WRITTEN STATEMENT OF ITALY
[Translation]
Observations by the Government of the Italian Republic, represented by
Mr. Ivo M. Braguglia, Head of Diplomatic Litigati on and Treaties, in his capacity as Agent, having
elected domicile at the Embassy of Italy in Th e Hague concerning the request for an advisory
opinion on the question: “Legal consequences of the construc tion of a wall in the Occupied
Palestinian Territory” within the meaning of Article 66, paragraph 2, of the Statute of the Court
and of the Court’s Order of 19 December 2003.
* *
The International Court of Justice, in its Order of 19 December 2003, invited States to
furnish information on the request for an adviso ry opinion related to the case concerning the
“Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory”.
The decision to request the International Cour t of Justice, pursuant to Article96 of the
Charter of the United Nations, to give an urgent advisory opinion was made by the General
Assembly under Article 65 of the Statue of the C ourt. The request for an opinion relates to the
following question:
“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
EastJerusalem, as described in the report of th e Secretary-General, considering the rules and
principles of international law, including the F ourth Geneva Convention of 1949, and relevant
Security Council and General Assembly resolutions?”
1. The Government is firmly of the opinion that the Court should decline to reply to the
question laid before it by the General Assembly resolution of 8 December 2003 concerning the
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.
In the present circumstances, the Cour t should exercise its discretionary power clearly
established in Article 65, paragraph 1, of its Statute in order to refrain from addressing the
question raised in the said resolution.
In the current situation in the Middle E ast, the main problem consists in achieving a
negotiated solution based on the “road map” draw n up by the Quartet composed of the United
Nations, the European Union, the United Stat es of America and the Russian Federation and
endorsed by the United Nations Security Council in resolution 1515 (2003) adopted unanimously
on 19 November 2003, a resolution that views the “r oad map” as a means of realizing the “vision”
of a region where two States, Israel and Palestine, live side by side within secure and recognized
borders.
This resolution is the last in a long series dating back to seminal resolution 242 (1967).
2. At the meeting of the emergency speci al session (1013), convened under the “Uniting for
peace” resolution, that was held on 24 April 1997 and at the resumed session on 20 October 2003,
there was virtually no discussion of the draft resolution requesting an advisory opinion from the - 2 -
Court, except for a few remarks by the delegate of Palestine and the delegates of Malaysia, Iran and
Cuba. As all speakers took the line that the construction of the wall was illegal, there was no
reason to request the Court’s opinion on a matter that was already taken for granted. Moreover,
this view was endorsed by 144 States, while only f our countries, including Israel, opposed it. It is
therefore logical to ask why the resolution concer ning the request to the International Court of
Justice received 90 votes in favour and eight agains t and gave rise to no fewer than 74 abstentions
by the most diverse countries— not only the European Union and associated countries, all
represented by Italy which then held the presidency of the European Union, but also countries of
Central and South America, Cana da, Japan, New Zealand and the Philippines, Korea, Singapore,
many African and Pacific countries, Switzerland and even Russia.
This expression of opinion by countries with to tally different legal systems reflects, in our
view, the conviction that it is utterly pointless, in the light of the functions assigned to the General
Assembly, to request a legal opinion.
It has already been acknowledged that th e wall that is being built “in the Occupied
Palestinian Territory, including in and around East Jerusalem, . . .” departs from “the armistice line
of 1949 and is in contradiction to relevant provisions of international law” (General Assembly
resolution ES-10/13). Requesting a legal opinion wi ll in no way help the parties to relaunch the
dialogue that is needed to implement the “road ma p”. Yet implementation of the “road map” is a
priority.
One need only mention, for example, the opini on of the Russian Federation, a State that is
certainly not disposed to back Israel’s initiatives, and compare it to the opinion of the United States
of America, which supports Israel and for that r eason exercised the right of veto in the Security
Council.
The two converge in rejecting an opinion by the Court, which can only serve to politicize the
Court’s work without moving the situation one inch forward towards a mutually agreed solution.
3. It is interesting to examine why the Court has been given the power to decline to give an
advisory opinion (Art. 65, para. 1).
This power already existed in the days of th e Permanent Court of International Justice which
exercised it, at the very beginning of its work, in the Statute of Eastern Carelia case. In that case,
the Court observed that “[a]nswering the question would be substantially equivalent to deciding
the dispute between the parties” , which the Court was unable to do because one of the parties,
Russia, was not a Member of the League of Nations and had expressly rejected the Court’s
intervention. It was impossible for the Court to act under those circumstances.
This early stance was not reiterated because the Court has always held that, as an organ of
the United Nations, it should, as far as possible, assis t in shedding light on any questions that are
being discussed ( Interpretation of Peace Treaties with Bulgaria, Hungary and Romania , I.C.J.
Reports 1950): “The Court’s Opinion is given not to the States, but to the organ which is entitled
to request it; the reply of the Court, itself ‘an organ of the United Nations’, represents its
participation in the activities of the Organization, and, in principle, should not be refused.”
But the Court has held to the view that Article 65, paragraph 1, gives it the power to decline
a request for an advisory opinion. This was the line it took in the Interpretation of Peace Treaties
case cited above: “Article 65 of the Statute is permissive. It gives the Court the power to
examine whether the circumstances of the case are of such a character as should lead it to
decline to answer the Request ... the Court possesses a large amount of discretion in the
matter.” - 3 -
The Court has further stated that it could deci de not to give an advisory opinion because of
“compelling reasons” inherent in the question raised on the ground that its refusal could be viewed
as beneficial for the requesting organ and th e well-being of the Organization as a whole
(Applicability of Article VI, Section 22, of the C onvention of the Privileges and Immunities of the
United Nations — 15 December 1989).
4. It should therefore be borne in mind that the power to decline to give an advisory opinion
undoubtedly exists for the Court and that it ma y, if necessary, be exercised. The Italian
Government considers that this is a valid poi nt in the present case, since all circumstances
warranting a refusal to give an opinion exist.
One cannot, for example, disregard the fact that the dispute underlying the building of the
wall relates to a territory whose fate has not yet been determined.
There is some difficulty in identifying the parties to the dispute in respect of which the Court
should give an opinion because one of them is still in an inchoate state.
Under these circumstances, delivering an a dvisory opinion would widen the gulf between
Israel and the Palestinian entity, would congeal the situation when what is needed is flexibility and
would clearly have the opposite effect to that needed to solve the real problem.
The question is and remains essentially political, and it consists in establishing clear rules of
conduct for the parties with a view to resolving, once and for all, the different issues that exist
(including the issue of frontiers and that of Israe li settlements in various parts of the territories in
question) and then— and only then— determining the frontiers of the territory by consenting to
the establishment of the Palestinian State.
It follows that it is certainly not for the Inte rnational Court of Justice to address the question
of the wall, which has already been settled by General Assembly resolution ES-10/13.
5. For these reasons, and for others that have been raised by friendly and allied countries, the
Italian Government is firmly of the view that the Court should refrain from giving an advisory
opinion.
Rome/The Hague, 29 January 2004
(Signed) Ivo M. B RAGUGLIA .
Agent of the Italian Government
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Written Statement of Italy [translation]