Construction of Wall

International Public Order and the International Court's Advisory Opinion on Legal
Consequences of the Construction of a Wall in the Occupied Palestinian Territory

Author(s): Alexander Orakhelashvili
Source: Archiv des Völkerrechts, 43. Bd., No. 2 (Juni 2005), pp. 240-256
Published by: Mohr Siebeck GmbH & Co. KG
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International Public Order and the International Court's
Advisory Opinion on Legal Consequences
of the Construction of a Wall
in the Occupied Palestinian Territory
The International Court's Advisory Opinion on Legal Consequences of

the Construction of a Wall in the Occupied Palestinian Territory,1 based
on the request by the UN General Assembly, has been awaited with great
interest not only because it related to the highly contingent political con-
text,2 but also because it was expected to elaborate on several fundamental
issues of international law, related to both the Court's competence to de-
liver advisory opinions3 and the substantive law applicable to the legal
consequences of the construction of the wall in the Palestinian territory.
The Court's conclusions on the illegality of the wall built in the Pales-
tinian territory and the related duties of Israel and other States involve
multiple issues of international law. The Opinion examines the pertinent
issues of the law of the use of force, the right of peoples to self-determina-
tion, human rights and humanitarian law, as they are relevant in terms of
the legality and legal consequences of the construction of the wall. Most
importantly for our analysis, the Opinion touches on several issues of the
operation of international public order (public policy), confirming the in-
terdependence between the conceptual essence of that public order and its
specific effects. This contribution is intended to examine these issues in
terms of both the Opinion and the Opinions of individual judges which in
some cases offer alternative perspectives of understanding the pertinent le-
gal issues. In the first place, the concept of international public order will
be set out; then, the Court's findings on the breaches of public order will be
1 Delivered on 9 July 2004, General List No. 131; hereinafter in the text and footnotes
"Opinion".
2 For this reason several States considered that the Court should have refrained from giv-
ing the Advisory Opinion in this case, as that would, so the argument went, obstruct the po-
litical process of a political, negotiated solution to the Israeli-Palestinian conflict, especially
in terms of the implementation of the "Roadmap" on the Permanent Two-State Solution to
the Israeli-Palestinian Conflict, proposed by the representatives of the US, the EU, the Rus-
sian Federation and the UN. The Court overruled the objections based on such concerns,
considering that its Opinion would not hamper the peace process. Opinion, paras 22, 51-54.
3 ICJ Statute, Article 65; Opinion, paras 14-65.
Archiv des Völkerrechts, Bd. 43 (2005), S. 240-256

© Mohr Siebeck - ISSN 0003-892-X
International Public Order and the International Court's Advisory Opinion 241
focused upon; and, lastly, the Court's treatment of the public order duties
arising out of the fact of the construction of the wall will be evaluated.
The Concept and Effects of International Public Order
The public order norms in national legal systems are associated with fun-
damental norms barring the application of conflicting foreign laws, but
also with norms outlawing transactions between legal persons which con-
tradict good morals. The scope of the two categories of norms overlaps
significantly. Thus, public order operates with regard to acts and transac-
tions accomplished outside or within the given legal system.4
There can be no legal system without its public order norms5 and, as
suggested in jurisprudence, there is a proper international public policy,
whose norms "have a peremptory character and universal scope."6 Inter-
national public order is reflected in peremptory norms of general interna-
tional law (jus cogens), which operate in an absolute way and are non-
derogable, that is cannot be contracted out.7 Norms are peremptory be-
cause of the values they protect.8 Such substantive value must be the value
which is not at the disposal of individual States.9 Otherwise it cannot be
explained why the given norm is non-derogable.
It is widely agreed that the purpose of jus cogens is to safeguard the
overriding interests and values of the international community as a whole
as distinct from the interests of individual States.10 Jus cogens embodies "a
4 Pillet & Niboyet, Manuel de Droit International Prive (II-1924), 417-418, 569, 584;
Meyer, Droit International Prive (1994), 14; Nussbaum, Deutsches Internationales Pri-
vatrecht (1974), 64-65; Niederer, Einführung in die Allgemeine Lehren des Internationalen
Privatrechts (1956), 288, 297; Zitelmann, Internationales Privatrecht (Bd.I, 1897), 319;
Raapey Internationales Privatrecht (1961), 92; Wolff, Das Internationale Privatrecht
Deutschlands (1954), 61-62, also noting that the concepts embodied in Article 138 of the
German Civil Code peremptorily safeguarding good morals and Article 30 of the Ein-
führungsgesetz banning foreign laws incompatible with public order are the same. Referen-
ces are made to Article 6 of the French Civil Code, Article 138 of the German Civil Code,
Article 12 of the Preliminary Provisions of the Italian Civil Code. On public policy with re-
gard to contract in English law see Chitty on Contracts (1999), 835-839 and Beatson,
Anson's Law of Contract (2002), 352-353.
5 McNair, The Law of Treaties (1961), 213-214; Verdross, Forbidden Treaties in Interna-
tional Law, 31 AJIL (1937), 572 .
° Separate Opinion or Judge Moreno-Quintana, Case ICJ Reports, 1958, 106-107.
7 Dugard, Recognition and the United Nations (1987), 149; Mer on, Human Rights
Law-Making in the United Nations (1986), 198; Dupuy (2002), 282-283; Jaenicke, Zur
Frage des Internationalen Ordre Public, 7 Berichte der Deutschen Gesellschaft für Völker-
recht (1967), 96.
8 Furundziia, Tudement of 10 December 1998, case no. IT-95-17/I-T 38 ILM 1999. 349.
9 Zemanek, New Trends in the Enforcement of erga omnes Obligations, 4 Max Plank
Yearbook of the United Nations Law (2000), 8.
10 Verdross, Jus Dispositivum and Jus Cogens in International Law, 60 AJIL (1966), 58;
242 Alexander Orakhelashvili
transcendent common good of the internation

