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INTERNATIONAL COURT OF JUSTICE |
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YEAR 2004 9 July 2004 |
2004 9
July General
List No.
131 |
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LEGAL CONSEQUENCES OF THE CONSTRUCTION OF A WALL Jurisdiction
of the Court to give the advisory opinion requested. Article 65, paragraph 1, of the Statute - Article 96, paragraph 1, of the Charter - Power of General Assembly to request advisory opinions - Activities of Assembly. Events leading
to the adoption of General Assembly resolution ES‑10/14 requesting the
advisory opinion. Contention that
General Assembly acted ultra vires under
the Charter - Article 12,
paragraph 1, and Article 24 of the Charter - United Nations practice concerning the interpretation of Article 12,
paragraph 1, of Charter - General Assembly did not exceed its competence. Request for opinion adopted by the Tenth Emergency
Special Session of the General Assembly - Session convened pursuant to resolution 377 A (V) (“Uniting
for Peace”) -
Conditions set by that resolution - Regularity of procedure followed. Alleged lack of
clarity of the terms of the question - Purportedly abstract nature of the question -
Political aspects of the question - Motives said to have inspired the request and opinion’s possible
implications - “Legal” nature of question unaffected. Court having
jurisdiction to give advisory opinion requested. *
*
Discretionary power of Court to decide whether it
should give an opinion. Article 65,
paragraph 1, of Statute - Relevance of lack of consent of a State concerned - Question cannot be regarded only as a bilateral matter between Israel
and Palestine but is directly of concern to the United Nations -
Possible effects of opinion on a political, negotiated solution to the
Israeli‑Palestinian conflict - Question representing only one aspect of Israeli‑Palestinian
conflict - Sufficiency of information and evidence available to Court - Useful purpose of opinion - Nullus commodum capere potest de sua injuria propria - Opinion to be given to the General Assembly, not to a specific State
or entity. No “compelling
reason” for Court to use its discretionary power not to give an advisory
opinion. *
* “Legal
consequences” of the construction of a wall in the Occupied Palestinian
Territory, including in and around East Jerusalem - Scope of question posed - Request for opinion limited to the legal consequences of the
construction of those parts of the wall situated in Occupied Palestinian
Territory -
Use of the term “wall”. Historical
background. Description of the
wall. *
* Applicable law. United Nations
Charter -
General Assembly resolution 2625 (XXV) - Illegality of any territorial acquisition resulting from the threat
or use of force -
Right of peoples to self‑determination. International
humanitarian law -
Regulations annexed to the Fourth Hague Convention of 1907 - Fourth Geneva Convention of 1949 - Applicability of Fourth Geneva Convention in the Occupied Palestinian
Territory -
Human rights law -
International Covenant on Civil and Political Rights - International Covenant on Economic, Social and Cultural Rights - Convention on the Rights of the Child - Relationship between international humanitarian law and human rights
law -
Applicability of human rights instruments outside national territory - Applicability of those instruments in the Occupied Palestinian
Territory. *
*
Settlements established by Israel in breach of
international law in the Occupied Palestinian Territory - Construction of the wall and its associated régime create a “fait
accompli” on the ground that could well become permanent - Risk of situation tantamount to de
facto annexation - Construction of the wall severely impedes the exercise by the
Palestinian people of its right to self‑determination and is therefore
a breach of Israel’s obligation to respect that right. Applicable
provisions of international humanitarian law and human rights instruments
relevant to the present case - Destruction and requisition of properties - Restrictions on freedom of movement of inhabitants of the Occupied
Palestinian Territory - Impediments to the exercise by those concerned of the right to work,
to health, to education and to an adequate standard of living - Demographic changes in the Occupied Palestinian Territory - Provisions of international humanitarian law enabling account to be
taken of military exigencies - Clauses in human rights instruments qualifying rights guaranteed or
providing for derogation - Construction of the wall and its associated régime cannot be
justified by military exigencies or by the requirements of national security
or public order - Breach by Israel of various of its
obligations under the applicable provisions of international humanitarian
law and human rights instruments.
