Resort to the Court presupposes a disposition to depoliticize the issues; when this precondition is not attained on both sides of the fence, the Court's Advisory Opinions are bound to be ineffective. The Opinions will become part and parcel of the political contest and share in its outcome.
It would make a mockery of the independence of the Court if it could never “reach conclusions at variance with the conclusions stated by the General Assembly”. … It would also render the Court largely useless as an organ for giving legal advice to the Assembly.
There are some worrying signs that, far from developing traditional legal techniques in a way acceptable to old and new States, the Court may depart radically from legal patterns accepted in the West in favour of outright politicization of the Court.
[Lyndel V. Prott]
In the present case, worrisome trends that have been infecting the ICJ-General Assembly nexus peaked more overtly and ominously than ever before, recalling earlier fears that the Court's advisory pronouncements would be either ineffective political utterances or ex parte quasi-compulsory judgments rendered without the consent of a state principally concerned. The manner in which the JCJ's advisory function was exercised raises grave doubts regarding the “judicial” nature of that function, and more generally, the future role of the Court in clarifying the law and strengthening world order in the age of the global terrorist scourge.
Employing inapt analogies and formalistic, formulaic, and occasionally inconsistent reasoning, the Court evinced an unjudicial eagerness to furnish the General Assembly with the imprimatur it sought for its pre-set conclusions. The Court adopted a consistently unevenhanded posture that manifested itself, inter alia, in its embracing the assumptions and nomenclature of the Assembly resolution; ignoring the context of ongoing terrorism; minimizing the status of Israel as an objecting quasi-litigant while magnifying the role and rights of the Assembly; upholding questionable Assembly practices; presenting a sanitized and skewed version of the crucial factual and legal contexts; embracing a simplistic and Manichean view of the rights and obligations of the protagonists in conflicts bearing on self-determination; and unjustifiably restricting the Charter-affirmed inherent right of self-defense. In all this, it faithfully mirrored the perspective of the Assembly and proved itself, more patently than ever before, to be a Court of “UN Law” rather than of consensual international law. And to the extent that its “UN Law” perspective continues to spill over from the advisory to the contentious sphere, the process of “undeifying” the Court may gather strength.
1 Gross, Leo, “The International Court of Justice and the United Nations” (1967) 120 I Recueil des Cours 313, at 412.
2 Johnson, D.H.N., “The Case Concerning the Northern Cameroons” (1964) 13 ICLQ 1176–77.
3 Prott, Lyndel V., The Latent Power of Culture and the International Judge (Abingdon, Professional Books, 1979) 232.
4 The term used by Reisman, W. Michael, “The Constitutional Crisis in the United Nations” (1993) 87 Am. J. Int'l L. 83, at 94.
5 See, in general, Pomerance, Michla, The United States and the World Court as a Supreme Court of the Nations (The Hague, Martinus Nijhoff, 1996) ch. 2.
6 The main exception in the matter of consent occurred in 1923, in relation to the Finno-Russian dispute over Eastern Carelia, in which the Court refused to render the Opinion requested by the Council. PCIJ, Ser. B, No. 5. In the Austro-German Customs Regime case of 1931, a superheated political issue was dumped onto the Court, and its Opinion failed ultimately to calm political passions. For the history of the political and judicial handling of the two cases, see Pomerance, Michla, The Advisory Function of the International Court in the League and U.N. Eras (Baltimore, Johns Hopkins University Press, 1973) 65-69, 85-89, 282-83, 287-90, 331–32. The Eastern Carelia case featured prominently in the first U.S. Senate intenvar debate on U.S. membership in the PCIJ; the Customs Union case was the focus of the second debate. See Pomerance, supra n. 5, at ch. 2.
7 See Pomerance, Michla, “The Advisory Role of the International Court of Justice and its ‘Judicial’ Character: Past and Future Prisms” in Muller, A.S. et al. , eds. The International Court of Justice (The Hague, Martinus Nijhoff, 1997) 271–323.
8 See also, on some of these issues, Pomerance, Michla, “The ICJ's Advisory Jurisdiction and the Crumbling Wall between the Political and the Judicial” (2005) 99 (1) Am. J. Int'l L. 26.
9 Prott, supra n. 3.
10 ICJ, Order of 30 January 2004, available at http://www.icj-cij.org/icjwww/idocket/imwp/imwporder/imwp_iorder_toc.htm.
11 Inter alia, Elaraby had stated that he was “concerned about a tendency to play into Israel's hands, and thus to marginalize the crux of the Arab Israeli conflict, which is the illegitimate occupation of territory”. “I hate to say it”, he was quoted as saying, “but you do not see the Palestinians, or any other Arab country today, presenting the issue thus when addressing the international community: Israel is occupying Palestinian territory, and the occupation itself is against international law”. (In this connection, see infra, n. 104 and accompanying text, on the failed Egyptian attempt to get a proposal incorporated in the 1974 General Assembly Definition of Aggression that would have had the effect of significantly altering the relationship between the ex iniuria principle and the international law principles governing the acquisition of territory.) Furthermore, Elaraby declared (incorrectly) that the Sharon government had “very recently” and unlike earlier Israeli governments, described the territories as “disputed” rather than “occupied”, thus “wreaking confusion and gaining time”. All of this, he said, amounted to “attempts to confuse the issues and complicate any serious attempt to get Israel out of the occupied territories.” Cited by Judge Buergenthal in ICJ Order of 30 January 2004, supra n. 10; Dissenting Opinion of Judge Buergenthal, para. 8. Judge Buergenthal's Dissenting Opinion is available at http://www.icj-cij.org/icjwww/idocket/imwp/imwp_iorder_20040130_DissOpinionJudgeBuergenthal.PDF.
