28 Feb Should the ICJ Answer the General Assembly’s Request for an Advisory Opinion on the Legality of Israel’s Occupation?
[Giulia Pinzauti is Assistant Professor of Public International Law at Leiden Law School’s Grotius Centre for International Legal Studies.]
Advisory proceedings at the ICJ are witnessing a revival. Recent practice suggests that States increasingly use this route to bring before the Court contentious matters in the absence of consent to adjudication by interested States. This happened in three out of the four Advisory Opinions that the Court issued in the past 20 years (Wall, Kosovo and Chagos). The latest example is the adoption of UNGA resolution 77/247 on 30 December 2022, through which the General Assembly requested the Court to render an opinion on the legal status of Israel’s occupation, and the legal consequences arising therefrom.
The reasons why ICJ advisory opinions are appealing is simple: while they are non-binding, they are authoritative and have been found to have “legal effect” (para. 205). The obvious concern with using advisory proceedings to obtain a ruling on contentious matters is that majority vote in a political organ could be used to give jurisdiction to the Court in the absence of an interested State’s consent to adjudication. This practice may circumvent the principle of consent and threatens the independence of States. Arguments that in those circumstances the Court should decline to give the opinion requested, even if falling within its jurisdiction, to protect the integrity of its judicial function resonated with some members of the Court (for example, the Dissenting Opinion of Judge Donoghue in Chagos (p. 170) and the Declaration of Judge Tomka in Chagos). Similar arguments will no doubt be advanced in the advisory proceedings relating to the legality of Israel’s occupation. In the explanation of vote on resolution 77/247, the UK’s representative already pointed out that it is inappropriate — without the consent of both parties — to ask the Court for an advisory opinion on a bilateral dispute.
How should the Court deal with those arguments? This post argues that the ICJ has jurisdiction to issue the opinion and that there are no compelling reasons for it to refuse to do so. It focuses on the role of consent in advisory proceedings while also touching on other arguments.
The Court’s Jurisdiction
There is no question that the Court has jurisdiction to give the requested opinion on the legality of Israel’s occupation. Under Article 96(1) UNC, the UNGA is authorised to request an opinion on “any legal question”. Even if the two questions posed by the UNGA relate to a deeply politicized situation, they are undoubtedly “legal questions” within the meaning of Article 96(1) UNC and Article 65(1) ICJ Statute. They aim at obtaining a clarification on the legal consequences arising from the factual situation prevailing in the OPT, and the legal consequences arising for the UN and its member States. Answering those questions necessarily requires an assessment of whether Israel’s practices are in breach of relevant rules of international law, and whether that has affected the legal status of the territory (mutatis mutandis Western Sahara, para. 15; Wall, para. 37). As the Court stated in Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, the fact that political considerations are prominent in a given situation does not militate against the Court’s jurisdiction to render an opinion. To the contrary, clarifying the legal principles applicable in that situation may be particularly necessary (para. 33).
Consent and Judicial Propriety in the Court’s Practice
Under Article 65 of the Statute, the Court has discretion to decline to give an opinion falling within its jurisdiction. The Court may do so to protect the integrity of its judicial function (paras. 44-45). Yet, the Court has characterised advisory opinions as its “participation in the activities of the Organisation [the UN]”; thus, “in principle”, the Court should not refuse such participation (p. 71) unless there are “compelling reasons” to do so (para. 44). One such compelling reason is “lack of consent of an interested State”, which “may render the giving of an advisory opinion incompatible with the Court’s judicial character” (para. 33). This is the case when “to give a reply would have the effect of circumventing the principle that a State is not obliged to allow its disputes to be submitted to judicial settlement without its consent”.
The parameters of judicial impropriety are somewhat unclear. Chagos is considered a missed opportunity for the Court – that effectively pronounced on the international responsibility of the UK without its consent – to clarify in what circumstances consent constitutes a compelling reason to refuse giving the opinion requested (pp. 191, 214).
The Court has never declined to respond to a request for an advisory opinion based on considerations of judicial impropriety, including when the request related to existing disputes as inInterpretation of Peace Treaties, Namibia, Western Sahara, Mazilu, Wall, Kosovo, or Chagos.
Only on one occasion did the PCIJ, in 1923, decline to issue an advisory opinion on a question “concern[ing] directly the main point of the controversy between [the parties, Finland and Russia]” in Status of Eastern Carelia (pp. 28-29). The PCIJ acknowledged that “[a]nswering the question would be substantially equivalent to deciding the dispute between the parties” (p. 29). However, on closer scrutiny this was not the deciding factor. The PCIJ expressly stated that it was “unnecessary” for it to decide on the appropriateness of putting “questions for an advisory opinion, if they relate to matters which form the subject of a pending dispute between nations … without the consent of the parties” (p. 27). This holding suggests that there were additional, stronger reasons prompting the PCIJ to refuse to render the opinion. Specifically, the PCIJ considered that, since the request raised a question of fact, the opinion would have required the consent and cooperation of both parties (p. 28). However, Russia was neither a party to the PICJ Statute, nor a member of the League of Nations; furthermore, it objected to the proceedings and refused to participate.
In Interpretation of Peace Treaties, the ICJ held that the consent requirement “is different in regard to advisory proceedings even where the Request for an Opinion relates to a legal question actually pending between States.… no State can prevent the giving of an Advisory Opinion which the United Nations considers to be desirable” (p. 71). Wall redoubled this sentiment, observing that “the lack of consent to the Court’s contentious jurisdiction by interested States has no bearing on the Court’s jurisdiction to give an advisory opinion” (para. 47).