Self-defence -
Article 51 of the Charter - Attacks against Israel not imputable to a foreign State - Threat invoked to justify the construction of the wall originating
within a territory over which Israel exercises control - Article 51 not relevant in the present case. State of
necessity -
Customary international law - Conditions -
Construction of the wall not the only means to safeguard Israel’s interests
against the peril invoked. Construction of
the wall and its associated régime are contrary to international law. *
* Legal
consequences of the violation by Israel of its obligations. Israel’s
international responsibility - Israel obliged to comply with the international obligations it has
breached by the construction of the wall - Israel obliged to put an end to the violation of its international
obligations -
Obligation to cease forthwith the works of construction of the wall, to
dismantle it forthwith and to repeal or render ineffective forthwith the
legislative and regulatory acts relating to its construction, save where
relevant for compliance by Israel with its obligation to make reparation for
the damage caused -
Israel obliged to make reparation for the damage caused to all natural or legal
persons affected by construction of the wall.
Legal consequences for States other than
Israel -
Erga omnes character of certain obligations
violated by Israel -
Obligation for all States not to
recognize the illegal situation resulting from construction of the wall and
not to render aid or assistance in maintaining the situation created by such
construction -
Obligation for all States, while respecting the Charter and international
law, to see to it that any impediment, resulting from the construction of the
wall, to the exercise by the Palestinian people of its right to self‑determination
is brought to an end - Obligation for all States parties to the Fourth Geneva Convention,
while respecting the Charter and international law, to ensure compliance by
Israel with international humanitarian law as embodied in that
Convention -
Need for the United Nations, and especially the General Assembly and the
Security Council, to consider what further action is required to bring to an
end the illegal situation resulting from the construction of the wall and its
associated régime, taking due account of the Advisory Opinion. *
* Construction
of the wall must be placed in a more general context - Obligation of Israel and Palestine scrupulously to observe
international humanitarian law - Implementation in good faith of all relevant Security Council
resolutions, in particular resolutions 242 (1967) and
338 (1973) -
“Roadmap” -
Need for efforts to be encouraged with a view to achieving as soon as possible,
on the basis of international law,
a negotiated solution to the outstanding problems and the establishment of
a Palestinian State, with peace and security for all in the region. ADVISORY OPINION Present:
President Shi; Vice-President Ranjeva; Judges Guillaume, Koroma, Vereshchetin, Higgins,
Parra‑Aranguren, Kooijmans, Rezek, Al‑Khasawneh, Buergenthal,
Elaraby, Owada, Simma, Tomka; Registrar Couvreur. On the legal
consequences of the construction of a wall in the Occupied Palestinian
Territory, The Court, Composed as
above, Gives the
following Advisory Opinion:
1. The question on which the advisory opinion of the
Court has been requested is set forth in resolution ES‑10/14 adopted
by the General Assembly of the United Nations (hereinafter the “General
Assembly”) on 8 December 2003 at its Tenth Emergency Special
Session. By a letter dated 8 December 2003 and received in
the Registry by facsimile on 10 December 2003, the original of
which reached the Registry subsequently, the Secretary‑General of the
United Nations officially communicated to the Court the decision taken by the
General Assembly to submit the question for an advisory opinion.