12 ICJ, Order of 30 January 2004, supra n. 10, at para. 5; and see ibid., paras. 1-2, 4.
13 See the comment by Prott, supra n. 9; and the perceptive discussion of this matter by Rosenne, Shabtai, “The Composition of the Court,” in Gross, Leo, ed. The Future of the International Court of Justice (Dobbs Ferry, New York, Oceana, 1976) Vol. I 390-391, 427–428. And see Judge Buergenthal's observation that although he agreed with the Court's conclusion that in this case official actions should be discounted, he could “imagine circumstances where this general rule will not withstand closer scrutiny”. Dissenting Opinion of Judge Buergenthal, supra n. 11, at para. 6.
14 Article 17(2) states: “No Member may participate in the decision of any case in which he has previously taken part as agent, counsel, or advocate for one of the parties, or as a member of a national or international court, or of a commission of enquiry, or in any other capacity”.
15 Dissenting Opinion of Judge Buergenthal, supra n. 11, at paras. 10 and 13. “Judicial ethics”, he observed, are not “matters strictly of hard and fast rules”; they are “matters of perception and of sensibility to appearances that courts must continuously keep in mind to preserve their legitimacy”. Ibid., para. 10.
16 Ibid., para. 11.
17 Ibid., para. 13.
18 At least twenty of those presenting written statements to the Court deemed the request inappropriate on one ground or another, and several statements cited multiple grounds. It should also be noted that in the vote on the requesting resolution in the Assembly (90-8-74), given that an anti-Israel measure was involved, the number of negative votes and abstentions reflected an unusual degree of uneasiness with the decision to turn to the Court.
19 Among these assumptions are those bearing on the consequences of the defensive use of force by states and the legal force of the relevant General Assembly and Security Council resolutions. See also infra, n. 20 regarding further tendentious statements.
20 After declaring that “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,” the Assembly posed the following “question” to the Court, for its “urgent” determination: “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… considering the rules and principles of international law, including the Fourth Geneva Convention of 1949, and relevant Security Council and General Assembly resolutions?” G.A. Res. ES-10/14, 8 December 2003; emphasis added. As Judge Kooijmans queried: “What was the Assembly's purpose in making the request? …[W]hy the views of a judicial body on an act which has already been determined not to be in conformity with international law and the perpetrator of which has already been called upon to terminate and reverse its wrongful conduct…?” The request, as he observed, was “far from being ‘legally neutral’” and was “phrased in a way which can be called odd, to put it mildly.” Separate Opinion of Judge Kooijmans (available at http://www.icj-cij.org/icjwww/idocket/imwp/imp_advisory_Opinion_separate_kooijmans.htm) (hereinafter: “Kooijmans Opinion”), paras. 22, 25 and 26. The word “terror” and the context in which the security fence was constructed did not feature in the requesting resolution. The preamble was shot through with flagrantly one-sided statements, including the reaffirmation of the applicability to the “occupied territories” of the 1977 Additional Protocol – although Israel, like the U.S., never ratified it; the affirmation of the “Green Line”; and the specific reference to the Partition resolution (181). For the earlier resolution, see G.A. Res. ES-10/13, 21 October 2003.
21 The Corfu Channel and Oil Platforms cases both involved past and isolated incidents of the use of force (and in the latter case, the Court's decision on the merits was given some 15-16 years after the episodes complained of). The Nicaragua case did involve ongoing conflict, and this was one of the grounds for U.S. objections to the admissibility of the Court's proceeding to the merits. See 1984 I.C.J. 436. But even that did not affect the lives of Americans; and it could not be said to parallel the threat faced by Israel since the unleashing by Arafat of the latest terrorist war in September 2000. Yugoslavia's June 1999 request for provisional measures ordering cessation of the then-ongoing NATO bombings was refused by the Court for lack of prima facie jurisdiction.
22 As U.S. Supreme Court Justice Hugo Black remarked, even while dissenting in the Eisentrager case: “It has always been recognized that actual warfare can be conducted successfully only if those in command are left the most ample independence in the theatre of operations. Our Constitution is not so impractical or inflexible that it unduly restricts such necessary independence. It would be fantastic to suggest that alien enemies could hail our military leaders into judicial tribunals to account for their day-to-day activities on the battlefront. Active fighting forces must be free to fight while hostilities are in progress.” Johnson v. Eisentrager, 339 U.S. 763 (1950) at 796.
