Written statement of China

INTERNATIONAL COURT OF JUSTICE
LEGAL CONSEQUENCES ARISING FROM THE POLICIES AND PRACTICES OF ISRAEL IN THE OCCUPIED PALESTINIAN TERRITORY, INCLUDING EAST JERUSALEM
WRITTEN STATEMENT OF
THE PEOPLE’S REPUBLIC OF CHINA
25 July 2023
Introduction
1．On 30 December 2022, the United Nations General Assembly adopted Resolution 77/247 by vote, in which it decided, in accordance with Article 96 of the Charter of the United Nations, to request the International Court of Justice, pursuant to Article 65 of the Statute of the Court, 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 (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．By an order dated 3 February 2023, the International Court of Justice decided that the United Nations and its Member States, as well as the observer State of Palestine, may submit written statements to the Court. Subsequently, at the requests of the League of Arab States, the Organization of Islamic Cooperation and the African Union, the Court authorized the participation of each of these organizations in the advisory - 1 -
proceedings.
3．The question of Palestine is at the core of the Middle East issue. The historical background for this question is complex. After the First World War, the question of Palestine became an international issue. In 1922, the Mandate for Palestine was entrusted to the British Government by the League of Nations. In April 1947, the first special session of the United Nations General Assembly was convened at the request of the United Kingdom, the mandatory Power for Palestine.1 On 29 November 1947, the United Nations General Assembly adopted Resolution 181 (II), entitled “Future Government of Palestine”, which “recommended” the Partition Plan, whereby two independent States, one Arab and one Jewish, would be established in Palestine, and a Special International Regime would be established for the City of Jerusalem. On 14 May 1948, the establishment of the State of Israel was proclaimed by the Jewish people in light of this resolution. The Arab population in Palestine and Arab States rejected the Partition Plan. Armed conflicts broke out between Israel and a number of Arab states in 1948, 1956, 1967 and 1973. The Partition Plan was not implemented. In the 1967 conflict, known as the Third Middle East War, Israel occupied all the territories of the Arab State as recommended by Resolution 181 (II).2
4．For more than half a century, the Palestinian people have been on an arduous struggle for their legitimate rights. On 15 November 1988, the Palestinian National Council adopted the Declaration of Independence at its 19th extraordinary session, which accepted Resolution 181 (II) and declared the establishment of the State of Palestine with Jerusalem as its capital. Since 1993, a number of agreements have been signed between the Palestine Liberation Organization and Israel. These agreements
1 Letter from the United Kingdom Delegation to the United Nations dated 2 April 1947, U.N. Doc. A/286 (3 April 1947).
2 See Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 136 [hereinafter Wall], paras. 71, 73.
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required Israel to transfer to the Palestinian Authorities certain powers and responsibilities that it exercised in the Occupied Palestinian Territory. To date, however, the transfer of powers and responsibilities by Israel has remained partial and limited.3 At the request of the UN General Assembly, the International Court of Justice delivered an advisory opinion in 2004 on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (hereinafter the Wall advisory opinion). The Court found that Israel’s construction of the wall and its associated régime were contrary to international law.4 Nevertheless, the illegal situation has not been cured to this day.5
5．The question of Palestine has been on the agenda of the United Nations for over 70 years, and Israel has occupied the Palestinian territories for more than half a century. Yet the legitimate national rights of the Palestinian people have not been restored as generations of Palestinians have been waiting in vain their entire lives for that restoration. No permanent peace agreement has been reached between Palestine and Israel, and there is still a long way to go to resolve the question of Palestine.6 Justice has already been late in coming. It must not be absent.
6．The question of Palestine concerns, inter alia, international peace and security, international fairness and justice, the Palestinian-Israeli conflict, the interpretation and application of international law, and the fulfillment of international obligations. China always attaches great importance to a comprehensive, just and lasting solution to the question. China voted in favor of the adoption of
3 See Wall, para. 77.
4 Wall, para. 163 (3)A.
5 See UN General Assembly Resolutions A/RES/77/247 (30 December 2022), A/RES/77/187 (14 December 2022).
6 See UN General Assembly Resolution A/RES/77/247 (30 December 2022), the eleventh paragraph in the preamble.
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Resolution 77/247 by the General Assembly. The Chinese Government also takes note that the International Court of Justice rendered its Wall advisory opinion on relevant legal issues in 2004. The Chinese Government wishes to elaborate its position on the legal issues raised by the General Assembly Resolution for the reference of the Court in rendering its advisory opinion.
7．This statement first sets out the views on the exercise of advisory jurisdiction by the International Court of Justice. Then, it elaborates on the issues of international law involved in this case, in particular, international humanitarian law, international human rights law, the right to self-determination and state responsibility. Finally, it addresses the Chinese Government’s policy propositions for resolving the question of Palestine.
I. The International Court of Justice has advisory jurisdiction over the questions requested by the United Nations General Assembly, and there is no compelling reason for the Court to decline to exercise its jurisdiction in the present case
8．The advisory jurisdiction of the International Court of Justice is derived from Article 96 of the Charter of the United Nations7 and Article 65 of the Statute of the International Court of Justice.8 According to
7 Article 96 of the Charter of the United Nations provides that:
“1. The General Assembly or the Security Council may request the International Court of Justice to give an advisory opinion on any legal question.
2. Other organs of the United Nations and specialized agencies, which may at any time be so authorized by the General Assembly, may also request advisory opinions of the Court on legal questions arising within the scope of their activities.”
8 Article 65 of the Statute of the International Court of Justice provides that:
“1. The 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.
2. Questions upon which the advisory opinion of the Court is asked shall be laid before the Court by means of a written request containing an exact statement of the question upon which - 4 -
these provisions and related practices, two basic conditions must be met for the Court to establish advisory jurisdiction over relevant questions: first, the questions are posed by an organ having competence and acting thereunder; second, the questions are legal questions.
