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International Court of Justice
Legal Consequences ofthe Construction of a Wall
in the Occupied PalestinianTerritory
(Request for anAdvisory Opinion by the
United Nations GeneralAssernbly)
WrittenStatementof the UnitedKingdom
of GreatBritain andNorthern Ireland
JANUARY 2004 International Court of Justice
Legal Consequencesof the Construction of a Wall
in the Occupied Palestinian Territory
(Request for an Advisory Opinion by the
United Nations General Assembly)
WrittenStatement ofthe UnitedKingdom
of GreatBritainandNorthern Ireland
JANUARY 2004 CONTENTS
Page
1 Introduction 1
II The Background to theRequest
III The Court Should Decline toAnswer the Question Posed
(A) The discretionarynature of the Court's functions under
Article 65(1) of the Statute.
(B) The present case is one in which the Court should decline
to give an Opinion.
(1) An Opinion is not necessary to assist the General
Assembly in the exercise of its functions and would be
likely to prove detrimental to the work oUNthas a
whole.
(2) The present case concerns a bilateral dispute.
(3) An Opinion in the present case would require
determinations of fact which the Court cannot properly
make on the basis of the material before it.
IV Conclusions 1. INTRODUCTION
1.1 In its Order of 19 December 2003 the Court invited Statesto submit written
statements regarding the request for an advisory opinion on the question of theLegal
Consequencesof the Constructionof a Wallin the OccupiedPalestinian Territory.
1.2 The United Kingdom has repeatedly made clear its position regarding the
legality of Israel's actions inconstrücting the wall. 1 The United Kingdom voted in
favour of General Assembly resolution ES-1011 3, which was sponsored by the
Members of the European Unionand adopted on 21 October 2003 by 144 votes to 4,
with 12abstentions.In paragraph 1of thatresolution, the General Assembly -
"Demands that Israel stop and reverse constructionof the wall in the Occupied
Palestinian Territory, including in and around East Jenisalem, which is in
departure of the Armistice Line of 1949 and is in contradiction to relevant
provisions of internationallaw."
The United Kingdomhas made statementsto this effect in the United Nations andhas
participated in a number of similar statements by the European Union. United
Kingdom Government Ministers have also made a number of statements to similar
effect in Parliament.
1.3 The United Kingdom has, nevertheless, decided to submit this Written
Statement, which deals only with the question whether the Court should exercise its
discretion to decline to answer the question put and not with the substance of the
matter. This is because of the great importance which the United Kingdom attaches
to having the Court reaffirmand apply the principles already establishedin the case-
law of the Court. Important questions ofjudicial propriety and the fundamental rights
of the partiesto a dispute areat issue.
1.4 The terms of the request made bythe General Assembly of the United Nations
in resolution ES-10114,adoptedat its resurnedTenth Emergency Special Sessionon 8
December 2003, areas follows:
"The GeneralAssembly,
I In this Written Statement, the United Kingdom will use the term "wall", as used in the request
for an advisory opinion, without implying that it is a more or appropriate term than "security
fence", "separation barïier" or such other term as may be employed. Decides, in accordance with Article 96of the Charter of the United Nations, to
requestthe International Court of Justice,pursuant to Article 65 of the Statute of
the Court,to urgently render an advisoryopinion onthe following question:
What are the legal consequences arising fromthe construction of the wall
being built by Israel, the occupyng Power, in the Occupied Palestinian
Tenitory, including in and around East Jerusalem, as describedin the report
of the Secretary-General, considering therules and principles of international
law, including the Fourth Geneva Convention of 1949, and relevant Secunty
Council and General Assembly resolutions?"
1.5 The United Kingdom submits that the present case is one in which the Court
should exerciseits discretion, under Article 65, paragraph 1, of its Statute, to decline
to answer the question posed in resolutionES-10114. The United Kingdom believes
that the most important priority in the Middle East isthe achievement of a negotiated
settlementbased upon the road map (UNDoc Sl20031529)drawn up by the Quartet of
the United Nations, European Union, Russian Federation and United States of
Arnerica. The road map was endorsed by the Security Councilin its resolution 1515
(2003), adopted unanimously on 19 November 2003,as the means of achieving "its
vision of a region where two States, Israel and Palestine, live side by side within
secureandrecognizedborders".
1.6 The UnitedKingdom and the other States involvedin the Quartet have madeit
clear that they consider that for the Court to give an opinion on this matter would be
likely to hinder, rather than assist, the peace process. In addition,the request for an
advisory opinion is one which relates to what is essentially a dispute between two
parties oneof which has clearly not consentedto thejurisdiction ofthe Court. For the
Court properly to discharge its judicial function in giving an opinion would involve
the determinationof complex issues offactin respect of which the necessary evidence
would not be before the Court. Moreover,it cannot be said that an opinion is needed
to assist the General Assembly in the performance of its functions.
1.7 This Statement deals only withthese issues of judicial propriety. It is set out
as follows. Part II will briefly review the background to the request for an advisory
opinion. Part III will then set out the reasons why, in the view of the UnitedKingdom, the Court should decline to answer the question put to The United
Kingdom's conclusions arebriefly summarisedPartIV. II. THE BACKGROUNDTO THE REQUEST
2.1 The present Part examines the background to the adoption by the General
Assembly of resolution ES-10114,which contains the request for an advisory opinion
ftom the Court.
2.2 The search for peace in the Middle East has featured prominently on the
agenda of the Security Council for many years, leading to the adoption of numerous
resolutions, including the landmark resolution 242 (1967) which emphasised the
inadmissibility of the acquisition of territory by war and affirmed the basic principles
which should be included in a peaceful settlement, and resolution 338 (1973), in
which the Council called upon the parties to implement resolution 242 (1967) in al1of
its parts.