23 On the rhetorical nature of these doctrines in the Court's previous jurisprudence, see Pomerance, supra n. 7; and on the problematic nature of the formulation of the request in this case, see supra, n. 20. The Court dealt with issues of jurisdiction in Advisory Opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 9 July 2004, General List, No. 131, paras. 24-42, and with questions of propriety in paras. 43-65. For a transcript of this decision, see this issue “Advisory Opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory” (2005) 38 (1–2) Is.L.R. 17 (hereinafter: “Opinion”). In relation to jurisdiction, the Court affirmed, inter alia, Assembly practices of dubious legality such as the simultaneous convening of an emergency session and a regular Assembly session; having a continuous emergency session that “rolls” incessantly, reconvening a dozen times under various pretexts; and ignoring altogether the restrictions in Article 12(1) regarding Assembly non-encroachment on the Security Council's sphere of competence. Ibid., paras. 24-35. On the “legal” nature of the question, the Court cited formulaically (ibid., paras. 37-39) earlier essentially meaningless dicta – such as that in the Western Sahara advisory Opinion, in which the Court had stated (1975 I.C.J. 18, at para. 15) that the questions before it had “been framed in terms of law and raise problems of international law” and that they were “by their very nature susceptible of a reply based on law”. And on the irrelevance of the “political” aspects, it could and did cite a string of similarly formulaic mantras (Opinion, para. 41), ending with those in the Nuclear Weapons advisory Opinion (1996 (I) I.C.J. 234, at para. 13), a case which it also cited to overcome the argument that the Opinion might impede progress on the “Roadmap” (Opinion, para. 51). In the matter of propriety, the Court asserted, yet again, pro forma, that it was entitled to exercise its discretion to refuse to comply with an Assembly request for an Opinion; it then reiterated its “duty to cooperate barring compelling countervailing reasons” dictum (Opinion, para. 44); and it proceeded to dismiss very perfunctorily all possible “compelling reasons”. See further infra, section on “Competence and Propriety” regarding the issues of consent; clarification of disputed facts; and the non-analogous nature of the precedents cited by the Court to overcome objections to the propriety of giving an Opinion in this case.
24 The reversal of roles was commented upon by Judge Petrén in the Namibia case: “Instead of asking the Court its Opinion on a legal question in order to deduce the political consequences flowing from it, the Security Council did the opposite”. 1971 I.C.J 128. It was cited in the present case by Judge Kooijmans in his Separate Opinion, supra n. 20, at para. 23.
25 Opinion, supra n. 23, at para. 48.
26 Ibid., paras. 48-50.
27 Separate Opinion of Judge Higgins (hereinafter: “Higgins Opinion”) paras. 2-6. The separate Opinion of Judge Higgins is available at the ICJ website http://www.icj-cij.org/icjwww/idocket/imwp/imp_advisory_Opinion_separate_Higgins.htm.
28 Ibid., para. 7.
29 Ibid., para. 2. A further difference mentioned by Judge Higgins was the fact that there had been “a series of Court Opinions on South West Africa which made clear what were South Africa's legal obligations.” Ibid. But given the composition of the Court and the content and tone of the present Opinion, this hurdle might not be too difficult to overcome in the future!
30 Under Article 32, a state that is a non-member of the Security Council, “shall be invited to participate, without vote, in the discussion relating to the dispute” to which that state is a “party” [emphasis added]. Thus if, in 1962, the Court's assumption of jurisdiction was premised on the affirmation of the “dispute” character of the issues placed before it, in 1971 the Court's competence seemed to hinge on the contrary assumption. The Court did not adopt the thesis, supported by several judges, of “residual discretion” based on Article 68 of the Court's Statute, which would have had the Court view the matter as a UN-South Africa dispute and allowed the appointment of a South African judge ad hoc, while escaping the competence imbroglio. See Pomerance, Michla, “The Admission of Judges Ad Hoc in Advisory Proceedings: Some Reflections in the Light of the Namibia Case” (1973) 67 Am. J. Int'l L. 446.
31 There were other jurisdictional problems that Israel justifiably raised, referred to in the Opinion, and which the Court too blithely dismissed by rubber-stamping questionable Assembly practices. See supra n. 23. Some of these matters are discussed in Pomerance, supra n. 8.
32 See further, discussion of that precedent, infra text at nn. 36-48.
33 See Stone, Julius, Israel and Palestine: Assault on the Law of Nations (Baltimore, Johns Hopkins University Press, 1981) 65, 101, 127–28; Slonim, Shlomo, Jerusalem in America's Foreign Policy 1947-1997 (Leiden, Kluwer Law International, 1998) 212–17.
34 See SCOR, 3rd Year, 340th Mtg., 27 July 1948, at 27-32; and see Pomerance, supra n. 6, at 248-59 regarding the suggestions that were rejected. For the background to the South-West Africa (Status) Opinion, see ibid.
