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The resolution, however, was not adopted due to a negative vote by one of the
Legal Consequences of A Construction of A Wall in the permanent members.
Occupied Palestinian Territory – Advisory Opinion (2004) 3. A resumption of the 10th Emergency Special Session was then requested. The special
ICJ session resumed.
4. During these special sessions, the UNGA adopted resolution ES-10/13 which
The UNGA requested an advisory opinion re: Israel‟s construction of a wall within the demanded that the construction be stopped, and considered the construction as
Occupied Palestinian Territory. contradictory to the relevant provisions of international law.
a. The resolution also requested the UN Sec-Gen. to make periodical reports as to
DOCTRINE Israel‟s compliance with the resolution.
i. Art. 12 Par. 1 of the Charter provides the ff.: “While the Security 5. The special session was once again adjourned temporarily.
Council is exercising in respect of any dispute or situation the a. Meanwhile, pursuant to the request, the Sec-Gen filed the report regarding the
functions assigned to it in the present Charter, the General matter.
Assembly shall not make any recommendation with regard to that 6. On the other hand, the UNSC adopted Resolution No. 71515 (2003), also known as
dispute or situation unless the Security Council so requests.” – the “Quartet Performance- based Roadmap to a Permanent Two-State Solution
should be interpreted as “as long as the UNSC is not currently acting to the Israeli-Palestinian Conflict.”
on the matter, the UNGA is free to make recommendations as to the a. Under the resolution, the quartet was composed of representatives from the US,
matter.” EU, Russia and the UN.
ii. While Art. 65 of the ICJ Statute provides that “The Court may give b. It called on all involved parties to fulfill their obligations under the Roadmap in
an advisory opinion” (which denotes that the power of the Court is cooperation with the quartet in order to resolve the matter.
discretionary), in actual practice, the ICJ has never declined to c. It should be noted, however, that the Roadmap did NOT contain any specific
respond to a request for an advisory opinion. provision regarding the construction of the wall.
- In the rare cases that the Court did decline to exercise 7. The special session once again resumed, and it was then that the resolution (ES-10/14)
jurisdiction, it was based on actual lack of jurisdiction requesting for the advisory opinion from the ICJ was adopted. The resolution posed the
(Legality of the Use by a State of Nuclear Weapons in Armed following question for the ICJ‟s advisory opinion:
Conflict), or in a special circumstance where the dispute was a. What are the legal consequences arising from the construction of the wall
already existing, the States involved were non- members of the being built by Israel, the occupying Power, in the Occupied Palestinian
League of Nation, and both objected to the proceedings and Territory, including in and around East Jerusalem, asdescribed in the report
refused to take part in any way (PCIJ case of Status of Eastern of the Secretary-General, considering the rules and principles of
Carelia Advisory Opinion international law, including the Fourth Geneva Convention of 1949, and
iii. ICJ: Advisory opinions have the purpose of furnishing to the relevant Security Council and General Assembly resolutions?
requesting organs, the elements of law necessary for them in ISSUE with HOLDING
their action. 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
FACTS for brevity).
1. The 10th Emergency Special Session of the UNGA (General Assembly) was first - However, Art. 12 Par. 1 of the Charter provides the ff.: “While the Security
convened in the aftermath of a rejection by the UN Security Council (UNSC) of two draft Council is exercising in respect of any dispute or situation the functions
resolutions concerning certain Israeli settlements in the Occupied Palestinian Territory. assigned to it in the present Charter, the General Assembly shall not make
a. The emergency special session was requested by a letter from the Chairman of any recommendation with regard to that dispute or situation unless the
the Arab group, in order to discuss “illegal Israeli actions in occupied East Security Council so requests.”
Jerusalem and the rest of the Occupied Palestine Territory.” - In this case, it has been argued that the adoption of the resolution ES-10/14
b. Resolution ES-10/2 was adopted, acceding to the request, and also condemning by the UNGA was ultra vires, per Art. 12.
the illegal Israeli actions. - By the practice of the UN, there are two existing interpretations as to the limit
2. The 10th Emergency Special Session was subsequently adjourned temporarily. that Art. 12 imposes on the UNGA vis-à-vis the UNSC.
a. In the meantime, the Chairman of the Arab Group also made a request of the i. Old Interpretation: The UNGA could not make a recommendation
UNSC to weigh in on the issues and take necessary measures. on a question concerning the maintenance of international peace
b. This letter was accompanied by a draft resolution for consideration by the and security while the matter remained on the UNSC‟s agenda.
Council which condemned the construction of the wall as illegal ii. New and Current Interpretation: The words “is exercising the
functions” is now interpreted to mean as “is exercising the functions
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impact of the ad op. Hence, the Court cannot regard this factor as a civilized nations and were regarded as being declaratory of the laws and
compelling reason to decline an exercise of its jurisdiction. customs of war.”
