The Elephant in the Courtroom

[Dan Byam Shaw is a DPhil candidate in Law at the University of Oxford, writing on self-determination, who has previously worked as a teacher in London, as well as in refugee camps in Greece and Lebanon]

The International Court of Justice’s recent advisory opinion – on the Obligations of Israel in relation to the Presence and Activities of the United Nations, Other International Organizations and Third States in and in relation to the Occupied Palestinian Territory– contains many conclusions that have been welcomed by international human rights scholars (for example, Marco Milanovic) and has been admirably summarised on this site by Emilia Klebnanowski. It is the third advisory opinion the Court has delivered concerning the OPT, following Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (2004) and Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem (2024). A key conclusion of last year’s opinion was that Israel’s violation of the Palestinian people’s right to self-determination has ‘a direct impact on the legality of the continued presence of Israel, as an occupying Power’ in the OPT (para 261). However, the recent opinion largely ignores the role played by the right to self-determination, despite it being formally included in the scope of the opinion.

Where does self-determination come into the question?

The question posed by the General Assembly on 19 December 2024 was:

What are the obligations of Israel, as an occupying Power and as a member of the United Nations, in relation to the presence and activities of the United Nations, including its agencies and bodies, other international organizations and third States, in and in relation to the Occupied Palestinian Territory, including to ensure and facilitate the unhindered provision of urgently needed supplies essential to the survival of the Palestinian civilian population as well as of basic services and humanitarian and development assistance, for the benefit of the Palestinian civilian population, and in support of the Palestinian people’s right to self-determination? (Emphasis added.)

One disadvantage of requesting an advisory opinion via a single, syntactically tortuous question is that it can be hard to see how exactly the individual clauses within the question relate to each other. As the title of Section VI of the advisory opinion makes clear, the Court has read the final clause of the question as referring specifically to ‘the presence and activities of the United Nations…’. The six brief paragraphs therein (paras 217-222) deal primarily with Israel’s obstruction of the UN’s (and others’) actions ‘in support of the Palestinian people’s right to self-determination’. The section closes, moreover, with an appeal to Israel’s own self-interest:

‘ultimately, the realization of the right of the Palestinian people to self-determination… would contribute to regional stability and the security of all States in the Middle East’.

(para 222)

This recalls the framing in the UN Charter of self-determination not as a good in itself but primarily as one way to ‘develop friendly relations among nations’ and ‘strengthen universal peace’.

Nevertheless, the phrase ‘in support of the Palestinian people’s right to self-determination’ might also reasonably be related back to ‘the obligations of Israel’, the primary focus of the question. The General Assembly’s question could then be thought to include the subsidiary question: what must Israel do (or refrain from doing) as a result of self-determination, a peremptory norm which all States have a duty to promote? Whether or not the General Assembly specifically meant for the Court to address the obligations arising from the erga omnes nature of the right to self-determination, it is a reasonable reading of the question.

Failure to address self-determination in the opinion

The Court’s Advisory Opinion fails meaningfully to address the issue of self-determination. The eight operative conclusions make no mention of self-determination whatsoever and the brief final section in which the right does appear deals primarily with Israel’s obligations not to impede humanitarian interventions.

One paragraph makes brief reference to the imposition of Israeli domestic laws onto East Jerusalem (where Israel’s ‘territorial claim… has long been declared “null and void”’, para 219), but the natural extension of this idea – that the occupation itself is ‘inconsistent with [Israel’s] obligation not to impede the Palestinian people from exercising its right to self-determination’ – is left unexpressed.

Frustration in separate opinions

In their Separate Opinions, Judges Brant, Tladi and Xue all express frustration at the omission. According to Xue, ‘The connection between the Palestinian people’s right to self-determination and the present proceedings is neither incidental nor artificial’ (para 25); this, he observes, is one of ‘two important aspects… which I believe the Court should have dealt with in depth in its Advisory Opinion’ (para 1) – the other being the interpretation of Article 2(5) of the UN Charter. Tladi maintains that ‘the duties of Israel as an Occupying Power should not be seen in isolation’ (para 3); and that ‘these more recent events are all part and parcel of the broader problem in the Occupied Palestinian Territory: the denial of the right of self-determination of the Palestinian people’ (para 12). Most ardent of all, however, is Brant in his condemnation of the opinion’s inadequacies (para 12):

I regret that the right of the Palestinian people to self-determination is only briefly addressed at the end of the present Opinion and that it does not feature in the operative provisions. … Although the Court recognizes this link between the obligations of the occupying Power and the right to self-determination of the Palestinian people (Opinion, paras. 219 to 221), in my view it should have developed its analysis further.

In the final paragraph of his Separate Opinion, Brant addresses what he sees as the role of the Court in revisiting areas addressed in previous opinions:

‘it was certainly not for the Court to reiterate what it had already established in its previous Opinions… but rather to give the right of the Palestinian people to self-determination its due place, inasmuch as that right, in fact, forms the backdrop to the present proceedings’.

(para 15).

All three judges see the concept of self-determination as fundamental to the obligations of Israel as an occupying power in the OPT, expressing frustration that the opinion failed to draw out this connection.

Why the failure to address self-determination matters

From one perspective, it doesn’t. The conclusion from last year’s advisory opinion that ‘in cases of foreign occupation such as the present case, the right to self-determination constitutes a peremptory norm of international law’ (para 233) remains unchallenged. In his declaration on last year’s opinion, Judge Tladi argued that the supposed challenge to the jus cogens status of self-determination was not an elephant in the room but ‘a gentle cat, sitting quietly in the corner minding its own business’.

On the other hand, the Court’s failure to engage meaningfully with self-determination in this opinion represents a significant missed opportunity for two reasons. First, the Court could have used this as a chance to build on last year’s opinion by exploring the significance of this most fundamental – yet contested – of rights in action. But more importantly, the Court should have addressed the consequences of the violation of the Palestinian right to self-determination with reference to Israel’s obligations. One of the operative conclusions of last year’s advisory opinion was that ‘the State of Israel has the obligation to make reparation for the damage caused to all the natural or legal persons concerned in the Occupied Palestinian Territory’ (para 285). Tladi has argued in a recent article that the violation of jus cogens rights should be given particular weight in the reckoning of reparations. Tladi must be particularly disappointed that after its brief moment in the spotlight self-determination has retreated, becoming once again the elephant in the courtroom.