2.3 Recent actions by the Security Council have included the adoption of
resolutions 1397 (2002), 1402 (2002), 1403 (2002), 1405 (2002), 1435 (2002) and
1515 (2003). These cover a range of aspects of the situation in the Middle East but a
common thread is support for the actions of the Quartet (the United Nations,
European Union, Russian Federation and United States of Arnerica) in attempting to
achieve a negotiated settlement based on the vision of two States living in peace
alongside one another on the basis of secure and recognized boundaries. The road
map, presented by the Quartet to Israel and the Palestinian Authority on 30 April
2003, is a practical, step-by-step plan for the realisation of that goal.
2.4 On 9 October 2003 the Syrian Permanent Representative to the United Nations
in New York (in his capacity as Chairman of the Arab Group and on behalf of the
States members of the League of Arab States) wrote to the President of the Security
Council and asked him to convene an open meeting to discuss and take the necessary
measures on alleged Israeli violations of international law including the construction
of the wall. Their letter attached a draft Security Council resolution.
2.5 The main operative paragraph of the draft resolution provided that the
Council: "Decides that the constructionby Israel,the occupying Power,of a
wall in the Occupied Territories andin departureof the armistice line
of 1949is illegalunder relevant provisionsof international law and
must be ceased and reversed."
The draft resolution made no referenceto a request for an advisory opinion fiom the
Court.
2.6 Following a penod of informa1consultations, the draft resolution wasput to a
vote on 14 October 2003. It received 10votes in favour, 1 against (the United States
of Arnenca) and 4 abstentions (including the United Kingdom) and so was not
adopted because of the negative vote of a permanent member of the Council. At no
time during the debate was any reference made by any delegation to any need to
request an advisoryopinion fiom the Court.
2.7 The focus of attention then moved to the General Assembly. On 16 October
2003 the President of the General Assembly announced a resumption of the Tenth
Emergency Special Session. This Emergency Special Session hadbeen convened
under the Uniting for Peace resolutionon 24 April 1997, following the vetoing of a
draft Security Council resolution concerning the buildingof new Israeli settlements in
the occupied territones. The Session resumed on 20 October 2003 at the request of
Syria (on behalf the States membersof the League of Arab States) and Malaysia (on
behalf of the Non-Aligned Movement). Two draft resolutions were submittedto the
Emergency Special Session: one repeating the terms of the resolution before the
Security Council, the other requestingan advisoryopinionfiom the Court.
2.8 At the meeting on 20 October 2003, there was little discussion of the request
for an advisory opinion. It was mentioned by Palestine, Malaysia (on behalf of the
Non-Aligned Movement) and,inpassing, by Iran and Cuba. No speaker admitted any
doubt as to the illegality of the wall (one speaker expressed the opinion that the
statementthat it was illegalwas merely restating the obvious)or suggested any reason
why the opinion of the Court was necessary for the work of the General Assembly.
The proposed request for an advisory opinion was opposedby Israel and the United
States andnot referredtoby the other speakers.
2.9 In the course of 21 October 2003, there were extensive consultations between
delegations resulting in the tabling by the Members of the European Union of acompromise replacement draft resolution which was then adopted as resolution ES-
10113.This resolution madeno reference to the request for an advisory opinion.
2.10 Resolution ES-10113was adopted by 144 votes to 4, with 12 abstentions. It
requested the Secretary-General to report on compliance within one month. The
Secretary-General's report duly issued on 24 November 2003 and concluded that
Israel wasnot in compliancewith the Assembly's demand that it"stop and reversethe
construction of the wall in the Occupied Palestinian Territory". The report did not,
however, suggest seeking an advisory opinion from the Court, nor did it contain any
observations conceming the wall which pointed to the utility of seeking such an
opinion.
2.11 On 30 November 2003, a new draft resolution was tabled to be considered at
the resurned Tenth Emergency Special Session of the General Assembly. The
resolution contained the question whichis now before the Court. The debate at the
meeting on 8 December 2003 reflected once again the absence of any perceived
difficulty in applying the law to the question of the wall; rather, it reflected the
frustration of members of the General Assembly that a political solution to the
problem of the wall had not yet been found. No State which spoke in favour of the
resolution suggested that the Assemblyneeded the Court to clarify the legal position
to enable theAssemblyto discharge its functions.
2.12 It is clear from the debate, and from the voting record, that in requesting this
advisory opinion from the Court, the General Assembly was deeply divided. The
resolution was adoptedby 90 votes to 8, with 74 abstentions. The Court is invited to
take full note of the significant number of the States voting against or abstaining.
The eight Statesvoting against included Australiaand Ethiopia, as well as Israel, and
the United States of America. States abstainingon the resolution included al1fifteen
Members of the European Union and other European States,many Caribbean, Central
and Latin Arnerican States, Central Asian and Pacific States, Burundi, Cameroon,
Canada, Japan, New Zealand, Philippines, Republic of Korea, Russia, Singapore,
Thailand andUganda. Statementsmadeby the European Union, Russia, Ugandaand
the United Statesduring the debate and by theUnited Kingdom, Canada, Switzerland
and Singapore in explanation of vote indicate that an important body of opinion
opposed orwas unwillingto support this requestto the Court.2.13 After the vote, in which the United Kingdom abstained, the United Kingdom
representative stated that:
"We consider it inappropriate, without the consent of both parties, to ask the
Court to give an advisory opinion. Moreover,it is unlikely to solve theproblem
on the ground. This is not a case in which the General Assembly genuinely
needs legal advice in order to carry out its functions. It has already declared the
wall to be illegal. The United Kingdom voted in favour of that resolution...To
pursue an advisory opinion will in no way help the parties to re-launch the
much-needed political dialogue necessary to implement the road map - and
implementing the road map shouldbe the priority."