35 According to the Court, “the responsibility of the United Nations in this matter also has its origin in the Mandate and the Partition Resolution concerning Palestine.” Opinion, supra n. 23, at para. 49. Cf. Separate Opinion of Judge Elaraby (hereinafter: “Elaraby Opinion”), paras. 2.1-2.3. The separate Opinion of Judge Elaraby is available at the ICJ website http://www.icj-cij.org/icjwww/idocket/imwp/imp_advisory_Opinion_separate_Elaraby.htm. And as noted earlier, supra n. 20, the Partition Resolution featured prominently in the preamble of the requesting resolution. Another foundation of this so-called “permanent responsibility” of the Assembly in the matter was the fact that the Assembly stated it to be so in December 2002; and that the UN had created “several subsidiary bodies specifically established to assist in the realization of the inalienable rights of the Palestinian people.” Opinion, para. 49. Thus, instead of seeing such questionable UN steps as a glaring reflection of an anti-Israel agenda – as the United States and other states have repeatedly done – the Court has employed them to bolster further that very agenda!
36 Western Sahara, Advisory Opinion, 1975 I.C.J., supra n. 23, at 25, paras. 32-33. On the purport of the Eastern Carelia precedent, see Pomerance, supra n. 6, at 287-89.
37 1975 I.C.J., supra n. 23, at 25, para. 33; cited in Opinion, supra n. 23, at para. 47.
38 Ibid., at 26-27, para. 39.
39 Higgins Opinion, supra n. 27, at para. 12.
40 PCIJ, Ser. B, No. 5, at 28. While the Court did not think that “there is an absolute rule that the request for an advisory Opinion may not involve some enquiry as to the facts,” it did consider that “under ordinary circumstances, it is certainly expedient that the facts upon which the Opinion of the Court is desired should not be in controversy, and it should not be left to the Court itself to ascertain what they are.”
41 1975 I.C.J., supra n. 23, at 28-29, para. 46. Cited by Judge Buergenthal in his Declaration, para.1, as the principle that guided him in his dissent on compliance with the request. Judge Buergenthal's Declaration is available at http://www.icj-cij.org/icjwww/idocket/imwp/imp_advisory_Opinion_separate_Buergenthal.htm (hereinafter: “Buergenthal Declaration”).
42 Buergenthal Declaration, supra n. 41, at para. 1.
43 Ibid., para. 3. It was sufficient, for the Court's purposes, to rely on the reports of the Secretary-General and of UN special rapporteurs, as well as on the information regarding Israel's security concerns which were incorporated in Israel's Written Statement (though admittedly the Statement was directed only to the issues of jurisdiction and propriety) and in Israeli documents in the public domain. Opinion, supra n. 23, at paras. 57-58.
44 Buergenthal Declaration, supra n. 41, at para. 3.
45 1975 I.C.J., supra n. 23, at 25, at para. 34.
46 From the Court's perspective, at least, the dispute ought to have been acknowledged as “bilateral”, given the lengths to which the Court went to accord Palestine the rights of a “state”.
47 1975 I.C.J., supra n. 23, at 24, para. 30.
48 Ibid., at 28, para. 43.
49 Opinion, supra n. 23, at para. 51.
50 See, e.g., Higgins Opinion, supra n. 27, at para. 34; Buergenthal Declaration, supra n. 41, at para. 6.
51 Opinion, supra n. 23, at para. 47, citing 1950 I.C.J. 71.
52 Ibid., para. 163; emphasis added.
53 For all the impact made by the remnants of the bus only recently bombed out in the heart of Jerusalem and exhibited in front of the Peace Palace during the Oral Proceedings, it might as well have been an ancient relic, or at most, a wreckage from World War II.
54 Higgins Opinion, supra n. 27, at para. 16.
55 Taken together with S.C. Resolution 242 (about which, see infra text at nn. 61-63, 98), this provision serves to reinforce an Israeli claim to at least some of the territory captured in the self-defensive war of 1967.
56 Opinion, supra n. 23, at para. 71.
57 Not until 1978-79 was there any break in this pattern, when Egypt alone signed a Peace Agreement with Israel – an Agreement that led to only a “cold peace”, accompanied by continued Egyptian efforts to delegitimize Israel in diverse international fora. A Jordanian Peace Treaty was concluded in 1994.
58 See Opinion, supra n. 23, at paras. 73-75.
59 See, in this connection, the recent article by Michael Tarazi, a legal adviser to the PLO “Two Peoples, One State” New York Times, 2 October 2004, A25, advocating a return to the original Arab demand in 1947 of a single state in all of Mandatory Palestine, instead of a two-state solution. The continued PLO emphasis on the so-called “right of return” is significant. As noted by Yehoshafat Harkabi, insistence on such a right is a tactical device to replace, by formulae with a seemingly “positive” or “moderate” ring, the earlier outright call for the extinction of Israeli sovereignty. “This slogan,” he wrote, “is nothing but a euphemism for the old demand for the demise of Israel as a political body” and the negation of any idea of coexistence. Harkabi, Yehoshafat, The Palestinian Covenant and its Meaning (London, Valentine Mitchell, 1979) 52; and see, in general, ibid. at 15-16, 22, 42-57. See also the quotation from Nasser, cited infra, text at n. 109.