dispositivum is customary law that embodies a
national interests."11 Jus cogens protects not com
dom group of States but the basic values of the en
munity.12
Generally, the existence of international public order has been contested
by reference to the decentralised nature of the international legal system
which arguably, due to the absence of the centralised government in it,
could not sustain any public order.13 However, the challenges to the con-
cept of international public order (public policy) have become pointless
after the adoption of Article 53 of the 1969 Vienna Convention on the
Law of Treaties, according to which, "a treaty is void if, at the time of its
conclusion, it conflicts with a peremptory norm of general international
law". This is similar to the clauses in national legal systems outlawing
agreements against good morals and public order. The history of Article
53 VCLT demonstrates that it refers to international public order. Special
Rapporteur Lauterpacht linked the illegality of the object of treaties to
violations of international public order,14 and the Special Rapporteur Wal-
dock also emphasised that voiding treaties for their illegality of object in
contradiction with a peremptory norm "presupposes the existence of an
international public order containing rules having the character of jus
cogens."15
The Vienna Convention is the only source of positive law recognising
the relevance and legal effects of jus cogens. But the absence of a similar
authority as to the effect of jus cogens with regard to the acts and rules
other than treaties does not mean that the effect of jus cogens is limited to
the law of treaties. The invalidating capacity of jus cogens also extends to
Frowein, Jus Cogens, 7 EPIL 329; Rozakis, The Concept of Jus Cogens in the Law of
Treaties (1976), 2; Hannikainen, Peremptory Norms in International Law (1988), 2-5, 261;
Abi-Saab, The Concept of Jus Cogens in International Law, 2 Lagonissi Conference: Papers
and Proceedings, volume II, Geneva, Carnegie Endowment for International Peace (1967),
13; Jaenicke, (1967), 85-87; Virally, Reflexions sur le ajus cogens," 12 Annuaire Français de
Droit International (1966), 21; Klein, A Theory of the Application of the Customary
International Law of Human Rights by Domestic Courts, 13 Yale Journal of International
Law (1988), 351; Gormley, The Right to Life and The Rule of Non-Derogability: Peremp-
tory Norms of Jus Cogens, Ramcharan (ed.), The Right to Life in International Law (1985),
130; ZotiadeSy Staatsautonomie und die Grenzen der Vertragsfreiheit im Völkerecht, 17 Ös-
tereichische Zeitschrift für öffentliches Recht (1967), 109.
11 Brundner, The Domestic Enforcement of International Covenants on Human Rights,
35 University of Toronto Law Journal (1985), 249-250.
12 Zemanek (2000), 6.
13 Scbwarzenberger, The Problem of International Public Policy, 18 Current Legal Prob-
lems (1965), 212-214; Schwarzenberger, A Manual of International Law (1967), 29-30; per
contra Sir Robert Jennings, Nullity and Effectiveness in International Law, Cambridge Es-
says in International Law (1965), 74.
14 Report on the Law of Treaties, YblLC 1954(11), 154-155.
15 Second Report on the Law of Treaties, YblLC 1963(11), 52.
the actual acts and transactions of States offending against it.16 As Judge
Lauterpacht emphasised, "the concept of jus cogens operates as a concept
superior both to customary international law and treaty".17 Practice also
extends the operation of jus cogens beyond the law of treaties, especially
to the areas such as extradition,18 unilateral acts,19 State responsibility,20
and amnesties.21 Therefore, "the criticism of any attempt to extend jus co-
gens beyond the confines of the law of treaties is firmly premised on an
outmoded perception of international public order".22
If jus cogens had no impact on acts other than treaties, States could de-
rogate from jus cogens through such acts and actions, for the derogation
from jus cogens could happen not only formally as outlawed in Article 53
VCLT, but also informally, through State practice.23 In a decentralised le-
gal community, the actions of States can be a source of rights and obliga-
tions, and contribute to the formation and modification of legal relations
through the establishment of inter se relations different from general in-
ternational law. If such actions offend against jus cogens, the function of
the latter is to prevent the former from becoming an element of a new inter
se legal relation. The relevant acts and actions of States must be void, i.e.
incapable of giving rise to new commitments inconsistent with the
peremptory norm.
By virtue of the principles of recognition or tolerance an unlawful act
may begin to have legal effects: ex factis jus oritur.24 But Fitzmaurice
speaks of "cases in which overriding rules of jus cogens produce a situa-
tion of irreducible obligation and demand that illegal action be ignored or
not allowed to affect obligations of other States."25 Within the law of
treaties, jus cogens invalidates the conflicting transactions and, as Gug-
genheim submits, the validity and nullity of international legal acts must
16 Suy, The Concept of Jus Cogens in International Law, Lagonissi Conference: Papers
and Proceedings, volume II, Geneva, Carnegie Endowment for International Peace (1967),
p. 75; Merony Human Rights Law-Making in the United Nations (1986), p. 190.
17 Application of the Genocide Convention, ICJ Reports, 1993, p. 440 (Separate
Opinion).
18 Yearbook of the Institute of International Law, (1981) 59, Part I p. 150; see also, Vol. 60,
Part II, 1983, p. 234.
19 Fifth Report on Unilateral Acts by Special Rapporteur Rodriguez-Cedeno, A/CN.4/
525/Add.l,pp.6-10.
20 Articles on State Responsibility, ILC Report 2001, pp. 206-209, 277-292.
21 Furundzija (ICTY, Trial Chamber), 10 December 1998, IT-95-17/I-T, paras. 155-156.
22 Dueard (1987), n. 142.
23 As Judge ad hoc Fernandez suggested in Right of Passage, State practice diverging from
jus cogens is derogation and has no effect, ICJ Report 1960, 135.
M Suy(1967),75.
25 Fitzmaurice, The general principles of international law considered from the stand-
point of the rule of law, Recueil des cours, Volume 92 (1957-11), 122.
be examined in terms of the conditions of

