International Court of Justice Firmly Walled in the Law of Power in the Israeli–Palestinian Peace Process

2005 ◽  
Vol 18 (3) ◽  
pp. 467-487 ◽  
Author(s):  
PAUL J. I. M. DE WAART
Keyword(s):  
Peace Process ◽  
Advisory Opinion ◽  
International Court Of Justice ◽  
The Rule Of Law ◽  
Palestinian Territories ◽  
Court Of Justice ◽  
International Court ◽  
Palestinian Territory ◽  
Palestinian Question

The impartial and nearly unanimous advisory opinion by the International Court of Justice in the Wall case put the role of politics and diplomacy in the settlement of the Israeli–Palestinian conflict in its proper place, within the context of the rule of law. The significance of the opinion goes far beyond the illegality of the construction of the wall in the Occupied Palestinian Territories (OPT). The Court wisely and courageously seized the opportunity of its first direct involvement in the conflict to speak in plain legal terms about the tricky political problems that have ruined the Israeli–Palestinian peace process. It ascertained the present responsibility of the United Nations to protect Palestine's statehood. It affirmed the applicability of the prohibition of acquisition of Palestinian territory by Israel and confirmed the illegality of the Israeli settlements in the OPT. Moreover, the existence of the Palestinian people as the rightful claimant to the OPT is no longer open to question. One may only regret that the UN was not able to ask the Court to throw light on the Palestinian question at a much earlier stage.

The Absence of State Consent to Advisory Opinions of the International Court of Justice: Judicial and Political Restraints

2010 ◽  
Vol 24 (2) ◽  
pp. 191-207
Author(s):  
Mahasen Aljaghoub
Keyword(s):  
Main Role ◽  
Advisory Opinion ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
Integral Role ◽  
The Icj ◽  
Palestinian Territory ◽  
Advisory Opinions

The International Court of Justice (ICJ) is the principal judicial organ of the United Nations, (UN) and its Statute is an integral part of the UN's Charter. The court's integral role within the UN has largely been misunderstood especially in the way the court has viewed its advisory jurisdiction. The ICJ always asserts that the delivery of an advisory opinion represents its participation in the UN's work and thus, in the absence of compelling reasons, a request for an opinion ought not to be refused. Some commentators note that the principle that the ICJ must participate in the work of the Organisation might sometimes conflict with its judicial character, which might result in not embracing the philosophy of “judicial restraint” in the court's advisory jurisdiction. They also contend that the absence of consent in advisory cases has led the court to overlook its judicial restraint. This article argues that those commentators have overlooked the main role of the ICJ's advisory function in clarifying the law and providing guidance for future action by the UN organs, and has consequently called for applying the principle of consent as a condition for giving an advisory opinion on questions relating to disputes pending between States. In the present article, the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory opinion is analysed to see whether the absence of Israeli consent has undermined the ICJ's judicial character. The author is of the view that the court, as the principal judicial organ of the UN, should, by a cautious judicial policy, provide enlightenment to the UN and participate to achieving its goals while at the same time adhering to its judicial character.

scholarly journals Advisory competence on international law of the International Court of Justice: theoretical and practical issues

2021 ◽  
pp. 136-145
Author(s):  
Huu Phuoc Him ◽  
Thi Kim Kook Nguyen
Keyword(s):  
International Law ◽  
Advisory Opinion ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court

This article analyses, clarifi es the theoretical and practical issues of the advisory capacity of the International Court of Justice. Thereby, highlighting the role of the International Court of Justice in the development compliance and enforcement of international law from 1945 to now. Keywords: Jurisdiction, advisory opinion, International Court of Justice, international law.