Certified true copies of the English and French versions of
resolution ES‑10/14 were enclosed with the letter. The
resolution reads as follows:
“The General Assembly,
Reaffirming its resolution ES‑10/13 of 21 October
2003,
Guided by the principles of the Charter of the United Nations,
Aware of the established principle of international law on the
inadmissibility of the acquisition of territory by force,
Aware also that developing friendly relations among nations based on
respect for the principle of equal rights and self‑determination of
peoples is among the purposes and principles of the Charter of the United
Nations,
Recalling relevant General Assembly resolutions, including
resolution 181 (II) of 29 November 1947, which partitioned
mandated Palestine into two States, one Arab and one Jewish,
Recalling also the resolutions of the tenth emergency special session
of the General Assembly,
Recalling further relevant Security Council resolutions, including
resolutions 242 (1967) of 22 November 1967,
338 (1973) of 22 October 1973, 267 (1969) of
3 July 1969, 298 (1971) of 25 September 1971,
446 (1979) of 22 March 1979, 452 (1979) of 20 July 1979,
465 (1980) of 1 March 1980, 476 (1980) of
30 June 1980, 478 (1980) of 20 August 1980,
904 (1994) of 18 March 1994, 1073 (1996) of
28 September 1996, 1397 (2002) of 12 March 2002 and
1515 (2003) of 19 November 2003,
Reaffirming the applicability of the Fourth Geneva Convention1
as well as Additional Protocol I to the Geneva Conventions2
to the Occupied Palestinian Territory, including East Jerusalem,
Recalling the Regulations annexed to the Hague Convention Respecting
the Laws and Customs of War on Land of 19073,
Welcoming
the convening of the Conference of High Contracting Parties to the Fourth
Geneva Convention on measures to enforce the Convention in the Occupied
Palestinian Territory, including Jerusalem, at Geneva on
15 July 1999,
Expressing its support for the declaration adopted by the reconvened
Conference of High Contracting Parties at Geneva on
5 December 2001,
Recalling in particular relevant United Nations resolutions affirming
that Israeli settlements in the Occupied Palestinian Territory, including
East Jerusalem, are illegal and an obstacle to peace and to economic and
social development as well as those demanding the complete cessation of
settlement activities,
Recalling relevant United Nations resolutions affirming that actions
taken by Israel, the occupying Power, to change the status and demographic
composition of Occupied East Jerusalem have no legal validity and are null
and void,
Noting the agreements reached between the Government of Israel and the
Palestine Liberation Organization in the context of the Middle East peace
process,
Gravely concerned at the commencement and continuation of construction
by Israel, the occupying Power, of a wall in the Occupied Palestinian
Territory, including in and around East Jerusalem, which is in departure from
the Armistice Line of 1949 (Green Line) and which has involved the
confiscation and destruction of Palestinian land and resources, the
disruption of the lives of thousands of protected civilians and the
de facto annexation of large areas of territory, and underlining the
unanimous opposition by the international community to the construction of
that wall,
Gravely concerned also at the even more devastating impact of the
projected parts of the wall on the Palestinian civilian population and on the
prospects for solving the Palestinian‑Israeli conflict and establishing
peace in the region,
Welcoming the report of 8 September 2003 of the Special
Rapporteur of the Commission on Human Rights on the situation of human rights
in the Palestinian territories occupied by Israel since 19674, in particular the section regarding the wall,
Affirming the necessity of ending the conflict on the basis of the two‑State
solution of Israel and Palestine living side by side in peace and security
based on the Armistice Line of 1949, in accordance with relevant Security
Council and General Assembly resolutions,
Having received with appreciation the report of the Secretary‑General,
submitted in accordance with resolution ES‑10/135,
Bearing in mind
that the passage of time further compounds the difficulties on the ground, as
Israel, the occupying Power, continues to refuse to comply with international
law vis‑à‑vis its construction of the above‑mentioned wall,
with all its detrimental implications and consequences,
Decides, in accordance with Article 96 of the Charter of the
United Nations, to request the International Court of Justice, pursuant to
Article 65 of the Statute of the Court, to urgently render an advisory
opinion on the following question:
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, as described 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? _______________
1United Nations, Treaty
Series, Vol. 75, No. 973.
2Ibid., Vol. 1125,
No. 17512.
3See Carnegie Endowment for International Peace, The
Hague Conventions and Declarations of 1899 and 1907 (New York, Oxford
University Press, 1915).
4E/CN.4/2004/6.
5A/ES‑10/248.” Also enclosed
with the letter were the certified English and French texts of the report of
the Secretary‑General dated 24 November 2003, prepared
pursuant to General Assembly resolution ES‑10/13 (A/ES‑10/248),
to which resolution ES‑10/14 makes reference.