norms.26 This context covers the jus cogens inva
ing jus cogens are absolutely void.27
The function of jus cogens is not declaratory, b
tion consists not in a substantive outlawing or
conduct, but in determining the legal consequenc
certain fundamental norms, and supporting t
these consequences themselves. It may be cont
enforcement of jus cogens are different thin
norms are accepted in international law and
possess superior force with regard to their effec
such restrictive view of jus cogens questions its g
clear what is the function of differentiation in su
norms if this has no consequential effect, and wh
cific in nature because of embodying communi
able to produce specific consequences to safegu
community interest.
There is sufficient evidence to affirm that. To i
64 of the Vienna Convention are framed not in t
bition not to conclude agreements conflicting
fect-oriented terms, and focus upon the legal
where such agreements are concluded. In the
emphasised that the universal prohibition of gen
universal duty of cooperation in suppressing g
the duty of extradition and prosecution of perso
The principle of non-recognition of acts offendin
relates not to the substantive nature of jus cogen
fect and enforcement.30
This justifies the approach that "jus cogens as a
legal rules comes into play only when the va
26 Guggenheim, La validité et la nullité des actes juridique

195.
27 Verzjily La validité et la nullité des actes juridiques int
international (1935), 316.
28 As contended by Judge ad hoc Kreca in the Bosnia case,
its enforcement are different things. See ICJ Reports, 1
Judge Kreca opposed the International Court's findings on t
on its jurisdiction. But the Court itself held that the nature
of its jurisdiction in a specific case. See ICJ Reports, 1996, 1
a ICJ Reports 1951, 23-24; as Rosenne submitted, the O
duty of States to cooperate in the suppression of genocide,
30 About the principle of non-recognition, see Dugard (19
the UN International Law Commission on the work of its F
cial Records of the General Assembly, Fifty-sixth session,
at 286-290.
evaluated or when it has to be determined whether, by other means, a legal