2.14 The representative of Italy speaking on behalf of the European Union, the ten
States which will join the Union in May 2004 and nine other European States, said
that the request for an advisory opinion was inappropriate and would nothelp the
effortsof the two partiesto re-launch apolitical dialogue.
2.15 The sameview was expressedby the other States involvedin the Quartet. The
representative of the Russian Federation emphasised that political action was more
appropriatethan a legal opinion:
"We understand the motives of the sponsors of the draft resolution aimed at
studyingthe legal consequencesof the construction of the wall. However, such
an approach,politically, wouldmean that the international community condones
the currentsituation. In ourview, at thisjuncture al1efforts must be focussed on
halting and reversing the constructionof the wall. This is called for in Security
Council resolution 1515 (2003) and General Assembly resolution ES-1011 3.
This has been firmly advocated by al1members of the international Quartet of
mediators."
2.16 The representative of the United StatesofAmerica said:
"The internationalcommunityhas long recognised that resolution of the conflict
must be through negotiated settlement, as called for in Security Council
resolutions 242 (1967) and 338 (1973). That was spelled out clearly to the
parties in the terms of reference of the Madrid Peace Conference in 1991.
Involving the International Court of Justice in this conflict is inconsistent with
that approach and could actually delay a two-State solution and negatively
impact road map implementation. Furthermore, referral of this issueto the
International Court of Justice risks politicisingthe Court. It will not advancethe
Court's ability to contributeto global security, nor will it advance the prospects
of peace."2.17 The UnitedKingdom also notes the statementsby Uganda and Singapore,both
members of the Non-Aligned Movement who were prepared to forego voting with
that Movement because of their regard for the work of the Court. The representative
ofUganda said:
"The solution lies in a negotiated settlementby both sides. That is why, in Our
opinion,refemng the matter to the International Courtof Justice would not serve
the cause of peace. We should avoid politicising the Court, as this would
undermine its impartiality and credibility. Furthermore, going to the
International Court of Justice would amount to forum shopping when there is
already amechanismthroughthe Quartet-ledroad map to address the issue."
The representativeof Singapore,explainingSingapore'sabstention, said:
"We do not support the actions of Israel in buildingthe wall. However, we have
reservations about seeking an International Court of Justice (ICJ) advisory
opinion on the Israeliwall, as there arewider implications that causeus concern.
As a small State,we rely on theintegrityof international law, ofwhich the ICJ is
one of the most important pillars. We do not consider it appropriate to involve
the ICJ in this dispute in this way. The underlying dispute is one concerning
territorial boundaries. This should be settled by negotiation among the parties
concerned or by the binding decision of an appropriate international tribunal
such asthe ICJ.. .Thepurpose of seekingthe advisory opinion of the ICJmust be
to assist or facilitatethe workof the General Assembly."
2.18 Finally, the representativeof Switzerland, explainingSwitzerland'sabstention,
"Despite Ourcommitmentto international law, Switzerlandabstained in the vote
on the draft resolution seekingto submitthe question of the consequencesof the
wall to the International [Court of Justice]. We do notjudge it to be appropriate
in the current circurnstances to bring before a legal body a subject in which
highlypolitical implicationspredominate." III. THE COURT SHOULDDECLINETO ANSWER THE QUESTION
POSED
(A) The discretionary nature of the Court'sfunctions under Article 65(1) of the
3.1 The authorityof the Court to give an advisoryopinion is defined by Article 65,
paragraph 1, of the Statute of the Court. The language of that provision is
discretionary, not mandatory. As the Court has repeatedly made clear, when
confronted with a request for an advisory opinion, the Court has a discretion in
deciding whether it should respond. Thus, in the Interpretation of Peace Treaties
case, the Courtsaid that:
"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
amountof discretionin thematter."2
3.2 Similarly, in the Western Sahara case, the Court said of the discretion under
Article 65:
"In exercising this discretion, the International Court of Justice, like the
Permanent Court of International Justice, has always been guided by the
principle that, as a judicial body, it is bound to remain faithful to the
requirements of its judicial character even in giving advisory opinions. If the
question is a legal one which theCourt is undoubtedly competentto answer,it
may none the less decline to do so. As this Court has said in previous
Opinions, the permissive character of Article 65, paragraph 1, gives it the
power to examinewhether the circumstances ofthe case are of such a character
as shouldlead itto decline to answerthe request."
2 Advisory Opinion of30 March 1950,ICJ Reports 1950,p. 72. See also the advisory opinions
on Resewations to the Genocide Convention,ICJ Reports 1951, atp. 19, and CertainExpenses of the
UnitedNations,CJ Reports 1962,atp. 155.
5 ICJ Reports 1975,at21.The Court has taken a similar view in its advisory opinions in other cases (e.g.
Judgments of the Administrative Tribunal of the IL0 upon Complaints made against
7
UIESCO, Fasla, Mortished, Mazilu and Cumaraswamy '1.
3.3 It is within that margin of discretion that the question of propriety falls to be
considered. The Court has repeatedly emphasised that there are inherent limitations on
thejudicial function and that these limitations apply particularly to issues raised with
the Court which might cal1 into question the judicial nature of its role. Thus,
judgments which are "devoid of object or purpose," 'O or "remote from reality" 'lor
incapable of effective application '' have been held to fa11into this category. As the
Court stated in the Northern Cameroons case:
"If the Courtwere to proceed and were to hold that the Applicant's contentions
were al1 sound on the merits, it would still be impoSsible for the Court to
render ajudgment capable of effective application." l3
4 "The Court is a judicial body and, in the exercise of its advisory functions, it is bound to
rernain faithful to the requirements of its judicial character. 1sthat possible in the present case?" ICJ
Reports 1956,p. 84.
