INTERNATIONAL COURT OF JUSTICE
REQUEST BY THE UNITED NATIONS GENERAL ASSEMBLY FOR AN ADVISORY OPINION ON
THE QUESTION OF THE "LEGAL CONSEQUENCES ARISING FROM THE POLICIES AND
PRACTICES OF ISRAEL IN THE OCCUPIED PALESTINIAN TERRITORY, INCLUDING EAST
JERUSALEM"
WRITTEN STATEMENT OF THE GOVERNMENT OF CANADA
14JULY 2023
INTRODUCTION
1. On December 30, 2022, the United Nations ("UN") General Assembly adopted
resolution A/RES/77/247, in which it decided to request the International Court of
Justice {"ICJ") to render an advisory opinion on the following questions:"
"considering the rules and principles of international law, including the
Charter of the United Nations, international humanitarian law, international
human rights law, relevant resolutions of the Security Council, the General
Assembly and the Human Rights Council, and the advisory opinion of the
Court of 9 July 2004:
(a) What are the legal consequences arising from the ongoing violation by
Israel of the right of the Palestinian people to self-determination, from its
prolonged occupation, settlement and annexation of the Palestinian
territory occupied since 1967, including measures aimed at altering the
demographic composition, character and status of the Holy City of
Jerusalem, and from its adoption of related discriminatory legislation and
measures?
(b) How do the policies and practices of Israel referred to in paragraph 18 (a)
above affect the legal status of the occupation, and what are the legal
consequences that arise for all States and the United Nations from this
status?"
2. On January 19, 2023, the Registrar gave notice of the request for an advisory opinion
to all States entitled to appear before the Court pursuant to Article 66(1) of the
Statute of the International Court of Justice (the "Statute"), including Canada.
3. On February 3, 2023, the Court noted that all Member States were likely able to
furnish it with information relevant to the request for an advisory opinion, and
established July 25, 2023 as the deadline for any interested States to do so.
4. In response to the invitation from the Registrar, and pursuant to Article 66(2) of the
Statute, the Government of Canada wishes to submit comments pertaining to the
Request for an Advisory Opinion on the Question of the "Legal Consequences arising
from the Policies and Practices of Israel in the Occupied Palestinian Territory,
including East Jerusalem."
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NEGOTIATION AS THE APPROPRIATE MEANS OF SETTLING THE DISPUTE
5. Canada remains fully committed to the goal of a comprehensive, just and lasting
peace in the Middle East, including the creation of a Palestinian state living side by
side in peace and security with Israel. It continues to support the two-state solution
as the only viable path towards this goal.
6. Canada's longstanding view is that it is only through direct negotiation between the
parties that a lasting peace can be achieved. To this end, Canada continues to
recognize UN Security Council resolutions (UNSCR) 242 and 338 as the basis for
peace negotiations towards a comprehensive settlement of the conflict.
7. Canada fully supports all efforts to encourage Israel and the Palestinians to return to
the negotiating table. These include steps taken to enable the parties to engage in
direct dialogue and commit to refraining from unilateral actions. It is important that
additional efforts to address the resolution of the dispute are focused on the UN
Security Council-mandated negot iating process.
JURISDICTION AND DISCRETION
8. Article 65(1) of the Statute provides that "[t]he Court may give an advisory opinion"
(emphasis added). The Court thus exercises a discretionary power to decide whether
or not to deliver an advisory opinion.
9. This was confirmed by the Court in its Wall opinion, where it noted that:
The Court has recalled many times in the past that Article 65, paragraph 1, of
its Statute, which provides that 'The Court may give an advisory opinion ... ',
should be interpreted to mean that the Court has a discretionary power to
decline to give an advisory opinion even if the conditions of jurisdiction are
met.1
10. In its Chagos opinion, the Court confirmed that once it is seized of a request for an
advisory opinion, it "must first consider whether it has jurisdiction to give the
opinion requested and if so, whether there is any reason why the Court should, in
the exercise of its discretion, decline to answer the request."2 The Court stressed
that "the fact that the Court has jurisdiction does not mean, however, that it is
obliged to exercise it"3 and explained that "the discretion whether or not to respond
1 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I. C.J.
Reports 2004 (" Wall"), p. 156, para. 44.
2 Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion,
I.C.J. Reports 2019, p. 95 ("Chagos"), p. 20, para 54.
3 Ibid., p. 22, para 63.
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to a request for an advisory opinion exists so as to protect the integrity of the Court's
judicial function as the principal judicial organ of the United Nations."4 The Court
went on to note that in satisfying itself as to the propriety of the exercise of its
judicial function, it will "give careful consideration as to whether there are
compelling reasons for it to decline to respond to [a] request from the General
Assembly."5
11. Notwithstanding that Canada did not vote in favour of the resolution requesting the
advisory opinion at issue, Canada does not dispute that the UN General Assembly
has the competence to request an advisory opinion from the Court on questions of a
legal nature, nor does it dispute that the Court has the jurisdiction to consider this
request. It is Canada's view, however, that the Court should exercise its discretion
not to respond to the request made by the UN General Assembly in the present
instance, in light of the compelling reasons present in this case.