2. By letters dated 10 December 2003, the Registrar notified the
request for an advisory opinion to all States entitled to appear before the
Court, in accordance with Article 66, paragraph 1, of the Statute.
3. By a letter dated 11 December 2003, the Government of Israel
informed the Court of its position on the request for an advisory opinion and
on the procedure to be followed.
4. By an Order of 19 December 2003, the Court decided that the
United Nations and its Member States were likely, in accordance with
Article 66, paragraph 2, of the Statute, to be able to furnish
information on all aspects raised by the question submitted to the Court for
an advisory opinion and fixed 30 January 2004 as the time‑limit
within which written statements might be submitted to it on the question in
accordance with Article 66, paragraph 4, of the Statute. By
the same Order, the Court further decided that, in the light of
resolution ES‑10/14 and the report of the Secretary‑General
transmitted with the request, and taking into account the fact that the
General Assembly had
granted Palestine a special status of observer and that the latter was co‑sponsor
of the draft resolution requesting the advisory opinion, Palestine might also
submit a written statement on the question within the above time‑limit.
5. By the aforesaid Order, the Court also decided, in accordance with
Article 105, paragraph 4, of the Rules of Court, to hold public
hearings during which oral statements and comments might be presented to it
by the United Nations and its Member States, regardless of whether or not
they had submitted written statements, and fixed 23 February 2004
as the date for the opening of the said hearings. By the same Order,
the Court decided that, for the reasons set out above (see paragraph 4),
Palestine might also take part in the hearings. Lastly, it invited the
United Nations and its Member States, as well as Palestine, to inform the
Registry, by 13 February 2004 at the latest, if they were intending
to take part in the above‑mentioned hearings. By letters of
19 December 2004, the Registrar informed them of the Court’s
decisions and transmitted to them a copy of the Order.
6. Ruling on requests submitted subsequently by the League of Arab States and
the Organization of the Islamic Conference, the Court decided, in accordance
with Article 66 of its Statute, that those two international
organizations were likely to be able to furnish information on the question
submitted to the Court, and that consequently they might for that purpose
submit written statements within the time‑limit fixed by the Court in
its Order of 19 December 2003 and take part in the hearings.
7. Pursuant to Article 65, paragraph 2, of the Statute, the
Secretary‑General of the United Nations communicated to the Court a
dossier of documents likely to throw light upon the question.
8. By a reasoned Order of 30 January 2004 regarding its composition
in the case, the Court decided that the matters brought to its attention by
the Government of Israel in a letter of 31 December 2003, and in a
confidential letter of 15 January 2004 addressed to the President
pursuant to Article 34, paragraph 2, of the Rules of Court, were
not such as to preclude Judge Elaraby from sitting in the case.
9. Within the time‑limit fixed by the Court for that purpose, written
statements were filed by, in order of their receipt: Guinea, Saudi
Arabia, League of Arab States, Egypt, Cameroon, Russian Federation,
Australia, Palestine, United Nations, Jordan, Kuwait, Lebanon, Canada, Syria,
Switzerland, Israel, Yemen, United States of America, Morocco, Indonesia,
Organization of the Islamic Conference, France, Italy, Sudan, South Africa,
Germany, Japan, Norway, United Kingdom, Pakistan, Czech Republic, Greece,
Ireland on its own behalf, Ireland on behalf of the European Union, Cyprus,
Brazil, Namibia, Malta, Malaysia, Netherlands, Cuba, Sweden, Spain, Belgium,
Palau, Federated States of Micronesia, Marshall Islands, Senegal, Democratic
People’s Republic of Korea. Upon receipt of those statements, the
Registrar transmitted copies thereof to the United Nations and its Member
States, to Palestine, to the League of Arab States and to the Organization of
the Islamic Conference.