- Even the fact that the construction of the wall is only a limited aspect of the i. That the provisions of the Fourth Hague Convention has attained
wider dispute, and hence cannot be addressed properly in the proceedings at the status of customary international law is a fact recognized by all
hand, is not a compelling reason. At the same time, this is the very question the participants in the proceedings before the Court.
c. Does the Court have the requisite facts and evidence to reach its conclusions? ii. Moreover both States involved had already engaged in acts that
Yes. It has sufficient info. recognize the applicability of the Fourth Geneva Convention: For
ISRAEL: Based on the Advisory Opinion on the Interpretation of Peace Palestine, it has already made a unilateral undertaking to apply the
Treaties with Bulgaria, Hungary and Romania, the Court cannot give an said Convention, with Switzerland as the depositary State. As for
opinion on issues which raise questions of fact that cannot be elucidated Israel, it had already made issuances and committed acts that
without hearing all parties to the conflict. indicate their assent to the application of the Convention within the
i. Israel specifically argues that this task to inquire into the matter is occupied territories. Israel‟s Supreme Court had also recognized
complicated by the fact that Israel alone possesses much of the the binding force of the Convention upon it.
necessary information and has stated that it has chosen not to - Legal Consequence: Israel‟s construction of the wall and the creation of
address the merits. settlements are in violation of Art. 49 Par. 6 of the Convention, which prohibits
ii. Confronted with factual issues that are impossible to clarify, Israel the transfer of the civilian population of the Occupying Power into the
argues that the Court should decline to exercise its jurisdiction. occupied territory.
ICJ: The question of sufficiency of evidence is decided in a case-to-case i. While Israel may insist that the construction of the wall is temporarily
basis. What is decisive is “whether the Court has sufficient information and does not constitute an annexation of the occupied territory, the
and evidence to enable it to arrive at a judicial conclusion upon any Court “cannot remain indifferent to certain fears expressed to it that”
disputed the wall will “prejudge the future frontier between Israel and
questions of fact.” Palestine.”
i. In the present case, the Court has the report of the Sec-Gen, ii. The Court has also found that the acts of Israel has violated certain
reports of special rapporteurs, and competent organs of the provisions of the Convention: Art. 49 (on forcible transfers of
UN. population), Art. 52 (right to employment of occupied citizens), Art.
ii. The participants, through the written statements they 53 (destruction of public and/or private property in the occupied
submitted, have also included relevant information. territory), and Art. 59 (provision of relief for occupied citizens).
iii. Hence, the Court finds that it has sufficient information. b. International Covenant on Civil and Political Rights
d. Might it be improper because the advisory opinion lacks any useful purpose? - On Applicability: In the Legality of the Threat or Use case, the Court rejected
- ICJ: Advisory opinions have the purpose of furnishing to the requesting the argument that the Covenant applies only in time of peace, explaining
organs, the elements of law necessary for them in their action. that the protection of the rights involved (civil and political) under the
i. Legality of the Threat or Use of Nuclear Weapons: “It is not for the covenant do not cease in times of war.
Court itself to purport to decide whether or not an advisory opinion - Legal Consequences: Israel‟s acts have violated several provisions of the
is needed by the UNGA for the performance of its functions. The Covenant:
UNGA has the right to decide for itself on the usefulness of an i. Art. 9 – Right to freedom and security
opinion in the light of its own needs.” ii. Art. 17 – Right to freedom from arbitrary or unlawful interference
ii. Hence, the Court cannot decline to answer the question submitted, with one‟s privacy
based on the ground that its opinion would lack any useful purpose. iii. Art. 12 – along with the Mandate for Palestine, this calls for freedom
e. Does it violate the principle of “one must come to Court with clean hands?‟ (since in movement and in choice of residence. This also takes into
Palestine was allegedly responsible for violent attacks against Israel and its account the holy places present in the area, which calls for the
population) responsible State to allow freedom of access, subject only to needs
- ICJ: This principle is inapplicable since it is the UNGA who requested of order and security.
the advisory opinion, and that such opinion shall be given to it, and not c. International Covenant on Economic, Social and Cultural Rights
to any other State or entity. - On Applicability: (see rationale for ICCPR above)
3. What are the legal consequences of the Israel‟s construction of the wall in the - Legal Consequences: Israel is found to have impeded the exercise the
Occupied Palestinian Territory?
Palestinians‟ right to work, to health, to education, and to an adequate
Court: Israel, with its construction of the wall, has been in violation of
international law. standard of living under this Convention.
Citing: d. UN Convention on the Rights of a Child
a. Humanitarian Provisions of the Fourth Geneva Convention - On Applicability: Art. 2 of this Convention provides that the State parties
- On Applicability: While Israel is not a State party to this convention, the Court shall respect and ensure the rights set forth to each child within their
observes that in the International Military Tribunal of Nuremburg, it has been jurisdiction. The Convention is therefore applicable.
declared that the rules in the Convention were “recognized by all
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- 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.
DISPOSITIVE PORTION
On the Responsibility of Israel:
- Cease construction of the wall
- Provide reparation for the damage arising from the unlawful conduct
- Continue observance of the duty to comply with the international obligations
violated by it due to the construction of the wall..
DIGESTER: SD