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Legal Consequences of A Construction of A Wall in the a. In the meantime, the Chairman of the Arab Group also made a request of the
Occupied Palestinian Territory – Advisory Opinion (2004) UNSC to weigh in on the issues and take necessary measures.
ICJ b. This letter was accompanied by a draft resolution for consideration by the
Council which condemned the construction of the wall as illegal
The UNGA requested an advisory opinion re: Israel‟s construction of a wall within c. The resolution, however, was not adopted due to a negative vote by one of the
the Occupied Palestinian Territory. permanent members.
3. A resumption of the 10th Emergency Special Session was then requested. The special
DOCTRINE session resumed.
i. Art. 12 Par. 1 of the Charter provides the ff.: “While the Security 4. During these special sessions, the UNGA adopted resolution ES-10/13 which
Council is exercising in respect of any dispute or situation the functions demanded that the construction be stopped, and considered the construction
assigned to it in the present Charter, the General Assembly shall not as contradictory to the relevant provisions of international law.
make any recommendation with regard to that dispute or situation a. The resolution also requested the UN Sec-Gen. to make periodical reports as to
unless the Security Council so requests.” – should be interpreted as Israel‟s compliance with the resolution.
“as long as the UNSC is not currently acting on the matter, the UNGA 5. The special session was once again adjourned temporarily.
is free to make recommendations as to the matter.” a. Meanwhile, pursuant to the request, the Sec-Gen filed the report regarding the
ii. While Art. 65 of the ICJ Statute provides that “The Court may give an matter.
advisory opinion” (which denotes that the power of the Court is 6. On the other hand, the UNSC adopted Resolution No. 71515 (2003), also known
discretionary), in actual practice, the ICJ has never declined to as the “Quartet Performance- based Roadmap to a Permanent Two-State
respond to a request for an advisory opinion. Solution to the Israeli-Palestinian Conflict.”
- In the rare cases that the Court did decline to exercise a. Under the resolution, the quartet was composed of representatives from the US, EU,
jurisdiction, it was based on actual lack of jurisdiction Russia and the UN.
(Legality of the Use by a State of Nuclear Weapons in Armed b. It called on all involved parties to fulfill their obligations under the Roadmap in
Conflict), or in a special circumstance where the dispute was cooperation with the quartet in order to resolve the matter.
already existing, the States involved were non- members of the c. It should be noted, however, that the Roadmap did NOT contain any specific
League of Nation, and both objected to the proceedings and provision regarding the construction of the wall.
refused to take part in any way (PCIJ case of Status of Eastern 7. The special session once again resumed, and it was then that the resolution (ES-10/14)
Carelia Advisory Opinion requesting for the advisory opinion from the ICJ was adopted. The resolution posed the
iii. ICJ: Advisory opinions have the purpose of furnishing to the following question for the ICJ‟s advisory opinion:
requesting organs, the elements of law necessary for them in a. What are the legal consequences arising from the construction of the wall
their action. being built by Israel, the occupying Power, in the Occupied Palestinian
Territory, including in and around East Jerusalem, asdescribed 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?
FACTS ISSUE with HOLDING
1. The 10th Emergency Special Session of the UNGA (General Assembly) was first convened 1. Main Issue: WON the ICJ has jurisdiction (YES)
in the aftermath of a rejection by the UN Security Council (UNSC) of two draft resolutions a. ULTRA VIRES1 ACT? Was it acting beyond it’s authority when the UNGA to act given
concerning certain Israeli settlements in the Occupied Palestinian Territory. the active engagement of the UNSC?
a. The emergency special session was requested by a letter from the Chairman of the - There is no dispute that the subject of the request for an advisory opinion falls
Arab group, in order to discuss “illegal Israeli actions in occupied East Jerusalem and within the competence of the UNGA, as provided in the UN Charter (Charter for
the rest of the Occupied Palestine Territory.” brevity).
b. Resolution ES-10/2 was adopted, acceding to the request, and also condemning the - However, Art. 12 Par. 1 of the Charter provides the ff.: “While the Security
illegal Israeli actions. Council is exercising in respect of any dispute or situation the functions assigned
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- The Court‟s Opinion, moreover, is not given to States but to the organ entitled information and evidence to enable it to arrive at a judicial conclusion
to request for it. upon any disputed
- Even differing views on the legal consequences will not deprive the Court of questions of fact.”
jurisdiction as it had already stated in the Namibia Ad Op that “differences of i. In the present case, the Court has the report of the Sec-Gen,
views on legal issues have existed in practically every advisory proceeding, reports of special rapporteurs, and competent organs of the UN.
- NOTE: The Court in the Western Sahara Advisory Opinion, however, clarified ii. The participants, through the written statements they submitted,
that lack of consent may render the giving of an ad op as incompatible with the have also included relevant information.
Court‟s judicial character iii. Hence, the Court finds that it has sufficient information.
b. Is it improper because it may impede a political and negotiated solution d. Might it be improper because the advisory opinion lacks any useful purpose?
to the conflict? Will it undermine the UNSC‟s Roadmap? NO. It does not - ICJ: Advisory opinions have the purpose of furnishing to the
impered the political and negotiated solution, it will only be and additional requesting organs, the elements of law necessary for them in their
point to consider. action.