60 Opinion, supra n. 23, at para. 74, and again in para. 117. On the meaning of this provision and its relation to the ex iniuria principle, see further infra, at nn. 98-99.
61 Emphasis added. This paragraph is quoted in para. 117, together with the operative paragraph on withdrawal; but it is only the latter to which any importance is attributed in the Opinion, and then in accordance with the Arab interpretation rather than that of Israel and the draftsmen of the resolution. See further infra n. 62.
62 See, e.g. Eugene Rostow (who was intimately involved in the negotiations on the wording of the resolution), “Legal Aspects in the Search for Peace in the Middle East” (1970) 64 Am. Soc'y Int'l L. Proc 64, at 68–69; and the attitude of the U.K. representative, Lord Caradon (sponsor of the resolution), cited in Stone, Julius, Conflict Through Consensus (Baltimore, Johns Hopkins University Press, 1977) 57-60, 63.
63 See infra n. 99, regarding the meaning of “acquisition” as used in S.C. Resolution 242. And see, on the meaning of the term, Higgins, Rosalyn, “The Place of International Law in the Settlement of Disputes by the Security Council” (1970) 64 Am. J. Int'l L. 7.
64 Opinion, supra n. 23, at para. 77; emphasis added.
65 See allusion to this in Buergenthal Declaration, supra n. 41, at para.6.
66 Opinion, supra n. 23, at para. 80, citing Secretary-General's report.
67 Ibid., para. 85.
68 See supra text at n. 43.
69 Buergenthal Declaration, supra n. 41, at para. 7. The Court was “not convinced that the destructions carried out contrary to the prohibition in Article 53 of the Fourth Geneva Convention were rendered absolutely necessary by military operations.” Opinion, supra n. 23, at para. 135. It was “not convinced that the specific course Israel has chosen for the wall was necessary to attain its security objectives.” Ibid., para. 137. And it was “not convinced that the construction of the wall along the route chosen was the only means to safeguard the interests of Israel against the peril which it has invoked as justification for that construction.” Ibid., para. 140.
70 Ibid., para. 141.
71 The source of the violence is studiously ignored. A person from Mars might be left guessing.
72 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. U.S.), Merits, 1986 I.C.J. 108, at para. 206. Oil Platforms (Iran v. U.S.), Merits, (I.C.J., 6 November 2003), (2003) 42 ILM 1334.
73 1986 I.C.J. 108, at para. 206.
74 Dissenting Opinion of Judge Schwebel (hereinafter: “Schwebel Dissent”), ibid., at 273, para. 16. The Court, he felt, “may be understood as inferentially endorsing an exception to the prohibition against intervention, in favour of the legality of intervention in the promotion of so-called ‘wars of liberation’, or, at any rate, some such wars.” Ibid., at 351, para. 179.
75 Among these: James Brierly, Julius Stone, Sir Humphrey Waldock, Derek Bowett, and Myres McDougal. For some of the relevant citations, and a lengthy excerpt from Waldock, see Schwebel Dissent, ibid., at 348, para. 173.
76 In objecting to the Court's view, Judge Schwebel notes that the issue of anticipatory self-defense was not relevant in the Nicaragua case, since both parties agreed that there had been an “armed attack” but differed regarding the facts. The Court's pronouncement on this aspect of the case was therefore obiter dictum. Ibid., at 347, paras. 172-73.
77 Ibid., at 332, para. 155. The Court's perspective, Schwebel observed, conflicted with Nicaragua's own view of the matter.” Ibid., at 332-39, para. 157. Among the doctrinal views cited in Nicaragua's Memorial in this regard, were those of Professor (now Judge) Higgins (see ibid., at 334, citing Higgins, , “The Legal Limits to the Use of Force by Sovereign States, United Nations Practice”  37 British Year Book of International Law 269); and even Ian Brownlie, who concedes that an “armed attack” would include “a coordinated and general campaign by powerful bands or irregulars, with obvious or easily proven complicity of a government of a state from which they operate.” See Schwebel Dissent, 19861.C.J. 333-34.
78 Ibid. at 336, para. 157 (citing Nicaraguan Memorial, which in turn cited Schwebel, Stephen “Aggression, Intervention and Self-Defence in Modern International Law”  136-II Recueil des Cours 458).
79 Judge Schwebel's detailed exposition of the manner in which the Court deviated from accepted doctrine bears close reading. See especially 19861.C.J. 331-352, at para. 154-181. Among the numerous scholarly comments cited by Schwebel is that of Julius Stone (“widely recognized as one of the century's leading authorities on the law of the use of force in international relations”) that “none of the Charter provisions… offers any basis for distinguishing between force applied by the putative aggressor, or indirectly applied by him through armed bands, irregulars and the like”. Ibid., at 342, para. 164 (citing Stone, supra n. 62, 89-90).
