Advisory Opinions 2. The 10th Emergency Special Session was subsequently adjourned temporarily.
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)
ICJ
The UNGA requested an advisory opinion re: Israel‟s construction of a wall within
the Occupied Palestinian Territory.
DOCTRINE
i. Art. 12 Par. 1 of the Charter provides the ff.: “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.” – should be interpreted as
“as long as the UNSC is not currently acting on the matter, the UNGA
is free to make recommendations as to the matter.”
ii. While Art. 65 of the ICJ Statute provides that “The Court may give an
advisory opinion” (which denotes that the power of the Court is
discretionary), in actual practice, the ICJ has never declined to
respond to a request for an advisory opinion.
- In the rare cases that the Court did decline to exercise
jurisdiction, it was based on actual lack of jurisdiction
(Legality of the Use by a State of Nuclear Weapons in Armed
Conflict), or in a special circumstance where the dispute was
already existing, the States involved were non- members of the
League of Nation, and both objected to the proceedings and
refused to take part in any way (PCIJ case of Status of Eastern
Carelia Advisory Opinion
iii. ICJ: Advisory opinions have the purpose of furnishing to the
requesting organs, the elements of law necessary for them in
their action.
FACTS
1. The 10th Emergency Special Session of the UNGA (General Assembly) was first convened
in the aftermath of a rejection by the UN Security Council (UNSC) of two draft resolutions
concerning certain Israeli settlements in the Occupied Palestinian Territory.
a. The emergency special session was requested by a letter from the Chairman of the
Arab group, in order to discuss “illegal Israeli actions in occupied East Jerusalem and
the rest of the Occupied Palestine Territory.”
b. Resolution ES-10/2 was adopted, acceding to the request, and also condemning the
illegal Israeli actions.
1 Acting beyong one’s authority
UNSC to weigh in on the issues and take necessary measures.
b. This letter was accompanied by a draft resolution for consideration by the
Council which condemned the construction of the wall as illegal
c. The resolution, however, was not adopted due to a negative vote by one of the
permanent members.
3. A resumption of the 10th Emergency Special Session was then requested. The special
session resumed.
4. During these special sessions, the UNGA adopted resolution ES-10/13 which
demanded that the construction be stopped, and considered the construction
as contradictory to the relevant provisions of international law.
a. The resolution also requested the UN Sec-Gen. to make periodical reports as to
Israel‟s compliance with the resolution.
5. The special session was once again adjourned temporarily.
a. Meanwhile, pursuant to the request, the Sec-Gen filed the report regarding the
matter.
6. On the other hand, the UNSC adopted Resolution No. 71515 (2003), also known
as the “Quartet Performance- based Roadmap to a Permanent Two-State
Solution to the Israeli-Palestinian Conflict.”
a. Under the resolution, the quartet was composed of representatives from the US, EU,
Russia and the UN.
b. It called on all involved parties to fulfill their obligations under the Roadmap in
cooperation with the quartet in order to resolve the matter.
c. It should be noted, however, that the Roadmap did NOT contain any specific
provision regarding the construction of the wall.
7. The special session once again resumed, and it was then that the resolution (ES-10/14)
requesting for the advisory opinion from the ICJ was adopted. The resolution posed the
following question for the ICJ‟s advisory opinion:
a. 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, 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?
ISSUE with HOLDING
1. Main Issue: WON the ICJ has jurisdiction (YES)
a. ULTRA VIRES1 ACT? Was it acting beyond it’s authority when the UNGA to act given
the active engagement of the UNSC?
- There is no dispute that the subject of the request for an advisory opinion falls
within the competence of the UNGA, as provided in the UN Charter (Charter for
brevity).
- However, Art. 12 Par. 1 of the Charter provides the ff.: “While the Security
Council is exercising in respect of any dispute or situation the functions assigned
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 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.”
- In this case, it has been argued that the adoption of the resolution ES-10/14 by
the UNGA was ultra vires, per Art. 12.
- By the practice of the UN, there are two existing interpretations as to the limit
that Art. 12 imposes on the UNGA vis-à-vis the UNSC.
i. Old Interpretation: The UNGA could not make a recommendation on a
question concerning the maintenance of international peace and
security while the matter remained on the UNSC‟s agenda.
ii. New and Current Interpretation: The words “is exercising the
functions” is now interpreted to mean as “is exercising the functions
at this moment.” Therefore, as long as the UNSC is not currently acting
on the matter, the UNGA is free to make recommendations as to the
matter.