(a) The International Court of Justice has advisory jurisdiction over the present case
9．The basic conditions for the Court to establish advisory jurisdiction are satisfied in the present case. The UN General Assembly is entitled to request an advisory opinion from the Court, as provided for in the Charter of the United Nations. And the General Assembly has not acted ultra vires in making such a request. The Court confirmed the competence of the General Assembly in dealing with the question of Palestine in the Wall advisory opinion.9 In the meantime, the questions of the legal consequences of Israel’s policies and practices in relation to its continued violation of the Palestinian people’s right to self-determination and its occupation of the Palestinian territories, as raised in General Assembly Resolution 77/247, involve the interpretation and application of the rules and principles of international law. The questions are therefore legal questions.
(b) There is no compelling reason for the Court to decline to exercise jurisdiction in this case
10．Article 65 of the Statute of the International Court of Justice provides that the Court “may give an advisory opinion on any legal question” (emphasis added). The Court therefore has discretionary power in deciding whether or not to give an advisory opinion. As the Court has
an opinion is required, and accompanied by all documents likely to throw light upon the question.”
9 See Wall, paras. 24-28.
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consistently affirmed in its advisory opinions, to answer a request for an advisory opinion is an important way for the Court, as the principal judicial organ of the United Nations, to participate in the work of the Organization. The Court emphasized that it “should in principle not decline to give an advisory opinion”.
10
11．In deciding whether to exercise its advisory jurisdiction, the International Court of Justice takes into account a variety of factors. The Court’s jurisprudence is consistent: only “compelling reasons” should lead the Court to refuse to give its opinion.11 One of the most important considerations is whether giving an advisory opinion would circumvent the principle that a State is not obliged to allow its disputes to be submitted to judicial settlement without its consent.12 The Court, in its 1975 Western Sahara advisory opinion, pointed out that “lack of consent might constitute a ground for declining to give the opinion requested if, in the circumstances of a given case, considerations of judicial propriety should oblige the Court to refuse an opinion.”13
12．In this case, delivering an advisory opinion by the International Court of Justice would not circumvent the principle of consent. The question of Palestine, while involving both Israel and Palestine, also concerns international peace and security, and is closely related to the responsibilities of the United Nations. In the Wall advisory opinion, the Court “[did] not consider that the subject-matter of the General Assembly’s request can be regarded as only a bilateral matter between Israel and Palestine” and stated that the question “is located in a much
10 Wall, para. 44.
11 Wall, para. 44.
12 See Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion, I.C.J. Reports 2019, p. 95 [hereinafter Separation of Chagos], para. 85.
13 Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 12 [hereinafter Western Sahara or “Western Sahara advisory opinion”], para. 32.
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broader frame of reference than a bilateral dispute”.14
13．The United Nations’ responsibility for the question of Palestine has its root in the “Mandate” system of the League of Nations.15 The question of Palestine has always been an important part of the work of the UN since its founding. For more than 70 years, the UN has approached the question of Palestine as a matter of international peace and security.16 The UN Security Council and General Assembly have adopted numerous resolutions in this regard.17 Moreover, the UN General Assembly resolutions have reaffirmed “the permanent responsibility of the United Nations with regard to the question of Palestine until the question is resolved in all its aspects in accordance with international law and relevant resolutions.”18 The Court also noted in the Wall advisory opinion that “[g]iven the powers and responsibilities of the United Nations in questions relating to international peace and security”, the question regarding Palestine for which the Court’s advisory opinion was requested “must be deemed to be directly of concern to the United Nations”.19
14．As the principal judicial organ of the United Nations, the International Court of Justice’s giving of an advisory opinion on relevant
14 Wall, paras. 49, 50.
15 For the discussion of the legal basis for this kind of “succession” by the UN to the responsibility under the “Mandate” system of the League of Nations, see International Status of South-West Africa, Advisory Opinion, I.C.J. Reports 1950, p. 137.
16 Related resolutions at the early phase includes UN Security Council Resolutions S/RES/42(1948), S/RES/43(1948), S/RES/44(1948), S/RES/46(1948); UN General Assembly Resolution 181(II) requests “[t]he Security Council consider…whether the situation in Palestine constitutes a threat to the peace.”
17 See UN website on the question of Palestine, available at: https://www.un.org/unispal/data-collection/security-council/ and https://www.un.org/unispal/data-collection/general-assembly/.
18 UN General Assembly Resolution A/RES/66/17 (30 November 2011). See also UN General Assembly resolutions A/RES/57/107 (3 December 2002), A/RES/ES-10/15 (20 July 2004), etc.
19 Wall, para. 49.
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legal questions in this case represents its participation in such a special and important aspect of United Nations activities in accordance with its mandate and competence,20 rather than ruling on bilateral disputes between Palestine and Israel.
15．Based on the aforementioned considerations, the International Court of Justice has jurisdiction to give an advisory opinion, and there is no compelling reason for the Court to decline to exercise jurisdiction in this case. The Court should, as requested by the UN General Assembly Resolution 77/247, focus on legal questions, so as to provide legal guidance to the UN in handling the question of Palestine and contribute to an appropriate solution to the question.
II. Rules of belligerent occupation under international humanitarian law are applicable in the Occupied Palestinian Territory, and Israel’s relevant policies and practices have violated its obligations as the occupying Power under these rules
16．International armed conflict has existed in the Occupied Palestinian Territory since 1967. At the time of the outbreak of the armed conflict in 1967, both Israel and Jordan were parties to the Geneva Convention relative to the Protection of Civilian Persons in Time of War, 1949 (hereinafter the “Fourth Geneva Convention”).21 The State of Palestine acceded to the four Geneva Conventions, including the Fourth Geneva Convention, on 2 April 2014. All forms of armed conflicts between the above-mentioned High Contracting Parties, whether or not a state of war is recognized by the parties, are international armed conflicts. The rules of international humanitarian law, including the Fourth Geneva
20 Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory Opinion, I.C.J. Reports 1950, p. 71.
