Last month, the International Court of Justice the oral hearings were concluded before the International Court of Justice in the advisory proceedings regarding the occupation of Palestine, requested by the UN General Assembly, and the Court has adjourned to deliberate. 49 States and three international organisations have made written or oral submissions before the Court. A great majority of them have acted on the premise that the Court is competent to deliver the advisory opinion in this case and it would be proper for it to do so, and have hence concentrated on aspects of substantive law relating to the occupation. It is noticeable that relatively little attention has been paid in their pleadings to more specific or detailed issues of jurisdiction, and discretion not to exercise it on the basis of judicial propriety. Some States, such as France (para. 10), have voiced support for the Court’s exercise of its advisory judicial function, but without going into much detail about competence and discretion. By contrast to nearly all States involved in the proceedings, the UK’s written and oral submissions devote a more detailed attention and are almost exclusively limited to arguing that the Court should not exercise its jurisdiction in this case.
UK’s position is voiced also in the submissions of Canada (below) and Fiji (para. 10). Several other States, such as the Netherlands (para. 3) support the idea that the Court should answer questions put to it. The same goes for China (para. 7), who suggests that there would be no circumvention of the principle of consent because the matter at hand “goes beyond the scope of bilateral affairs between Palestine and Israel”, and Ireland (para. 8), suggesting the same conclusion.
The UK’s “non-circumvention” objection
The essence of the “non-circumvention” thesis is that the Court should not pronounce on a dispute pending between two States when one of those States refuses to give consent to the Court’s jurisdiction in relation to that dispute. While the UK relies on a number of previous cases to substantiate its “non-circumvention” thesis, the latter thesis originates from the advisory opinion delivered a century ago by the Permanent Court of International Justice, the current Court’s predecessor, in the Eastern Carelia case (pp.27-28). That case witnessed a combination of factors not witnessed since, including the fact that Russia whose conduct was to be evaluated by the Court was not a member of the League of Nations or otherwise part of the system in which the PCIJ operated; it therefore had no consensual link not just to the case in question, but also to the system which was dealing with that case. It was understandable, therefore, that the Court held that delivering an advisory opinion in that case would circumvent the lack of Russia’s consent. The relevance of State consent in advisory proceedings was clearly intertwined with the League membership issue, and as Russia was not a League’s member, the Court decided that with regard to non-members it could act “only by virtue of their consent”.
The above combination of factors has not materialised in subsequent advisory cases, as the States who asked the Court to decline exercising its jurisdiction were invariably members of the United Nations whose principal organ the ICJ happens to be. Their opposition to the Court’s exercise of jurisdiction could not, for obvious reasons, carry the same weight as did Russia’s objection to the PCIJ’s exercise of jurisdiction in Eastern Carelia. In the Peace Treaties case which the UK’s submission also cites, the Court was at pains to emphasise that the consent-related was based on “a confusion between the principles governing contentious procedure and those which are applicable to Advisory Opinions” that are not binding (p.71). While the UK submission cites this case, it also submits to the Court on terms directly opposed to that case that “[b]y definition … all advisory opinions are non-binding and so the principle would never apply in any advisory proceedings” if the Court were not to decline the exercise of its jurisdiction (UK’s oral submissions, para. 12).
Similarly in Western Sahara case, Spain was deemed to have given consent to the Court’s advisory jurisdiction because it was a UN member. The Court duly distinguished Eastern Carelia and concluded that Spain had “in general given its consent to the exercise by the Court of its advisory jurisdiction” (para. 30), and that the matter that arose in General Assembly deliberations was not the same as bilateral dispute (para. 34). As far as consent as the basis of the Court’s jurisdiction is concerned more generally, the Court’s Statute describes in detail the ways in which State have to act to give consent to the Court’s jurisdiction in contentions proceedings; it contains no comparable requirements as far as advisory proceedings are concerned, and the Western Sahara approach is premised on that factor. Let us not pretend, therefore, that either the law relating to advisory opinions froze back in 1923 or that the Eastern Carelia approach has got entrenched in the Court’s jurisprudence on advisory opinions. In essence, UK submissions invite the Court to decline exercising its jurisdiction on grounds on which the latter has never declined exercising it.