position can be created or maintained that is incompatible with such
peremptory rules".31 When a principle in question is peremptory, it would
be artificial to attribute different legal force to various rules and principles
specifying, elaborating and implementing it. "The whole cluster of legal
standards" emanating from a peremptory norm and supporting its en-
forcement must be regarded peremptory as well.32
The Court's Findings as to the Violations of Public Order Norms
In the Advisory Opinion, the Court found that the construction of the
wall violated several fundamental norms of international law, such as the
prohibition of the use of force, the right of the Palestinian People to self-
determination, human rights and humanitarian law. These norms have
peremptory status,33 which means that their breaches entail the conse-
quences essentially different from the breaches of ordinary norms. The
Court's approach confirms that it has followed this principle.
The Court demonstrated that the situation it dealt with was not taking
place in the factual or legal vacuum but in the context which was relevant
for determining the legality and legal consequences of the construction of
the wall. As the starting-point of its analysis, the Court acknowledged
that it dealt with the legal consequences of "the wall being built in the
Occupied Palestinian Territory, including in and around East Jerusa-
lem."34 The Court considered that the status of the territories in question
was also relevant. It referred to several resolutions of the UN Security
31 Tomuschat, Obligations Arising for States without or against Their Will, 241 Recueil
des Cours (19931 d. 276.
32 Cassese, Self-Determination of Peoples (1994), p. 140.
33 On the prohibition of the use of force see Nicaragua, ICJ Reports, 1986, 100-101 and
ILC, YblLC, (1966-11), 248, ILC Report 2001, commentary to Article 40, 283, para. 4. Judge
Elaraby, Separate Opinion, Wall Advisory Opinion, para. 3.1. Dinstein, War, Aggression and
Self-Defence (2001), 94. On the right to self-determination see the Separate Opinion of
Judge Ammoun, Barcelona Traction, ICJ Reports, 1970, 72; YblLC (1963-11), 22; UN
Human Rights Commission Res2003/3; Shaw, Title to Territory in Africa (1986), 91; Gros-
Espiely Self-Determination and Jus Cogens, Cassese (ed.), UN Law/Fundamental Rights
(1979), 167-171; Dugard, Recognition and the United Nations (1987), 158ff; Cassese, Self-
Determination of Peoples (1994), 171-172. On humanitarian law, see Nuclear Weapons, ICJ
Reports 1996, 257; Judge Bedjaoui, Declaration, ICJ Reports 1996, 273; Judge Weeramantry,
Dissenting Opinion, 46; Judge Koroma, Separate Opinion, ICJ Reports, 1996, 574. ILC Re-
port 2001, 284; Sassoli, State Responsibility for Violations of Humanitarian Law, 84 Interna-
tional Red Cross Review (2002), 413-414; Werksman & Khalatschi, Nuclear weapons and
the concept of jus cogens: peremptory norms and justice pre-empted? Boisson de
Chazournes & Sands (eds), International Law, the International Court of Justice and Nu-
clear Weapons (1999), 194-196.
34 Opinion, para. 67.
Council declaring illegal, in the context of the Isr

ritories of West Bank, the acquisition of territor
(1967)) and the lack of legal force and total invalid
and administrative measures to change the status
cupation, "including expropriation of land an
populations and legislation aimed at the incor
section" (Resolution 298 (1971)). The Court fur
tion 478(1980), declaring null and void Israel's
lem the "complete and united" capital of Israel
and administrative measures . . . which have alter
character and status of the Holy City of Jerusale
ed that, all these actions being without legal effe
to alter the situation that these territories (includ
main occupied territories and Israel has« contin
occupying Power.36 These findings confirmed tha
wall took place in the context involving the br
the use of force and the ensuing illegality of f
tions. The Court affirmed, by reference to Artic
and the Friendly Relations Declaration embodi
bly Resolution 2625(1970), that the illegality of te
sulting from the threat or use of force is part of
law.37
The Court also referred to the voidness of actions contravening interna-
tional humanitarian law, especially to the treatment by the Security Coun-
cil of "the policy and practices of Israel in establishing settlements in the
Palestinian and other Arab territories occupied since 1967" in "flagrant
violation" of the provisions of the Fourth Geneva Convention dealing
with the rights and responsibilities of the occupying power, especially Ar-
ticle 49. The Council had in its resolutions 452 (1979), 446 (1979) and 465
(1980) affirmed that those settlements had "no legal validity."38
The Court also focused on the right to self-determination. During the
proceedings, Palestine emphasized that "The route of the wall is designed
to change the demographic composition of the Occupied Palestinian Ter-
ritory, including East Jerusalem, by reinforcing the Israeli settlements" il-
legally established on the Occupied Palestinian Territory. It was further
contended that the wall aimed at "reducing and parcelling out the territo-
35 Opinion, paras 74-75.

37 Opinion, para. 87; see also Nicaragua, Merits, ICJ Reports 1986, 14, on the role or the
UN General Assembly resolutions in the formation of customary law, and Declaration on
Principles of International Law Concerning Friendly Relations and Co-operation among
States in accordance with the Charter of the United Nations, G.A. res. 2625, Annex, 25 UN
GAOR, Supp. (No. 28), U.N. Doc. A/5217 at 121 (1970).
rial sphere over which the Palestinian people are entitled to exercise their
right of self-determination".39 The Court stated that "the route chosen for
the wall gives expression in loco to the illegal measures taken by Israel
with regard to Jerusalem and the settlements, as deplored by the Security
Council." The building of the wall contributed to the "further alterations
to the demographic composition of the Occupied Palestinian Territory"
through "the departure of Palestinian populations from certain areas."
The construction of the wall and its associated régime could create a "fait
accompli" that could well become permanent, in which case it would be
tantamount to de facto annexation of the territories by Israel. The Wall
severely impeded "the exercise by the Palestinian people of its right to
self-determination, and is therefore a breach of Israel's obligation to re-
spect that right."40
It must be noted that the Court's treatment of the impact of the Palestin-
ian right to self-determination is entangled with the effects of the illegality
of territorial acquisitions resulting from the threat or use of force: the
Court's analysis focused on the territory it characterised as falling within
the scope of that principle and also confirmed that the violation of the
principle of self-determination in the instant case would inter alia be
caused by an illegal annexation of the territory.
The Court focused on the legality under international humanitarian law
of the construction of the wall and referred to Article 2 of the Fourth
Geneva Convention of 1949,41 under which the Convention applies to ter-
ritories not falling under the sovereignty of one of the contracting parties,
even if the occupation of the territory meets no armed resistance. This in-
terpretation was preferred, as it reflects the intention of the drafters "to
protect civilians, who find themselves, in whatever way, in the hands of
the occupying power." The Fourth Geneva Convention is aimed at pro-
tecting not so much the interests of contracting parties, but protecting the
inhabitants of the occupied territory, regardless the status of that territo-
ry.42 Having affirmed the applicability of the Convention, the Court
pointed out that "the construction of the wall has led to the destruction or
requisition of properties under conditions which contravene the require-
ments of Articles 46 and 52 of the Hague Regulations of 1907 and of Ar-