10. Various communications were addressed to these
latter by the Registry, concerning in particular the measures taken for the
organization of the oral proceedings. By communications of 20 February
2004, the Registry transmitted a detailed timetable of the hearings to those
of the latter who, within the time‑limit fixed for that purpose by the
Court, had expressed their intention of taking part in the aforementioned
proceedings.
11. Pursuant to Article 106 of the Rules of Court, the Court decided to
make the written statements accessible to the public, with effect from the
opening of the oral proceedings.
12. In the course of hearings held from 23 to 25 February 2004, the
Court heard oral statements, in the following order, by: For Palestine:
H.E. Mr. Nasser Al‑Kidwa, Ambassador, Permanent Observer of Palestine
to the United Nations,
Ms Stephanie Koury, Member, Negotiations Support Unit, Counsel,
Mr. James Crawford, S.C., Whewell Professor of International Law, University
of Cambridge, Member of the Institute of International Law, Counsel and
Advocate,
Mr. Georges Abi‑Saab, Professor of International Law, Graduate
Institute of International Studies, Geneva, Member of the Institute of
International Law, Counsel and Advocate,
Mr. Vaughan Lowe, Chichele Professor of International Law, University of
Oxford, Counsel and Advocate,
Mr. Jean Salmon, Professor Emeritus of International Law, Université libre de
Bruxelles, Member of the Institute of International Law, Counsel and
Advocate; For the Republic of South Africa:
H.E. Mr. Aziz Pahad, Deputy Minister for Foreign Affairs, Head of
Delegation,
Judge M. R. W. Madlanga, S.C.; For the People’s Democratic Mr.
Ahmed Laraba, Professor of International Law; Republic of Algeria: For the Kingdom of Saudi Arabia:
H.E. Mr. Fawzi A. Shobokshi, Ambassador and Permanent Representative of
the Kingdom of Saudi Arabia to the United Nations in New York, Head of
Delegation; For the People’s Republic
H.E. Mr. Liaquat Ali Choudhury, Ambassador of the For Belize:
Mr. Jean‑Marc Sorel, Professor at the University of Paris I
(Panthéon‑Sorbonne); For the Republic of Cuba:
H.E. Mr. Abelardo Moreno Fernández, Deputy Minister for Foreign Affairs; For the Republic of Indonesia:
H.E. Mr. Mohammad Jusuf, Ambassador of the Republic of Indonesia to the
Kingdom of the Netherlands, Head of Delegation; For the Hashemite Kingdom
H.R.H. Ambassador Zeid Ra’ad Zeid Al-Hussein,
Sir Arthur Watts, K.C.M.G., Q.C., Senior Legal Adviser to the Government of
the Hashemite Kingdom of Jordan; For the Republic of Madagascar:
H.E. Mr. Alfred Rambeloson, Permanent Representative of Madagascar to the
Office of the United Nations at Geneva and to the Specialized Agencies, Head
of Delegation; For Malaysia:
H.E. Datuk Seri Syed Hamid Albar, Foreign Minister of Malaysia, Head of
Delegation; For the Republic of Senegal:
H.E. Mr. Saliou Cissé, Ambassador of the Republic of Senegal to the Kingdom
of the Netherlands, Head of Delegation; For the Republic of the Sudan:
H.E. Mr. Abuelgasim A. Idris, Ambassador of the Republic of the Sudan to the
Kingdom of the Netherlands; For the League of Arab States:
Mr. Michael Bothe, Professor of Law, Head of the Legal Team; For the Organization of the
H.E. Mr. Abdelouahed Belkeziz, Secretary General of the
Ms Monique Chemillier‑Gendreau, Professor of Public Law,
University of Paris VII‑Denis Diderot, as Counsel. * *
*
13. When seised of a request for an advisory opinion, the Court must first
consider whether it has jurisdiction to give the opinion requested and
whether, should the answer be in the affirmative, there is any reason why it
should decline to exercise any such jurisdiction (see Legality of the
Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports
1996 (I), p. 232, para. 10). *
*
14. The Court will thus first address the question whether it possesses
jurisdiction to give the advisory opinion requested by the General Assembly
on 8 December 2003. The competence of the Court in this
regard is based on Article 65, paragraph 1, of its Statute, according
to which the Court “may give an advisory opinion on any legal question at the
request of whatever body may be authorized by or in accordance with the
Charter of the United Nations to make such a request”. The Court has
already had occasion to indicate that:
“It is . . . a precondition of the Court’s competence that the
advisory opinion be requested by an organ duly authorized to seek it under
the Charter, that it be requested on a legal question, and that, except in
the case of the General Assembly or the Security Council, that question
should be one arising within the scope of the activities of the requesting
organ.” (Application for Review of Judgement No. 273 of the United
Nations Administrative Tribunal, Advisory Opinion, I.C.J. Reports 1982,
pp. 333‑334, para. 21.)