5
"Article 65 of the Statute is, however, permissive, and, under it, the Court's power to give an
opinion is of a discretionary character. Inercising this discretion, the Court has always been guided
by the principle that, as ajudicial body, it is bound to rernain faithful to the requirements of itsjudicial
character even in giving advisory opinions." ICJ Reports 1973,p. 175,para.4.
6 ICJ Reports 1982,p. 344 et seq.
7 ICJ Reports 1989,p. 190et seq.
8
ICJ Reports 1999,p. 78.
9 See, amongst many instances, the Free Zones case, PCIJ, Series NB, No. 46, 1932, p. 161;
theStatus of Eastern Carelia case, PCIJ, SeriesB, No. 5, 1923, p. 29; the Nuclear Tests cases, ICJ
Reports 1974,p. 271 and pp. 476-477 and theNorthern Cameroons case, ICJ Reports 1963, p. 30.
O WesternSahara case, ICJ Reports 1975,at p. 37.
LI
Northern Cameroons case, ICJ Reports 1963,at p. 33.
12 Northern Cameroonscase, ICJ Reports 1963, at p. 33.
13
Northern Cameroons case, ICJ Reports 1963,at p. 33Although that was a contentious case, the Court emphasised that al1 these
considerations of judicial propriety apply equally to the exercise of the advisory
j~risdiction.'~
3.4 The Court has, of course, made clear that, as the principal judicial organof the
United Nations,it should normally give its opinion on a legal questionwhen requested
to do so by a competent organ (or specialized agency)of the United Nations. Thus, in
theInterpretation of Peace Treatiescase the Courtsaid:
"the reply of the Court, itself an 'organ of the United Nations', representsits
participation in the activities of the Organization, and, in principle, shouldnot
be refused." l5
More recently, in its advisory opinion on Legality of the Threat or Use of Nuclear
Weapons, the Court, citing statements in several previous cases, stated that only
"compelling reasons" should lead it to refuse to give an opinion when requested to do
so by a competent organ or agency.16 On no occasion amongst the 23 requests for an
advisory opinion consideredby the Court prior to this date has the Court found such
compelling reasons to exist, although the Permanent Court of International Justice
declinedto answer the questionposedto it in theEastern Carelia case.
3.5 The question, therefore, is what might constitute such "compelling reasons".
The United Kingdom suggests that the answer is to be found in three closely related
strands of the Court's jurisprudence.
3.6 First, the Court has always insisted that the advisory jurisdiction exists to
ensure that other organs of the United Nations (and specialized agencies)can obtain
clarificationof the law from the Court in order to assist them in their activities. For
example, in the Resewations case, the Court stressed that "the object of this request
17
for an Opinion is to guide the United Nations in respect of its own action".
Similarly,in theNamibia case, the Court stated that:
14 Northern Cameroons case,ICJ Reports1963,atp. 30.
15
ICJ Reports1950,atp. 71.
16
ICJReports1996,atp. 235, para.14.
17 ICJ Reports1951,p. 19. "The request is put fonvard by a United Nations organ with reference to its
own decisions and it seeks legal advice £romthe Court on the consequences
and implications of these decisions. Th.isobjective is stressed by the prearnble
to the resolution requesting the opinion, in which the Security Council has
stated 'that an advisory opinion from theInternational Court of Justice would
be usefùlfor the Security Council inits further consideration ofthe questionof
Namibia andin furtherance of the objectives the Councilis seeking.' " '"
And in the WesternSahara case, the Court noted that "an opinion given by the Court
in the present proceedings will fùrnish the General Assembly with elements of alegal
character relevantto its further treatment of the decolonisationof Western Sahara". l9
3.7 It is thus a cornmon characteristic of these, and the other advisory opinions
rendered to date, that the Court considered that its opinion was likely to make a
positive contribution to the work ofthe requesting organ and of the United Nations as
a whole. The converse, however, is also true: if the Court considers that an opinion
would be unlikely to assist the requesting organ and, a fortiori, if it considers that
rendering an opinion would havean adverse effect on the work ofthe United Nations
as a whole, theCourtshould exercise its discretionto decline to give an opinion.
3.8 It is true that in the particular circurnstancesof the Legality of the Threat or
Use ofNuclear Weaponscase, the Court declinedto inquire into the purpose for which
an opinion was requested,on the ground that it was for the requesting organto decide
whether or not it needed an advisory opinion. 20 However, the question whether there
exist compellingreasonsfor the Court to decline to give an opinion when requestedto
do so must be a question which only the Court itself can answer. If, therefore, in a
particular case there are good reasons for the Courtto consider that its opinionwould
not be of positive assistance and that it might even be detrimental to the work of the
United Nations if the Court were to render an opinion, then these are considerations
which the Court must be able to take into account in determining how it should
exerciseits discretion under Article 65, paragraph 1,of the Statute, albeit that it would
onlybe in a rare casethat the Court wouldconcludethat there existed sufficientreason
for it to decidenot to answer a requestput to it.
18 ICJ Reports 1971p. 24,para.32.
19 ICJ Reports 1975,p. 37, para. 72.
20 ICJ Reports 1996,p. 237, para. 16.3.9 Secondly, the Court has made clear that the advisory jurisdiction is not to be
used as a means of circurnventing the requirement of the consent of the partiesto a
dispute which is a central feature of the contentiousjurisdiction of the Court; inother
words, the advisoryjurisdiction is not to be used as a form of "back-door7'compulsory
jurisdiction in relationto matters which are in substance disputes between two parties.
This principle was first mentionedby the Permanent Court of International Justice in
the Eastern Careliacase. " While the decision not to give an opinion in that casetook
into account the fact that one of the parties to the dispute, Russia, was not then a
member of the League of Nations, the Court has subsequently emphasised the
importanceofthe broader principle.
