,
Noting the agreements reached
between the Government of Israel and the Palestine Liberation Organization in
the context of the Middle East peace process,
Gravely concerned at the
commencement and continuation of construction by Israel, the occupying Power,
of a wall in the Occupied Palestinian Territory, including in and around East
Jerusalem, which is in departure from the Armistice Line of 1949 (Green Line)
and which has involved the confiscation and destruction of Palestinian land and
resources, the disruption of the lives of thousands of protected civilians and
the de facto annexation of large areas of territory, and underlining the
unanimous opposition by the international community to the construction of that
wall,
Gravely concerned also at the
even more devastating impact of the projected parts of the wall on the
Palestinian civilian population and on the prospects for solving the
Palestinian‑Israeli conflict and establishing peace in the region,
Welcoming the report of
8 September 2003 of the Special Rapporteur of the Commission on Human
Rights on the situation of human rights in the Palestinian territories occupied
by Israel since 19674, in particular the section regarding the wall,
Affirming the necessity of
ending the conflict on the basis of the two‑State solution of Israel and
Palestine living side by side in peace and security based on the Armistice Line
of 1949, in accordance with relevant Security Council and General Assembly
resolutions,
Having received with appreciation
the report of the Secretary‑General, submitted in accordance with
resolution ES‑10/135,
Bearing in mind that the passage of time further compounds the difficulties on the
ground, as Israel, the occupying Power, continues to refuse to comply with
international law vis‑?‑vis its construction of the above‑mentioned
wall, with all its detrimental implications and consequences,
Decides, in accordance with
Article 96 of the Charter of the United Nations, to request the
International Court of Justice, pursuant to Article 65 of the Statute of
the Court, to urgently render an advisory opinion on the following question:
What are the legal
consequences arising from the construction of the wall being built by Israel,
the occupying Power, in the Occupied Palestinian Territory, including in and
around East Jerusalem, as described in the report of the Secretary‑General,
considering the rules and principles of international law, including the Fourth
Geneva Convention of 1949, and relevant Security Council and General Assembly
resolutions?
_______________
1United Nations, Treaty Series, Vol. 75, No. 973.
2Ibid.,
Vol. 1125, No. 17512.
3See Carnegie Endowment for International Peace, The
Hague Conventions and Declarations of 1899 and 1907 (New York, Oxford
University Press, 1915).
4E/CN.4/2004/6.
5A/ES‑10/248.?
Also enclosed
with the letter were the certified English and French texts of the report of
the Secretary‑General dated 24 November 2003, prepared pursuant
to General Assembly resolution ES‑10/13 (A/ES‑10/248), to
which resolution ES‑10/14 makes reference.
2. By letters dated
10 December 2003, the Registrar notified the request for an advisory
opinion to all States entitled to appear before the Court, in accordance with
Article 66, paragraph 1, of the Statute.
3. By a letter dated
11 December 2003, the Government of Israel informed the Court of its
position on the request for an advisory opinion and on the procedure to be
followed.
4. By an Order of
19 December 2003, the Court decided that the United Nations and its
Member States were likely, in accordance with Article 66,
paragraph 2, of the Statute, to be able to furnish information on all
aspects raised by the question submitted to the Court for an advisory opinion
and fixed 30 January 2004 as the time‑limit within which
written statements might be submitted to it on the question in accordance with
Article 66, paragraph 4, of the Statute. By the same Order, the
Court further decided that, in the light of resolution ES‑10/14 and
the report of the Secretary‑General transmitted with the request, and
taking into account the fact that the General
Assembly had granted Palestine a special
status of observer and that the latter was co‑sponsor of the draft
resolution requesting the advisory opinion, Palestine might also submit a
written statement on the question within the above time‑limit.
5. By the aforesaid Order, the
Court also decided, in accordance with Article 105, paragraph 4, of
the Rules of Court, to hold public hearings during which oral statements and
comments might be presented to it by the United Nations and its Member States,
regardless of whether or not they had submitted written statements, and fixed
23 February 2004 as the date for the opening of the said hearings.
By the same Order, the Court decided that, for the reasons set out above (see
paragraph 4), Palestine might also take part in the hearings. Lastly, it
invited the United Nations and its Member States, as well as Palestine, to
inform the Registry, by 13 February 2004 at the latest, if they were
intending to take part in the above‑mentioned hearings. By letters of
19 December 2004, the Registrar informed them of the Court?s
decisions and transmitted to them a copy of the Order.
6. Ruling on requests submitted
subsequently by the League of Arab States and the Organization of the Islamic
Conference, the Court decided, in accordance with Article 66 of its
Statute, that those two international organizations were likely to be able to
furnish information on the question submitted to the Court, and that
consequently they might for that purpose submit written statements within the
time‑limit fixed by the Court in its Order of 19 December 2003
and take part in the hearings.
7. Pursuant to Article 65,
paragraph 2, of the Statute, the Secretary‑General of the United
Nations communicated to the Court a dossier of documents likely to throw light
upon the question.
8. By a reasoned Order of
30 January 2004 regarding its composition in the case, the Court
decided that the matters brought to its attention by the Government of Israel
in a letter of 31 December 2003, and in a confidential letter of
15 January 2004 addressed to the President pursuant to Article 34,
paragraph 2, of the Rules of Court, were not such as to preclude
Judge Elaraby from sitting in the case.
9. Within the time‑limit
fixed by the Court for that purpose, written statements were filed by, in order
of their receipt: Guinea, Saudi Arabia, League of Arab States, Egypt,
Cameroon, Russian Federation, Australia, Palestine, United Nations, Jordan,
Kuwait, Lebanon, Canada, Syria, Switzerland, Israel, Yemen, United States of
America, Morocco, Indonesia, Organization of the Islamic Conference, France,
Italy, Sudan, South Africa, Germany, Japan, Norway, United Kingdom, Pakistan,
Czech Republic, Greece, Ireland on its own behalf, Ireland on behalf of the
European Union, Cyprus, Brazil, Namibia, Malta, Malaysia, Netherlands, Cuba,
Sweden, Spain, Belgium, Palau, Federated States of Micronesia, Marshall
Islands, Senegal, Democratic People?s Republic of Korea. Upon receipt of those
statements, the Registrar transmitted copies thereof to the United Nations and
its Member States, to Palestine, to the League of Arab States and to the Organization
of the Islamic Conference.