41 Geneva Convention relative to the Protection of Civilian Persons in Time of War, 75
U.N.T.S. 287, entered into force Oct. 21, 1950.
** Opinion, para. 95. See also Reservations to the Genocide Convention, ICJ Reports
1951, 23-24; Kuprsekic, IT-95-16-T, Judgment of 14 January 2000, paras 518-519. It is gener-
ally accepted that human rights and humanitarian treaties embody objective obligations, not
reducible to bilateral inter-State relations, see Austria v Italy, Eur. Comm. HR, 4 YB ECHR
(1961), 140, Ireland v. UK, Eur. Ct. HR, 58 ILR 1 88, at 291, Effect of Reservations, IACtHR,
para. 27, 67 ILR 568.
248 Alexander Orakbelashvili
tide 53 of the Fourth Geneva Convention."43 Th

was to cease the construction of the wall and di
wall which were situated in the Palestinian ter
reparation to the victims of violations by way of
turn the land, orchards, olive groves and other im
from any natural or legal person for purposes of
in the Occupied Palestinian Territory," and pay
The Court's Opinion and the Public Order D
The most significant issue from the viewpoint of

Court's treatment of the legal consequences as r
Israel, arising from the peremptory character of
fore proceeding to determine these consequences,
the obligations violated by Israel include certain
The Court referred to its Barcelona Traction dic
such obligations are imposed on States towards t
nity as a whole, these obligations are by their ver
all States" and, in view of the importance of the r
can be held to have a legal interest in their protec
omnes violated by Israel are, according to the Cou
spect the right of the Palestinian people to self-de
of its obligations under intransgressible rules o
rian law.45
The Court considered that, due to the character and the importance of
the rights and obligations involved, "all States are under an obligation not
to recognize the illegal situation resulting from the construction of the
wall in the Occupied Palestinian Territory, including in and around East
Jerusalem." The Court furthermore concluded that States "are also under
an obligation not to render aid or assistance in maintaining the situation
created by such construction." In addition, having earlier found that the
construction of the wall on the Palestinian territory involved the breaches
of several provisions of the Fourth Geneva Convention, the Court
stressed that all the States-parties to the Convention are under an obliga-
tion to ensure compliance by Israel with international humanitarian law as
embodied in that Convention.46

** Opinion, paras 151-153, and the operative paragraphs 3(JJ) and 3(C).
45 Opinion, para. 155; see also Barcelona Traction, Light and Power Company, Limited,
Second Phase, Judgment, ICJ Reports 1970, at 32, para. 33.
46 Opinion, para. 159, and the operative paragraph 3(D). Judge Koojmans agreed with the
Judge Higgins approached the Court's treatment of this issue with a cer-
tain degree of criticism, stating that the dictum on erga omnes obligations
from Barcelona Traction ais frequently invoked for more than it can
bear." She denied that "the specified consequence of the identified viola-
tions of international law have anything to do with the concept of erga
omnes." Judge Higgins criticised the Court's reference to erga omnes obli-
gations in terms of the Barcelona Traction dictum, stating that "that dic-
tum was directed to a very specific issue of jurisdictional locus standi
has nothing to do with imposing substantive obligations

to a case."47 Similarly, Judge Koojmans had "considerable d
derstanding why a violation of an obligation erga omn
should necessarily lead to an obligation for third States."48
Furthermore, Judge Higgins went on to suggest that in t
mibia Advisory Opinion, "The obligation upon United
bers not to recognize South Africa's illegal presence in N
to lend support or assistance, relied in no way whatever
Rather, the Court emphasized that "A binding determi
competent organ of the United Nations to the effect that
gal cannot remain without consequence."49 Under such
lidity of acts and actions contradicting fundamental obliga
norms of international public order would be sustainable on
ed by the institutional determination to that effect.
Judge Higgins also criticised the reference to the erga
obligations in terms of the violations of humanitarian law,
the intransgressible principles of humanitarian law are
because they are customary international law, no more a
question before the Court was, however, not only whether
principles of humanitarian law are "generally binding" and
generates the secondary obligations in the field of State re
also, and crucially, what are the specific legal consequ
breaches of those norms and principles with regard to the
the wall in the Palestinian territory. The fact that a no
binding" does not explain the specific consequences it
case of its breach. These consequences are due to the nor
of a rule, as opposed to its binding character. As the U
Court with regard to the duty not to render aid or assistance, and added
have reminded States of the importance of rendering humanitarian assi
of the construction of the wall, Separate Opinion, para. 45.
4/ Separate Opinion, para. 37.
n Separate Opinion, para. 40.
** Separate Opinion, para. 38; see also Legal Consequences of the Co
South Africa in Namibia (South- West Africa) notwithstanding Security
276 (Advisory Opinion), ICJ Reports, 1971, 16.
50 Separate Opinion, para. 39.
250 Alexander OrakheUshvili
Law Commission suggested, the International Co

