Legal consequences of the construction of a wall in the occupied Palestinian territory, advisory opinion

- Israel v Palestine
o Israel constructed wall in Palestinian territory
 In and around East Jerusalem v Armistice Line of 49, Green Line
 Affected land, resources, civilians
 Opposed by international community
 SC rejected two resolutions concerning Israeli settlements in Occupied Palestine
 GA convened tenth emergency special session
o …League of Arab States, Quartet (US, UN, EU, Russia)
o GA requested ad op on question: what are the legal consequences arising from the constr of wall being
built by Israel, occupying power, considering the rules and principles of IL, including 4th Geneva
convention and SC and GA resolutions?
- Contentions against GA competence to request instant ad op
o GA acted ultra vires given the active engagement of SC with situation in ME
o Did not fulfil essential conditions in resoltution 377 A
 SC never seised of a draft resolution proposing that SC should request ad op
 Therefore, GA cannot rely on any inaction by SC to make such request
 Adopting resolution 1515 endorsing Roadmap, SC continued to exercise responsibility for
maintenance of interntional peace and security; therefore GA not entitled to act in its place
 Tenth emergency special session = rolling character
o Improper to convene tenth emergency special session when regular session in progress
o Resolution not on a legal question || Art 96, Charter, Art 65, Statute
 Not possible to determine with reasonable certainty the legal meaning of the question asked of
the Court
 Question regarding legal consequences only allows for two possible interpretations
leading to course of action that is precluded for the court
o Court should decline due to jurisdiction and proprietary issues; would be based
on questionable assumption
 Question imprecise and abstract
 Question political in character
o Should decline to exercise jurisdiction because of GA request aspects would render exercise of
jurisdiction improper, inconsistent with judicial function
 Request concerns contentious matter bet Israel and Palestine—Israel has not consented. Parties
repeatedly agreed to settle by negotiation
o Should decline because ad op could impede political, negotiated solution to conflict
 Would undermine schem of Roadmap requiring Is and P to comply with certain obligations
o Should decline because no requisite facts and evidence to enable it to reach conclusions. Inquire first on
naure and scope of security threat and into impact of constr for Palesitinans
o Should decline because no useful purpose. Opinion not needed because GA already declared wall illegal
and determined legal consequences by demanding Isral stop and reverse constr
o Should decline because Palestine responsible for acts of violence against Israel which wall seeks to
address; Palestine cannot seek remedy for situation resulting from its own wrongdoing
- On jurisdiction (does it have jurisdiction? If so, should it decline request?)
o Does ICJ have jurisdiction to render opinion?
 Jurisdiction/competence rests on auth of organ to request ad op
o || Statute, Art 65: court may give ad op on any legal question at the request of
whatever body may be authorized by or in accordance with the charter of UN to
make such a request
o || App for review of judgment, ad op: precondition of court’s competence that
the ad op be requested by an organ duly authorized to seek it under the
charter; requested on a legal question, and except in case of GA or SC, that
question be one arising within the scope of the activities of the requesting organ
 Who are authorized to seek ad op
 || 96: the GA or SC may request the ICJ to give ado op on any legal ?
o SC
 || 24: SC has primary responsibility for maintenance of international
peace and security
 Can impose on states an explicit obligation of compliance if it
issues an order or command
 Can require enforcement by coercive action
 Above primary but not exclusive competence. GA can also recommend
measures for peaceful adjustment of situations
o GA
 May seek ad op on any legal question
 BUT ICJ previously indicated considering relationship bet question of
the subject of a request for ad op and activities of GA
 Art 10: GA competence relating to any questions or any matters
 Art 11 (2): competence on questions relating to the maintenance of
international peace and se urity brought before it by any member of
the UN
 Only restriction in Art 14: Art 12 restriction—that GA should not
recommend measures while SC dealing with same matter, unless
Council requests it to do so
 While matter remained in SC’s agenda
 BUT Notion evolved: increasing tendency for GA and SC to deal
in parallel with same matter concerning maintenance of
international peach and security
o GA still deemed self entitled to adopt
recommendations re Congo and Portuguese colonies
while still in SC agenda
o Legal Counsel of UN: Assembly confirmed to interpret
words “exercising the functions” as “exercising the
functions at this moment”
 Above evolution OK
o Consistent with Art 12 (1), Charter
 Here, GA request for ICJ to give advisory opinion valid
o Request brought before GA by member states in 10th emergency sp session
 Notwithstanding request submitted while still in agenda of SC
 || evolution above
o 377 A resolution: if SC, because of lack of unanimity of permanent members,
fails to exercise primary responsibility of maintenance of international peace
and security in any case where there appears to be a threat to the peace,
breach of peace, or act of aggression, the GA shall consider the matter
immediately with a view to making appropriate recommendations to members
for collective measures
 Conditions:
 1. Council failed to exercise primary responsibility as a result of