15. It is for the Court to satisfy itself that the request for an advisory
opinion comes from an organ or agency having competence to make it. In
the present instance, the Court notes that the General Assembly, which seeks
the advisory opinion, is authorized to do so by Article 96,
paragraph 1, of the Charter, which provides: “The General Assembly
or the Security Council may request the International Court of Justice to
give an advisory opinion on any legal question.”
16. Although the above‑mentioned provision states that the General
Assembly may seek an advisory opinion “on any legal question”, the Court has
sometimes in the past given certain indications as to the relationship
between the question the subject of a request for an advisory opinion and the
activities of the General Assembly (Interpretation of Peace Treaties with
Bulgaria, Hungary and Romania, I.C.J. Reports 1950, p. 70; Legality
of the Threat or Use of Nuclear Weapons, I.C.J. Reports 1996 (I),
pp. 232 and 233, paras. 11 and 12).
17. The Court will so proceed in the present case. The Court would
observe that Article 10 of the Charter has conferred upon the General
Assembly a competence relating to “any questions or any matters” within the
scope of the Charter, and that Article 11, paragraph 2, has
specifically provided it with competence on “questions relating to the
maintenance of international peace and security brought before it by any
Member of the United Nations . . .” and to make
recommendations under certain conditions fixed by those Articles. As
will be explained below, the question of the construction of the wall in the
Occupied Palestinian Territory was brought before the General
Assembly by a number of Member States in the context of the Tenth Emergency
Special Session of the Assembly, convened to deal with what the Assembly, in
its resolution ES‑10/2 of 25 April 1997, considered to
constitute a threat to international peace and security. *
18. Before further examining the problems of jurisdiction that have been
raised in the present proceedings, the Court considers it necessary to
describe the events that led to the adoption of resolution ES‑10/14,
by which the General Assembly requested an advisory opinion on the legal
consequences of the construction of the wall in the Occupied Palestinian
Territory.
19. The Tenth Emergency Special Session of the General Assembly, at which
that resolution was adopted, was first convened following the rejection by
the Security Council, on 7 March and 21 March 1997, as a
result of negative votes by a permanent member, of two draft resolutions
concerning certain Israeli settlements in the Occupied Palestinian Territory
(see, respectively, S/1997/199 and S/PV.3747, and S/1997/241 and S/PV.3756).