12. Canada believes that the compelling reasons present in this case are two-fold, the
first being the lack of consent to the jurisdiction of the Court by an interested State
to the dispute underlying the request for an advisory opinion, and the second being
that the UN Security Council is the body with primary responsibility for the
overarching issue, not the UN General Assembly.
Lack of consent to jurisdiction
13. It is a fundamental principle of the ICJ that the settlement of contentious cases by
the Court requires the consent of the States involved. Canada believes strongly that
this principle is key to the effectiveness and credibility of the Court. It is one which
the Court has affirmed in its Advisory opinion on Western Sahara:
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 arise, the powers of the Court under the discretion
given to it by Article 65, paragraph 1, of the Statute would afford sufficient
legal means to ensure respect for the fundamental principle of consent to
jurisdiction.6
4 Ibid., p. 22, para 64.
5 Ibid., p. 22, para 66.
6 Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p.25, para. 33.
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14. In its Chagos opinion, the Court observed that "there would be a compelling reason
for it to decline to give an advisory opinion" 7 when such an opinion would have the
effect of circumventing the need for a State to give its consent to have its disputes
submitted to judicial settlement. The Court determined in Chagos that the questions
put to it did not pertain to the bilateral dispute between the parties, but rather to
questions pertaining to the decolonization of Mauritius, which could be of assistance
to the UN General Assembly in fulfilling its functions related to decolonization.8
There were thus no compelling reasons to decline jurisdiction.
15. In the present instance, however, it is clear that the questions posed to the Courtwhile
notionally aimed at eliciting the overall legal consequences including "for all
States and the Untied Nations" as a result of the policies and practices of Israel in the
occupied Palestinian Territories - lie at the heart of the issues to be resolved
between Israel and the Palestinians.
16. It is Canada's understanding that Israel, which has a direct interest in this case, has
not provided consent for the ICJ to be seized of this matter.
Primary responsibility of the UN Security Council
17. In the Chagos case, the Court considered the argument that it should exercise its
discretion to decline the request for an advisory opinion on the basis that the Court's
response would not assist the UN General Assembly in the performance of its
functions. It noted, however, that it was not for the Court to determine the
usefulness of its advisory opinion, but rather for the requesting body.9 The Court
instead focused its decision not to decline jurisdiction on the basis of the functions of
the UN General Assembly, and the fact that the questions posed corresponded with
these functions.
18. The Court determined in Chagos that the questions posed to it pertained to the
broader issue of decolonization, and emphasized in this regard the "long and
consistent" record of the UN General Assembly in trying to bring colonialism to an
end.10 It concluded that:
the opinion has been requested on the matter of decolonization which is of
particular concern to the United Nations. The issues raised by the request are
located in the broader frame of reference of decolonization, including the
7 Chagos, p. 26, para 85.
8 tbid., p. 26, para 86.
9 Ibid., pp 24-25, paras 75-78.
10 Ibid., p. 27, para 87.
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General Assembly's role therein, from which those issues are inseparable.11
19. In the present instance, however, it is not the UN General Assembly that has primary
carriage of the issue at hand, but rather the UN Security Council, which has
established a framework to allow for the resolution of the dispute through
negotiations between the parties.
20. While this issue also arose in the context of the Wall opinion, where the Court
elected to assume jurisdiction to address a distinct measure taken by Israel, the
Court also observed that the questions concerning the "greater whole" of the
dispute were to be left to the parties to negotiate.12
CONCLUSION
21. Notwithstanding the challenges involved, Canada believes direct dialogue between
the parties themselves is the best path to create the conditions for peace. Canada is
concerned that the issuance of an advisory opinion on Israeli practices in the
occupied territories may contribute to a polarization of positions that risks moving
the parties further away from a just and lasting resolution to the conflict. While not
legally binding, an advisory opinion could impact the outcome of the negotiation
framework established by the UN Security Council.
22. In light of the fact that the questions posed pertain to the resolution of a bilateral
dispute, where an interested State has not accepted the jurisdiction of the Court,
and given that the UN Security Council has established a framework for the parties
to resolve the dispute through negotiations, Canada is of the view that there are
compelling reasons for the Court to exercise its discretion to decline the request of
the UN General Assembly for an advisory opinion with respect to the questions
posed in its resolution A/RES/77 /247 dated December 30, 2022.
Respectfully, /.&, Assistant Deputy Minister and Legal Adviser,
Agent of the Government of Canada
Global Affairs Canada
11 Ibid., p. 27, para 88.
12 Wall, p. 160, para 52 , and p. 201, para 162.
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Written statement of Canada