3.10 Thus, intheInterpretation of Peace Treaties case, the Court stated, with regard
to the Eastern Careliacase:
"[The Permanent Court] declinedto give an opinion because it found that the
question put to it was directly related to the main point of a dispute actually
pending between two States, so that answering the question would be
substantially equivalentto deciding the dispute between the parties, and thatat
the sametime it raised a question of fact which could notbe elucidated without
hearing fromboth parties." 22
The principle was reaffirmed by the Court in the Western Sahara case, where, after
refemng to the Peace Treatiescase, the Court stated:
"Thus, the Court recognized that lack of consent might constitute aground for
decliningto give the opinion requested if, in the circumstances of a given case,
considerations of judicial propriety should oblige the Court to refuse an
opinion. In short, the consent of an interested State continues to be relevant,
not for the Court's competence,but for the appreciation of the propriety of
givinganopinion.
In certain circumstances, therefore,the lack of consent of an interested State
may render the giving of an advisory opinion incompatible with the Court's
judicial character. An instance of this would be when the circumstances
disclose that 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. If such a situation should anse, the
powers of the Court,under the discretion givento it by Article 65, paragraph 1,
21
PCIJ, SerieB, No. 5.
22 ICJ Reports1950, p. 72 of the Statute, would afford sufficient legal means to ensure respect for the
fundamentalprincipleof consenttojurisdiction." '3
Similarly,in theMazilu case, the Court insisted that:
"While, however, the absence of the consent of Romania to the present
proceedingscanhave no effect on thejurisdiction of the Court, it is a matterto
be consideredwhen examining the propriety ofthe Court giving an opinion." 24
3.11 The Court has repeatedly stressed"that one of the fundamental principles of its
Statute is that it cannot decide a dispute between States without the consent ofthose
States to its jurisdiction". 25 The use of the advisoryjurisdiction as ameans of by-
passing this principle would, therefore, be wholly contrary to considerations ofjudicial
propriety, as the Court recognized in the WesternSahara case. The scrutiny of any
request for an advisory opinionto ascertain whether itis in fact being used in this way
is even more importantthan it was in the days of the Permanent Courtof International
Justice, for in the League of Nations the practice of unanimityin the Council offered
an important safeguard which is absent in the case of the United Nations, where a
majorityinthe GeneralAssemblysuffices for a request tobe made.26
3.12 In the Western Sahara case, the Court nevertheless went on to hold that it
should not refuse to answer the question put to it by the General Assembly,
notwithstanding the existence of a dispute betweenMorocco and Spain. The Court
made clear, however, that it did not intend to depart from or weaken the general
principle that the advisoryjurisdiction isnot to be usedas a means of embroiling the
Court in what is in substance a dispute betweentwo or more parties where the consent
of al1parties to the Cowt'sjurisdiction has notbeen aven. On the contrary, the Court
23
ICJ Reports 1975,p. 25, paras. 32-33. See also the Court's Opinion in the Na~nibiacase, ICJ
Reports 1971,p. 24,paras. 33-34.
74 ICJ Reports 1989,pp. 190-191,para. 37. The brief reference to the Eastern Curelia precedent
in the Court's Opinionon Legaliq ofthe Threat or Use of Nuclear Weapons, ICJ Reports 1996,p. 235,
para. 14, refers only to the fact of Russian non-membership of the League. but the broader principle
identifiedn Peace Treaties, Western Suhara and Mazilu did not arise in that case and was not
considered.
25
East Timorcase, ICJ Reports 1995,p. 101.para. 26.
26 See S. Rosenne, The Law and Practice of the International Court, 1920-1996 (1997), vo1,
pp 293-5.restated the general principle (in the passage quotedin paragraph 3.10, above) and
explained why that principle did not apply to the particular case before it in the
followingterms:
"There is in this case a legal controversy, but one which arose during the
proceedings of the General Assembly and in relation to matters with which it
was dealing. It did not aise independently in bilateral relations."27
The Western Sahara exception to the general principle is a narrow one, readily
explained in that case by the way in which the issue of decolonisation and self-
determination for Western Sahara had unfolded in the General Assembly between
1958and 1974. It does not mean that a dispute between two parties may, in effect,be .
made the subject of an advisory opinion just because it involves issues which have
been the subjectof discussion (however extensive) inthe General Assembly.
3.13 Thirdly, the Court has recognized the difficulty which might arise in an
advisory jurisdiction case in dealing with complex issues of fact. In the Eastern
Careliacase, the PermanentCourtof International Justice stated:
"The Court does not Saythat there is an absolute rule that the request for an
advisoryopinionmay not involve some enquiry as to facts, but, under ordinary
circumstances,it is certainly expedient that the facts upon which the opinion of
the Cowt is desired should not be in controversy, and it should not be left to
the Courtitself to ascertainwhat they are.
