Written statement of the United Kingdom

INTERNATIONAL COURT OF JUSTICE
LEGAL CONSEQUENCES ARISING FROM THE POLICIES AND
PRACTICES OF ISRAEL IN THE OCCUPIED PALESTINIAN
TERRITORY, INCLUDING EAST JERUSALEM
(REQUEST BY THE UNITED NATIONS GENERAL ASSEMBLY FOR AN
ADVISORY OPINION)
WRITTEN STATEMENT
THE UNITED KINGDOM OF GREAT BRITAIN AND
NORTHERN IRELAND
20 JULY 2023

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TABLE OF CONTENTS
CHAPTER I - INTRODUCTION ........................................................................................ 1
CHAPTER II - BACKGROUND ......................................................................................... 4
A. The bilateral dispute ..................................................................................................... 4
B. Security Council Resolutions 242 (1967) and 338 (1973) ........................................... 4
C. The Oslo Accords ........................................................................................................ 6
D. The Roadmap ............................................................................................................... 9
E. Continued endorsement by the Security Council and General Assembly of the two-
State solution ...................................................................................................................... 10
F. 2023 communiqués .................................................................................................... 12
G. The lead-up to the Request for an advisory opinion .................................................. 12
H. UNGA Resolution 77/247 containing the Request .................................................... 17
I. The General Assembly’s endorsement of the agreed negotiation framework ........... 18
CHAPTER III - THE COURT’S DISCRETION IN THIS CASE ................................. 19
A. The Court’s power under Article 65(1) of the Statute ............................................... 19
B. The compelling reasons why the Court should decline to answer the Request ......... 21
1) The non-circumvention ground .............................................................................. 22
2) Inappropriate factual enquiry ground ..................................................................... 30
3) Conflict with the Security Council-endorsed process ground ............................... 34
4) Object and purpose ground .................................................................................... 37
CHAPTER IV - CONCLUSION ........................................................................................ 40
LIST OF ANNEXES ............................................................................................................ 42

1
CHAPTER I
INTRODUCTION
1. The United Kingdom of Great Britain and Northern Ireland (‘the United Kingdom’)
submits this Written Statement in accordance with the Court’s Order of 3 February
2023,1 so as to furnish information on the questions submitted to the Court in General
Assembly Resolution 77/247,2 adopted on 30 December 2022, and to assist the Court.
2. The terms of the General Assembly’s request in Resolution 77/247 (‘the Request’)
are as follows:
“(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?”
3. There is a long-standing dispute between the Israelis and the Palestinians concerning
sovereignty over territory, security, and related issues. The Court has already opined
on a very specific aspect of that dispute, nearly 20 years ago, in the Wall proceedings.3
The sponsors of the Request now ask the Court to adjudicate on matters at the very
core of the bilateral dispute. As discussed below, this is both the stated intention of
the Palestinian delegation and the inevitable result of the drafting of the Request. Its
terms expressly invite the Court to consider the “occupation, settlement and
annexation of the Palestinian territory occupied since 1967”.
1 Legal Consequences Arising from the Policies and Practices of Israel in the Occupied Palestinian Territory,
including East Jerusalem (Request for an Advisory Opinion), Order of 3 February 2023, paras 1-2.
2 General Assembly Resolution 77/247, 30 December 2022, A/RES/77/247 (UN Dossier No. 3).
3 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,
I.C.J. Reports 2004, p. 136.
2
4. The United Kingdom’s position on the Israeli-Palestinian conflict is well-established.
It remains firm in its belief that a negotiated two-State solution, based on 1967 lines
with Jerusalem as a shared capital, is the only way to end the Israeli occupation
permanently, to deliver Palestinian self-determination and to preserve Israel’s Jewish
and democratic identity. The United Kingdom’s vision of a two-State solution is
consistent with both the principles recognised in the relevant Security Council
resolutions and with the parties’ existing agreements. By those agreements, the
parties accept that a comprehensive negotiated settlement is required in order to
achieve the end of the Israeli occupation. They nowhere confer jurisdiction on the
Court to adjudicate on the core issues on which a permanent negotiated settlement
depends.