10. Various communications were
addressed to these latter by the Registry, concerning in particular the
measures taken for the organization of the oral proceedings. By communications
of 20 February 2004, the Registry transmitted a detailed timetable of the
hearings to those of the latter who, within the time‑limit fixed for that
purpose by the Court, had expressed their intention of taking part in the
aforementioned proceedings.
11. Pursuant to Article 106
of the Rules of Court, the Court decided to make the written statements
accessible to the public, with effect from the opening of the oral proceedings.
12. In the course of hearings
held from 23 to 25 February 2004, the Court heard oral statements, in
the following order, by:
For Palestine: H.E.
Mr. Nasser Al‑Kidwa, Ambassador, Permanent Observer of Palestine to the
United Nations,
Ms Stephanie
Koury, Member, Negotiations Support Unit, Counsel,
Mr. James
Crawford, S.C., Whewell Professor of International Law, University of
Cambridge, Member of the Institute of International Law, Counsel and Advocate,
Mr. Georges
Abi‑Saab, Professor of International Law, Graduate Institute of
International Studies, Geneva, Member of the Institute of International Law,
Counsel and Advocate,
Mr. Vaughan
Lowe, Chichele Professor of International Law, University of Oxford, Counsel
and Advocate,
Mr. Jean
Salmon, Professor Emeritus of International Law, Universit? libre de Bruxelles,
Member of the Institute of International Law, Counsel and Advocate;
For the Republic of South Africa: H.E.
Mr. Aziz Pahad, Deputy Minister for Foreign Affairs, Head of Delegation,
Judge
M. R. W. Madlanga, S.C.;
For the People?s Democratic Mr.
Ahmed Laraba, Professor of International Law;
Republic of Algeria:
For the Kingdom of Saudi Arabia: H.E.
Mr. Fawzi A. Shobokshi, Ambassador and Permanent Representative of the Kingdom
of Saudi Arabia to the United Nations in New York, Head of Delegation;
For the People?s Republic H.E. Mr. Liaquat Ali Choudhury, Ambassador of the
of Bangladesh: People?s Republic of
Bangladesh to the Kingdom of the Netherlands;
For Belize: Mr. Jean‑Marc Sorel, Professor at the University of
Paris I (Panth?on‑Sorbonne);
For the Republic of Cuba: H.E. Mr. Abelardo Moreno Fern?ndez, Deputy Minister for Foreign
Affairs;
For the Republic of Indonesia: H.E. Mr. Mohammad Jusuf, Ambassador of the Republic of Indonesia to
the Kingdom of the Netherlands, Head of Delegation;
For the Hashemite Kingdom H.R.H. Ambassador Zeid Ra?ad
Zeid Al-Hussein,
of Jordan: Permanent
Representative of the Hashemite Kingdom of Jordan to the United
Nations, New York, Head of Delegation,
Sir Arthur
Watts, K.C.M.G., Q.C., Senior Legal Adviser to the Government of the Hashemite
Kingdom of Jordan;
For the Republic of Madagascar: H.E. Mr. Alfred Rambeloson, Permanent Representative of Madagascar
to the Office of the United Nations at Geneva and to the Specialized Agencies,
Head of Delegation;
For Malaysia: H.E. Datuk Seri Syed Hamid Albar, Foreign Minister of Malaysia, Head
of Delegation;
For the Republic of Senegal: H.E. Mr. Saliou Ciss?, Ambassador of the Republic of Senegal to the
Kingdom of the Netherlands, Head of Delegation;
For the Republic of the Sudan: H.E. Mr. Abuelgasim A. Idris, Ambassador of the Republic of the
Sudan to the Kingdom of the Netherlands;
For the League of Arab States: Mr. Michael Bothe, Professor of Law, Head of the Legal Team;
For the Organization of the H.E. Mr. Abdelouahed Belkeziz,
Secretary General of the
Islamic Conference: Organization of the
Islamic Conference,
Ms
Monique Chemillier‑Gendreau, Professor of Public Law,
University
of Paris VII‑Denis Diderot, as Counsel.
*
*
*
13. When seised of a request for
an advisory opinion, the Court must first consider whether it has jurisdiction
to give the opinion requested and whether, should the answer be in the
affirmative, there is any reason why it should decline to exercise any such
jurisdiction (see Legality of the Threat or Use of Nuclear Weapons,
Advisory Opinion, I.C.J. Reports 1996 (I), p. 232,
para. 10).
*
*
14. The Court will thus first
address the question whether it possesses jurisdiction to give the advisory
opinion requested by the General Assembly on 8 December 2003. The
competence of the Court in this regard is based on Article 65,
paragraph 1, of its Statute, according to which the Court ?may give an
advisory opinion on any legal question at the request of whatever body may be
authorized by or in accordance with the Charter of the United Nations to make
such a request?. The Court has already had occasion to indicate that:
?It is . . . a
precondition of the Court?s competence that the advisory opinion be requested
by an organ duly authorized to seek it under the Charter, that it be requested
on a legal question, and that, except in the case of the General Assembly or
the Security Council, that question should be one arising within the scope of
the activities of the requesting organ.? (Application for Review of
Judgement No. 273 of the United Nations Administrative Tribunal, Advisory
Opinion, I.C.J. Reports 1982, pp. 333‑334, para. 21.)
15. It is for the Court to
satisfy itself that the request for an advisory opinion comes from an organ or
agency having competence to make it. In the present instance, the Court notes
that the General Assembly, which seeks the advisory opinion, is authorized to
do so by Article 96, paragraph 1, of the Charter, which provides:
?The General Assembly or the Security Council may request the International
Court of Justice to give an advisory opinion on any legal question.?
16. Although the above‑mentioned
provision states that the General Assembly may seek an advisory opinion ?on any
legal question?, the Court has sometimes in the past given certain indications
as to the relationship between the question the subject of a request for an
advisory opinion and the activities of the General Assembly (Interpretation
of Peace Treaties with Bulgaria, Hungary and Romania, I.C.J. Reports 1950,
p. 70; Legality of the Threat or Use of Nuclear Weapons, I.C.J. Reports
1996 (I), pp. 232 and 233, paras. 11 and 12).
17. The Court will so proceed in
the present case. The Court would observe that Article 10 of the Charter
has conferred upon the General Assembly a competence relating to ?any questions
or any matters? within the scope of the Charter, and that Article 11,
paragraph 2, has specifically provided it with competence on ?questions
relating to the maintenance of international peace and security brought before
it by any Member of the United Nations . . .? and to make
recommendations under certain conditions fixed by those Articles. As will be
explained below, the question of the construction of the wall in the Occupied
Palestinian Territory was brought before
the General Assembly by a number of Member
States in the context of the Tenth Emergency Special Session of the Assembly,
convened to deal with what the Assembly, in its resolution ES‑10/2 of
25 April 1997, considered to constitute a threat to international
peace and security.