21 Wall, para. 101.
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Convention, apply thereto.
22
17．Israel has occupied East Jerusalem and other Palestinian territories since the 1967 armed conflict, and the rules of belligerent occupation under international humanitarian law shall apply.23 The International Court of Justice has held in the Wall advisory opinion that Israel is the occupying Power and that the occupied territories are “the Palestinian territories which before the conflict lay to the east of the Green Line and which, during that conflict, were occupied by Israel”,24 and that the Fourth Geneva Convention is applicable in the occupied territories.25 The UN Security Council and General Assembly resolutions, including Security Council Resolution 465 (1980), have also repeatedly affirmed that the Fourth Geneva Convention “is applicable to the Arab territories occupied by Israel since 1967, including Jerusalem”.26
22 Common Article 2, paragraph 1, of the four Geneva Conventions of 1949 provides that:
“In addition to the provisions which shall be implemented in peacetime, the present Convention shall apply to al1 cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.”
Paragraph 2 provides that: “The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.”
The International Court of Justice has accordingly held that the Fourth Geneva Convention of 1949 is applicable when two conditions are fulfilled:
“[T]hat there exists an armed conflict (whether or not a state of war has been recognized); and that the conflict has arisen between two contracting parties. If those two conditions are satisfied, the Convention applies, in particular, in any territory occupied in the course of the conflict by one of the contracting parties.” See Wall, para. 95.
23 See Wall, paras. 78, 101.
24 Wall, para. 101. The armistice agreement between Israel and Jordan was signed in Rhodes on 3 April 1949. Articles V and VI of that Agreement fixed the armistice demarcation line between Israeli and Arab forces (often later called the “Green Line” owing to the colour used for it on maps; hereinafter the “Green Line”). See Wall, para. 72.
25 See Wall, para. 101.
26 Similar expressions can also be found in, inter alia, UN Security Council Resolutions S/RES/237(1967), S/RES/271(1969), S/RES/446(1979), S/RES/681(1990), S/RES/799(1992), S/RES/904(1994), and UN General Assembly Resolutions A/RES/56/60 (10 December 2001), A/RES/ES-10/13 (21 October 2003), A/RES/58/97 (9 December 2003) and A/RES/ES-10/15 (20 July 2004).
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(a) Rules of belligerent occupation under international humanitarian law are applicable in the Occupied Palestinian Territory
18．The law of belligerent occupation is an important regime under international humanitarian law. The rules of belligerent occupation first appeared in Regulations concerning the Laws and Customs of War on Land annexed to Convention (II) with Respect to the Laws and Customs of War on Land of 1899, upon which subsequently were built the Regulations concerning the Laws and Customs of War on Land annexed to Convention (IV) respecting the Laws and Customs of War on Land of 1907. These rules are enriched and developed by the Fourth Geneva Convention of 1949,27 and have formed a fairly complete regime of law of belligerent occupation.
19．Article 42 of the Regulations concerning the Laws and Customs of War on Land of 1907 provides an authoritative definition of occupation, which states that “[t]erritory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.”28 If the relevant elements are found, an occupation would be considered existent with or without the recognition by the parties concerned. In its 2005 Judgment in Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), the Court stated that in ascertaining the existence or not of an occupation, it must examine “whether there is sufficient evidence to demonstrate that
27 According to Article 154 of the Fourth Geneva Convention of 1949, this Convention shall be supplementary to Sections II and III of the Regulations concerning the Laws and Customs of War on Land of 1907 (Section III is “Military Authority over the Territory of the Hostile State”). Hence, the obligations of the occupying Power should be examined by reference to both the Regulations concerning the Laws and Customs of War on Land and the Fourth Geneva Convention.
28 Applied in Wall, para. 78; Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Merits, Judgment, I.C.J. Reports 2005, p. 168 [hereinafter Armed Activities], para. 172.
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the said authority was in fact established and exercised by the intervening State in the areas in question.”29
20．According to international humanitarian law, the occupying Power exercises provisional authority over the occupied territory during a state of belligerency. Belligerent occupation does not transfer the territorial sovereignty of the occupied State over the occupied territory. Pursuant to Article 43 of the Regulations concerning the Laws and Customs of War on Land of 1907 , “[t]he authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.” The occupying Power is responsible for the administration of public order and civilian life in the occupied territory, in accordance with two sets of rules: the rules of military administration on the one hand, and the rules of protection of civilians and property on the other.
21．As far as the rules of military administration are concerned, by virtue of Articles 44 to 56 of the Regulations concerning the Laws and Customs of War on Land of 1907 and the provisions mentioned in Article 6, paragraph 3 of the Fourth Geneva Convention of 1949,30 among others, the occupying Power may exercise authority over the occupied territory, including over aspects of public security, material supplies, medical care, finance, taxation, education, legislation and the judiciary.
22．As far as the rules on the protection of civilians and property are concerned, according to, inter alia, Articles 44 to 56 of the Regulations concerning the Laws and Customs of War on Land of 1907
29 Armed Activities, para. 173.
30 Article 6(3) of the Fourth Geneva Convention of 1949 refers to these specific provisions: “the Occupying Power shall be bound, for the duration of the occupation, to the extent that such Power exercises the functions of government in such territory, by the provisions of the following Articles of the present Convention: 1 to 12, 27, 29 to 34, 47, 49, 51, 52, 53, 59, 61 to 77, 143.”
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and Articles 27 to 34 and 47 to 78 of the Fourth Geneva Convention of 1949, among others, the occupying Power is obliged to protect the well-being of the civilian population in the occupied territory, such as, to respect the legal status of the civilian population, guarantee the fundamental rights of the civilian population and protect public and private property.