5. The United Kingdom invites the Court to exercise its discretion and decline to
respond to the Request by applying its own jurisprudence concerning the principles
of judicial propriety and the fundamental rights of parties to a bilateral dispute that
arise in relation to advisory opinions.4 The United Kingdom advances four principal
submissions to this effect:
5.1. It is not possible, or likely intended by the sponsors of the Request, for the
Court to engage with the Request without adjudicating on the very subject
matter of the parties’ bilateral dispute. An advisory opinion in response to the
Request in the present circumstances “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”.5 (See Chapter III, Part B, Section 1,
below.)
5.2. An answer to the Request would require the Court to make findings on a broad
range of contentious and complex factual issues concerning the entire history
of the parties’ bilateral dispute. This is not an enquiry that the Court can
properly undertake in the exercise of its judicial function in advisory
proceedings. (See Chapter III, Part B, Section 2, below.)
4 Considering that the United Kingdom invites the Court to exercise its discretion to decline to answer the
Request, the United Kingdom does not address any other issue. It reserves the right to address further issues
in later stages of the proceedings.
5 Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 12, at p. 25, para. 33.
3
5.3. Rendering an advisory opinion in the circumstances of this case would be
contrary to the negotiation framework specifically agreed by the parties and
endorsed by both the Security Council and the General Assembly, and would
be in conflict with the relevant Israeli-Palestinian agreements. (See Chapter
III, Part B, Section 3, below.)
5.4. The Request seeks to require the Court to proceed on the basis of assumed
unlawful conduct on the part of Israel, in an attempt to elicit findings aimed at
bringing about the end of the Israeli occupation and thus the parties’ bilateral
dispute. This is not a proper use of the advisory procedure. (See Chapter III,
Part B, Section 4, below.)
6. If, however, the Court considers that there are certain discrete issues on which it can
nonetheless opine in a manner consistent with its judicial function and with the
United Kingdom’s observations set out below, it is urged to exercise the highest
vigilance to ensure that any such issues are carefully circumscribed and do not
transgress either the core of the parties’ long-standing bilateral dispute or in any way
undermine the agreed framework for the resolution of that dispute as described
below.
7. Against that background, this Written Statement is structured as follows:
7.1. Chapter II reviews in brief the background relevant to the Request.
7.2. Chapter III set out the reasons why, in the view of the United Kingdom, the
Court should decline to respond to the Request, addressing the four grounds
identified above.
7.3. Chapter IV states the United Kingdom's conclusions.
4
CHAPTER II
BACKGROUND
A. The bilateral dispute
8. The Israeli-Palestinian dispute is long-standing and complex, with deep historic
origins. While the parties’ dispute is wide-ranging, it has focused on the twin issues
of security and the status of territory occupied by Israel since 1967, namely the West
Bank (including East Jerusalem) and the Gaza Strip (‘the Occupied Palestinian
Territories’). In the Oslo Accords, considered in more detail below, Israel and the
Palestinian Liberation Organisation (‘PLO’) identified the so-called ‘permanent
status issues’ which include: (i) the status of Jerusalem; (ii) settlements; (iii) refugees;
(iv) security arrangements; (v) borders; (vi) relations and cooperation with other
neighbours; and (vii) other issues of common interest (‘the permanent status
issues’).
9. Israel and the PLO have agreed a framework for the negotiated settlement of the
Israeli-Palestinian conflict, as set out below. This framework aims to implement the
principles established in two Security Council Resolutions, 242 (1967) and 338
(1973), with the effect of bringing about the end of Israel’s occupation. The Court
has no jurisdiction under any existing agreements to determine the permanent status
issues.
B. Security Council Resolutions 242 (1967) and 338 (1973)
10. The Security Council set down the basic principles for a negotiated peaceful
settlement of the Israeli-Palestinian conflict by its Resolutions 242 (1967) and 338
(1973). This is often referred to as the ‘land for peace’ formula, as it calls for Israeli
withdrawal in exchange for peace and security in the region.
