Written Statement of the Kingdom of Belgium [translation]

Written Statement of the Kingdom of Belgium

[Translation]

Question concerning the Legal Consequences of the Construction of a Wall
in the Occupied Palestinian Territory

I. Introduction

1. On D8ecember 2003, the United Nations General Assembly adopted
resolutionA/RES/ES-10/14, whereby, pursuant to Article65 of the Statute of the Court, it
requested the International Court of Justice to urgently render an advisory opinion on 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 East Jerusalem , as described in the report of the
Secretary-General, considering the rules and principles of international law, including
the Fourth Geneva Convention of 1949, a nd relevant Security Council and General

Assembly resolutions?”

Resolution A/RES/ES-10/14 was adopted by a vote of 90 in favour and 8 against, with
74 abstentions. Belgium, in line with the other Member States of the European Union, abstained.

Resolution A/RES/ES-10/14 refers to the Un ited Nations Secretary-General’s report of
24November2003, prepared in accordance with General Assembly resolution A/RES/ES-10/13
(A/ES-10/248).

In that report, which contains summaries of the legal positions of the Government of Israel
and of the Palestine Liberation Organization, the Secretary-General arrives at the conclusion that
Israel has not complied with the General Assembly’s demand that it “stop and reverse the
construction of the wall in the Occupied Palestinian Territory”.

2. Further to the Order of 19December2003, whereby the Court fixed 30January as the
time-limit for the submission of written statements on the question by Member States of the United

Nations, Belgium has the honour to submit its observations to the Court.

3. Belgium considers that it is not opportune to respond to the question submitted by the

General Assembly for the following reasons:

 this opinion may have a negative impact on the implementation of the “road map”;

 this opinion will not be capable of giving guida nce to the General Asse mbly, as it has already
ruled on the matter.

4. Belgium wishes to point out that there is no dispute as to Israel’s right to provide for the
security of its citizens and to protect itself against terrorist attacks. - 2 -

However, the continuing construction of the “b arrier” along its current route, together with
the continuing acts of violence and terrorism in th e region, constitute a major impediment to the

achievement of a comprehensive peace settlement in the Middle East. The “road map” presented
by the Quartet to the parties on 30April2003, endorsed by United Nations Security Council
resolution 1515 of 19 November 2003, constitutes the framework for progress on the road to peace
and lasting security in the Middle East.

II. Appropriateness of an opinion by the Court

A. Article 65 (1) of the Statute of the Court

5. Article65 (1) of the Court’s Statute provides that “[t]he Court may give an advisory
opinion on any legal question at the request of whatever body may be authorized by or in

accordance with the Charter of the United Nations to make such a request”.

The Court thus has discretion to decide whet her or not it is appropriate to respond to a
request for an opinion.

The Court has stated that “only compelling reasons should lead it to refuse to give a
requested advisory opinion” ( Certain Expenses of the United Nations (Article 17, paragraph2, of
the Charter), Advisory Opinion, I.C.J. Reports 1962, p. 165).

Belgium is of the opinion that in the present case, there are sufficiently compelling reasons
for the Court to decline to give an advisory opinion.

B. This opinion may have a negative impact on the implementation of the “road map”

6. The question submitted by the General Assembly is predominantly political in nature.

The rendering of an advisory opinion could un dermine the complex diplomatic negotiations
underway, as well as the political efforts deployed for the settlement of the conflict in the Middle
East.

In line with the position of the European Union, as expressed by the Italian representative
(General Assembly Press Release of 8December 2003, GA/10216), Belgium considered that the
proposed request for an advisory opinion from the Court would not help the efforts of the two
parties (Israel and the Palestinia ns) to relaunch a political dialogue and that such a request was

therefore not appropriate.

C.This opinion will not be capable of giving guidance to the General Assembly, as it has

already ruled on the matter

7. The Court describes the raison d’être of an advisory opinion as follows:

“The jurisdiction of the Court under Article 96 of the Charter and Article 65 of
the Statute, to give advisory opinions on legal questions, enables United Nations
entities to seek guidance from the Court in order to conduct their activities in
accordance with the law.” (Advisory Opinion on the Applicability of ArticleVI,

Section 22, of the Convention on the Priv ileges and Immunities of the United Nations,
I.C.J. Reports 1989, p. 188.) - 3 -

8. The United Nations General Assembly, in its resolution ES-10/13 of 21October2003,
presented by Italy on behalf of the European Unio n, “demands that Israel stop and reverse the

construction of the wall in the Occupied Pales tinian Territory, including in and around East
Jerusalem, which is in departure of the Armistice Li ne of 1949 and is in c ontradiction to relevant
provisions of international law”.

In his report prepared in accordance with General Assembly resolution ES-10/13, the
Secretary-General observed as follows:

“I acknowledge and recognize Israel’s right and duty to protect its people

against terrorist attacks. However, that dut y should not be carried out in a way that is
in contradiction to international law, that could damage the longer term prospects for
peace by making the creation of an indepe ndent, viable and contiguous Palestinian
State more difficult, or that increases suffering among the Palestinian people.”

(A/ES-10/2488, para. 30.)

In that resolution ES-10/13, the General Assembly not only identified the applicable law but
also expressly declared the wall to be in contradi ction to international la w. Accordingly, the

General Assembly does not require any guidance from the Court concerning the lawfulness of the
Security Fence.

III. Conclusions

9. On the basis of the foregoing, Belgium conte nds that it is not appropriate for the Court to
render an opinion on the question of the legal con sequences of the construction of a wall in the

Occupied Palestinian Territory.

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