Despite this statement, as noted by Akande and Tzanakopolous, the Court has never overruled the Eastern Carelia precedent, but always distinguished it on the facts. While it confirmed the relevance of consent for the exercise of its discretion in advisory proceedings, it progressively narrowed down the circumstances in which consent remains relevant.
One way in which the Court has done so was to say that the request did not concern a legal dispute proper. In Namibia, it held that “the fact that … the Court may have to pronounce on legal issues upon which radically divergent views exist … does not convert the present case into a dispute” (para. 34). This view was reiterated in Chagos (para. 89). In Namibia, the Court also drew a distinction between advisory opinions that are requested “upon a legal question actually pending” between two or more States, or between a State and the UN, and those that “relate to such a question” (para. 38). In Mazilu, the Court distinguished “differences” between the UN and a member State from actual “disputes” (para. 38).
Second, the Court has limited the relevance of consent in advisory proceedings by placing the issues raised in the requests “in the broader frame of reference”. In Western Sahara it stated that the controversy between Spain and Morocco arose during the proceedings of the UNGA, and in relation to matters with which the UNGA was dealing (para. 34). The legal questions of which the Court was seised were located “in a broader frame of reference than the settlement of a particular dispute and embrace[d] other elements” (para. 38). Likewise, in Wall the Court “[did] not consider that the subject-matter…can be regarded as only a bilateral matter between Israel and Palestine” given the UN’s “permanent responsibility towards the question of Palestine” (para. 49). The Court deemed that the question put to it was “located in a much broader frame of reference than a bilateral dispute” (para 50). In Chagos, the Court opined that the issues raised by the request were located in the broader frame of reference of decolonization (para. 88).
As part of this inquiry, the Court also assesses the purpose of the request. In a number of cases, it emphasised that the opinion was requested to guide the action of the UNGA or UNSC in the performance of their own functions in relation to the “broader frame of reference” at issue in each case (the question of Namibia, decolonisation, the situation in Palestine, etc) rather than to assist those bodies in the settlement of a bilateral dispute (Namibia, para. 32; Western Sahara, para. 39, Wall, para. 50).
Third, in some earlier cases, the Court considered that the question(s) submitted to it did not in any way touch the merits of the underlying disputes, nor would the Court’s opinion compromise the legal position of the parties to those disputes (Interpretation of Peace Treaties, p. 72, Western Sahara, para. 42) – a point that the Court refrained from making in recent opinions.
In sum, the relevant factors for assessing the relevance (or irrelevance) of consent appear to be the object and purpose of the request, and the effect of giving the requested opinion. Those criteria are vague enough to allow the Court to retain the flexibility to give the requested opinion at its discretion.
Application to the Advisory Opinion on the Legality of the Occupation and its Legal Consequences
Once again, the Eastern Carelia precedent can be convincingly distinguished on the facts. Israel – unlike Russia in Eastern Carelia – is a UN member State and a party to the Court’s Statute. It has thereby given its consent in general to the exercise by the Court of its advisory jurisdiction. Moreover, irrespective of the extent of Israel’s participation in the proceedings, it is highly unlikely that the Court will not have before it sufficient information and evidence to arrive at a judicial conclusion. Relevant information and evidence can be submitted by other participants, and is available in the public domain (paras. 56-58).
In addition, considering the object and nature of the request, it appears that the questions put to the Court concern issues located “in a broader frame of reference” than the settlement of a bilateral dispute.
First, as in Wall, the subject-matter of the request cannot be regarded as only a bilateral matter between Israel and Palestine given the UN’s permanent responsibility towards the question of Palestine. The request prompts the Court to examine the necessity and proportionality of the occupation under jus ad bellum, and whether the conduct of Israeli authorities breaches relevant rules of international law, including the right to self-determination, in such a way that it affected the legal status of the occupied territory. Self-determination of peoples in colonial contexts, as asserted by the Court, creates erga omnes obligations on the entire international community (East Timor, para. 29; Wall, para. 88; Chagos, para. 152). Considering how the Court dismissed the bilateral dispute objection in Chagos (where there was clearly a dispute between Mauritius and the UK concerning sovereignty over the archipelago), it seems unlikely that it will reach a different conclusion in the opinion on the legality of Israel’s occupation.
Second, the purpose of the request is arguably to inform the UNGA’s own work on Palestine. Chagos settled the question that it is not up to the Court to second-guess whether the requesting organ needs the opinion for the performance of its functions (paras. 75-78). Here, the request arose from the work of the UNGA Special Political and Decolonization Committee (Fourth Committee), which covers Israeli practices and settlement activities affecting the rights of the Palestinian people as part of its agenda items. Moreover, the UNGA expressly asked the Court to clarify the legal consequences arising from the legal status of the occupation for all States and the UN, signalling the UN’s involvement in the matter. The way in which question (b) is formulated thus makes it easier to argue that the UNGA did not seek the Court’s opinion to exercise its powers for the peaceful settlement of a bilateral dispute (para. 12) (compare with the wording of the request in Wall, in which the Court did not make this point).
The Court has jurisdiction to give the opinion requested, and there are no compelling reasons to refuse to do so. The questions before the Court can be located in a broader frame of reference than the settlement of a bilateral dispute; thus, giving the opinion would not circumvent the principle of consent. Nor will lack of information constitute a compelling reason to decline answering the request. Similarly, arguments that the opinion could impede a political solution to the conflict can be readily dismissed, as in Wall (paras. 51-53). By replying to the request, the Court would not only “‘remain faithful to the requirements of its judicial character’ … but also discharge its functions as ‘the principal judicial organ of the United Nations’” (para. 41). The real question is how far the Court will go in deciding on the legality of the occupation if it entertains the request.