The 2004 Judicial Activity of the International Court of Justice

2005 ◽  
Vol 99 (2) ◽  
pp. 450-459 ◽  
Author(s):  
John R. Crook
Keyword(s):  
The United States ◽  
State Court ◽  
Vienna Convention ◽  
Advisory Opinion ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
Court Proceedings ◽  
Crown Prince ◽  
Palestinian Territory

During 2004 the International Court of Justice decided three important matters. In March the Court found that the United States had violated the Vienna Convention on Consular Relations with respect to a number of Mexican nationals sentenced to death in U.S. state court proceedings. In a much-noted advisory opinion, the Court concluded in July that Israel's construction of a security wall or fence in occupied Palestinian territory violated international law. And in December it found that it did not have jurisdiction over Serbia and Montenegro's claims against eight NATO countries regarding NATO's 1999 bombing campaign aimed at halting the conflict in Kosovo. In other developments, the Court heard and had under deliberation Germany's preliminary objections to Liechtenstein's suit regarding certain property of Crown Prince Adam. Finally, Judge Gilbert Guillaume, a member of the Court since 1987 and its former president, announced that he would resign in February 2005.

Toward Authoritativeness: The ICJ Ruling on Israel’s Security Wall

2005 ◽  
Vol 99 (1) ◽  
pp. 42-52 ◽  
Author(s):  
Richard A. Folk
Keyword(s):  
International Law ◽  
Advisory Opinion ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
Legal Obligations ◽  
International Court ◽  
The Icj ◽  
General Assembly Resolution ◽  
Palestinian Territory ◽  
Legal Consequences

On July 9, 2004, the International Court of Justice issued its advisory opinion on the legal consequences of Israel’s construction of a security wall on occupied Palestinian territory, declaring that the wall was in violation of international law. The advisory opinion also indicated that Israel should forthwith cease construction of the wall, dismantle what had been so far constructed, and make reparations to the Palestinians for all damages caused by the project. On July 20, 2004, at the Tenth Emergency Session of the General Assembly, Resolution ES-10/15 was adopted by a vote of 150 in favor, 6 opposed, and 10 abstentions, demanding that Israel comply with the legal obligations as specified by the advisory opinion.

scholarly journals Advisory opinion of the international court of justice in the “wall case” in the service of a possible solution of the Israeli-Palestinian conflict

2014 ◽  
Vol 66 (3-4) ◽  
pp. 338-352
Author(s):  
Senad Ganic
Keyword(s):  
Advisory Opinion ◽  
Legal Analysis ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
Beneficial Impact ◽  
Palestinian Territory ◽  
Legal Consequences ◽  
Surprising Fact ◽  
The Way

The Arab-Israeli conflict even today represents one of the most complex problems facing the international community. The biggest controversy of the problem lies in the conflicting interpretations of the reasons offered by both sides. The way to overcome this impasse, is precisely the way recourse to international institutions. For this reason, the surprising fact is, that one very important decision of The International Court of Justice, it seems, remained unjustly neglected, especially if we take into account the importance of the issues which the Court dealt and the beneficial impact that this decision may have in the process of resolving the conflict in the Middle East. We believe that Advisory Opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory hides the way to a possible solution of this exhausting conflict. To consider because it comes to a legal analysis of the situation, which was given by the authorities in whose objectivity we supposed not to suspect as we supposed not to doubt on the objectivity of international law. Therefore, we consider it important to once again remind the decision, believing that in this way we can help to better understand the nature of this conflict, but also the reasons which indicate its possible peaceful solution.

A3. INTERNATIONAL COURT OF JUSTICE, ““LEGAL CONSEQUENCES OF THE CONSTRUCTION OF A WALL IN THE OCCUPIED PALESTINIAN TERRITORY,”” THE HAGUE, 9 JULY 2004 (EXCERPTS).