- Given this new, evolved interpretation, it must be held that the UNGA
did not act ultra vires, per Art. 12.
i. It must also be noted that the action of the UNGA in special
session was brought about by the UNSC‟s inability to take a
decision on the matter due to negative votes by one of the
permanent members.
ii. It must also be remembered that during the duration of the
Emergency Special Session, the UNGA can adopt any
resolution falling within the subject matter for which the
special session had been convened, including issuance of a
resolution requesting the Court‟s opinion on a matter.
b. Does the matter raised involve a legal question given the question‟s imprecision and
abstract nature? NO.
- It has been contended that in order for the question to properly constitute a
legal question,‟ it must be reasonably specific; otherwise, it would not be
capable of being addressed by a response of the ICJ.
- The question alone, it has been contended, is already susceptible of two
interpretations, and hence deprives the question of a legal character.
i. It may first be interpreted as a request for the Court to determine
whether the construction of the wall is illegal or not, and then to give
its opinion on the consequences of such illegality
ii. The second interpretation is that the Court should already assume the
illegality of the construction and then give its opinion on the legal
consequences.
- It has also been contended that the question is imprecise and abstract, in that
it fails to specify whether the Court is being asked to address the legal
consequences for the UNGA or some other organ of the UN, for the member
States of the UN, Israel, Palestine, or some combination of the above, or some
other different entity.
ICJ: The lack of clarity in crafting the question does not the deprive it of
jurisdiction. It will only require clarification in interpretation, as had been
done in past cases.
- The Court will only have to identify the existing principle and rules, interpret
and apply them, thus offering a reply to the question posed, based on law.
- The Court does not consider the abstract nature of the question submitted
before it to be one that raises an issue of jurisdiction. In the Legality of Threat
or Use case, the Court has stated that it may give an advisory opinion on any
legal question, abstract or otherwise.
c. Will the political nature of the matter deprive it of jurisdiction? NO
- The Court does not also accept the view that it is to be deprived of jurisdiction
just because of the „political‟ character of the question posed. Such aspect of
the question submitted does not suffice to deprive the Court of a competence
expressly conferred upon it by the ICJ Statute.
i. Legality of Threat or Use case: “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.
2. WON it is proper for the ICJ to exercise its jurisdictionYES. There is NO basis
for the ICJ to decline to exercise its jurisdiction.
While Art. 65 of the ICJ Statute provides that “The Court may give an advisory
opinion” (which denotes that the power of the Court is discretionary), in actual
practice, the ICJ has never declined to respond to a request for an advisory
opinion.
- In the rare cases that the Court did decline to exercise jurisdiction, it
was based on actual lack of jurisdiction (Legality of the Use by a State of
Nuclear Weapons in Armed Conflict), or in a special circumstance where the
dispute was already existing, the States involved were non- members of the
League of Nation, and both objected to the proceedings and refused to take
part in any way (PCIJ case of Status of Eastern Carelia Advisory Opinion).
a. Is it proper given that the request concerns a contentious matter between Israel
and Palestine, and that Israel has not consented to the exercise of jurisdiction?
ISRAEL: the matter with the construction of the wall is but an integral part of the
wider Israeli-Palestinian dispute.
- Israel has NOT consented to the settlement of this wider dispute by the Court,
nor through any other means of compulsory adjudication.
- On the contrary, it insists that the parties have repeatedly agreed that the
dispute is to be settled with negotiations, with a possible agreement to have
arbitration as a recourse.
ICJ: 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.
- This is mainly because of the advisory character of the Court‟s reply
- Given this non-binding nature of the ad op, consent is not the basis of the
Court‟s jurisdiction, unlike in contentious cases where consent IS the basis.
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 - The Court‟s Opinion, moreover, is not given to States but to the organ entitled
to request for it.