Further to Western Sahara, the Court has said in the Wall case that it did “not consider that the subject-matter of the General Assembly’s request can be regarded as only a bilateral matter between Israel and Palestine. Given the powers and responsibilities of the United Nations in questions relating to international peace and security, it is the Court’s view that the construction of the wall must be deemed to be directly of concern to the United Nations.” (para. 49, emphasis added) Furthermore, “The opinion [was] requested on a question which is of particularly acute concern to the United Nations, and one which is located in a much broader frame of reference than a bilateral dispute. In the circumstances, the Court [did] not consider that to give an opinion would have the effect of circumventing the principle of consent to judicial settlement, and the Court accordingly cannot, in the exercise of its discretion, decline to give an opinion on that ground.” The same approach was reiterated in the Chagos case, as the matters involved were “of particular concern to the United Nations”. The Court would not decline exercising its jurisdiction on the non-circumvention ground just because “divergent views have been expressed by Mauritius and the United Kingdom” on those matters (paras 86, 88-90). In short, while a dispute (typically in contentious cases) has to involve a disagreement between two or more States, not everything involving such disagreement is necessarily a mere or bilateral dispute. An involvement of some elements of bilateral relations neither negates nor transforms the overall nature of the situation in which the United Nations holds a stake of its own.
In the same spirit as UK’s submissions, Canada’s Written Statement (paras 14-16) suggests that the questions posed to the Court relate to “policies and practices of Israel in the occupied Palestinian Territories” and thus “lie at the heart of the issues to be resolved between Israel and the Palestinians”. The same could be said of what was faced by the Court in the Wall case, and later in the Chagos case with regard to relations between the UK and Mauritius. But that did not stop the Court from delivering its advisory opinions.
UK’s written (para. 60) and oral (para. 10) submissions also cite views of several ICJ judges in the Wall case, such as Judges Koroma and Owada, in support of its above position, but those views also point to the opposite direction. Judge Koroma’s Opinion in Wall has delineated legal questions from ones about the overall and global resolution of the Middle East situation. The question faced by the Court in that case was whether it was “permissible under existing law for an occupying Power, unilaterally, to bring about changes in the character of an occupied territory” and that was “An eminently legal question … susceptible of a legal response and which does not by necessity have to assume the nature of an adjudication of a bilateral dispute”. The UK’s submission leaves it rather unexplained how the generically similar matters raised in the present proceedings have, all of a sudden, become indistinguishable from a bilateral dispute. The same goes for Judge Owada’s position who held that “the fact that the present case contains an aspect of addressing a bilateral dispute should not prevent the Court from exercising its competence” (ICJ Reports 2004, 265, para. 14).
How much exactly is bilateral in the situation that has witnessed a decades-long involvement of the United Nations and discussion of the rights and obligations of third States? On all factual, legal and political terms, even if Israel and Palestine were to keenly agree to treat the underlying matters as ones restricted to their bilateral relations, they would hardly be able to do so. For, in neither of the above senses could matters included in the General Assembly’s request – matters that form the subject of multiple UN resolutions from Resolution 242 onwards, or of agreements concluded under the international guarantee, affecting the position of parties to the conflict as well as that of third parties – be simply bilateral matters.
“The whole” and its parts
In some cases, as in Wall, the Court has emphasised the specificity of the terms of the General Assembly’s request it was addressing. For instance, “the question of the wall [in Palestine was] … part of a greater whole” (para. 54) that consisted of the wider situation in the Middle East. But that was not an indication (in the sense in which this is referred to in paragraphs 9-10 of UK’s oral submissions) that “a greater whole” was non-justiciable or inherently unsuitable to be addressed in advisory proceedings. Instead, it was simply because the General Assembly had chosen to ask the Court’s opinion on more specific issues instead of some wider ones. That the opposite conclusion would not be warranted is obvious from the fact that the most the UK’s pleadings can cite in that regard is the Dissenting Opinion of Judge Donoghue who disagreed with the Court’s handling of this matter in the Chagos case.
The evidence-related objection
UK’s submission also requests the Court to decline exercising jurisdiction because it would be inadequate for the Court to deal with the complex factual material and evidence involved in this case (UK’s oral submission, para. 19). First thing that strikes one is the curiosity of connecting the factual complexity or uncertainty issue to those of the Court’s competence and propriety to exercise its jurisdiction. UK’s submission also suggests that the Court would not be well-equipped to handle the large volume of factual evidence presented to it by various stakeholders in these advisory proceedings.
In support of its above thesis UK submissions cite the views put forward extra-judicially by the former ICJ Judge Sir Christopher Greenwood to the effect that, in contrast to contentious proceedings where one party raises and proves its fact-related allegations, in advisory proceedings “there are no parties and thus no burden of proof as such” (pp.68-69, emphasis added). There is, however, an obvious distinction between the standard of proof applicable – an issue to be determined by the Court – and the status, range or type of entities who bear the burden of proof the relevant standard requires to be borne. It is clearly an exaggeration to suggest that, just because the present proceedings do not involve parties in the same sense as contentious proceedings do, a standard of proof could not be applied based on the evidence before the Court. Due process objection, also raised in UK’s submissions, is also inapplicable, because no one has been prevented from addressing the Court and no one would face a binding judgment in this case. In short, neither the volume of the evidence presented, nor the type of proceedings presents any legal or other obstacle for the Court to exercise its advisory jurisdiction.