*
18. Before further examining the
problems of jurisdiction that have been raised in the present proceedings, the
Court considers it necessary to describe the events that led to the adoption of
resolution ES‑10/14, by which the General Assembly requested an
advisory opinion on the legal consequences of the construction of the wall in
the Occupied Palestinian Territory.
19. The Tenth Emergency Special
Session of the General Assembly, at which that resolution was adopted, was
first convened following the rejection by the Security Council, on 7 March
and 21 March 1997, as a result of negative votes by a permanent
member, of two draft resolutions concerning certain Israeli settlements in the
Occupied Palestinian Territory (see, respectively, S/1997/199 and S/PV.3747,
and S/1997/241 and S/PV.3756). By a letter of 31 March 1997, the
Chairman of the Arab Group then requested ?that an emergency special session of
the General Assembly be convened pursuant to
resolution 377 A (V) entitled ?Uniting for Peace?? with a view
to discussing ?Illegal Israeli actions in occupied East Jerusalem and the rest
of the Occupied Palestinian Territory? (letter dated 31 March 1997
from the Permanent Representative of Qatar to the United Nations addressed to
the Secretary‑General, A/ES‑10/1, 22 April 1997, Annex).
The majority of Members of the United Nations having concurred in this request,
the first meeting of the Tenth Emergency Special Session of the General
Assembly took place on 24 April 1997 (see A/ES‑10/1,
22 April 1997). Resolution ES‑10/2 was adopted the
following day; the General Assembly thereby expressed its conviction that:
?the repeated violation by Israel, the
occupying Power, of international law and its failure to comply with relevant
Security Council and General Assembly resolutions and the agreements reached
between the parties undermine the Middle East peace process and constitute a
threat to international peace and security?,
and condemned the ?illegal Israeli actions?
in occupied East Jerusalem and the rest of the Occupied Palestinian Territory,
in particular the construction of settlements in that territory. The Tenth
Emergency Special Session was then adjourned temporarily and has since been
reconvened 11 times (on 15 July 1997, 13 November 1997,
17 March 1998, 5 February 1999, 18 October 2000,
20 December 2001, 7 May 2002, 5 August 2002,
19 September 2003, 20 October 2003 and
8 December 2003).
20. By a
letter dated 9 October 2003, the Chairman of the Arab Group, on
behalf of the States Members of the League of Arab States, requested an
immediate meeting of the Security Council to consider the ?grave and ongoing
Israeli violations of international law, including international humanitarian
law, and to take the necessary measures in this regard? (letter of
9 October 2003 from the Permanent Representative of the Syrian Arab
Republic to the United Nations to the President of the Security Council,
S/2003/973, 9 October 2003). This letter was accompanied by a draft
resolution for consideration by the Council, which condemned as illegal the
construction by Israel of a wall in the Occupied Palestinian Territory
departing from the Armistice Line of 1949. The Security Council held its
4841st and 4842nd meetings on 14 October 2003 to consider the item entitled
?The situation in the Middle East, including the Palestine question?. It then
had before it another draft resolution proposed on the same day by Guinea,
Malaysia, Pakistan and the Syrian Arab Republic, which also condemned the
construction of the wall. This latter draft resolution was put to a vote after
an open debate and was not adopted owing to the negative vote of a permanent
member of the Council (S/PV.4841 and S/PV.4842).
On 15 October 2003, the
Chairman of the Arab Group, on behalf of the States Members of the League of
Arab States, requested the resumption of the Tenth Emergency Special Session of
the General Assembly to consider the item of ?Illegal Israeli actions in
Occupied East Jerusalem and the rest of the Occupied Palestinian Territory?
(A/ES‑10/242); this request was supported by the Non-Aligned Movement
(A/ES‑10/243) and the Organization of the Islamic Conference Group at the
United Nations (A/ES‑10/244). The Tenth Emergency Special Session
resumed its work on 20 October 2003.
21. On 27 October 2003,
the General Assembly adopted resolution ES‑10/13, by which it demanded
that ?Israel stop and reverse the construction of the wall in the Occupied
Palestinian Territory, including in and around East Jerusalem, which is in
departure of the Armistice Line of 1949 and is in contradiction to relevant
provisions of international law? (para. 1). In paragraph 3, the
Assembly requested the Secretary‑General ?to report on compliance with
the . . . resolution periodically, with the first report on
compliance with paragraph 1 [of that resolution] to be submitted within one
month . . .?. The Tenth Emergency Special Session was
temporarily adjourned and, on 24 November 2003, the report of the
Secretary‑General prepared pursuant to General Assembly resolution ES-10/13
(hereinafter the ?report of the Secretary‑General?) was issued (A/ES‑10/248).
22. Meanwhile, on
19 November 2003, the Security Council adopted
resolution 1515 (2003), by which it ?Endorse[d] the Quartet
Performance‑based Roadmap to a Permanent Two‑State Solution to the
Israeli‑Palestinian Conflict?. The Quartet consists of representatives
of the United States of America, the European Union, the Russian Federation and
the United Nations. That resolution
?Call[ed] on the parties to
fulfil their obligations under the Roadmap in cooperation with the Quartet and
to achieve the vision of two States living side by side in peace and security.?
Neither the ?Roadmap? nor
resolution 1515 (2003) contained any specific provision concerning
the construction of the wall, which was not discussed by the Security Council
in this context.
23. Nineteen days later, on
8 December 2003, the Tenth Emergency Special Session of the General
Assembly again resumed its work, following a new request by the Chairman of the
Arab Group, on behalf of the States Members of the League of Arab States, and
pursuant to resolution ES‑10/13 (letter dated
1 December 2003 to the President of the General Assembly from the
Charg? d?affaires a.i. of the Permanent Mission of Kuwait to the United
Nations, A/ES‑10/249, 2 December 2003). It was during the
meeting convened on that day that resolution ES‑10/14 requesting the
present Advisory Opinion was adopted.
*
24. Having thus recalled the
sequence of events that led to the adoption of resolution ES‑10/14,
the Court will now turn to the questions of jurisdiction that have been raised
in the present proceedings. First, Israel has alleged that, given the active
engagement of the Security Council with the situation in the Middle East,
including the Palestinian question, the General Assembly acted ultra vires
under the Charter when it requested an advisory opinion on the legal
consequences of the construction of the wall in the Occupied Palestinian
Territory.