- Even differing views on the legal consequences will not deprive the Court of
jurisdiction as it had already stated in the Namibia Ad Op that “differences of
views on legal issues have existed in practically every advisory proceeding,
- NOTE: The Court in the Western Sahara Advisory Opinion, however, clarified
that lack of consent may render the giving of an ad op as incompatible with the
Court‟s judicial character
b. Is it improper because it may impede a political and negotiated solution
to the conflict? Will it undermine the UNSC‟s Roadmap? NO. It does not
impered the political and negotiated solution, it will only be and additional
point to consider.
- It has been contended by several States that the issuance of the advisory
opinion could impede a possible political and negotiated solution. Moreover, it
may also undermine the scheme that the „Roadmap‟ (issued by the UNSC) has
set out.
- ICJ: In the Legality of Threat or Use case, the Court has stated that it
is aware that no matter what might be its conclusions in any advisory
opinion, such would have relevance for continuing the debate in the
UNGA, and would serve as an additional point to consider in
negotiations. “Beyond that, the effect of the opinion is a matter of
appreciation.”
- As to the Roadmap, the Court notes that while it constitutes a
negotiating framework for Israel and Palestine, it is not clear how the
Court‟s reply would influence those negotiations. Even the
participants in the proceedings have expressed differing views on the
potential impact of the ad op. Hence, the Court cannot regard this
factor as a compelling reason to decline an exercise of its jurisdiction.
- Even the fact that the construction of the wall is only a limited aspect of the
wider dispute, and hence cannot be addressed properly in the proceedings at
hand, is not a compelling reason. At the same time, this is the very question
c. Does the Court have the requisite facts and evidence to reach its conclusions? Yes.
It has sufficient info.
ISRAEL: Based on the Advisory Opinion on the Interpretation of Peace Treaties
with Bulgaria, Hungary and Romania, the Court cannot give an opinion on issues
which raise questions of fact that cannot be elucidated without hearing all
parties to the conflict.
i. Israel specifically argues that this task to inquire into the matter is
complicated by the fact that Israel alone possesses much of the
necessary information and has stated that it has chosen not to address
the merits.
ii. Confronted with factual issues that are impossible to clarify, Israel
argues that the Court should decline to exercise its jurisdiction.
ICJ: The question of sufficiency of evidence is decided in a case-to-
case basis. What is decisive is “whether the Court has sufficient
information and evidence to enable it to arrive at a judicial conclusion
upon any disputed
questions of fact.”
i. In the present case, the Court has the report of the Sec-Gen,
reports of special rapporteurs, and competent organs of the UN.
ii. The participants, through the written statements they submitted,
have also included relevant information.
iii. Hence, the Court finds that it has sufficient information.
d. Might it be improper because the advisory opinion lacks any useful purpose?
- ICJ: Advisory opinions have the purpose of furnishing to the
requesting organs, the elements of law necessary for them in their
action.
i. Legality of the Threat or Use of Nuclear Weapons: “It is not for the
Court itself to purport to decide whether or not an advisory opinion is
needed by the UNGA for the performance of its functions. The UNGA
has the right to decide for itself on the usefulness of an opinion in the
light of its own needs.”
ii. Hence, the Court cannot decline to answer the question submitted,
based on the ground that its opinion would lack any useful purpose.
e. Does it violate the principle of “one must come to Court with clean hands?‟ (since
Palestine was allegedly responsible for violent attacks against Israel and its
population)
- ICJ: This principle is inapplicable since it is the UNGA who requested
the advisory opinion, and that such opinion shall be given to it, and
not to any other State or entity.
3. What are the legal consequences of the Israel‟s construction of the wall in the
Occupied Palestinian Territory?
Court: Israel, with its construction of the wall, has been in violation of
international law.
Citing:
a. Humanitarian Provisions of the Fourth Geneva Convention
- On Applicability: While Israel is not a State party to this convention, the Court
observes that in the International Military Tribunal of Nuremburg, it has been
declared that the rules in the Convention were “recognized by all
civilized nations and were regarded as being declaratory of the laws
and customs of war.”
i. That the provisions of the Fourth Hague Convention has attained the
status of customary international law is a fact recognized by all the
participants in the proceedings before the Court.
ii. Moreover both States involved had already engaged in acts that
recognize the applicability of the Fourth Geneva Convention: For
Palestine, it has already made a unilateral undertaking to apply the
said Convention, with Switzerland as the depositary State. As for
Israel, it had already made issuances and committed acts that indicate
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.