23．Belligerent occupation shall not have the effect of annexation. Annexation is the acquisition of sovereignty over the territory of another State by unlawful means, such as threat or use of force. Under the framework of jus ad bellum, Article 2(4) of the Charter of the United Nations prohibits the threat or use of force to acquire territory and any acquisition of territory by the threat or use of force is illegal. At the same time, under the framework of jus in bello, belligerent occupation is limited to the temporary administration by the occupying Power in the territory of another State and does not confer the sovereignty over the occupied territory upon the occupying Power. It is hence unlawful for an occupying Power to overstep its temporary authority and to seize the sovereignty over the occupied territory in any manner or by any means that would have the effect of de facto or de jure annexation.31
(b) Israel’s relevant policies and practices have violated its obligations as the occupying Power
24．As the occupying Power, Israel is under an obligation to comply with the rules of belligerent occupation under international humanitarian law, including the obligation to perform its military administrative duties in good faith and the obligation to protect civilians and property. In the Wall advisory opinion, the International Court of Justice found that Israel’s construction of the wall and its associated
31 See Wall, para. 87; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, p. 50, paras. 187-190.
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régime in the Occupied Palestinian Territory violated its obligations as the occupying Power,
32 including the obligations to restore and ensure public order and safety,33 not to deprive “[p]rotected persons who are in occupied territory ... of the benefits”,34 to respect local legislation,35 to protect the property of the occupied territory,36 not to demand excessive requisitions and services,37 to protect the interests of workers,38 not to forcibly transfer and deport civilians,39 and to facilitate humanitarian relief.40
25．China notes the ongoing tensions between Israel, the occupying Power, and the civilian population in the Occupied Palestinian Territory. Whether the tensions or problems occur in Israeli law enforcement against civilians in the Occupied Palestinian Territory, or in the armed conflict between Israel and Palestine, the relevant rules of international humanitarian law shall apply. Israel shall, among other things, refrain from deliberately attacking civilians and civilian objects, and from causing disproportionate collateral damage to civilians.
32 Wall, paras. 124-126, 132-134.
33 Article 43 of the Regulations concerning the Laws and Customs of War on Land of 1907.
34 Article 47 of the Fourth Geneva Convention of 1949.
35 Article 43 of the Regulations concerning the Laws and Customs of War on Land of 1907 requires: “respecting, unless absolutely prevented, the laws in force in the country”. Article 64 of the Fourth Geneva Convention of 1949 further elaborates on the meaning of “absolutely prevented” by providing that “The penal laws of the occupied territory shall remain in force, with the exception that they may be repealed or suspended by the Occupying Power in cases where they constitute a threat to its security or an obstacle to the application of the present Convention.”
36 Article 46 of the Regulations concerning the Laws and Customs of War on Land of 1907, and Article 53 of the Fourth Geneva Convention of 1949.
37 Article 52 of the Regulations concerning the Laws and Customs of War on Land of 1907.
38 Article 52 of the Fourth Geneva Convention of 1949.
39 Article 49 of the Fourth Geneva Convention of 1949.
40 Article 59 of the Fourth Geneva Convention of 1949.
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(c) Israel’s relevant policies and practices are suspected of constituting annexation
26．As repeatedly stressed by the UN Security Council resolutions, Israel must not annex the Occupied Palestinian Territory. For example, Security Council Resolution 242, adopted unanimously after the 1967 armed conflict, explicitly emphasizes the “inadmissibility of the acquisition of territory by war”. Security Council Resolution 298 (1971) reaffirms the “principle that acquisition of territory by military conquest is inadmissible”. And Security Council Resolution 2334 (2016) restates the “inadmissibility of the acquisition of territory by force”.
27．China notes that the Security Council has determined that Israel’s claim to Jerusalem as its capital, by changing the character and status of Jerusalem through domestic legislation, is null and void.41 The Security Council has also called for the realization of the two-State solution, with Israel and Palestine living side by side in peace and security based on the 1967 lines.42
28．China notes that the International Court of Justice in its 2004 Wall advisory opinion has found that the Israeli settlements were in violation of international humanitarian law.43 The Court further observed that Israel’s “construction of the wall and its associated régime create a ‘fait accompli’ on the ground that could well become permanent, in which case ... would be tantamount to de facto annexation”.44
41 For example, the UN Security Council Resolution 298 (1971) “[c]onfirms in the clearest possible terms that all legislative and administrative actions taken by Israel to change the status of the City of Jerusalem ... aimed at the incorporation of the occupied section, are totally invalid and cannot change that status”.
The Security Council Resolution 478 (1980) “[d]etermines ... that all legislative and administrative measures and actions taken by Israel, the occupying Power, which have altered or purported to alter the character and status of the Holy City of Jerusalem, and in particular the recent ‘basic law’ on Jerusalem, are null and void and must be rescinded forthwith.”
42 See UN Security Council Resolution S/RES/2334 (2016).
43 Wall, para. 120.
44 Wall, para. 121.
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29．China believes that it is necessary for the Court to further clarify whether the prolonged occupation by Israel of the Occupied Palestinian Territory and Israel’s relevant policies and practices have changed the character of the occupied territories, and whether they are consistent with the purposes of the belligerent occupation regime.