The Court is aware of the fact that it is not requested todecide a dispute, but to
give an advisory opinion. This circumstance, however, does not essentially
modify the above considerations. The question put to the Court isnot one of
abstract law, but concerns directly the main point ofthe controversy between
Finland and Russia, and can only be decided by an investigation into the facts
underlyng the case. Answeringthe question would be substantially equivalent
to deciding the dispute between the parties. The Court, being a Court of
Justice, cannot, even in giving advisory opinions, depart from the essential
rules guidingtheir activityas a
3.14 It would be contrary to considerations of judicial propriety for the Courtto
seek to give an advisoryopinion regarding the application of legal principlesto factual
situations if the factsin question are not agreed and cannotbe ascertained in a properly
judicial fashion. As the Courtsaid in the WesternSaharacase:
27
ICJReports 1975,p.25,para.34. "the issue is whether the Court has before it sufficient information and
evidence to enable it to arrive at a judicial conclusion upon any disputed
questions of fact the determination of which is necessary for it to give an
opinion in conditions compatible withitsjudicial character." 29
(B) Thepresent case is one in which the Court should decline to give an Opinion
3.15 It follows from the analysis in the preceding section that compellingreasons
for the Courtto declineto give an opinion exist in the following cases:-
(i) where the opinion sought wouldnot be a clarification of the law which
could be expected to assist the requesting organ and, even more so,
where the opinion sought might wellbe detrimental to the work of the
United Nations;or
(ii) where the question on which an opinion is sought is one which forms
the substanceof a disputebetween two parties andone of them doesnot
consentto the exercise ofthe Court's jurisdiction;or
(iii) where the question posed cannot be answered without certain factual
detenninations and the material before the Court does not permit of a
properlyjudicial conclusion regardingthose facts.
3.16 The United Kingdom submits that the present case falls into al1 three
categories.
(1) An Opinion is not necessary to assist the General Assembly in the
exercise of itsfunctions and would be likely toprove detrimental to the work
of the UN as a whole
3.17 The Court's statement in theLegaliq of the Threntor Useof Nuclear Weapons
case that it would not norrnally question the view of the requesting organ on whether
or not a11opinion was necessary for the work of that organ has already been
menti~ned.~'The present case,however, is an unusual one in that it directly concerns
other principal organs of the United Nations. While the request in the present case
28
PCIJ,SeriesB,No. 5,pp. 28-29.
19
ICJ Reports 1975,pp. 28-9, pa46.was made by an Emergency Special Session of the General Assembly convenedunder
the Uniting for Peace resolution, '' the situation in the Middle East, including the
Palestinian Question, is one which falls within the primary responsibility of the
SecurityCouncil forthe maintenance of international peace and security.
3.18 The responsibility of the Court, as a principal organ of the United Nations,
when exercising its powers under the advisory jurisdiction is not limited to the
requesting organ but extends to the United Nations as a whole. It follows that, in
considering whether the rendering of an opinion would have positive benefits and
whether it might have detrimental effects, the Court should,in the present case, look
beyond the possible impact which its opinion would haveon the General Assembly
and consider the effect which the opinion might have upon the work of the United
Nations as a whole and, in particular, on the work of the organ with primary
responsibility for the maintenance of international peace and security, namely the
Security Council.
3.19 The Council has by no means been inactive on the issue of the Middle East in
recent months. As outlined in paragraphs2.2 to 2.6 of this Statement, although a draft
resolution on theIsraeliwall was vetoed on 14 October 2003, the Council has adopted
a number of other resolutions, most recently resolution 1515 (2003) on 19 November
2003. Resolution 1515(2003),which was adopted unanimously, follows on fiom the
support which the Security Councilhas given on numerous occasions (most noticeably
in resolution 1435 (2002))to the attempts of the Quartet to secure the agreement of
both Israeland the PalestinianAuthorityto apractical peace plan andthen to ensureits
implementation. In resolution 1515 (2003), the Council gave its endorsement to the
road map (the peaceplan produced by the Quartet earlier in 2003) and called on both
Israel and the Palestine Authorityto fulfiltheir obligations thereunder.
3.20 The road map calls for practical steps to be taken in a series of stages by both
Israel and the PalestinianAuthority. These include irnmediate steps regarding security
in which the Palestinian Authoritywould declare an unequivocal end to violence and
terrorist attacks against Israeland undertakevisible efforts torestrain those conducting
30 See para. 3.8, above.
1 See paras2.7to2.12,above.and planning attacks on Israel and Israelis. Israel would take no actions undennining
trust and would engage in a progressive withdrawal fi-omareas previously controlled
by the Palestinian Authority. Later phases would culminate in a permanent status
agreement under which such issues as Jerusalem and the Israeli settlements wouldbe
re~olved.~~
3.21 It is plainly the view of the Council that the balanced, negotiated approachto
peace represented by the road map offers the best chance for a peaceful resolution of
the situation in the Middle East. That has not been disputedby the Assembly. Indeed,
whatever functionsthe Assembly, meeting in the resumed Tenth Emergency Special
Session, may have with regard to the Middle East, it is clearly not entitled to
undennine the actions of the Security Council in this matter. The yardstick for
determining whether or not the Court should respondto the request fiom the General
Assembly is, therefore, whether the renderingof an opinion would be beneficial or
detrimentalto the goal of achievingpeacethrough the adoption and implementation of
the road map.
3.22 In its Opinion onLegality of the Threat or UseofNuclear Weapons,the Court
was wary of coming to conclusions regarding the effects whichan opinion might have
on the prospects for negotiations, commenting that it had "heard contrary positions
advanced and there are no evident criteria by which it can prefer one assessment to
an~ther',.~~
3.23 In the present case, however, there is a striking degree of consensus amongst
those most closely involved in promoting the peace process inthe Middle East that an
advisory opinion on the question soughtwould be ofno assistance and wouldbe likely
to be unhelpful. It has already been observed that al1of the States involved in the
Quartethave taken that position.34~ll of them abstainedor voted against the decision
to request the Court's opinion, as did Nonvay, which had been closely involved in
32 UN Doc S120031529.
33 ICJReports 1996,p. 237, para. 17.
34 See paragraphs 1.6 and 2.13to 2.16 of this Statement.earlier peace talks, and Switzerland,which has provided the location for manyof the
meetings inthe peace process.
3.24 By contrast, not one of the Stateswhich spoke in favour of the draft resolution
on the request suggested that an opinion wouldfurther the road map peace process or
responded tothe concerns expressedby the members of theQuartet in this regard.