25. The Court
has already indicated that the subject of the present request for an advisory
opinion falls within the competence of the General Assembly under the Charter
(see paragraphs 15‑17 above). However, Article 12,
paragraph 1, of the Charter provides that:
?While the Security Council is
exercising in respect of any dispute or situation the functions assigned to it
in the present Charter, the General Assembly shall not make any recommendation
with regard to that dispute or situation unless the Security Council so
requests.?
A request for an advisory opinion is not in
itself a ?recommendation? by the General Assembly ?with regard to [a] dispute
or situation?. It has however been argued in this case
that the adoption by the General Assembly of resolution ES-10/14 was ultra
vires as not in accordance with Article 12. The Court thus considers
that it is appropriate for it to examine the significance of that Article,
having regard to the relevant texts and the practice of the United Nations.
26. Under Article 24 of the
Charter the Security Council has ?primary responsibility for the maintenance of
international peace and security?. In that regard it can impose on States ?an
explicit obligation of compliance if for example it issues an order or
command . . . under Chapter VII? and can, to that end,
?require enforcement by coercive action? (Certain Expenses of
the United Nations (Article 17,
paragraph 2, of the Charter), Advisory Opinion of 20 July 1962,
I.C.J. Reports 1962, p. 163).
However, the Court would emphasize that Article 24 refers to a primary,
but not necessarily exclusive, competence. The General Assembly does have the
power, inter alia, under Article 14 of the Charter, to ?recommend
measures for the peaceful adjustment? of various situations (Certain
Expenses of the United Nations, ibid., p. 163). ?[T]he only
limitation which Article 14 imposes on the General Assembly is the
restriction found in Article 12, namely, that the Assembly should not
recommend measures while the Security Council is dealing with the same matter unless
the Council requests it to do so.? (Ibid.).
27. As regards the practice of
the United Nations, both the General Assembly and the Security Council initially
interpreted and applied Article 12 to the effect that the Assembly could
not make a recommendation on a question concerning the maintenance of
international peace and security while the matter remained on the Council?s
agenda. Thus the Assembly during its fourth session refused to recommend
certain measures on the question of Indonesia, on the ground, inter alia,
that the Council remained seised of the matter (Official Records of the
General Assembly, Fourth Session, Ad Hoc Political Committee, Summary
Records of Meetings, 27 September‑7 December 1949,
56th Meeting, 3 December 1949, p. 339, para. 118). As
for the Council, on a number of occasions it deleted items from its agenda in
order to enable the Assembly to deliberate on them (for example, in respect of
the Spanish question (Official Records of the Security Council, First Year:
Second Series, No. 21, 79th Meeting, 4 November 1946,
p. 498), in connection with incidents on the Greek border (Official
Records of the Security Council, Second Year, No. 89,
202nd Meeting, 15 September 1947, pp. 2404‑2405) and
in regard to the Island of Taiwan (Formosa) (Official Records of the
Security Council, Fifth Year, No. 48, 506th Meeting,
29 September 1950, p. 5)). In the case of the Republic of
Korea, the Council decided on 31 January 1951 to remove the relevant
item from the list of matters of which it was seised in order to enable the
Assembly to deliberate on the matter (Official Records of the Security
Council, Sixth Year, S/PV.531, 531st Meeting,
31 January 1951, pp. 11‑12, para. 57).
However, this interpretation of
Article 12 has evolved subsequently. Thus the General Assembly deemed
itself entitled in 1961 to adopt recommendations in the matter of the Congo
(resolutions 1955 (XV) and 1600 (XVI)) and in 1963 in respect of
the Portuguese colonies (resolution 1913 (XVIII)) while those cases
still appeared on the Council?s agenda, without the Council having adopted any
recent resolution concerning them. In response to a question posed by Peru
during the Twenty‑third session of the General Assembly, the Legal
Counsel of the United Nations confirmed that the Assembly interpreted the words
?is exercising the functions? in Article 12 of the Charter as meaning ?is
exercising the functions at this moment? (Twenty‑third General Assembly,
Third Committee, 1637th meeting, A/C.3/SR.1637, para. 9). Indeed,
the Court notes that there has been an increasing tendency over time for the
General Assembly and the Security Council to deal in parallel with the same
matter concerning the maintenance of international peace and security (see, for
example, the matters involving Cyprus, South Africa, Angola, Southern Rhodesia
and more recently Bosnia and Herzegovina and Somalia). It is often the case
that, while the Security Council has tended to focus on the aspects of such
matters related to international peace and security, the General Assembly has
taken a broader view, considering also their humanitarian, social and economic
aspects.
28. The Court considers that the accepted
practice of the General Assembly, as it has evolved, is consistent with Article 12,
paragraph 1, of the Charter.
The Court is accordingly of the
view that the General Assembly, in adopting resolution ES‑10/14,
seeking an advisory opinion from the Court, did not contravene the provisions
of Article 12, paragraph 1, of the Charter. The Court concludes that by
submitting that request the General Assembly did not exceed its competence.
29. It has however been
contended before the Court that the present request for an advisory opinion did
not fulfil the essential conditions set by resolution 377 A (V),
under which the Tenth Emergency Special Session was convened and has continued
to act. In this regard, it has been said, first, that ?The Security Council
was never seised of a draft resolution proposing that the Council itself should
request an advisory opinion from the Court on the matters now in contention?,
and, that specific issue having thus never been brought before the Council, the
General Assembly could not rely on any inaction by the Council to make such a
request. Secondly, it has been claimed that, in adopting
resolution 1515 (2003), which endorsed the ?Roadmap?, before the
adoption by the General Assembly of resolution ES‑10/14, the
Security Council continued to exercise its responsibility for the maintenance
of international peace and security and that, as a result, the General Assembly
was not entitled to act in its place. The validity of the procedure followed
by the Tenth Emergency Special Session, especially the Session?s ?rolling
character? and the fact that its meeting was convened to deliberate on the
request for the advisory opinion at the same time as the General Assembly was
meeting in regular session, has also been questioned.
30. The Court would recall that
resolution 377 A (V) states that:
?if the Security Council, because of lack of unanimity
of the permanent members, fails to exercise its primary responsibility for the
maintenance of international peace and security in any case where there appears
to be a threat to the peace, breach of the peace, or act of aggression, the
General Assembly shall consider the matter immediately with a view to making
appropriate recommendations to Members for collective
measures . . .?