80 G.A. Res. 2625 (XXV), 24 October 1970.
81 Annex to G.A. Res. 3314 (XXIX), 14 December 1974.
82 On the questionable use of General Assembly resolutions as sources of law, see infra, at n.. 129; and in the Nicaragua case, see Judge Schwebel's reference to their doubtful legal significance, 1986 I.C.J. 345, at para. 168. In the Declaration on Friendly Relations, two paragraphs in the section on the non-use of force and one paragraph in the section on non-intervention refer specifically to the indirect use of force and a state's culpability even on the basis of its acquiescence or toleration of armed or terrorist activity originating within its territory. In the Definition of Aggression, where the traditional rule was somewhat emasculated (see Stone, supra n. 62, at 73-75 and 138), nevertheless, paragraphs 3(f) and (g) deal with indirect aggression; and the “substantial involvement” of a state in the actions of armed groups was deemed to be an act of aggression. It is noteworthy that in the present Opinion, though the two documents are deemed by the Court to be part of customary law, one finds no quotations from those parts that might have inculpated Palestinian terror.
83 See Schwebel Dissent, 1986 I.C.J. 343, at para. 165 (citing, inter alia, Stone, supra n. 62 at 75). For Schwebel's criticism of the Court's treatment of the Definition of Aggression, see, in general, 1986 I.C.J. 341-346, at para. 162-170.
84 Moore, John Norton, “The Nicaragua Case and the Deterioration of World Order” (1987) 81 AJIL 159.
85 Franck, Thomas M., “Some Observations on the ICJ's Procedural and Substantive Innovations,” (1987) 81 Am. J. Int'l L. 116, at 120.
86 Hargrove, John Lawrence, “The Nicaragua Judgment and the Future of the Law of Force and Self-Defense” (1987) 81 Am. J. Inl'l L. 135, at 136.
87 Ibid., at 143.
88 It should be noted that there was no need for the Court to deal with the issue of the legality of the use of force in this case, once it determined that U.S. military action against the Iranian oil platforms had not constituted a breach of the provision in the bilateral commercial treaty invoked by Iran. Several judges objected strenuously to the Court's decision to pronounce itself on the matter – especially in the dispositif – and some felt that the Court had thereby violated the non ultra petita rule and had exceeded its jurisdiction. See, in general, Oil Platforms, supra n. 72, Separate Opinions of Judges Buergenthal, Higgins, Kooijmans, Parra-Aranguren and Owada. It is difficult to avoid the impression that the Court was anxious to present its view on the general question of self-defense under the UN Charter; and that, as Judge Higgins noted, it proceeded, inappropriately, “through the eye of the needle that is the freedom of commerce clause of a 1955 FCN Treaty”. See Separate Opinion of Judge Higgins, at para. 27. Contrariwise, Judge Simma, in his Separate Opinion, welcomed the fact that the Court had utilized the opportunity to state its views on the general issue of the legal limits on the use of force, and he regretted only the Court's hesitant approach and “inappropriate restraint”. See Separate Opinion of Judge Simma, and, in a similar vein, Dissenting Opinion of Judge Elaraby.
89 Regarding the matter of “necessity”, for example, the Court did not agree that there was any room for a “measure of discretion”. Oil Platforms, supra n. 72, at para. 73. For criticism of the Court's handling of these and other substantive matters bearing on the standards for measuring the legality of the use of force and the Court's treatment of the evidence, see Separate Opinions of Judges Buergenthal, Higgins, Owada, and Kooijmans.
90 See excerpts in (2004) 98 Am. J. Int'l L. 598–601.
91 Ibid., 598.
92 Ibid., 599.
93 Ibid., 601.
94 See Opinion, supra n. 23, at para. 139, and the objections to this proposition in Buergenthal Declaration, supra n. 41, at para. 6, and Higgins Opinion, supra n. 27, at para. 33.
95 See Buergenthal Declaration, supra n. 41, at para. 6; Higgins Opinion, supra, n. 27, at para. 34.
96 See Opinion, supra n. 23, at para. 139, with reference to S.C. Resolutions 1368 (2001) and 1373 (2001); and objections in Buergenthal Declaration, supra n. 41, at para. 6.
97 It may be noted that the view suggested by Judge Higgins, supra n. 27 (in para. 35 of her Separate Opinion) would lead to the paradoxical conclusion that active measures of self-defense would be more consonant with Article 51 than the passive measure of the security fence. Presumably, such an approach is premised on the idea of the permanence of the latter. But the fence is not permanent, while the loss of life, attendant on the lack of a suitable barrier against infiltration, is irreversible.
98 See supra, text at nn. 60-62.
99 See supra, n. 62. The term “acquisition of territory” was intended to underscore the fact that permanent changes in title would be dependent on agreement between the parties – Israel and its neighboring Arab states (which, in 1967, of course, did not include the Palestinians).
100 Opinion, supra n. 23, at para. 87.
101 Lauterpacht, Elihu, Jerusalem and the Holy Places (London, Anglo-Israel Association, 1968) 52.
102 Stone, supra n. 62, at 61.
103 Article 5(3).
104 Another Egyptian suggestion with a similar purpose also failed of adoption. Thus, in a document otherwise shot through with ambiguities, the reaffirmation of the ex iniuria principle was “one of the few clear legal outcomes.” Stone, supra n. 62, at 126.