3.25 The United Kingdom submits that those concerns are perfectly understandable.
The road map involves a delicate process of mutual concessions in which the actions
of one party arenever addressedin isolation but alwaysin the context of the actionsof
the other party, in which agreementis to be obtained and tmst developed by dealing
with issues in a sequence accordingto which certain matters are to be addressed at
once, while others are deferred to a later stage of the process, and in which the
emphasis is upon future action ratherthan responsibility for what has happened in the
past.
3.26 By contrast, the request asks the Court foran opinion on the actions of only
one party, Israel, and in respect of one isolated issue, thatis the wall. Afocus on the
legal consequences of the Israeli constructionof the wall to the exclusion of those
other issues is directly contrary to the approach followed in the road map. It is
difficult to seehow a legal opinion on thatone issue can have a beneficial effecton the
United Nations' attemptsto further peace through the road map (and no State has
suggested that it would have such an effect), whereas there is every reasonto fearthat
the rendering of such an opinion, however careful, by the Court would have a
detrimental effecton the peace process.
3.27 While the Court is rightly concemed to play its part as the principal judicial
organ of the United Nations in responding to requests from otherorgans, the United
Kingdom submits that it is precisely because the Court is a principal organ of the
United Nations that it has a responsibility to be alert to the danger that its opinion on
one aspect of a situation as delicate as that of the Middle East peace process might
harm the actions of the Organizationas a whole in relation to that process. Where, as
here, there is good reason to think that that would be the case, there exists a
compelling reason whythe Court shouldnot give an opinion in response to the request
made of it.3.28 The United Kingdom also notes that, even if the Court were concerned only
with the effect which its opinion might have on the workof the General Assembly, the
conclusion would be the same. The point has alreadybeen made that no State which
spoke in favour of what became resolution ES-10114suggested that there was any
need for an advisory opinion in order to assist the Assembly in its future work.Nor
did any of them suggest that there were legal issueswhich needed to be clarified. On
the contrary, most States seem to have regarded the legal position as clear. The
Assembly had already declared that the building ofthe wall in Occupied Palestinian
Temtory involved violations of international law. Thereis no hint in the record of the
debateon 8 December 2003 that any of the supportersof the resolution had any doubts
on that score or that there was any doubt or controversy regarding the legal
consequences of the buildingof the wall.
3.29 The stated reason forseeking an advisory opinion wasrather that this stepwas
necessary because Israel had not complied with the Assembly's earlier demands
regarding the wall.Thus, the representative of Palestinesaid:
"Israel hasnot complied with the resolution [ES-101131and therefore further
actions must be taken. As you are a11aware, we believe that further possible
action at this stage is to request an advisory opinion from the International
Court of Justice about the legal consequences arising fromthe construction of
the wall by Israel, the occupying Power,in disregard of the relevant provisions
of international law, as well as relevant Security Council and General
Assemblyresolutions.
In the absence of any other specificpractical measures to compel Israel to stop
building the wall and to dismantle the existing parts we must, at a minimum,
seek to affirm the legal aspects of this matter, such as the illegality of the wall
and the necessity of non-recognition of the wall andits implications by States
and by the United Nations system. We also hope that that will put additional
pressure on Israel, the occupying Power, sothat it will comply with and adhere
to the provisions of international law and the will of the international
~ornmunity."~~
3.30 It is imperativeto recall, however, that the advisoryjurisdiction is a means by
which advice about the law can be obtained by an organ which needs to have the law
clarified for its future actions. It not a means by which the law is to be enforced
against a State, however recalcitrant it might be. The statement quoted in thepreceding paragraph strongly suggests that the opinion sought is not needed for the
purpose for which the advisoryjurisdiction exists. Moreover, to seek to employ the
advisory jurisdiction as a form of enforcement mechanism runs counter to the
pnnciple that States cannot be compelled to submit their disputes or subject their
conduct to the scrutiny of an international tribunal unless they have given their
consent, apoint developed in the next sub-section.
(2) Thepresent case concerns a bilateral dispute
3.31 The United Kingdom also submits that the present case is one which falls
within the principle, well statedin the Western Sahara case and which it invites the
Court to reaffirm, that the Court will decline to answer a question put to it if by
answering that questionit would be deciding an issue in a bilateral dispute and thereby
circumventing the requirement of consent in the contentious jurisdiction. The Court's
own jurisprudence shows that the importance of that principle is beyond doubt. It is
particularly significanthere.
3.32 In the present case, the constructionof the wall has undoubtedly givenrise to a
bilateral dispute between Israeland Palestine. (It is submitted that for thepurpose of
the application of this principle in these proceedings, the status of Palestine may be
assimilated to that of a State.) Speaker after speaker in the various debates in the
General Assemblyandthe Secunty Council made clear that it wasnot the construction
of the wall per se which involved a violationof international law but the construction
of part of it on the occupied territory. Possible implications for titleto territory have
been identified as a principal concern. The issues are thus clearly part of a bilateral
dispute between Israel and Palestine and the principle restated in Western Sahara is
accordingly applicable. It is also manifest that Israel does not consent to the
jurisdiction of the Court overthis dispute. The only questionis whether the exception
identified in that case applieshere.
3.33 In the United Kingdom's submission, itdoes not. There are two significant
respects in which this case is different fiom the facts oWestern Sahara. First, this is
not a case in which,to adoptthe languageof the Western Sahara Opinion, any dispute
"arose during the proceedings of the General Assembly" and "did not ariseindependentlyin bilateral relations." 36 The questions put bythe General Assembly in
the WesternSahara case concemed matters which arose only because of the way in
which the decolonisationprocess which hadbegun in the General Assembly was being
handled there. By contrast, the dispute over the wall has arisen out of the bilateral
relationship between Israel and Palestineand the mutual recriminations between them
over securityissues.