III. International human rights law is applicable in the Occupied Palestinian Territory, and Israel’s relevant policies and practices have violated its obligations under international human rights conventions
30. In principle, international human rights law shall apply in the occupied territory. Israel is a Member State of the United Nations, and a State Party to a number of international human rights conventions.45 These human rights conventions are applicable in the Occupied Palestinian Territory. It is also confirmed by the International Court of Justice in the Wall advisory opinion that international human rights law remains applicable during armed conflicts.46
(a) International human rights conventions to which Israel is a State Party are applicable in the Occupied Palestinian Territory
31. In accordance with the scope of application provisions found in a number of international human rights conventions to which Israel is a State Party, such conventions are applicable in the Occupied Palestinian
45 Israel became a Member State of the United Nations on 11 May 1949, ratified the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) on 3 January 1979, ratified the International Covenant on Economic, Social and Cultural Rights (ICESCR), the International Covenant on Civil and Political Rights (ICCPR), the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), and the Convention on the Rights of the Child (CRC) on 3 October 1991, and ratified the Convention on the Rights of Persons with Disabilities (CPRD) on 28 September 2012.
46 Wall, para. 106.
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Territory. Article 2, paragraph 1, of the 1966 International Covenant on Civil and Political Rights (ICCPR) stipulates that for each State Party, the Covenant applies to “all individuals within its territory and subject to its jurisdiction”. After examining the object and purpose of the Covenant in the Wall advisory opinion, the International Court of Justice found that the Covenant is applicable in respect of acts done by a State “in the exercise of its jurisdiction outside its own territory”.
47 Article 2 of the 1989 Convention on the Rights of the Child,48 Article 3 of the 1965 International Convention on the Elimination of All Forms of Racial Discrimination49 and Article 2 of the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment50 all contain provisions similar to Article 2, paragraph 1, of the ICCPR, and these conventions shall similarly apply to the Occupied Palestinian Territory.
32. Despite the fact that some international human rights conventions to which Israel is a State Party contain no provisions on their scope of application. Such conventions shall, in principle, be applicable in the Occupied Palestinian Territory. For example, in the Wall advisory opinion, the International Court of Justice found that although the International Covenant on Economic, Social and Cultural Rights (ICESCR) carries no provision on its scope of application, this Covenant shall not be excluded that it “applies both to territories over which a State
47 Wall, paras. 108-111.
48 Article 2 of the Convention on the Rights of the Child reads as follows: “States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind ...”. See also Wall, para. 113
49 Article 3 of the International Convention on the Elimination of All Forms of Racial Discrimination reads as follows: “States Parties particularly condemn racial segregation and apartheid and undertake to prevent, prohibit and eradicate all practices of this nature in territories under their jurisdiction.”
50 Article 2, paragraph 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment reads as follows: “Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.”
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Party has sovereignty and to those over which that State exercises territorial jurisdiction”.51 Similar conventions include, but are not limited to, the Convention on the Elimination of All Forms of Discrimination against Women and the Convention on the Rights of Persons with Disabilities.
(b) Israel has violated its obligations under international human rights conventions
33. Israel is obliged to respect, protect and promote the human rights enjoyed by the Palestinian people in the Occupied Palestinian Territory. As a State Party to the Charter of the United Nations and the aforementioned human rights conventions, Israel shall safeguard to individuals within its territory and in the Occupied Palestinian Territory: the right to life, liberty and security of person, the freedom of thought, conscience and religion, the right to work, the right to education, and the freedom of expression, peaceful assembly and association with others, and so forth. Meanwhile, Israel also bears the obligations including, among others: not to expel any person without a decision reached in accordance with law, not to practice apartheid, not to commit torture or other cruel, inhuman or degrading treatment or punishment.
34. The International Court of Justice found in the Wall advisory opinion that, through the construction of the wall in the Occupied Palestinian Territory and its associated régime, Israel violated a number of human rights of the Palestinian people, including impeding the liberty of movement of the inhabitants in the Occupied Palestinian Territory, and impeding the exercise by the affected population of their right to work, to health, to education, and to an adequate standard of living.52
35. China notes that the UN General Assembly Resolution 77/247
51 Wall, para. 112.
52 See Wall, paras. 127-134.
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expresses, in the preamble, grave concern about the continuing systematic violation of the human rights of the Palestinian people by Israel, the occupying Power, and points out, in paragraph 2, that the policies and practices of Israel in the Occupied Palestinian Territory, including, inter alia, the killing and injuring of civilians, the arbitrary detention and imprisonment of civilians,
53 the forced displacement of civilians,54 the destruction and confiscation of civilian property, the depletion of natural resources,55 and the enactment of discriminatory legislation and measures,56 violate the human rights of the Palestinian people.
IV. The Palestinian people have the inalienable right to self-determination and Israel has seriously impeded the realization of this right
36. The principle of self-determination of peoples became a fundamental principle of international law in the course of the decolonization movement, serving as an international legal basis for the liberation of peoples under colonial rule and foreign occupation.57 The
53 See also UN Security Council Resolution 605 (1987), which “[s]trongly deplores those policies and practices of Israel, the occupying Power, which violate the human rights of the Palestinian people in the occupied territories, and in particular the opening of fire by the Israeli army, resulting in the killing and wounding of defenceless Palestinian civilians”.
54 See also UN Security Council Resolution 2334 (2016), which condemns “the construction and expansion of settlements, transfer of Israeli settlers, confiscation of land, demolition of homes and displacement of Palestinian civilians”.
55 See also UN Security Council Resolution 465 (1980), which takes into account “the need to consider measures for the impartial protection of private and public land and property, and water resources”, and requests investigation into “the reported serious depletion of natural resources, particularly the water resources, with a view to ensuring the protection of those important natural resource of the territories under occupation”.
56 See also UN General Assembly Resolution A/RES/66/17 (30 November 2011), which expresses deep concern on “the continuing Israeli policy of closures and severe restrictions ... via the imposition of prolonged closures and severe economic and movement restrictions that in effect amount to a blockade ... and the consequent negative impact on ... the serious socio-economic and humanitarian situation of the Palestinian people”.