105 For fuller explication of this topic, see Pomerance, Michla, Self-Determination in Law and Practice (The Hague, Martinus Nijhoff, 1982) ch. 9.
106 Toynbee's dictum that “self-determination is merely the statement of a problem and not the solution of it” has not lost its pertinence. Toynbee, Arnold J., “Self-Determination” 484 The Quarterly Review 319.
107 See, in general, Pomerance, supra n. 105.
108 The Public Papers and Addresses of Franklin D. Roosevelt: 1938 (1941) 565; ibid.1943 (1950) 78.
109 Cited in Feinberg, Nathan, Studies in International Law (Jerusalem, Magnes Press, 1979) 506 n. 291. See also supra n. 59.
110 Opinion, supra n. 23, at para. 149 [emphasis added].
111 Ibid., paras. 155 and 122. Within the Court, Judge Higgins voiced reservations regarding the Court's conclusions in the matter of erga omnes obligations in this case. Higgins Opinion, supra n. 27, at paras. 37-39; and see the obvious difficulties that Judge Kooijmans experienced with the Court's assertion in this regard and its implications. Kooijmans Opinion, supra n. 20, at para. 41.
112 The Court's use of the Declaration on Friendly Relations (Opinion, supra n. 23, at para. 156) is simplistic and selective. The regular references in the Declaration to “the provisions of the Charter” mean that the crucial issues are begged rather than answered. (See, in general, Pomerance, supra n. 105, ch. 10.) Nor can they really be definitively determined in advance, since such questions as identifying the “self”, what it can “determine”, how to balance conflicting claims, and how to reconcile self-determination claims with the other principles appearing in the Declaration – most prominently, the right to be free of threats or use of force – are matters to be decided later, in specific contexts. And to be acceptable to all concerned, the assessments must be seen to be even-handed and balanced, and to be based on the mutual consent of the protagonists.
113 Higgins Opinion, supra n. 27, at para. 30.
114 Kooijmans Opinion, supra n. 20, at para. 32. See also his query: “Is every impediment to the exercise of the right to self-determination a breach of an obligation to respect it? Is it so only when it is serious? Would the discontinuance of the impeding act restore the right or merely bring the breach to an end?” Ibid. para. 33.
115 Buergenthal Declaration, supra n. 41, at para. 4, citing Article 21 of the International Law Commission's Articles on Responsibility of States for Internationally Wrongful Acts, which declares: “The wrongfulness of an act of a State is precluded if the act constitutes a lawful measure of self-defence taken in conformity with the Charter of the United Nations.”
116 Weil, Prosper “Towards Relative Normativity in International Law” (1983) 77 Am. J. Int'l L. 413, at 417.
117 Elaraby Opinion, supra n. 35, at para. 1.
118 It was, he said, “perhaps the most important development in the situation since the partition plan” – which, he failed to mention, had been rejected by the Arab states and the Arab population of Palestine at the time. UN Press Release GA/10248,20 July 2004.
119 Rosenne, Shabtai, The Law and Practice of the International Court (Leiden, Sijthoff, 1965) 2.
120 See supra, text at n. 34.
121 Kooijmans Opinion, supra n. 20, at para. 21. A similar thesis was earlier presented by Judge Hermann Mosler, in discussing the general issue of justiciability. “Political and Justiciable Legal Disputes: Revival of an Old Controversy?” in Cheng, Bin and Brown, D.E., eds. Contemporary Problems of International Law (London, Stevens, 1988) 228–29. Against the Mosler thesis, and especially in light of the present case, a more convincing argument might be made for the proposition that though the political-legal divide is admittedly not codified, and perhaps not codifiable, it is, at least in extreme cases, identifiable. It should also be noted that the Court has been more willing to use its discretion in contentious cases to refuse to respond, even when it had jurisdiction. The precedents of Monetary Gold and East Timor regarding the absence of an essential party could readily have been employed, by analogy, in this case.
122 Gross supra n. 1, at 320.
123 UN Doc. A/PV. 1414, p. 37; cited ibid., 325.
124 For representative samples, see the statements cited in Legal Consequences of States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), 1 Pleadings, Oral Arguments, Documents at 451-73. The new bench was expected to “reflect the current range of legal and political trends in the United Nations” and to include more “men of agile mind and with the courage to adapt to the evolving norms of the international community”. In the elections that followed, the candidates were carefully screened with these criteria in mind.
125 Gross, supra n. 1, at 348. Falk, Richard predicted that “the triumph of judicial conservatism in 1966 will be the last such triumph in the ICJ for many years to come.” “The South West Africa Cases: An Appraisal” (1967) 21 International Organization 18–19.