a negative vote of one or more permanent members
 2. Situation: one where there appears to be a threat to the
pace, breach of peace, or act of aggression
 Here, tenth emergency special convention convened
 SC failed to act as contemplated in resolution
o SC unable to take decision on case of Israeli
settlements due to negative votes of permanent
member
 o Reconvened in 2003 again as result of negative vote
 Threat to international peace and security existed
o GA can 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
 Irrelevant that no proposal made to SC to request opinion
o Rolling character (convened and reconvened 11 times) irrelevant to validity of
request by GA
 Note: 7th emergency special session reconvened a number of times and
yet its resolutions were not questioned
o No rule that emergency sessions cannot be held together with regular sessions
o + emergency special session convened || Rule 9 (b) of Rules
 And relevant meetings convened || applicable rules
 || Ad Op on legal consequences for states of continued presence of
south Af in Namibia notwithstanding SC resolution: resolution of a
properly constituted organ of the UN passed in accordance with rules of
procedure and declared by Pres to have been so passed must be
presumed to have been validly adopted
 Presumption not rebutted here
o Question a legal question, therefore OK
 Question in this case framed in terms of law and raises problems of
international law
 directed to legal consequences arising from given factual
situation considering the rules and principles of IL
 susceptible of a reply based on law
o ICJ will only have to do what it has often done: identify
existing principles and rules, interpret them, apply
them
o Use of term “legal consequences” necessarily
encompasses an assessment of whether that constr is
or is not in breach of certain rules and principles of
international law—is there breach
 lack of clarity in drafting of question does not deprive ICJ of juris
 rather, such uncertainty will require clarification in
interpretation and such necessary clarifications of
interpretation have frequently been given by Court
 abstract nature does not raise issue of jurisdiction
 || Legality of the threat or use of nuclear weapons: to contend
that it should not deal with a question couched in abstract
terms is a mere affirmation devoid of any justification
o Court may give an advisory opinion on any legal
question, abstract or otherwise
 But question here not really abstract
 That question political in character irrelevant
 Fact: legal question also has political aspects
 Whatever its political aspects, court cannot refuse to admit the
legal character of a question which invites it ot discharge an
essentially judicial task, namely an assessment of the legality of
the possible conduct of States regarding obligations imposed
upon them by IL
 + in situations in w/c political considerations are prominent, it
may be particularly necessary for an int’l organization to obtain
 an advisory opinion from the court as to the legal principles
applicable w/ respect to matter under debate
o Should ICJ decline to exercise jurisdiction?
 Giving of ad op discretionary (“may”)
 But Court mindful of fact that its answer to a request for a ad op respresents its participation in
the activities of the Org and in principle, should not be refused
 Given its responsibilities as the principal judicial organ of the UN, Court should in
principle not decline to give an ad op
 only compelling reasons should lead the court to refuse its opinion
 court has never declined to respond to request
 Court previously declined because it lacked jurisdiction
 And not based on judicial propriety considerations
 PCIJ only declined once: status of Easter Carelia: the very particular circumstances of the
case, among which were that the question directly concerned an already existing
dispute, one of the parties to which was neither a party to the PCIJ statute nor member
of League, objected to proceedings and refused to take part in any way
 Lack of consent to court’s contentious jurisdiction by interested S has no bearing on jurisdiction
to give ad op
 Court’s reply only advisory, therefore not binding
 Therefore, no state can prevent giving of ad op
 Lack of consent might constitute a ground for declining to give opinion if considerations
of judicial propriety should oblige Court to refuse an opinion
o Ex: 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)
 + difference of views on legal issues have existed in practically every ad op proceeding
 + subj matter cannot be regarded only as a bilateral matter et Israel and Palestine
 Construction of wall diretly of concern to UN
 UN responsibility < Mandate and Partition Resolution concerning Palestine
o GA: a permanent responsibility towards the question of Palestine until the
question is resolved in all its apsects in a satisfactory manner in accordance with
int’l legitimacy || adoption of SC and GA resolutions
 To give an opinion would not have the effect of circumventing the principle of consent
to judicial settlement
 Ad op influence on negotiations in Roadmap not clear. Not bar to giving op
 Court aware that question of wall part of a greater whole and would take circumstance
carefully into acct in any opinion
 + question confined to legal consequences of constr of wall
 Question of whether court has sufficient evidence to give op must be decided in each particular
instance
 Here, Court has voluminous dossier by Sec-Gen—route, impact, onsite visits—etc
 Object of request for op is to guide UN in respect of its own action. Not necessary to clearly state
what use it would make of ad op
 It was GA which requested, not any specific State or entity
- On legal consequences
LaGrand Case (Germany v USA)