By a letter of 31 March 1997, the Chairman of the Arab Group then
requested “that an emergency special session of the General Assembly be
convened pursuant to resolution 377 A (V) entitled ‘Uniting
for Peace’” with a view to discussing “Illegal Israeli actions in occupied
East Jerusalem and the rest of the Occupied Palestinian Territory” (letter
dated 31 March 1997 from the Permanent Representative of Qatar to
the United Nations addressed to the Secretary‑General, A/ES‑10/1,
22 April 1997, Annex). The majority of Members of the United
Nations having concurred in this request, the first meeting of the Tenth
Emergency Special Session of the General Assembly took place on
24 April 1997 (see A/ES‑10/1, 22 April 1997).
Resolution ES‑10/2 was adopted the following day; the
General Assembly thereby expressed its conviction that: “the
repeated violation by Israel, the occupying Power, of international law and
its failure to comply with relevant Security Council and General Assembly
resolutions and the agreements reached between the parties undermine the
Middle East peace process and constitute a threat to international peace and
security”, and condemned the “illegal Israeli actions” in occupied East Jerusalem
and the rest of the Occupied Palestinian Territory, in particular the
construction of settlements in that territory. The Tenth Emergency
Special Session was then adjourned temporarily and has since been reconvened
11 times (on 15 July 1997, 13 November 1997,
17 March 1998, 5 February 1999,
18 October 2000, 20 December 2001, 7 May 2002,
5 August 2002, 19 September 2003,
20 October 2003 and 8 December 2003).
20. By a letter dated 9 October 2003, the
Chairman of the Arab Group, on behalf of the States Members of the League of
Arab States, requested an immediate meeting of the Security Council to
consider the “grave and ongoing Israeli violations of international law,
including international humanitarian law, and to take the necessary measures
in this regard” (letter of 9 October 2003 from the Permanent
Representative of the Syrian Arab Republic to the United Nations to the
President of the Security Council, S/2003/973,
9 October 2003). This letter was accompanied by a draft
resolution for consideration by the Council, which condemned as illegal the
construction by Israel of a wall in the Occupied Palestinian Territory
departing from the Armistice Line of 1949. The Security Council held
its 4841st and 4842nd meetings on 14 October 2003 to consider the
item entitled “The situation in the Middle East, including the Palestine
question”. It then had before it another draft resolution proposed on
the same day by Guinea, Malaysia, Pakistan and the Syrian Arab Republic,
which also condemned the construction of the wall. This latter draft
resolution was put to a vote after an open debate and was not adopted owing
to the negative vote of a permanent member of the Council (S/PV.4841 and
S/PV.4842). On
15 October 2003, the Chairman of the Arab Group, on behalf of the
States Members of the League of Arab States, requested the resumption of the
Tenth Emergency Special Session of the General Assembly to consider the item
of “Illegal Israeli actions in Occupied East Jerusalem and the rest of the
Occupied Palestinian Territory” (A/ES‑10/242); this request was
supported by the Non-Aligned Movement (A/ES‑10/243) and the
Organization of the Islamic Conference Group at the United Nations (A/ES‑10/244).
The Tenth Emergency Special Session resumed its work on
20 October 2003.
21. On 27 October 2003, the General Assembly adopted resolution ES‑10/13,
by which it demanded that “Israel stop and reverse the construction of the
wall in the Occupied Palestinian Territory, including in and around East
Jerusalem, which is in departure of the Armistice Line of 1949 and is in
contradiction to relevant provisions of international law”
(para. 1). In paragraph 3, the Assembly requested the
Secretary‑General “to report on compliance with
the . . . resolution periodically, with the first report on
compliance with paragraph 1 [of that resolution] to be submitted within one
month . . .”. The Tenth Emergency Special Session was
temporarily adjourned and, on 24 November 2003, the report of the
Secretary‑General prepared pursuant to General Assembly
resolution ES-10/13 (hereinafter the “report of the Secretary‑General”)
was issued (A/ES‑10/248).
22. Meanwhile, on 19 November 2003, the Security Council adopted
resolution 1515 (2003), by which it “Endorse[d] the Quartet
Performance‑based Roadmap to a Permanent Two‑State Solution to
the Israeli‑Palestinian Conflict”. The Quartet consists of
representatives of the United States of America, the European Union, the
Russian Federation and the United Nations. That resolution
“Call[ed] on the parties to fulfil their obligations under the Roadmap
in cooperation with the Quartet and to achieve the vision of two States
living side by side in peace and security.” Neither the “Roadmap” nor resolution 1515 (2003) contained
any specific provision concerning the construction of the wall, which was not
discussed by the Security Council in this context.
23. Nineteen days later, on 8 December 2003, the Tenth Emergency
Special Session of the General Assembly again resumed its work, following a
new request by the Chairman of the Arab Group, on behalf of the States
Members of the League of Arab States, and pursuant to resolution ES‑10/13
(letter dated 1 December 2003 to the President of the General
Assembly from the Chargé d’affaires a.i. of the Permanent Mission of Kuwait
to the United Nations, A/ES‑10/249, 2 December 2003).