57 See Declaration on the Granting of Independence to Colonial Countries and Peoples, A/RES/1514 (XV) (14 December 1960); Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter - 18 -
principle of self-determination of peoples was first established in the Charter of the United Nations. Article 1, paragraph 2 of the Charter explicitly stipulates that “[t]o develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples” as one of the purposes of the United Nations. Article 55 of the Charter further requires the United Nations to create conditions of economic, social, cultural and human rights progress “which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples”. The principle of self-determination was subsequently further enriched and solidified into a fundamental principle of international law by the Declaration on the Granting of Independence to Colonial Countries and Peoples, adopted by the UN General Assembly Resolution 1514 (XV) in 1960, and the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations (hereinafter the “Friendly Relations Declaration”), adopted by the UN General Assembly Resolution 2625 (XXV) in 1970. The right to self-determination of peoples was further recognized as a collective right in Common Article 1 of the 1966 ICESCR and ICCPR.
(a) The right to self-determination of peoples has its specifically defined scope of application
37. The socio-historical context of the origin and evolution of the right to self-determination of peoples determines that the holder of this right are peoples under colonial rule or foreign occupation, which means the scope of application of this right is confined to two scenarios, namely colonial rule and foreign occupation. To date, the cases where the UN
of the United Nations, A/RES/2625 (XXV) (24 October 1970), Annex [hereinafter the Friendly Relations Declaration], “The principle of equal rights and self-determination of peoples”.
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General Assembly and Security Council have found the right to self-determination applicable all belong to these two scenarios.
58 The cases where the International Court of Justice has applied or invoked the right to self-determination of peoples, including Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970),59 West Sahara,60 Wall,61 and Separation of Chagos62 all fall in the aforementioned scope of application. After the general completion of the decolonization process, the scope of application of the right to self-determination remains unchanged. This is reflected in a number of important instruments adopted by the UN General Assembly in recent years, including, inter alia, the United Nations Millennium Declaration adopted in 2000,63 the Universal Realization of the Right to Peoples to Self-Determination adopted in 2001,64 and the World Summit Outcome
58 Including Palestine, Southern Rhodesia, Namibia, Western Sahara, East Timor, Territories under Portuguese administration, and Pacific Islands, etc. See, e.g., United Nations General Assembly Resolutions A/RES/1755 (XVII) (12 October 1962), A/RES/2138 (XXI) (22 October 1966), A/RES/2151 (XXI) (17 November 1966), A/RES/2379 (XXIII) (25 October 1968), A/RES/2383 (XXIII) (7 November 1968), A/RES/2795 (XXVI) (10 December 1971), A/RES/3236 (XXIX) (22 November 1974), A/RES/3292 (XXIX) (13 December 1974), A/RES/58/163 (22 December 2003), and Security Council Resolutions S/RES/180 (1963), S/RES/183 (1963), S/RES/218 (1965), S/RES/301 (1971), S/RES/384 (1975), S/RES/621 (1988) and S/RES/683 (1990).
59 See Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 16, para. 52.
60 See Western Sahara, paras. 54-59.
61 See Wall, paras. 88, 118.
62 See Separation of Chagos, para. 160.
63 UN General Assembly Resolution A/RES/55/2 (8 September 2000), para. 4: “We rededicate ourselves to support all efforts to uphold the sovereign equality of all States, respect for their territorial integrity and political independence, resolution of disputes by peaceful means and in conformity with the principles of justice and international law, the right to self-determination of peoples which remain under colonial domination and foreign occupation.”
64 UN General Assembly Resolution A/RES/56/141 (19 December 2001), para. 1: “Reaffirms that the universal realization of the right of all peoples, including those under colonial, foreign and alien domination, to self-determination is a fundamental condition for the effective guarantee and observance of human rights and for the preservation and promotion of such - 20 -
adopted in 2005.65
38. Under international law, there is no such right as the so-called “remedial secession” or “remedial self-determination”. China’s position in this regard has been consistent and was made clear in the proceedings in the advisory case of Accordance with International Law of the Unilateral Declaration of Independence in respect of Kosovo (hereinafter Kosovo).66 The principle of respect for State sovereignty and territorial integrity constitutes a fundamental principle of international law which goes to the core of, and lays down the basis for, the contemporary international legal order. This fundamental principle is unequivocally set forth in the Charter of the United Nations, the 1970 Friendly Relations Declaration,67 and a series of other international legal instruments. The so-called right to “remedial secession” contradicts the principle of respect for State sovereignty and territorial integrity. The right to self-determination of peoples shall not apply to any integral part of a sovereign State. The right to self-determination of peoples is no basis for any part of a sovereign State to claim a so-called right to secession. Neither does international law permit any unilateral secession by any part of a sovereign State. As of today, no State practice or opinio juris
rights.”
65 UN General Assembly Resolution A/RES/60/1 (16 September 2005), para. 5: “We rededicate ourselves to support all efforts to uphold the sovereign equality of all States, respect their territorial integrity and political independence, to refrain in our international relations from the threat or use of force in any manner inconsistent with the purposes and principles of the United Nations, to uphold resolution of disputes by peaceful means and in conformity with the principles of justice and international law, the right to self-determination of peoples which remain under colonial domination and foreign occupation.”
66 See Written Statement of the People’s Republic of China to the International Court of Justice on the Issue of Kosovo, 16 April 2009, available at: https://www.icj-cij.org/files/case-related/141/15611.pdf.
67 Friendly Relations Declaration, “The principle of equal rights and self-determination of peoples”, para. 7: “Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour.”
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supports such a claim under customary international law. The International Court of Justice did not find, nor support, the so-called “remedial secession” or “remedial self-determination” in the Kosovo advisory opinion.