The (un)reality of bilateral negotiations
The UK’s further objection is that “the [General Assembly’s] Request would undermine an established political process” that includes “an agreed negotiation framework” to which parties are committed (UK’s written submission, para. 70); and that “an opinion addressing the parties’ obligations would prejudice their negotiating positions” (UK’s oral submission, para. 27(b)). There are several reasons why this objection is flawed. In the first place, it is difficult to see how the Court’s opinion would interfere with possible future negotiations between parties, as the Court is only asked to pronounce on what has already happened on the ground.
Secondly, there is no certainty as to whether and when negotiations on resolving the Middle East crisis will (re)commence and what issues exactly they would cover. The “the very subject matter of those negotiations”, to use an expression adopted in US written pleadings (para. 3.20), does not exist at present. There is, therefore, no certainty as to what exactly the Court’s exercise of its advisory jurisdiction would prejudice or interfere with.
Thirdly, any possible negotiated solution would have to be based on the respect for and compliance with the requirements arising under the applicable international law, including those on which the Court has been asked to pronounce. Negotiations that defy those requirements would be a non-starter both politically and legally. Those negotiations would also be anything but “bilateral”. Multiple actors would have to be involved apart from the immediate parties, namely great powers, possibly other regional States, and also international organisations such as the UN, and possibly the EU or organisations representing Arab States. In addition, substantive issues those negotiations would touch upon – issues arising under international humanitarian law, human rights law, self-determination and so on – are anything but “bilateral” issues. These aspects of international law would not be up for grabs in the negotiation process, or subjected to the negotiators’ discretion. They are, instead, matters arising under the international public policy that multiple submissions before the Court have raised and that has been reaffirmed in multiple UN resolutions adopted over decades, in their turn reinforcing the role of the UN as one of the principal stakeholders in this case.
The UK’s submissions also allude to Israel-PLO agreements whose parties have allegedly decided not to have recourse to the International Court. Even if that were a correct inference, it is not clear how such agreements would affect the Court’s advisory jurisdiction which is not for the parties to those agreements to invoke in the first place. But also, Article XV, Oslo Accords I, and Article XXI, Oslo Accords II, cited in UK’s submissions, deal with interim self-government arrangements about Palestine covered in those Accords, and hence they are limited to matters arising under those Accords. They do not apply to matters raised before the Court in the present proceedings.
In their practice, international courts and tribunals can assess even ongoing negotiations and even that factor will not always deter the Court from adjudicating. It is no more appropriate that some possible, potential, or putative negotiations should be factored in the Court’s decision-making in what the Court currently does. If and whenever such negotiations (were to) begin, they would focus, moreover, on forward-looking issues and, at any rate, none of those issues would be possible to resolve in defiance of international legal requirements that are applicable to the Middle East crisis now and will certainly remain applicable to it whenever negotiations would (re)commence. The UK submissions in essence invite the Court to make a political determination on whether and how the possible or putative negotiations would be effective, and to substitute that political determination for the for the General Assembly’s judgment on the same matter. If the Court were to decline giving this advisory opinion, that would be premised on the Court’s own political decision and political assessment of the situation in the Middle East. The Court has no means at its disposal to foresee whether any of those fears need to be real, in addition to the fact that adopting politically driven decisions are plainly beyond the Court’s gift.
That the UK’s submissions expect the Court to do precisely the above is also clear from the treatment of the passage from the Kosovo Advisory Opinion referred to in paragraph 69 of UK’s written submissions. The Court said in the Kosovo Opinion that it could not “substitute its own view as to whether an opinion would be likely to have an adverse effect”. It is true that the Kosovo Opinion also referred to the Nuclear Weapons Opinion, but even in that latter Opinion the Court held, contrary to the letter and overall spirit of the UK’s submissions in the present case, that the Opinion it was delivering “would present an additional element in the negotiations on the matter”, and that this was no reason for it not to exercise its advisory jurisdiction.
On its face the UK does not seem to invoke the political question doctrine, for understandable reasons. Yet its argument is ridden with allusions to political elements of the Middle East situation, and the thesis about the risk of interference with political process is nothing but a variety of the political question doctrine, one that has been invariably rejected in the jurisprudence of the Court, and of other international tribunals such as the ICTY.