The procedure provided for by that
resolution is premised on two conditions, namely that the Council has failed to
exercise its primary responsibility for the maintenance of international peace
and security as a result of a negative vote of one or more permanent members,
and that the situation is one in which there appears to be a threat to the
peace, breach of the peace, or act of aggression. The Court must accordingly
ascertain whether these conditions were fulfilled as regards the convening of
the Tenth Emergency Special Session of the General Assembly, in particular at
the time when the Assembly decided to request an advisory opinion from the
Court.
31. In the light of the sequence
of events described in paragraphs 18 to 23 above, the Court observes that,
at the time when the Tenth Emergency Special Session was convened in 1997, the
Council had been unable to take a decision on the case of certain Israeli
settlements in the
Occupied Palestinian Territory, due to negative
votes of a permanent member; and that, as indicated in resolution ES‑10/2
(see paragraph 19 above), there existed a threat to international peace
and security.
The Court further notes that, on
20 October 2003, the Tenth Emergency Special Session of the General
Assembly was reconvened on the same basis as in 1997 (see the statements by the
representatives of Palestine and Israel, A/ES‑10/PV.21, pp. 2 and
5), after the rejection by the Security Council, on 14 October 2003,
again as a result of the negative vote of a permanent member, of a draft
resolution concerning the construction by Israel of the wall in the Occupied
Palestinian Territory. The Court considers that the Security Council again
failed to act as contemplated in resolution 377 A (V). It does not
appear to the Court that the situation in this regard changed between
20 October 2003 and 8 December 2003, since the Council
neither discussed the construction of the wall nor adopted any resolution in
that connection. Thus, the Court is of the view that, up to
8 December 2003, the Council had not reconsidered the negative vote
of 14 October 2003. It follows that, during that period, the Tenth
Emergency Special Session was duly reconvened and could properly be seised,
under resolution 377 A (V), of the matter now before the Court.
32. The Court would also
emphasize that, in the course of this Emergency Special Session, the General
Assembly could adopt any resolution falling within the subject-matter for which
the Session had been convened, and otherwise within its powers, including a
resolution seeking the Court?s opinion. It is irrelevant in that regard that
no proposal had been made to the Security Council to request such an opinion.
33. Turning now to alleged
further procedural irregularities of the Tenth Emergency Special Session, the
Court does not consider that the ?rolling? character of that Session, namely
the fact of its having been convened in April 1997 and reconvened
11 times since then, has any relevance with regard to the validity of the
request by the General Assembly. The Court observes in that regard that the
Seventh Emergency Special Session of the General Assembly, having been convened
on 22 July 1980, was subsequently reconvened four times (on
20 April 1982, 25 June 1982, 16 August 1982 and
24 September 1982), and that the validity of resolutions or decisions
of the Assembly adopted under such circumstances was never disputed. Nor has
the validity of any previous resolutions adopted during the Tenth Emergency
Special Session been challenged.
34. The Court also notes the contention
by Israel that it was improper to reconvene the Tenth Emergency Special Session
at a time when the regular Session of the General
Assembly was in progress. The Court considers that, while it may not have been
originally contemplated that it would be appropriate for the General Assembly
to hold simultaneous emergency and regular sessions, no rule of the
Organization has been identified which would be thereby violated, so as to
render invalid the resolution adopting the present request for an advisory
opinion.
35. Finally, the Tenth Emergency Special Session appears to have been convened
in accordance with Rule 9 (b) of the Rules of Procedure of the
General Assembly, and the relevant meetings have been convened in pursuance of
the applicable rules. As the
Court stated in its Advisory Opinion of 21 June 1971 concerning the Legal
Consequences for States of the Continued Presence of South Africa in Namibia
(South West Africa) notwithstanding Security Council Resolution 276 (1970),
a ?resolution of a properly constituted organ of the United Nations which is
passed in accordance with that organ?s rules of procedure, and is declared by
its President to have been so passed, must be presumed to have been validly
adopted? (I.C.J. Reports 1971, p. 22, para. 20). In view of
the foregoing, the Court cannot see any reason why that presumption is to be
rebutted in the present case.
*
36. The Court now turns to a
further issue related to jurisdiction in the present proceedings, namely the
contention that the request for an advisory opinion by the General Assembly is
not on a ?legal question? within the meaning of Article 96,
paragraph 1, of the Charter and Article 65, paragraph 1, of the
Statute of the Court. It has been contended in this regard that, for a
question to constitute a ?legal question? for the purposes of these two
provisions, it must be reasonably specific, since otherwise it would not be
amenable to a response by the Court. With regard to the request made in the
present advisory proceedings, it has been argued that it is not possible to
determine with reasonable certainty the legal meaning of the question asked of
the Court for two reasons.
First, it has been argued that
the question regarding the ?legal consequences? of the construction of the wall
only allows for two possible interpretations, each of which would lead to a
course of action that is precluded for the Court. The question asked could
first be interpreted as a request for the Court to find that the construction
of the wall is illegal, and then to give its opinion on the legal consequences
of that illegality. In this case, it has been contended, the Court should
decline to respond to the question asked for a variety of reasons, some of
which pertain to jurisdiction and others rather to the issue of propriety. As
regards jurisdiction, it is said that, if the General Assembly had wished to
obtain the view of the Court on the highly complex and sensitive question of
the legality of the construction of the wall, it should have expressly sought
an opinion to that effect (cf. Exchange of Greek and Turkish Populations,
Advisory Opinion, 1925, P.C.I.J., Series B, No. 10, p. 17). A
second possible interpretation of the request, it is said, is that the Court
should assume that the construction of the wall is illegal, and then give its
opinion on the legal consequences of that assumed illegality. It has been
contended that the Court should also decline to respond to the question on this
hypothesis, since the request would then be based on a questionable assumption
and since, in any event, it would be impossible to rule on the legal
consequences of illegality without specifying the nature of that illegality.
Secondly, it has been contended
that the question asked of the Court is not of a ?legal? character because of
its imprecision and abstract nature. In particular, it has been argued in this
regard that the question fails to specify whether the Court is being asked to
address legal
consequences for ?the General Assembly or
some other organ of the United Nations?, ?Member States of the United Nations?,
?Israel?, ?Palestine? or ?some combination of the above, or some different
entity?.