clear Weapons Advisory Opinion on the intransg
sic norms of humanitarian law refers to their perem
factor can justify the Court's application of the pri
tion to the breaches of relevant humanitarian norm
Judge Koojmans also tried to distinguish the instan
He submitted that "the situation is completely diff
Namibia case where the question was exclusively
consequences for States, and logically so since th
request was a decision by the Security Council."52
Whether and to what extent these criticisms of th
justified must be clarified by reference to the surr
especially the conceptual and normative bases of the
tion. The Court's analysis confirmed that in attemp
tive consequences of the construction of wall in the
knew it was not adjudicating in a vacuum but in
established pattern of what should be the conse
fundamental international norms. In its reasonin
the chain of acts, events and situations which surro
of the wall and were null and void.53 As a matter o
and situations involved the breaches of peremptory
In terms of doctrine, Lauterpacht was the first to
non-recognition to international public order. Laute
non-recognition "as a vindication of the legal ch
law against the law-creating effect of fact. In a s
forcement of the law is in a rudimentary stage the
for breaches of the law to be regarded, for the sole
ful assertion, as a source of legal right. Non-recogn
ger to a large extent".54 Acts of non-recognition do
contested acts illegal and void. They assume the e
according to which the acts in question would be
validity.55 Thus, Lauterpacht considers non-recog
the original invalidity.
Dugard has formulated the modern doctrine of
on jus cogens, by reference to the following factor
States and organisations refers to a certain entity o
language of "illegality", "invalidity" or "nullity", th
51 ILC Report 2001, Commentary to Article 40, para. 5, at 28

w Supra notes 37-38 and the accompanying text.
54 Lauterpachty I Collected Papers (1970), 347; Lauterpacht, R
Law (1947), 427.
55 Lauterpacht (1970), 341.
the recognition is withheld from an entity not because that entity lacks the
ingredients of statehood, but because it is illegally brought about.56 The
South African homeland-States arguably met the requirements of state-
hood laid down in the Montevideo Convention, but no State except South
Africa recognised them.57 Similarly, <c A cluster of fundamental principles
inherent in the two fundamental norms of the prohibition of the use of
force and the right to self-determination provide a legal basis for the re-
fusal of the United Nations to recognise Israel's sovereignty over East Je-
rusalem."58
Jus cogens gives a new doctrinal coherence to the doctrine of non-
recognition.59 Dugard formulates this doctrine as follows:
"An act in violation of a norm having the character of jus cogens is illegal and is therefore null
and void. This applies to the creation of States, the acquisition of territory and other situa-
tions, such as Namibia. States are under a duty not to recognise such acts."60
This is so, because

"Jus Cogens is a central feature in the modern doctrine of non-recognition as the violation of
a norm having the character oí jus cogens is a prerequisite for the illegality that results in the
nullity and non-recognition.**61
Non-recognition applies to situations involving nullity for conflict with

jus cogens.62 In all these cases the invalidity of titles as confirmed by UN
organs is implementing and declaratory of the jus cogens nullity, not just a
discretionary action.63
Dugard's approach is logically consistent, as if the special character and
effects of non-derogability of peremptory norms is emphasised, then
these effects must be able to generate the duty of non-recognition on their
own and without any institutional determination. Rozakis also explains
that jus cogens transforms the principle of non-recognition into a more ef-
fective principle emanating from the concept of objective illegality and its
subject-matter is determined not by subjective determinations but by
peremptory norms.64 In line with that, the UN International Law Com-
mission, while dealing with the Serious Breaches of Peremptory Norms,
treated Namibia as an evidence of the principle that where a peremptory
norm such as the principle of self-determination is violated, the duty of
56 Dugard (1987), 130-131.

57 Dugard (1987), 100.
58 Dugard (1987), 115.
59 Dugard (1987), 132.
60 Dugard (1987), 135.
61 Dugard (1987), 137; Kadelbach, Zwingendes Volkerrecht (1992), 82.
62 Dugard, Collective Non-Recognition: The Failure of South Africa's Bantustan States,
Boutros Boutros-Ghali - Amicorum Discipulorumque Liber - Peace, Development, De-
mocracy, volume I (1998), 400-402.
" Dugard (1998), 402.
M Rozakis, Jus Cogens and the Vienna Convention on the Law of Treaties (1976), 27.
non-recognition follows ipso jure,65 independentl