126 For example, the French delegate declared: “Should it appear that the pertinent rules of law whose sources are enumerated in Article 38 of the Statute of the Court are no longer in keeping with the circumstances, it is for the States, and not for the Court to modify them.” UN Doc. A/PV. 1439, p. 77; cited in Gross supra n. 1, at 348 n. 45.
127 Statement of Nepalese delegate, UN Doc. S/PV. 1550,29 July 1970, at 38-40; and see, in general, for the pre-request discussions, Pomerance, supra n. 6, at 148-57.
128 Reisman, W. Michael, “Termination of the United States Declaration Under Article 36(2) of the Statute of the International Court” in Arend, Anthony Clark, ed. The United States and the Compulsory Jurisdiction of the International Court of Justice (Lanham, Md., University Press of America, 1986) 89. And see, in general, Robinson, Davis R., “The Role of Politics in the Election and the Work of Judges of the International Court of Justice” (2003) 97 Am. Soc'y Int'l L. Proc 277, at 277–82.
129 None of the minority judges viewed Assembly resolutions as law-creating. See, e.g. Judge Jessup's firm rejection of such a proposition (1966 I.C.J. 432); and the limited role that even Judge Tanaka was willing to attribute to Assembly resolutions (ibid. 291). They could, he said, influence, facilitate, and accelerate the generation of new customary norms. But, as noted by Rosalyn Higgins, there was no suggestion that “the mere existence of a resolution obviated the need for” the usual requirements for law-creation: practice, repetition, and opinio juris. “The Role of Resolutions of International Organizations in the Process of Creating Norms in the International System” in Butler, W.E., ed. International Law and the International System (Dordrecht, Martinus Nijhoff, 1987) 22.
130 Weil, supra n. 116.
131 Claude, Inis L. Jr., States and the Global System (New York, St. Martin's Press, 1988) 158–59.
132 See Buergenthal Declaration, supra n. 41, at para. 10. At the same time Judge Buergenthal emphasized that since the Court was not dealing with a contentious case, Israel was not obliged to participate in the proceedings, and did not have the burden of proving its claims to the Court or furnishing it with proof of any kind. Nor did such Israeli abstention entitle the Court to “draw any adverse evidentiary conclusions”. Ibid. Indeed, the logical deduction was the one made by Judge Buergenthal, based on the second grounds of abstention in the Eastern Carelia case – that in the absence of sufficient information, the Court should have exercised its discretion and declined to give the Opinion (see supra, text at nn. 40-44). It might be noted, too, that even in a case where the Court exercises compulsory jurisdiction, a disputant state is not obligated to appear; and the Court, acting under Article 53 of its Statute, must, before deciding on the merits, “satisfy itself…that the claim is well founded in fact and law”.
133 See supra, text at n. 10. The lop-sided vote with which the Court decided not to disqualify Elaraby was also anything but reassuring. Noteworthy too is the title given to the case and the Court's adoption of the Assembly's nomenclature. On the importance of the title of a case as an early indicator of where the wind is blowing, see the comments of Judge Schwebel on the tendentious title employed by the Court in the Nicaragua case, 1986 I.C.J. 320-21, at paras. 128-31.
134 In the Namibia case, for example, to buttress its decision to give an Opinion despite South Africa's objections, the Court pointed to the fact that South Africa participated in the proceedings “and, while raising specific objections against the competence of the Court, has addressed itself to the merits of the questions.” 1971 I.C.J. 23-24, at para. 31.
135 Gross, supra n. 1, at 416-17. And to the extent that the Opinion interprets key Charter provisions, it should be recalled that the framers of the UN Charter deliberately denied the Court the competence to interpret that document authoritatively. See Pomerance, supra n. 6, 30-31. See also Kelsen, Hans, The Law of the United Nations (New York, Praeger, 1951) 547, regarding the non-authoritativeness of the Court's interpretations of the Charter. And see Separate Opinion of Judge Spender in the Certain Expenses case, 1962 I.C.J. 196-197.
136 G.A. Res. ES-10/15, 20 July 2004.
137 See, in this connection, the expression of concern by the U.S. representative about “some of the legal conclusions in the Opinion” and his regrets at the “efforts to politicize the Court's non-binding position”. UN Press Release GA/10248, 20 July 2004.
138 Falk, Richard, Reviving the World Court (Charlottesville, University of Virginia Press, 1986) 34.
139 See also, especially, the statement by Richard Gardner, that “it is simply not realistic in the present state of international relations to expect nations to accept decisions of an international tribunal on the legality of their behavior in armed conflicts in which they are or have been involved”. U.S. Decision to Withdraw from the International Court of Justice, Hearing before the Subcommittee on Human Rights and International Organization, House Committee on Foreign Affairs (1985) 115.
140 D'Amato, Anthony and O'Connell, Mary Ellen, “United States Experience at the International Court of Justice,” in Damrosch, Lori Fisler, ed. The International Court of Justice at a Crossroads (New York, Transnational Publishers, 1987) 422. The quoted statement was made in the wake of Nicaragua, but is even more apt today in light of the present Opinion.
* Emilio Von Hofmannsthal Professor of International Law, The Hebrew University of Jerusalem.
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