37. As regards the alleged lack
of clarity of the terms of the General Assembly?s request and its effect on the
?legal nature? of the question referred to the Court, the Court observes that
this question is directed to the legal consequences arising from a given
factual situation considering the rules and principles of international law,
including the Geneva Convention relative to the Protection of Civilian Persons
in Time of War of 12 August 1949 (hereinafter the ?Fourth Geneva
Convention?) and relevant Security Council and General Assembly resolutions.
The question submitted by the General Assembly has thus, to use the Court?s
phrase in its Advisory Opinion on Western Sahara, ?been framed in terms
of law and raise[s] problems of international law?; it is by its very nature
susceptible of a reply based on law; indeed it is scarcely susceptible of a
reply otherwise than on the basis of law. In the view of the Court, it is
indeed a question of a legal character (see Western Sahara, Advisory
Opinion, I.C.J. Reports 1975, p. 18, para. 15).
38. The Court would point out that
lack of clarity in the drafting of a question does not deprive the Court of
jurisdiction. Rather, such uncertainty will require clarification in interpretation,
and such necessary clarifications of interpretation have frequently been given
by the Court.
In the past, both the Permanent
Court and the present Court have observed in some cases that the wording of a
request for an advisory opinion did not accurately state the question on which
the Court?s opinion was being sought (Interpretation of the Greco‑Turkish
Agreement of 1 December 1926 (Final Protocol, Article IV),
Advisory Opinion, 1928, P.C.I.J., Series B, No. 16 (I), pp. 14‑16),
or did not correspond to the ?true legal question? under consideration (Interpretation
of the Agreement of 25 March 1951 between the WHO and Egypt, Advisory
Opinion, I.C.J. Reports 1980, pp. 87‑89, paras. 34‑36).
The Court noted in one case that ?the question put to the Court is, on the face
of it, at once infelicitously expressed and vague? (Application for Review
of Judgement No. 273 of the United Nations Administrative Tribunal,
Advisory Opinion, I.C.J. Reports 1982, p. 348, para. 46).
Consequently, the Court has often
been required to broaden, interpret and even reformulate the questions put (see
the three Opinions cited above; see also Jaworzina, Advisory Opinion, 1923,
P.C.I.J., Series B, No. 8; Admissibility of Hearings of
Petitioners by the Committee on South West Africa, Advisory Opinion, I.C.J.
Reports 1956, p. 25; Certain Expenses of the United Nations
(Article 17, paragraph 2, of the Charter), Advisory Opinion, I.C.J.
Reports 1962, pp. 157‑162).
In the
present instance, the Court will only have to do what it has often done in the
past, namely ?identify the existing principles and rules, interpret them and
apply them . . ., thus offering a reply to the question posed
based on law? (Legality of the Threat or Use of Nuclear Weapons,
I.C.J. Reports 1996 (I), p. 234, para. 13).
39. In
the present instance, if the General Assembly requests the Court to state the
?legal consequences? arising from the construction of the wall, the use of
these terms necessarily encompasses an assessment of whether that construction
is or is not in breach of certain rules and principles of international law.
Thus, the Court is first called upon to determine whether such rules and
principles have been and are still being breached by the construction of the
wall along the planned route.
40. The Court does not consider
that what is contended to be the abstract nature of the question posed to it
raises an issue of jurisdiction. Even when the matter was raised as an issue
of propriety rather than one of jurisdiction, in the case concerning the Legality
of the Threat or Use of Nuclear Weapons, the Court took the position that
to contend that it should not deal with a question couched in abstract terms is
?a mere affirmation devoid of any justification? and that ?the Court may give
an advisory opinion on any legal question, abstract or otherwise? (I.C.J.
Reports 1996 (I), p. 236, para. 15, referring to Conditions
of Admission of a State to Membership in the United Nations (Article 4 of the
Charter), Advisory Opinion, 1948, I.C.J. Reports 1947‑1948, p. 61;
Effect of Awards of Compensation Made by the United Nations Administrative
Tribunal, Advisory Opinion, I.C.J. Reports 1954, p. 51; and Legal
Consequences for States of the Continued Presence of South Africa in Namibia
(South West Africa) notwithstanding Security Council Resolution 276
(1970), Advisory Opinion, I.C.J. Reports 1971, p. 27, para. 40).
In any event, the Court considers that the question posed to it in relation to
the legal consequences of the construction of the wall is not an abstract one,
and moreover that it would be for the Court to determine for whom any such
consequences arise.
41. Furthermore, the Court
cannot accept the view, which has also been advanced in the present
proceedings, that it has no jurisdiction because of the ?political? character
of the question posed. As is clear from its long‑standing jurisprudence
on this point, the Court considers that the fact that a legal question also has
political aspects,
?as, in the nature of things, is the case with
so many questions which arise in international life, does not suffice to
deprive it of its character as a ?legal question? and to ?deprive the Court of
a competence expressly conferred on it by its Statute?(Application for
Review of Judgement No. 158 of the United Nations Administrative Tribunal,
Advisory Opinion, I.C.J, Reports 1973, p. 172, para. 14).
Whatever its political aspects, the Court cannot refuse to admit the legal
character of a question which invites it to discharge an essentially judicial
task, namely, an assessment of the legality of the possible conduct of States
with regard to the obligations imposed upon them by international law (cf. Conditions
of Admission of a State to Membership in the United Nations (Article 4 of the
Charter), Advisory Opinion, 1948, I.C.J. Reports 1947‑1948,
pp. 61‑62; Competence of the General Assembly for the Admission
of a State to the United Nations, Advisory Opinion, I.C.J. Reports 1950,
pp. 6‑7; Certain Expenses of the United Nations
(Article 17, paragraph 2, of the Charter), Advisory Opinion, I.C.J.
Reports 1962, p. 155).? (Legality of the Threat or Use of Nuclear
Weapons, I.C.J. Reports 1996 (I), p. 234, para. 13.)
In its Opinion concerning the Interpretation
of the Agreement of 25 March 1951 between the WHO and Egypt, the Court
indeed emphasized that, ?in situations in which political considerations are
prominent it may be particularly necessary for an international organization to
obtain an advisory opinion from the Court as to the legal principles applicable
with respect to the matter under debate . . .? (I.C.J.
Reports 1980, p. 87, para. 33). Moreover, the Court has affirmed
in its Opinion on the Legality of the Threat or Use of Nuclear Weapons
that ?the political nature of the motives which may be said to have inspired
the request and the political implications that the opinion given might have
are of no relevance in the establishment of its jurisdiction to give such an
opinion? (I.C.J. Reports 1996 (I), p. 234, para. 13).