It was during the meeting convened on that day that resolution ES‑10/14
requesting the present Advisory Opinion was adopted. *
24. Having thus recalled the sequence of events that led to the adoption of
resolution ES‑10/14, the Court will now turn to the questions of
jurisdiction that have been raised in the present proceedings. First,
Israel has alleged that, given the active engagement of the Security Council
with the situation in the Middle East, including the Palestinian question,
the General Assembly acted ultra vires under the Charter when it
requested an advisory opinion on the legal consequences of the construction
of the wall in the Occupied Palestinian Territory. 25. The Court has already indicated that the subject of the present
request for an advisory opinion falls within the competence of the General
Assembly under the Charter (see paragraphs 15‑17 above).
However, Article 12, paragraph 1, of the Charter provides that:
“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.” A request for an advisory opinion is not in itself a “recommendation”
by the General Assembly “with regard to [a] dispute or situation”. It
has however been argued in this case that the adoption by the General
Assembly of resolution ES-10/14 was ultra vires as not in
accordance with Article 12. The Court thus considers that it is
appropriate for it to examine the significance of that Article, having regard
to the relevant texts and the practice of the United Nations.
26. Under Article 24 of the Charter the Security Council has “primary
responsibility for the maintenance of international peace and
security”. In that regard it can impose on States “an explicit
obligation of compliance if for example it issues an order or command . . .
under Chapter VII” and can, to that end, “require enforcement by
coercive action” (Certain Expenses of the
United Nations (Article 17, paragraph 2, of the Charter), Advisory
Opinion of 20 July 1962, I.C.J. Reports 1962,
p. 163). However, the Court would emphasize that Article 24
refers to a primary, but not necessarily exclusive, competence. The
General Assembly does have the power, inter alia, under
Article 14 of the Charter, to “recommend measures for the peaceful
adjustment” of various situations (Certain Expenses of the United Nations,
ibid., p. 163). “[T]he only limitation which Article 14
imposes on the General Assembly is the restriction found in Article 12,
namely, that the Assembly should not recommend measures while the Security
Council is dealing with the same matter unless the Council requests it to do
so.” (Ibid.).
27. As regards the practice of the United Nations, both the General Assembly
and the Security Council initially interpreted and applied Article 12 to
the effect that the Assembly could not make a recommendation on a question
concerning the maintenance of international peace and security while the
matter remained on the Council’s agenda. Thus the Assembly during its
fourth session refused to recommend certain measures on the question of
Indonesia, on the ground, inter alia, that the Council remained seised
of the matter (Official Records of the General Assembly, Fourth Session,
Ad Hoc Political Committee, Summary Records of Meetings, 27 September‑7 December 1949,
56th Meeting, 3 December 1949, p. 339,
para. 118). As for the Council, on a number of occasions it
deleted items from its agenda in order to enable the Assembly to deliberate
on them (for example, in respect of the Spanish question (Official Records
of the Security Council, First Year: Second Series, No. 21,
79th Meeting, 4 November 1946, p. 498), in connection
with incidents on the Greek border (Official Records of the Security
Council, Second Year, No. 89, 202nd Meeting,
15 September 1947, pp. 2404‑2405) and in regard to the
Island of Taiwan (Formosa) (Official Records of the Security Council,
Fifth Year, No. 48, 506th Meeting, 29 September 1950,
p. 5)). In the case of the Republic of Korea, the Council decided
on 31 January 1951 to remove the relevant item from the list of
matters of which it was seised in order to enable the Assembly to deliberate
on the matter (Official Records of the Security Council, Sixth Year,
S/PV.531, 531st Meeting, 31 January 1951, pp. 11‑12,
para. 57). However, this interpretation of Article 12 has evolved subsequently. Thus the General Assembly deemed itself entitled in 1961 to |