the principal organs of the UN.
This approach is logically coherent, as it respond
stand the function of peremptory norms to pr
certain fundamental illegalities through the ex
subsequent to the actual breach. The significan
fold. It confirms not only that the duty of non-r
legal effect of peremptory norms, but also tha
struction of the wall in Palestinian territory invo
that duty to specific violations of peremptory no
It follows that the breaches of peremptory norm
gal consequences both with regard to the State wh
levant peremptory norm and also other States
gards other States, which form an integral part of
stantive norm, must be deemed to have formed t
the General Assembly for the Advisory Opinio
sequences were not the only object of the request
phasised by Judge Koojmans, does not mean that
its ambit. The Court was asked to state the con
certain fundamental norms as they stand in su
cessarily included, contrary to Judge Koojma
quences as regards other States.
The Court itself never expressly mentioned the
norms, but spoke of erga omnes obligations. J
edged that the legal consequences for third Sta
were similar to those expressed in Article 41 of t
Responsibility. However, Judge Koojmans avoid
obligations erga omnes can be equated with ob
peremptory norm of general international law."66
nised in doctrine that jus cogens and obligation
sides of the same coin: they are virtually coex
omnes follow from peremptory norms and are
forcement.67 It is also recognised that the Intern
65 Commentary to Article 41, para. 8, ILC Report 2001, 28

67 Crawford, Third Report on State Responsibility (2000
106(a), especially stressing that "if a particular obligation ca
tween the two States, it is hard to see how that obligation is
munity as a whole." See also Simma, Injury and Counterm
Spinedi (ed.), International Crimes of State: A Critical An
Draft Articles on State Responsibility (1989), 290; Simma, B
terest in the Law of State Responsibility, Y. Dinstein/M. Tab
Time of Perplexity. Essays in Honour of Shabtai Rosen
International Responsibility of States for Breach of Multila
358-359; Abi-Saab, The Uses of Article 19, 10 EJIL (1999), 34
cogens, without explicitly referring to it, when it spoke of erga omnes ob-
ligations in Barcelona Traction.68 Therefore, the erga omnes nature of an
obligation is not a source or determinant of the public order nature of a
norm, but merely a consequence of such nature.69 It is not the erga omnes
nature of an obligation following from a rule of international law which
confers an imperative character on that rule or itself determines any of the
consequences of its breaches. On the contrary, the erga omnes nature of an
obligation merely refers to the invocability of legal consequences of the
violation of the rule, as these consequences themselves are determined by
the jus cogens nature of a rule from which the obligation in question fol-
lows.
This state of things could confirm that Judge Higgins is perhaps right in
asserting that "The obligation upon United Nations Members of non-
recognition and non-assistance does not rest on the notion of erga
omnes,"70 to the extent that, in the process of State responsibility, the phe-
nomenon of erga omnes obligations does not by itself imply the mandato-
ry consequential duties for the State which is the author of the violation or
the third States. On the other hand, the approach that the duty of non-re-
cognition in situations like that involved in the case at hand can only
follow from the institutional determinations of the principal organs of the
United Nations is not justified from the perspective of international pub-
lic order. The existing practice and doctrinal opinion confirms that once
the breach of a peremptory norm is capable of causing a legally relevant
change, the nullity of the relevant acts or actions follows and the duty of
non-recognition is among the natural consequences of the breach, inde-
pendently of any institutional determination to that effect. If the opposite
were the case, then peremptory norms would not be able to take their ef-
fect in the face of fundamental illegalities, unless the principal organs of
the United Nations decide accordingly. This perspective would reduce
peremptory norms to a dead letter.
In the face of Judge Higgins' criticisms, one could only defend the
Court by assuming that it referred to the erga omnes character of the per-
tinent obligations as the manifestation of the peremptory character of the
Crime? Definitely, Yes! 10 EJIL (1999), 429; Malanczuk, Counter-measures and Self-
defence, in Spinedi & Simma (ed.), The United Nations Codification on State Responsibility
(1987), 230-231.
68 Frowein, Jus Cogens, 7 EPIL 328; De Hoogh, The Relationship between Jus Cogens,
Obligations Erga Omnes and International Crimes: Peremptory Norms in Perspective, 42
Österreichische Zeitschrift für öffentliches Recht und Völkerrecht (1991), 183; Malanczuk,
First ILA Study Group Report on State Responsibility (2000), 44-45, para 141.
69 As Meron writes at the example of human rights, "being erga omnes is a consequence,
not a cause of a right's fundamental character," Meron, Human Rights Law-Making in the
United Nations (1986), 183.
254 Alexander Orakhelasbvili
rules which give them rise.71 This point is, as evi