- It has been contended by several States that the issuance of the advisory i. Legality of the Threat or Use of Nuclear Weapons: “It is not for the
opinion could impede a possible political and negotiated solution. Moreover, it Court itself to purport to decide whether or not an advisory opinion is
may also undermine the scheme that the „Roadmap‟ (issued by the UNSC) has needed by the UNGA for the performance of its functions. The UNGA
set out. has the right to decide for itself on the usefulness of an opinion in the
- ICJ: In the Legality of Threat or Use case, the Court has stated that it light of its own needs.”
is aware that no matter what might be its conclusions in any advisory ii. Hence, the Court cannot decline to answer the question submitted,
opinion, such would have relevance for continuing the debate in the based on the ground that its opinion would lack any useful purpose.
UNGA, and would serve as an additional point to consider in e. Does it violate the principle of “one must come to Court with clean hands?‟ (since
negotiations. “Beyond that, the effect of the opinion is a matter of Palestine was allegedly responsible for violent attacks against Israel and its
appreciation.” population)
- As to the Roadmap, the Court notes that while it constitutes a - ICJ: This principle is inapplicable since it is the UNGA who requested
negotiating framework for Israel and Palestine, it is not clear how the the advisory opinion, and that such opinion shall be given to it, and
Court‟s reply would influence those negotiations. Even the not to any other State or entity.
participants in the proceedings have expressed differing views on the 3. What are the legal consequences of the Israel‟s construction of the wall in the
potential impact of the ad op. Hence, the Court cannot regard this Occupied Palestinian Territory?
factor as a compelling reason to decline an exercise of its jurisdiction. Court: Israel, with its construction of the wall, has been in violation of
- Even the fact that the construction of the wall is only a limited aspect of the international law.
wider dispute, and hence cannot be addressed properly in the proceedings at Citing:
hand, is not a compelling reason. At the same time, this is the very question a. Humanitarian Provisions of the Fourth Geneva Convention
c. Does the Court have the requisite facts and evidence to reach its conclusions? Yes. - On Applicability: While Israel is not a State party to this convention, the Court
It has sufficient info. observes that in the International Military Tribunal of Nuremburg, it has been
ISRAEL: Based on the Advisory Opinion on the Interpretation of Peace Treaties declared that the rules in the Convention were “recognized by all
with Bulgaria, Hungary and Romania, the Court cannot give an opinion on issues civilized nations and were regarded as being declaratory of the laws
which raise questions of fact that cannot be elucidated without hearing all and customs of war.”
parties to the conflict. i. That the provisions of the Fourth Hague Convention has attained the
i. Israel specifically argues that this task to inquire into the matter is status of customary international law is a fact recognized by all the
complicated by the fact that Israel alone possesses much of the participants in the proceedings before the Court.
necessary information and has stated that it has chosen not to address ii. Moreover both States involved had already engaged in acts that
the merits. recognize the applicability of the Fourth Geneva Convention: For
ii. Confronted with factual issues that are impossible to clarify, Israel Palestine, it has already made a unilateral undertaking to apply the
argues that the Court should decline to exercise its jurisdiction. said Convention, with Switzerland as the depositary State. As for
ICJ: The question of sufficiency of evidence is decided in a case-to- Israel, it had already made issuances and committed acts that indicate
case basis. What is decisive is “whether the Court has sufficient their assent to the application of the Convention within the occupied
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territories. Israel‟s Supreme Court had also recognized the binding
force of the Convention upon it. DISPOSITIVE PORTION
- Legal Consequence: Israel‟s construction of the wall and the creation of On the Responsibility of Israel:
settlements are in violation of Art. 49 Par. 6 of the Convention, which prohibits - Cease construction of the wall
the transfer of the civilian population of the Occupying Power into the occupied - Provide reparation for the damage arising from the unlawful conduct
territory. - Continue observance of the duty to comply with the international obligations
i. While Israel may insist that the construction of the wall is temporarily violated by it due to the construction of the wall..
and does not constitute an annexation of the occupied territory, the
Court “cannot remain indifferent to certain fears expressed to it that”
the wall will “prejudge the future frontier between Israel and DIGESTER: SD
Palestine.”
ii. The Court has also found that the acts of Israel has violated certain
provisions of the Convention: Art. 49 (on forcible transfers of
population), Art. 52 (right to employment of occupied citizens), Art. 53
(destruction of public and/or private property in the occupied
territory), and Art. 59 (provision of relief for occupied citizens).
b. International Covenant on Civil and Political Rights
- On Applicability: In the Legality of the Threat or Use case, the Court rejected
the argument that the Covenant applies only in time of peace,
explaining that the protection of the rights involved (civil and
political) under the covenant do not cease in times of war.
- Legal Consequences: Israel‟s acts have violated several provisions of the
Covenant:
i. Art. 9 – Right to freedom and security
ii. Art. 17 – Right to freedom from arbitrary or unlawful interference with
one‟s privacy
iii. Art. 12 – along with the Mandate for Palestine, this calls for freedom
in movement and in choice of residence. This also takes into account
the holy places present in the area, which calls for the responsible
State to allow freedom of access, subject only to needs of order and
security.
c. International Covenant on Economic, Social and Cultural Rights
- On Applicability: (see rationale for ICCPR above)
- Legal Consequences: Israel is found to have impeded the exercise the
Palestinians‟ right to work, to health, to education, and to an adequate standard
of living under this Convention.
d. UN Convention on the Rights of a Child
- On Applicability: Art. 2 of this Convention provides that the State parties
shall respect and ensure the rights set forth to each child within their
jurisdiction. The Convention is therefore applicable.
- Legal Consequences: (similar provisions with ICESCR; see consequences above)
e. On Validity by Self-Defense
- ICJ: Since Israel does not claim that the attacks against it are imputable to a
foreign State, Art. 51 (self-defense) of the UN Charter finds no application here.