68
(b) The right to self-determination of peoples has its specifically defined content and means of realization
39. The right to self-determination of peoples is generally regarded as a collective right with the status of customary international law, and has its specific connotations. The content and scope of this right are clarified in the 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples, which states that “[a]ll peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development”. The International Court of Justice has found that this Declaration has “a declaratory character with regard to the right to self-determination as a customary norm”.69
40. Common Article 1 of the 1966 ICESCR and ICCPR builds upon the provisions of the 1960 Declaration and reaffirms that “[a]ll peoples have the right to self-determination” and, by virtue of that right, “they freely determine their political status and freely pursue their economic, social and cultural development.” Additionally, the two Covenants add the right to freely dispose of their natural wealth and resources to the right to self-determination. The two Covenants each place the right to self-determination of peoples at the beginning and before individual rights stipulated in the Covenants as “an essential condition for the effective guarantee and observance of individual human rights and for the
68 Accordance with International Law of the Unilateral Declaration of Independence in respect of Kosovo, Advisory Opinion, I.C.J. Reports 2010, p. 403, para. 83.
69 Separation of Chagos, paras. 150, 152.
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promotion and strengthening of those rights”.
70
41. The two Covenants contain no clear definition of the term “all peoples”. However, international practice demonstrates that the term “all peoples” shall be read as confined to peoples under colonial domination or foreign occupation. At the same time, the term “all peoples” implies that the right to self-determination of peoples is a collective right, distinct from individual rights. The right to self-determination occupies the primary position among the various human rights and lays the foundation for other individual human rights. In other words, if a nation under colonial rule or foreign occupation cannot achieve self-determination, there will be no human rights of any individual of that nation to speak of.
42. The 1970 Friendly Relations Declaration reaffirms the nature and scope of the right to self-determination of peoples71 and provides that the following ways constitute modes of implementing the right to self-determination: first, the establishment of an independent sovereign State; second, the free association or integration with an independent State; third, the emergence into any other political status freely decided by the peoples.
(c) United Nations organs support the Palestinian people in exercising their right to self-determination
43. The International Court of Justice affirmed in the Wall advisory opinion, that the “legitimate rights” of the Palestinian people under international law include the right to self-determination.72 The right to self-determination of the Palestinian people has been consistently reaffirmed in the resolutions of the UN General Assembly and the Human Rights Council. For example, UN General Assembly Resolution 3089
70 See UN Human Rights Committee General Comment No. 12 of 1984: Article 1 (The right to self-determination of peoples), para. 1.
71 See Separation of Chagos, para. 155.
72 Wall, paras. 88, 118.
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(XXVIII) of 1973 affirms “that the people of Palestine is entitled to equal rights and self-determination in accordance with the Charter of the United Nations”. UN General Assembly Resolution 3236 (XXIX) of 1974 further states that the inalienable rights of the Palestinian people include “[t]he right to self-determination without external interference,” and “[t]he right to national independence and sovereignty”. UN General Assembly Resolutions 77/208 and 77/247 of 2022 “urges all States and the specialized agencies and organizations of the United Nations system” to continue to support and assist the Palestinian people in the early realization of their right to self-determination.
44. The UN Human Rights Council has also adopted multiple resolutions supporting “the inalienable, permanent and unqualified right to the Palestinian people to self-determination, including their right to live in freedom, justice and dignity, and the right to their independent State of Palestinian,” and urged “all States to adopt measures as required to promote the realization of the right to self-determination of the Palestinian people, and to render assistance to the United Nations in carrying out the responsibilities entrusted to it by the Charter regarding the implementation of this right.”73
(d) Israel’s relevant policies and practices have seriously impeded the realization of the Palestinian people’s right to self-determination
45. The right to self-determination enjoyed by the Palestinian people in accordance with international law shall be fully protected. In 1988, the Palestinian people exercised their right to self-determination and decided to establish an independent sovereign State. They issued the Declaration of Independence, which accepted the UN General Assembly Resolution
73 UN Human Rights Council Resolution A/HRC/RES/34/29 (24 March 2017), paras. 1, 6. See also A/HRC/RES/37/34 (23 March 2018), A/HRC/RES/40/22 (22 March 2019), and A/HRC/RES/49/28 (1 April 2022).
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181 (II) and declared the establishment of the State of Palestine with Jerusalem as its capital. The prolonged Israeli occupation, the establishment of settlements, the annexation of East Jerusalem and relevant discriminatory legislation, among other measures taken by Israel, have seriously impeded the realization of the right to self-determination of the Palestinian people, including, inter alia, the full exercise of the right to establish an independent State, the right to freely pursue economic, social and cultural development and the right to freely dispose of their natural wealth and resources.
46. China believes that it is necessary for the International Court of Justice to further elaborate on the remedial measures impeding the realization of the right to self-determination, so as to guarantee the full exercise of the Palestinian people’s inalienable right to self-determination, and to promote common security and common development in the region.
V. Israel bears relevant State responsibility for its wrongful acts, while other States and the United Nations also shoulder relevant obligations and responsibilities
47. The policies and practices of Israel have violated international humanitarian law and international human rights law, and severely impeded the realization of the right to self-determination of the Palestinian people. Israel therefore bear State responsibility for these violations, and other States and the United Nations also shoulder relevant obligations and responsibilities.
(a) The State responsibility of Israel
48. In accordance with customary international law on State responsibility, every internationally wrongful act of a State entails the international responsibility of that State. The content of such - 25 -
responsibility may include continued duty of performance, cessation and non-repetition as well as reparation.
74
49. The International Court of Justice pointed out in the Wall advisory opinion that Israel is obliged to comply with its international obligations and to cease forthwith the works of construction of the wall being built in the Occupied Palestinian Territory, including in and around East Jerusalem, to dismantle forthwith the structure therein situated, to repeal or render ineffective forthwith all legislative and regulatory acts relating thereto, and to make reparation for all damage caused by the construction of the wall.75
50. China notes the fact that UN Security Council Resolution 298 (1971) has already confirmed “in the clearest possible terms that all legislative and administrative actions taken by Israel to change the status of the City of Jerusalem ... are totally invalid and cannot change status”. The International Court of Justice should confirm that Israel’s relevant policies and practices cannot change the legal status of the Occupied Palestinian Territory, and that Israel is under an obligation to remove obstacles to the realization of the right to self-determination of the Palestinian people.