in doctrine and practice. However, if the Court
tory norms by implication, its treatment of t
States arising from the construction of the wall i
territory can only be justified on the basis that t
situation - the principle of self-determinatio
humanitarian law - anyway form part of jus c
generate the legal consequences analogous t
Court's Opinion. Had the Court expressly follow
mative link, its findings could have been spared o
vidual judges.
The Court's approach to the duty of non-reco
also in terms of the implications of that duty. Ju
culty ... in understanding what the duty not to r
volves." As no State considered the Israeli wall
"the duty not to recognize amounts ... to an ob
stance."72
But Judge Koojmans' criticism is unsustainab
duty of non-recognition is designed to prevent f
ing transformed into the legal reality and hen
principle capable of dynamic application to cha
mere fact that, at the point the Court's Opini
considered the wall as legal, does not by itself ens
titudes cannot emerge in the future.73 The con
duty of non-recognition prevents such possible at
ing a legally relevant change.
The fact that no State as such considered the wa
in explaining the effect of peremptory norms in t
deed many, States could have acted out of their p
claring that the wall is illegal. This conclusion is f
fact that the decisions of the UN principal org
discretion and consensus, and generally (though
tically) subject to the possibility of change. This c
imperative requirements of international publ
treatment of the issue has provided with the s
pendent of the processes based on political disc
General Assembly finding on the illegality of the
71 It could be relevant in this context that the Court spoke

vant obligations, not the relevant norms.
73 Consider, especially, the attitudes of certain States conc
of return to their homes of certain Palestinian refugees, du
some changes resulting from the Six Days War in 1967.
sequences, though authoritative, is not binding as such. However, the

Court reiterated the duty of non-recognition in binding way. As Judge
Koroma stated, "The Court's findings are based on the authoritative rules
of international law and are of an erga omnes character."74 This is due to
the fact that, as Judge Koroma specified, the Opinion's findings affirm
"that the international community as a whole bears an obligation towards
the Palestinian people . . . not to recognize any unilateral change in the sta-
tus of the territory brought about by the construction of the wall."75
Conclusion
The Court's Opinion demonstrates that the effective response to the

breaches of peremptory norms requires viewing the effects of those norms
in a dynamic and multi-level perspective. In empirical terms, the Court's
Opinion contains a clear message that the breaches of what we know as
peremptory norms of general international law entail the strict legal con-
sequences which exclude their validation by any means whatsoever.
Things are more complicated in terms of the categorical perspective,
however. The references in the Opinion to erga omnes obligations has
provoked the justified criticism by individual judges, as the Court has
failed to demonstrate the link between the erga omnes character of the le-
gal obligation and the duties arising for States from the violation of that
obligation. The reference to the concept of erga omnes obligations was
unnecessary and this can be viewed as the implicit acknowledgment of the
effect of peremptory norms or, in the worst case, the confusion of terms.
Given that, it seems that what the Court meant in its Opinion or whether
its findings in question are well-founded will be debated for the consider-
able period of time. The likelihood of this would have been greatly re-
duced just by the better selection of the relevant terminology.
Alexander OrakhelashvilL LL.M. (Leiden)

Cambridge
Jesus College, PhD Candidate
Summary
How does international law respond to fundamental illegalities, such as the Israeli construc-
tion of a wall in the Occupied Palestinian Territories and what role can the International
Court of Justice, the principal judicial organ of the United Nations, play in this process?
The fact that the Court was asked by the UN General Assembly to deliver an advisory

256 Alexander Orakbelashvili
opinion to assess the legality of the construction of th

Palestinian territory from Israel has attracted diverse react
national lawyers advanced twofold objections. It was cont
best suited to its role if it declined to deliver the Opinion an
interfere with the political process of peace building in the
that the legal situation surrounding the Wall in the Occup
difficult that it cannot be resolved through the Opinion
jected both assumptions. Especially on the matters of sub
firms that the legal norms that apply to the situation arisin
Wall are clear and straightforward, and foresee clearly spec
legal consequences. This contribution aims to examine the C
aspect of the legal consequences arising - the impact of inte

Construction of Wall

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International Public Order and the International Court's Advisory Opinion on Legal

Consequences of the Construction of a Wall in the Occupied Palestinian Territory

The International Court's Advisory Opinion on Legal Consequences of

Archiv des Völkerrechts, Bd. 43 (2005), S. 240-256

The Concept and Effects of International Public Order

transcendent common good of the internation

be examined in terms of the conditions of

26 Guggenheim, La validité et la nullité des actes juridique

evaluated or when it has to be determined whether, by other means, a legal

The Court's Findings as to the Violations of Public Order Norms

Council declaring illegal, in the context of the Isr

35 Opinion, paras 74-75.

39 Opinion, para. 115.

tide 53 of the Fourth Geneva Convention."43 Th

The Court's Opinion and the Public Order D

The most significant issue from the viewpoint of

43 Opinion, para. 132.

has nothing to do with imposing substantive obligations

Law Commission suggested, the International Co

51 ILC Report 2001, Commentary to Article 40, para. 5, at 28

This is so, because

Non-recognition applies to situations involving nullity for conflict with

56 Dugard (1987), 130-131.

non-recognition follows ipso jure,65 independentl

65 Commentary to Article 41, para. 8, ILC Report 2001, 28

rules which give them rise.71 This point is, as evi

71 It could be relevant in this context that the Court spoke

sequences, though authoritative, is not binding as such. However, the

The Court's Opinion demonstrates that the effective response to the

Alexander OrakhelashvilL LL.M. (Leiden)

74 Separate Opinion, para. 8.

opinion to assess the legality of the construction of th

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