The “framework” that does not exist
UK’s submissions follow up its negotiation-related objection by the one pleading that the Court’s Opinion would undermine what is described as the “established Security Council framework” (UK’s oral submissions, para. 27). This objection involves an ontological problem. The “established Security Council framework” is not one that is any robust, coherent, or institutionalised. In fact, there is no such “framework”. There are, instead, several resolutions adopted by the Security Council that state the strong preference that parties to the conflict engage in negotiations to resolve the Middle East crisis. The Council has said that the negotiated solution has no alternative, but it has no control on making those negotiations actually happen.
UK’s submission cites the passage from the Wall Opinion where the Court has said that the 2003 Roadmap endorsed by Security Council Resolution 1515(2003) was (then) “the most recent of efforts to initiate negotiations to this end.” (UK’s written submission, para. 71.3) But that did not prevent the Court from discussing and pronouncing the issue of the Wall that would no doubt have formed one of the central issues in the negotiations it alluded to. It is also of essence that, whatever is embodied in that or subsequent Security Council resolutions, is merely a part of “efforts to initiate negotiations” that have a varying degree of success on the ground. Moreover, paragraph 8 of Resolution 2334(2016), to which UK’s submissions also refer, calls upon the relevant stakeholders “to exert collective efforts to launch credible negotiations”, which should give an idea how real negotiations are at the time when the Court is dealing with the General Assembly’s request. The Security Council’s involvement had so far had very little or nothing to do with the reality or actual conduct of negotiations, let alone with their form and detail. It is difficult to see how any of that furnishes a “compelling reason” to the Court to decline answering the General Assembly’s questions, because there is hardly anything real that the Court could prejudice or interfere with. It is not realistic to expect that the Court’s Opinion would disrupt or undermine any existing negotiation framework, because no such framework exists in the first place. Therefore, it has been correctly emphasised in the submission of Chile (para. 13) that “to argue that Security Council resolutions supporting the need for a negotiated two-State solution impede the exercise of the Court’s advisory jurisdiction is simply untenable.”
The judicial review request
A thesis hidden beneath the surface of UK’s submissions is that the General Assembly’s request of the advisory opinion has been made in excess of the Assembly’s powers. At any rate, the UK’s “non-circumvention” argument is also inevitably premised on the need to evaluate the Assembly’s request for its attempt to circumvent the lack of State consent in advisory proceedings, and more generally on the suggestion that the General Assembly ought to have kept out of this matter. If the Security Council’s effort would be impeded through the Court’s delivery of its advisory opinion, then it is the General Assembly which must be deemed to have chosen to obstruct the Security Council’s efforts. This invites a serious review of General Assembly decisions in the light of statutory provisions of the UN Charter dealing with the relationship between the General Assembly and the Security Council.
More specifically, the UK’s submission objects to the General Assembly’s role by suggesting that “The General Assembly’s general mandate in respect of the Palestinian question cannot override the Security Council framework” (UK’s oral submissions, para. 27(2)). The “framework” alluded to here is one discussed above, i.e., one that does not really exist. Moreover, at least in the Wall case (paras 24-28) the ultra vires objection was expressly argued before the Court (relating to the Security Council’s prerogatives, as in the present case) and the Court was able to pronounce on it. Most importantly, moreover, the UK’s submissions do not substantiate the claim as to how the General Assembly contravened any applicable standard under the Charter that governs the Assembly’s relationship with the Security Council, which matter was sufficiently discussed both in Wall and Kosovo (paras 36-48) advisory opinions. Therefore, it is difficult to substantiate the excess of powers point which is, again, at the heart of UK’s relevant submission much as it is not expressly mentioned in it.
Conclusion
In the disciplinary sense at least, UK’s submissions are premised on the position at the extreme range among those presented to the Court, and they are not accurate in handling a significant part of the evidence. Not even the US submissions go that far, as is clear from the emphatic statement of the US representative (paragraph 18, US oral submission), even though it does not often happen that the UK disagrees from the US about issues raised before international dispute settlement bodies. UK’s submissions ask the Court to do what it has never done before, namely decline exercising advisory jurisdiction pursuant to the request of a principal organ of the UN. They also ask the Court to do things they do not expressly elaborate upon, such as the adherence to the political questions doctrine or judicial review of the General Assembly’s decision. The overall spirit conveyed by these submissions is one of the fear of things that are not going to happen. It is for the Court to assess the evidence before it or to identify what the relevant Security Council or other resolutions exactly require. It goes without saying that the Court would never do anything to obstruct negotiations whenever they start, or to undermine decisions of the Security Council on the Middle East – decisions in which the Security Council has itself prioritised the settlement of the Middle East crisis based on the applicable international law that prominently includes international humanitarian law.