(b) Obligations of other States
51. Under customary international law, a State shall not aid or assist the internationally wrongful act of another State. Hence other States are under the obligation not to recognize, aid or assist the acquisition of territory through threat or use of force in violation of the Charter of the United Nations. Other States are obliged, consistent with UN Security
74 See Part One, Chapter I, Part Two, Chapters I and II of Draft Articles on Responsibility of States for Internationally Wrongful Acts, adopted by the International Law Commission in 2001, UN Doc. Supplement No. 10 (A/56/10), chp. IV.E.1. The aforementioned provisions are considered to be reflecting of rules of customary international law.
75 See Wall, paras. 149-153.
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Council Resolution 2334 (2016), not to recognize “any changes to the 4 June 1967 lines, including with regard to Jerusalem”, and to “distinguish, in their relevant dealings, between the territory of the State of Israel and the territories occupied since 1967”.
76
52. In accordance with Common Article 1 of the Geneva Conventions, all Contracting Parties are obliged to respect and ensure the respect for international humanitarian law.77
53. As for the violation of human rights of the Palestinian people by Israel, UN General Assembly Resolution 77/247 calls on all States and the specialized agencies and organizations of the United Nations system to, as a matter of urgency, “continue to support and assist the Palestinian people in the early realization of their inalienable human rights, including their right to self-determination”.78
(c) Responsibilities of the United Nations
54. The United Nations has the responsibility to take appropriate actions based on this Advisory Opinion. As was pointed out by the International Court of Justice in the Wall advisory opinion, it “considers that it has a duty to draw the attention of the General Assembly, to which the present Opinion is addressed, to the need for these efforts [to initiate negotiations] to be encouraged with a view to achieving as soon as possible, on the basis of international law, a negotiated solution to the outstanding problems and the establishment of a Palestinian State, existing side by side with Israel and its other neighbors, with peace and security for all in the region.”79
76 UN Security Council Resolution S/RES/2334(2016) (23 December 2016), paras. 3, 5.
77 Common Article 1 of the four Geneva Conventions of 1949 stipulates that “[t]he High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.”
78 See UN General Assembly Resolution A/RES/77/247 (30 December 2022), para. 16.
79 See Wall, para. 162.
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VI. Promoting a comprehensive, just and lasting settlement of the question of Palestine through concrete actions
55. The comprehensive, just and lasting settlement of the question of Palestine bears on regional peace and stability, international fairness and justice, the uniform interpretation and equal application of international law, and the common security and development of Palestine and Israel. China all along has been firmly supporting the Palestinian people’s just cause of restoring their legitimate national rights,80 and all the efforts that are conducive to the settlement of the question of Palestine. China believes that dialogue and negotiation between Palestine and Israel as equal parties should be advanced on the basis of the two-state solution, relevant United Nations resolutions, the “land for peace” principle and the Arab Peace Initiative, among other international consensus and norms.81
56. On 14 June 2023, during his talks with Palestinian President Mahmoud Abbas, the Chinese President Xi Jinping put forward a three-point proposal for the settlement of the question of Palestine, which is the most authoritative elaboration on China’s position on this issue. First, the fundamental solution to the question of Palestine lies in the establishment of an independent State of Palestine that enjoys full sovereignty on the basis of the 1967 borders and with East Jerusalem as
80 China has always participated constructively in discussions on issues related to the question of Palestine in the UN Security Council and the General Assembly, and has hosted four Palestine-Israel Peace Symposia respectively in 2006, 2013, 2017 and 2021. In 2002, the Chinese Government established the position of Special Envoy on the Middle East Issue. The successive Special Envoys have visited Palestine, Israel and other relevant States multiple times, and worked constructively for the political settlement of the question of Palestine. In February 2023, China issued the Global Security Initiative Concept Paper, and again called upon the international community to take practical steps to advance the two-State solution and to the question of Palestine, and convene a larger, more authoritative and more influential international peace conference, so as to achieve a just solution to the question of Palestinian at an early date.
81 See Position Paper of the People’s Republic of China on the 75th Anniversary of the United Nations, https://www.gov.cn/xinwen/2020-09/11/content_5542461.htm, English version available at: http://www.xinhuanet.com/english/139358852_15997405943091n.pdf.
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its capital. Second, Palestine’s economic and livelihood needs should be met, and the international community needs to step up development assistance and humanitarian aid to Palestine. Third, it is important to keep to the right direction of peace talks. The historical status quo of the holy sites in Jerusalem should be respected, and excessive and provocative words and actions should be avoided. A large-scale, more authoritative and more influential international peace conference should be convened so as to create conditions for the resumption of peace talks and contribute tangible efforts to help Palestine and Israel live in peace. China stands ready to play a positive role in helping Palestine achieve internal reconciliation and promoting peace talks.82
57. The settlement of the question of Palestine depends on the collective efforts of both Palestine and Israel, and the international community as well. The Chinese Government encourages both parties to accommodate each other’s reasonable concerns, and to properly solve their disputes through political and diplomatic channels in accordance with international law. The Chinese Government is willing to join other members of the international community to actively contribute to the early settlement of the question of Palestine and the realization of lasting peace and stability in the Middle East.
58. The General Assembly and the Security Council should take concrete actions in light of relevant advisory opinions of the International Court of Justice, to promote the proper settlement of the question of Palestine.
82 Xi Jinping Holds Talks with Palestinian President Mahmoud Abbas, 14 June 2023, available at: https://www.mfa.gov.cn/eng/zxxx_662805/202306/t20230618_11099414.html.
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