Statement of the Government of the Kingdom of the Netherlands

Cour internaleeJustice
EnregisauGreff: le

Internatl ourtofJustice
Filed intheRegi:3r0ofi: 2 004/+0

INTERNATIONALCOURT OF JUSTICE

LEGAL CONSEQUENCESOFTHECONSTRUCTION OFA WALL
IN THE OCCUPIEDPALESTINIAN TERRITORY

(REQUESTFOR ADVISORY OPINION)

STATEMENTOF THE GOVERNMENTOF THE KINGDOMOFTHENETHERLANDS

30 JANUAR20041 INTRODUCTION

1. In Resolution ES-10114,adopted on 8 December2003 by the Resumed Tenth
Emergency Special Session of the General Assembly of the United Nations (UN), the

General Assembly decided to request the InternationalCourt of Justice ("the Court")

urgently to give 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 PalestinianTerritory, including in and
around East Jerusalem, as described in the report of the Secretary-General,

considering the rules and principles of internationallaw, including the Fourth Geneva
Convention of 1949,and relevant Security Council and General Assembly
resolutions?".

2. In its Order of 19 December 2003, the Court designated 30 January 2004 as the time

limit within which written statements must be submitted to it by the UN and by States

which are entitled to appear before the Court, in accordance with Article 66(2) of the

Court's Statute.

3. As the Netherlands is a member State of the UN and by virtue of Article 92 of the UN

Charter also a party to the Statute of the Court, it wishes to avail itself of the opportunity

given by the Court's Order of 19 December 2003 to States entitled to appear before the

Court to make a written statement on the above-mentioned request by the UN General

Assembly for an advisory opinion from the Court.

OBSERVATIONS ON THE COURT'S COMPETENCE AND DISCRETION TO GlVE
II
THE SAlD ADVISORY OPINION

1. Under Article 96(1) of the UN Charter, the UN General Assembly may request the Court

to give an advisory opinion on any legal question. Article 65(1) of the Court's Statute

governs the competence of the Court to give an advisory opinion. The question submitted

to the Court for an advisory opinion concerns the legalconsequences of the construction

of a wall' in the Occupied Palestinian Territory, and therefore constitutes a legal question.

'
In this Statement, the Netherlands will use the term "wall", as used in the request for an advisos. opinion, without
implying that it is a more accurate or appropriate term than "security fence", "barrier" or whatever other term may be
employed. In the opinion of the NetherlandsGovernment,the UN General Assembly must be

deemed competent to requestthe advisory opinion.

2. If the Court considers the UN General Assembly competentto request, and itself

competent to give, the advisory opinion concerned,the NetherlandsGovernment would

nonetheless draw attention to the fact that the Court's power to give advisory opinions is
a discretionary one. As stated by the Court itself in the Western Sahara Case (ICJ Rep.

1975, p. 21, para. 23):

"ln exercising this discretion, the InternationalCourt 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 remainfaithful to the requirements of its judicial character
even in giving advisory opinions. If the question is a legal one, which the Court is
undoubtedly competent to answer, it may none the less decline to do so."

3. In the Advisory Opinion on Legality of the Threat or Use of Nuclear Weaponsthe Court,

citing several previous cases, stated that only "compelling reasons" should lead it to

decline to give an advisory opinion (ICJ Rep. 1996, p. 235, para. 14). The Netherlands

Government believes that there are compelling reasons why, in this particular case, the

Court should decide to abstain from giving the advisory opinion requested.

4. On 8 December 2003, in a statement on behalf of the European Union, the Acceding
Countries and nine other European States, before the Resumed Tenth Emergency

Special Session of the UN General Assembly, the Permanent Representative of ltaly

urged

"all sides in the region to immediately implement policies conducive to dialogue and
negotiations".

With regard to the request for the Court's advisory opinion on the legality of the

construction of the wall in the Occupied Palestinian Territory, he concluded that the

proposed request

"will not help the efforts of the two parties to re-launch a political dialogue and is
therefore inappropriate."

For this reason the Netherlands abstained on Resolution ES-10114(which was adopted

by 90 votes to 8, with 74 abstentions).5. The Netherlands believesthat the establishment of a Palestinian State, living side by side

with lsrael in peace and security, must be realised through political dialogue and

negotiations. If the Court decides to comply with the General Assembly's request, there is

a real danger that this would underminethe re-launching of such a political dialogue on

al1aspects of a comprehensivepeace settlement.

111 LEGALITY OF THE CONSTRUCTIONOF THE WALL INTHE OCCUPIED

PALESTlNlAN TERRITORY

6. The Netherlands does not consider it necessaryto make substantive observations on the

merits of the legal question submittedto the Court for an advisory opinion. The

Netherlands has expressed its view on the legality of the construction of the wall in the
Occupied Palestinian Territory in the General Assembly, to which view it respectfully

refers the Court below.

7. The Netherlands voted in favour of Resolution ES-10113 adopted on 21 October 2003 by

the Resumed Tenth Emergency Special Session of the General Assembly of the United

Nations (which was adopted by 144votes to 4, with 12 abstentions), in which the General
Assembly reiterated (preamble):

"its cal1upon Israel, the occupying Power, to fully and effectively respect the Geneva
Convention relative to the Protection of Civilian Persons in Time of War of 12August

1949";

and demanded (operative para. 1):

"that lsrael stop and reversethe construction of the wall in the Occupied Palestinian
Territory, including in and around East Jerusalem, which is in departure of the
Armistice Line of 1949and is in contradiction to relevant provisions of international

law".

8. In the above-mentioned statement of 8 December 2003, on behalf of the European

Union, the Acceding Countries and nine other European States, before the Resumed

Tenth Emergency Special Session of the General Assembly of the United Nations, the

Permanent Representative of ltaly recalled that the European Union presented

Resolution ES-10113. In this statement he also stated:

"While recognizing Israel's right to protect its citizens from terrorist attacks, the
European Union urges the Government of Israel, in exercising this right, to fully
respect international law, in particularman rights and international humanitarian law including the Fourth Geneva Convention and to exert maximum effort to avoid
civilian casualties and take no action that aggravatesthe humanitarian and economic
plight of the Palestinian people."

IV CONCLUSION

9. The Netherlands is convinced that the construction of the wall in the Occupied

Palestinian Territory, including in and around East Jerusalem, in departure of the

Armistice Line of 1949, is in contradictionto relevant provisioofinternational law. The

Netherlands is also convinced that the requestfor an advisory opinion from the Court will

not helpthe efforts of the two parties to re-launch a political dialogue and is therefore
inappropriate. The Netherlandstherefore respectfully requeststhe Court to exercise its

discretion to decline to answer the question put to it by the UN General Assembly in this

case.

Johan G. Lammers

Representative of the Kingdom of the Netherlands

30 January 2004