3.34 Secondly,the nature of the questions in WesternSahara meant that the Court's
responsewas notdefinitive of the legal position at the time theopinion was sought but
related to historical rights in Western Sahara at the time of colonisation by Spain. As
the Court there pointed out, the answersto the questionsput before it would not affect
Spain'stitle to the territory:
"The settlement of this issue will not affectthe rights of Spain today as the
adrninisteringPower, but will assist the General Assembly in deciding on the
policy to be followed in order to accelerate the decolonization process in the
temtory. It follows that the legal position of the State which has refused its
consent to the present proceedings is not 'in any way compromised by the
answers that the Court may give to the questions put to it' (Interpretation of
Peace Treaties with Bulgaria, Hungary and Romania, First Phase, I.C.J.
Reports 1950,p. 72)."37
3.35 Thepresent case also differsfiom theNamibia case, even though the question
posed inthepresent case has apparently been inspiredby that in Namibia. The
Namibia caseconcemedthe legal consequences for States flowingfiom a resolution
of the SecurityCounciland South Africa7scontinuedpresencein Namibia
notwithstandingthat resolution.The questionposedin the present case also asks
about legalconsequencesof Israel's actionbut the relevantlaw is the armistice
agreementof 1949,the provisionsof the law of armed conflict and belligerent
occupationand otherprinciples of general international law. Although the question
posed in resolutionES-10114alsorefers to "relevant Security Council and General
Assembly resolutions",none of those resolutions constitutes adecision which
occupiesthe centralposition which thedecisionof the Security Council occupiedin
theNamibia case. Inparticular, in sharpcontrastto the position in theNamibia case,
36
ICJReports 1975,p. 25, par34.
37
ICJReports 1975,p. 27, para. 42.the legalityor illegality of the actionsin question, and the legal consequences which
may flow fromthat legality or illegality, are not inanyway dependent upon a
decisionof the organ which has soughtthe opinion ofthe Court, in this case the
GeneralAssembly.
(3) An Opinion in the present case would require determinations of fact which
the Court cannotproperly make on the basis of the material before it
3.36 Finally, the United Kingdom submits that if the Court were to answer the
question put to it, it would have to make a number of determinations of fact inorderto
answer the legal questionposed. The Court has made clear that its judicial character
means that any findings of fact in advisory proceedings must be madewith the same
care and the sarneneed for evidenceasthose in a contentious case. The Court cannot,
in short, adopt the same approach to issues of fact as a political organ, or States
participating in a political process, may do. In the present case, the United Kingdom
respectfully doubts that it will be possible for the Court tomake the necessary factual
determinations in themannerthat itsjurisprudence requires.
3.37 It is not possible here to speculate on al1of the factual issues which might
require determination but it is difficult to see how the Court can determine the legal
consequences of the construction of the wall without considering the nature and
severity of the threatwhich the wall is intended to meet and the factual aspectsof the
question whether the wall (and the particular route which it follows)is an appropriate
response to that threat. The former would require an analysis of the attacks upon
Israeli targets which have occurred inrecent years and of the likely pattern of future
attacks. The latter would require considerationof the likely impact of the wall onsuch
attacks, balanced against the effecton the Palestinian population. Different stretches
of the wall would require separate analysis since it is the route of the wall,and the
location of parts of the wall on occupied territory, which lie at the heart of the
argument that Israelis actingunlawfùlly.
3.38 The difficultycanbe seenmost clearly if one considers the legal positionunder
two of the treaties specifically invoked in resolution ES-10114,the Fourth Geneva
Convention, 1949, and the Regulations annexed to the Fourth Hague ConventionRespecting the Laws and Customs of War on Land, 1907 ("the Hague Regulations").
These address the circumstances in which an Occupying Power may requisition or
destroyproperty. Thus,Article 23(g) of the Hague Regulations states that:
"...it is especially forbidden-
(g)To destroy or seize the enemy's property,unless such destruction or seizure
be imperatively demandedby the necessities ofwar;"
Article 52 deals with requisition of private property "for the needs of the army of
occupation". Similarly, Article 53 of the Fourth Geneva Convention prohibits the
destruction of property "except where such destruction is rendered absolutely
necessary by military operations" and Article 147 of the same Convention makes
"extensive destruction and appropriation of property" a grave breachpunishable with
criminal sanctionsif it is "notjustified by military necessityand camed out unlawfully
and wantonly".
3.39 It isdifficult to see how the Court, consistent with itsjudicial character, could
apply these provisions without first making complex factual determinations regarding
the scale, natureand location of the threats posed to Israel, since such findings would
be essentialto the application ofthe militarynecessity provisions.
3.40 Factual deteminations of this kind v~ouldbe difficult in any proceedings but
they are rendered more difficult in the present case by the fact that much of the
information is availableonly to Israel. In addition,the nature of advisory proceedings
makes it difficult to test evidence by the interaction between the parties which is a
feature of contentious proceedings or,where necessary, by means of the examination
and cross-examinationof witnesses.
3.41 Al1these considerationslead to the conclusion that this is precisely the type of
case to whichthe Permanent Court'sdecision in Eastern Carelia regarding the need to
decline to exercise the advisory jurisdiction in cases where there were intractable
issues of factwas intendedto apply. IV. CONCLUSIONS
4.1 For the reasons given above, the United Kingdom respectfully requests the
Court to reaffim the principles upon which it should exercise its discretion under
Article 65, paragraph 1, of the Statute, and decline to give an answer the question
posed by the General Assemblyinthis case.
2s January 2004 M.C. Wood
(Representative of theUnited
Kingdom of GreatBritain
and Northem Ireland)
Written Statement of the United Kingdom of Great Britain and Northern Ireland