- Order of 3 Mar 1999: provisional measures

- Germany, third submission: Court to rule on question of legal effects of order || Art 41, Statute: integral
component of entire orginal dispute bet parties
o Order intended to enforce rights under Vienna convention and preserve rights pending decision on
merits
o Dispute as to whether US obliged to comply and did comply necessarily arises out of the interpretation or
application of the convention and thus falls within the jurisdiction of the court
o Order implicates in aux and subsidiary manner the inherent jurisdiction of the Court for claims as closely
interrelated with each other as the ones before court
- USA objection to third submission:
o manner of institution of present proceedings—no consular notification—not raised by Germany for six
and a half years
o Inadmissible. Court can rule without having to rule on third submission
 Otherwise, Court play role of ultimate court of appeal in national court of appeal in national
criminal proceedings
- ICJ
o USA objection nada
o On third submission
 Concerns issues arising directly out of dispute bet parties over which the court has already held
that it has jurisdiction
 Therefore covered by Art 1 of Optional Protocol
 || Fisheries jurisdiction: in order to consider dispute in all aspects, it may also deal with a
submission that is one based on facts subsequent to the filing of the application but arising
directly out of the question which is the subject matter of that application
 Where the court has juris to decide a case, it also has jurisdiction to deal with submissions
requesting it to determine that an order indicating measures which seeks to preserve the rights
of the parties to this dispute has not been complied with
Case concerning questions of interpretation and application of 1971 Montreal Convention arising from the aerial incident
at Lockerbie (Libyan Arab Jamahiriya v USA)

- 1988 Dec 21: Pan Am flight 103 destroyed

o US: Grand Jury v two Libyan nationals as suspects of bomb explosion causing crash of plane
- Libya filed application instituting proceedings v US
o Re dispute bet Libya and US over interpretation or app of Montreal Convention
 Request: declare Montreal Convention applicable to suit; that Libya fully complied with all of obligations under
Convention; US breached, breaching legal obligations || Convention; US under legal obligation to immediately cease
and desist from such breaches and from use of any and all force or threats against Libya. Court has jurisdiction
o No Libyan judge; exercised right to choose judge ad hoc to sit in case (Ahmed)
o President of Court national of one of the parties. VP presided over case
o US: Court has no jurisdiction. Application not admissible. Claims moot because rendered without object
- ICJ:
o Libya: jurisdiction || Montreal Convention Art 14 (1): any dispute bet two or more contracting states
concerning the interpretation or application of this convention which cannot be settled through
negotiation shall at the request of one of them be submitted to arbitration. If no agreement as to
organization of arbitration, referral to ICJ || Statute
o US: 14 (1) requisites not complied with in present case
 Libya failed to show
 legal dispute existence
o destruction of plane did not give rise to any dipute bet parties
 Dispute, if any, concerns application or interpretation of Convention
 And if Libya made proer request for arbitration or respected six mo pd in Art 14 (1)
o COURT HAS JURISDICTION
o Libya need not observe six-mo pd || 14(1) to seise court
 Dispute could not be settled by negotiation or arbitration
 + US refused to enter into arbitration
 Therefore, Libya need not wait for six mos before seising the court
o Dispute exists
 Dispute = disagreement on a point of law or fact, a conflict of legal views or of interests bet two
persons
 || East Timor: in order to establish the existence of a dispute, it must be shown that the
claim of one party is positively opposed by the other
 || Interpretation of Peace Treaties: whether there exists an international dispute is a
matter for objective determination
 Here:
 General dispute
 Libya: Convention applicable; US: Convention irrelevant
 Libya: destruction governed by Convention; US: nope
o Clearly a dispute bet parties as to legal regime applicable
 And such dispute concrns interpretation and application of Convention
 Therefore falls within 14 (1) of Convention
 Therefore to be decided by Court
 Specific dispute
o Interpretation and application
 Art 7: S where alleged offender found to extradite or commence
proceedings ||
 Art 1: commission of an offense
 Art 5: S to take measures as necessary to est jurisdiction over offenses
 Art 6: procedure, custody of suspect offender
 Art 8: extradition process
 o Libya: commenced investigation therefore US obliged to hand over evidence,
etc. US did not comply because no info at all || Art 11
o Court to decide on lawfulness of actions criticized by Libya in so far as actions contrary to Montreal Con
o Subsequent coming into existence of SC resolutions cannot affect ICJ jurisdiction once established
o APPLICATION ADMISSIBLE
 US: application not admissible; Libya would then seek to undou SC actions. Claims under
Convention, if any, are superseded by SC decisions which impose different obligations
 Libya: resolutions clear that SC never required Libya to surrender its nationals to US or UK. Court
must interpret resolutions || Charter and Charter prohibited council from requiring Libya to
hand over nationals to US, UK
 Application admissible as the court can usefully rule on the interpretation and app of
Convention, independently of the legal effects of resolutions.
 Objections not preliminary in character
 Critical date for determining admissibility of app is the date on which it is filed
o Here: filed 3 Mar 92; resolutions adopted 31 Mar 92, 11 Nov 93
 21 Jan 92 mere recommendation
 Resolutions cannot form legal impediment to admissibility
 Filed later and one earlier mere recommendation
o OBJECTION AS TO MOOTNESS BECAUSE RENDERED WITHOUT OBJECT CONTAINS BOTH PRELIMINARY
AND OTHER SPECTS RELATING TO MERITS
 Libya’s rts on merits would not be affected by decision not to proceed to judgment on merits at
this stage
 BUT would constitute the very subject-matter of that decision
 US objection does much more than touch upon subjects belonging to merits of the case
 Will be considered when Court reaches merits of case