The Court is of the view that there is no element in the present proceedings
which could lead it to conclude otherwise.
*
42. The Court accordingly has
jurisdiction to give the advisory opinion requested by resolution ES‑10/14
of the General Assembly.
*
*
43. It has been contended in the
present proceedings, however, that the Court should decline to exercise its
jurisdiction because of the presence of specific aspects of the General
Assembly?s request that would render the exercise of the Court?s jurisdiction
improper and inconsistent with the Court?s judicial function.
44. The Court has recalled many
times in the past that Article 65, paragraph 1, of its Statute, which
provides that ?The Court may give an advisory
opinion . . .? (emphasis added), should be interpreted to mean
that the Court has a discretionary power to decline to give an advisory opinion
even if the conditions of jurisdiction are met (Legality of the Threat or
Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996 (I),
p. 234, para. 14). The Court however is mindful of the fact that its
answer to a request for an advisory opinion ?represents its participation in
the activities of the Organization, and, in principle, should not be refused? (Interpretation
of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory
Opinion, I.C.J. Reports 1950, p. 71; see also, for example, Difference
Relating to Immunity from Legal Process of a Special Rapporteur of the
Commission of Human Rights, Advisory Opinion, I.C.J. Reports 1999 (I),
pp. 78‑79, para. 29.) Given its responsibilities as the
?principal judicial organ of the United Nations? (Article 92 of the
Charter), the Court should in principle not decline to give an advisory
opinion. In accordance with its consistent jurisprudence, only ?compelling reasons?
should lead the Court to refuse its opinion
(Certain Expenses of the United Nations
(Article 17, paragraph 2, of the Charter), Advisory Opinion, I.C.J.
Reports 1962, p. 155; see also, for example, Difference Relating
to Immunity from Legal Process of a Special Rapporteur of the Commission of
Human Rights, Advisory Opinion, I.C.J. Reports 1999 (I), pp. 78‑79,
para. 29.)
The present Court has never, in
the exercise of this discretionary power, declined to respond to a request for
an advisory opinion. Its decision not to give the advisory opinion on the Legality
of the Use by a State of Nuclear Weapons in Armed Conflict requested by the
World Health Organization was based on the Court?s lack of jurisdiction, and
not on considerations of judicial propriety (see I.C.J. Reports
1996 (I), p. 235, para. 14). Only on one occasion did the
Court?s predecessor, the Permanent Court of International Justice, take the
view that it should not reply to a question put to it (Status of Eastern
Carelia, Advisory Opinion, 1923, P.C.I.J., Series B, No. 5), but
this was due to
?the very particular circumstances of the case,
among which were that the question directly concerned an already existing
dispute, one of the States parties to which was neither a party to the Statute
of the Permanent Court nor a Member of the League of Nations, objected to the
proceedings, and refused to take part in any way? (Legality of the Threat or
Use of Nuclear Weapons, I.C.J. Reports 1996 (I), pp. 235‑236,
para. 14).
45. These considerations do not
release the Court from the duty to satisfy itself, each time it is seised of a
request for an opinion, as to the propriety of the exercise of its judicial
function, by reference to the criterion of ?compelling reasons? as cited
above. The Court will accordingly examine in detail and in the light of its
jurisprudence each of the arguments presented to it in this regard.
*
46. The first such argument is
to the effect that the Court should not exercise its jurisdiction in the
present case because the request concerns a contentious matter between Israel
and Palestine, in respect of which Israel has not consented to the exercise of
that jurisdiction. According to this view, the subject‑matter of the
question posed by the General Assembly ?is an integral part of the wider
Israeli‑Palestinian dispute concerning questions of terrorism, security,
borders, settlements, Jerusalem and other related matters?. Israel has
emphasized that it has never consented to the settlement of this wider dispute
by the Court or by any other means of compulsory adjudication; on the contrary,
it contends that the parties repeatedly agreed that these issues are to be
settled by negotiation, with the possibility of an agreement that recourse
could be had to arbitration. It is accordingly contended that the Court should
decline to give the present Opinion, on the basis inter alia of the
precedent of the decision of the Permanent Court of International Justice on
the Status of Eastern Carelia.
47. The Court observes that the
lack of consent to the Court?s contentious jurisdiction by interested States
has no bearing on the Court?s jurisdiction to give an advisory opinion. In an
Advisory Opinion of 1950, the Court explained that:
?The consent of States, parties to a
dispute, is the basis of the Court?s jurisdiction in contentious cases. The
situation is different in regard to advisory proceedings even where the Request
for an Opinion relates to a legal question actually pending between States.
The Court?s reply is only of an advisory character: as such, it has no binding
force. It follows that no State, whether a Member of the United Nations or
not, can prevent the giving of an Advisory Opinion which the United Nations
considers to be desirable in order to obtain enlightenment as to the course of
action it should take. The Court?s Opinion is given not to the States, but to
the organ which is entitled to request it; the reply of the Court, itself an
?organ of the United Nations?, represents its participation in the activities of
the Organization, and, in principle, should not be refused.? (Interpretation
of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory
Opinion, I.C.J. Reports 1950, p. 71; see also Western Sahara,
I.C.J. Reports 1975, p. 24, para. 31.)
It followed from this that, in those
proceedings, the Court did not refuse to respond to the request for an advisory
opinion on the ground that, in the particular circumstances, it lacked
jurisdiction. The Court did however examine the opposition of certain
interested States to the request by the General Assembly in the context of
issues of judicial propriety. Commenting on its 1950 decision, the Court
explained in its Advisory Opinion on Western Sahara that it had ?Thus . . .
recognized that lack of consent might constitute a ground for declining to give
the opinion requested if, in the circumstances of a given case, considerations
of judicial propriety should oblige the Court to refuse an opinion.? The Court
continued:
?In certain
circumstances . . . the lack of consent of an interested State
may render the giving of an advisory opinion incompatible with the Court?s
judicial character. An instance of this would be when the circumstances
disclose that to give a reply would have the effect of circumventing the
principle that a State is not obliged to allow its disputes to be submitted to
judicial settlement without its consent.? (Western Sahara, I.C.J. Reports
1975, p. 25, paras. 32‑33.)
In applying that principle to the request
concerning Western Sahara, the Court found that a legal controversy did
indeed exist, but one which had arisen during the proceedings of the General
Assembly and in relation to matters with which the Assembly was dealing. It
had not arisen independently in bilateral relations (ibid., p. 25,
para. 34).