2004 ◽  
Vol 34 (1) ◽  
pp. 152-154
Keyword(s):  
The United States ◽  
General Assembly ◽  
Advisory Opinion ◽  
International Court Of Justice ◽  
Occupied Palestinian Territory ◽  
Court Of Justice ◽  
International Court ◽  
The Icj ◽  
The Hague ◽  
Palestinian Territory

On 8 December 2003, the UN General Assembly passed a resolution asking the International Court of Justice (ICJ) at the Hague to render an ““advisory opinion”” on the legality of Israel's separation wall in the occupied territories after a Security Council draft resolution condemning the wall had been vetoed by the United States on 9 October. The ICJ initiated proceedings on 10 December, receiving written and oral statements over the next two months. Israel's statement focused on challenging the ICJ, while the United States and a number of European states also questioned the appropriateness of the court's rendering an opinion on a political matter. Almost a fourth of the court's sixty-four-page ruling was taken up with addressing these challenges on grounds of law and precedent. The fifteen-member court ruled unanimously that it had jurisdiction to hear the case, but there was one dissenting voice (the American judge, Thomas Buergenthal) as to whether the ICJ should comply with the request to give an advisory opinion. At the end of six months of hearings and deliberations, the court voted on the five questions put to it by the General Assembly pertaining to the legality of the wall. The vote (paragraph 63) was fourteen to one (with Judge Buergenthal dissenting; see Doc. D3) on four of the five questions, as follows: (1) that the ““construction of the wall being built by Israel, the occupying power, in the Occupied Palestinian Territory, including in and around East Jerusalem, and its associated regime, are contrary to international law””; (2) that Israel must dismantle the structure forthwith (as in para. 151 reproduced below); (3) that Israel is under an obligation to make reparation for all damage (as in para. 153 below); and (4) that ““The United Nations, and especially the General Assembly and the Security Council, should consider what further action is required to bring to an end the illegal situation resulting from the construction of the wall and the associated regime, taking due account of the present Advisory Opinion.”” Concerning the question of whether all UN member states had an ““obligation not to recognize the illegal situation resulting from the wall's construction”” (see para. 159 below), Judge Kooijmans of Holland joined Judge Buergenthal in his dissent, making the vote 13-to-2. The full text of the opinion is available online at www.icj-cij.org.

Smoke, Mirrors and Killer Whales: the International Court's Opinion on the Israeli Barrier Wall

2004 ◽  
Vol 5 (9) ◽  
pp. 1107-1131 ◽  
Author(s):  
Iain Scobbie
Keyword(s):  
Advisory Opinion ◽  
Killer Whales ◽  
International Court Of Justice ◽  
Occupied Palestinian Territory ◽  
Court Of Justice ◽  
International Court ◽  
Near Unanimity ◽  
Palestinian Territory ◽  
Legal Consequences ◽  
Barrier Wall

One of the consequences of the method the International Court of Justice employs to draft its pronouncements is that, at times, its reasoning is less candid than one might desire. The Court's advisory opinion on the Legal consequences of the construction of a wall in the Occupied Palestinian Territory of 9 July 2004 provides a clear example. To reach unanimity, or near unanimity, on the points decided, one can only assume that the judges bargained hard over the discursive normative component of the Opinion.

International Court of Justice: The Role of Consent in the Context of Judicial Propriety Deconstructed in Light of Chagos Archipelago

2019 ◽  
Vol 18 (2) ◽  
pp. 189-218
Author(s):  
Ksenia Polonskaya
Keyword(s):  
International Law ◽  
Advisory Opinion ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
Relevant Element ◽  
Advisory Opinions ◽  
Chagos Archipelago ◽  
Advisory Function

Abstract This article examines the notion of consent as an element of judicial propriety as defined by the International Court of Justice (ICJ) in the context of its advisory function. The article situates the issue of judicial propriety within a broader conversation on the Court’s normative outlooks in international law, and examines the most recent advisory opinion on the Chagos Archipelago to understand how the Court itself views its role in international law. The article concludes that the Court’s advisory opinions do not provide much clarity as to the circumstances in which a lack of consent will become a compelling enough reason to justify a refusal to give an advisory opinion. The Court appears to ritually recite consent as a relevant element in its assessment of judicial propriety, however, it continues to limit such relevance.

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