48. As regards the request for an
advisory opinion now before it, the Court acknowledges that Israel and
Palestine have expressed radically divergent views on the legal consequences of
Israel?s construction of the wall, on which the Court has been asked to
pronounce. However, as the Court has itself noted, ?Differences of
views . . . on legal issues have existed in practically every
advisory proceeding? (Legal Consequences for States of the Continued
Presence of South Africa in Namibia (South West Africa) notwithstanding
Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971,
p. 24, para. 34).
49. Furthermore, the Court does
not consider that the subject‑matter of the General Assembly?s request
can be regarded as only a bilateral matter between Israel and Palestine. Given
the powers and responsibilities of the United Nations in questions relating to
international peace
and security, it is the Court?s view that
the construction of the wall must be deemed to be directly of concern to the
United Nations. The responsibility of the United Nations in this matter also
has its origin in the Mandate and the Partition Resolution concerning Palestine
(see paragraphs 70 and 71 below). This responsibility has been described
by the General Assembly as ?a permanent responsibility towards the question of
Palestine until the question is resolved in all its aspects in a satisfactory
manner in accordance with international legitimacy? (General Assembly
resolution 57/107 of 3 December 2002). Within the institutional
framework of the Organization, this responsibility has been manifested by the
adoption of many Security Council and General Assembly resolutions, and by the
creation of several subsidiary bodies specifically established to assist in the
realization of the inalienable rights of the Palestinian people.
50. The
object of the request before the Court is to obtain from the Court an opinion
which the General Assembly deems of assistance to it for the proper exercise of
its functions. The opinion is requested on a question which is of particularly
acute concern to the United Nations, and one which is located in a much broader
frame of reference than a bilateral dispute. In the circumstances, the Court
does not consider that to give an opinion would have the effect of
circumventing the principle of consent to judicial settlement, and the Court
accordingly cannot, in the exercise of its discretion, decline to give an
opinion on that ground.
*
51. The Court now turns to
another argument raised in the present proceedings in support of the view that
it should decline to exercise its jurisdiction. Some participants have argued
that an advisory opinion from the Court on the legality of the wall and the
legal consequences of its construction could impede a political, negotiated
solution to the Israeli‑Palestinian conflict. More particularly, it has
been contended that such an opinion could undermine the scheme of the ?Roadmap?
(see paragraph 22 above), which requires Israel and Palestine to comply
with certain obligations in various phases referred to therein. The requested
opinion, it has been alleged, could complicate the negotiations envisaged in
the ?Roadmap?, and the Court should therefore exercise its discretion and decline
to reply to the question put.
This is a submission of a kind
which the Court has already had to consider several times in the past. For
instance, in its Advisory opinion on the Legality of the Threat or Use of
Nuclear Weapons, the Court stated:
?It has . . . been
submitted that a reply from the Court in this case might adversely affect
disarmament negotiations and would, therefore, be contrary to the interest of
the United Nations. The Court is aware that, no matter what might be its
conclusions in any opinion it might give, they would have relevance for the
continuing debate on the matter in the General Assembly and would present an
additional element
in the negotiations on the matter. Beyond
that, the effect of the opinion is a matter of appreciation. The Court has
heard contrary positions advanced and there are no evident criteria by which it
can prefer one assessment to another.? (I.C.J. Reports 1996 (I),
p. 237, para. 17; see also Western Sahara, I.C.J. Reports 1975,
p. 37, para. 73.)
52. One participant in the
present proceedings has indicated that the Court, if it were to give a response
to the request, should in any event do so keeping in mind
?two key aspects of the peace process: the
fundamental principle that permanent status issues must be resolved through
negotiations; and the need during the interim period for the parties to
fulfill their security responsibilities so that the peace process can succeed?.
53. The Court is conscious that
the ?Roadmap?, which was endorsed by the Security Council in resolution 1515 (2003)
(see paragraph 22 above), constitutes a negotiating framework for the
resolution of the Israeli‑Palestinian conflict. It is not clear,
however, what influence the Court?s opinion might have on those negotiations: participants
in the present proceedings have expressed differing views in this regard. The
Court cannot regard this factor as a compelling reason to decline to exercise
its jurisdiction.
54. It was also put to the Court
by certain participants that the question of the construction of the wall was
only one aspect of the Israeli‑Palestinian conflict, which could not be
properly addressed in the present proceedings. The Court does not however
consider this a reason for it to decline to reply to the question asked. The
Court is indeed aware that the question of the wall is part of a greater whole,
and it would take this circumstance carefully into account in any opinion it
might give. At the same time, the question that the General Assembly has
chosen to ask of the Court is confined to the legal consequences of the
construction of the wall, and the Court would only examine other issues to the
extent that they might be necessary to its consideration of the question put to
it.
*
55. Several participants in the
proceedings have raised the further argument that the Court should decline to
exercise its jurisdiction because it does not have at its disposal the
requisite facts and evidence to enable it to reach its conclusions. In
particular, Israel has contended, referring to the Advisory Opinion on the Interpretation
of Peace Treaties with Bulgaria, Hungary and Romania, that the Court could
not give an opinion on issues which raise questions of fact that cannot be
elucidated without hearing all parties to the conflict. According to Israel,
if the Court decided to give the requested opinion, it would be forced to
speculate about essential facts and make assumptions about arguments of law.
More specifically, Israel has argued that the Court could not rule on the legal
consequences of the construction of the wall without enquiring, first,
into the nature and scope of the security
threat to which the wall is intended to respond and the effectiveness of that
response, and, second, into the impact of the construction for the
Palestinians. This task, which would already be difficult in a contentious
case, would be further complicated in an advisory proceeding, particularly
since Israel alone possesses much of the necessary information and has stated that
it chooses not to address the merits. Israel has concluded that the Court,
confronted with factual issues impossible to clarify in the present
proceedings, should use its discretion and decline to comply with the request
for an advisory opinion.
56. The Court observes that the
question whether the evidence available to it is sufficient to give an advisory
opinion must be decided in each particular instance. In its Opinion concerning
the Interpretation of Peace Treaties with Bulgaria, Hungary and Romania (I.C.J. Reports 1950, p. 72) and again in its Opinion on the Western
Sahara, the Court made it clear that what is decisive in these
circumstances is ?whether the Court has before it sufficient information and
evidence to enable it to arrive at a judicial |
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