11. The first of those resolutions, Security Council Resolution 242 (1967), followed the
so-called “Six-Day War” on 5-10 June 1967. It was the United Kingdom that
submitted a draft resolution to the Security Council that was subsequently adopted
on 22 November 1967.6 Resolution 242 (1967) set out the negotiating principles in
6 Security Council Official Records, 1379th meeting, 16 November 1967, S/PV.1379, paras 13-14 (Annex
No. 1). It was not a “British text” as such, but a result of close collaboration with both parties to the bilateral
5
the following terms: 7
“1. Affirms that the fulfilment of Charter principles requires the
establishment of a just and lasting peace in the Middle East which should
include the application of both the following principles:
(i) Withdrawal of Israel armed forces from territories occupied in the
recent conflict;
(ii) Termination of all claims or states of belligerency and respect for
and acknowledgement of the sovereignty, territorial integrity and
political independence of every State in the area and their right to live in
peace within secure and recognized boundaries free from threats or acts
of force ….”
12. The second resolution, Security Council Resolution 338 (1973), then provided the
following: 8
“1. Calls upon all parties to the present fighting to cease all firing and
terminate all military activity immediately, no later than 12 hours after
the moment of the adoption of this decision, in the positions they now
occupy;
2. Calls upon the parties concerned to start immediately after the ceasefire
the implementation of Security Council resolution 242 (1967) in all
of its parts;
3. Decides that, immediately and concurrently with the cease-fire,
negotiations shall start between the parties concerned under appropriate
auspices aimed at establishing a just and durable peace in the Middle
East.”
13. These resolutions reflect “the key underlying requirements” which have continued to
provide the basis for subsequent attempts to resolve the Israeli-Palestinian dispute,
namely that “Israel is entitled to exist, to be recognized, and to [have] security, and
that the Palestinian people are entitled to their territory, to exercise selfdetermination,
and to have their own State”.9 This is the essence of the two-State
dispute and with Security Council Members: see Security Council Official Records, 1382nd meeting,
22 November 1967, S/PV.1382, para. 58 (Annex No. 2).
7 Security Council Resolution 242 (1967), 22 November 1967, S/RES/242 (1967) (UN Dossier No. 1245).
8 Security Council Resolution 338 (1973), 22 October 1973, S/RES/338 (1973) (Annex No. 3).
9 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,
I.C.J. Reports 2004, p. 136, Separate Opinion of Judge Higgins, at p. 211, para. 18.
6
solution, which the United Kingdom has long supported as a matter of principle. It
was also the basis on which the United Kingdom prepared the draft text of Resolution
242 (1967), which was intended to be “a sincere and fair and honest attempt both to
meet the just claims of both sides and also to discharge the high responsibility of [the
Security] Council”.10
C. The Oslo Accords
14. In late 1991, the United States and the Soviet Union convened the Madrid Peace
Conference, with the objective of facilitating direct negotiations between the Israelis
and Palestinians on the basis of Resolutions 242 and 338.11 It proposed a phased
negotiating process, starting with interim self-government arrangements and
concluding with permanent status negotiations based on the principles set out in those
resolutions.
15. On 13 September 1993, Israel and the PLO concluded a “Declaration of Principles
on Interim Self-Government Arrangements” in Washington DC, witnessed by the
United States and the Russian Federation (known as ‘Oslo I’).12 As envisaged by the
Madrid Principles, Oslo I established an interim framework, principally through the
creation of the ‘Palestinian Interim Self-Government Authority’ (later established as
the Palestinian Authority). That framework was intended to operate during an interim
transitional period while the parties reached a permanent settlement. The Court is
invited to consider, in particular, the following elements of Oslo I:
10 Security Council Official Records, 1379th meeting, 16 November 1967, S/PV.1379, para. 13 (Annex No. 1).
11 Letters of Invitation to the Madrid Peace Conference, jointly issued by United States and the Soviet Union
to Israel, Syria, Lebanon, Jordan and others (with Palestinians invited to attend as part of Jordanian
delegation) (Annex No. 4) (“The United States and the Soviet Union are prepared to assist the parties to
achieve a just, lasting and comprehensive peace settlement, through direct negotiations along two tracks,
between Israel and the Arab States, and between Israel and the Palestinians, based on United Nations
Security Council Resolutions 242 and 338. The objective of this process is real peace … These permanent
status negotiations, and the negotiations between Israel and the Arab states, will take place on the basis of
resolutions 242 and 338. …”).
12 Declaration of Principles on Interim Self-Government Arrangements signed at Washington DC on
13 September 1993 (Annex No. 5) (‘Oslo I’).
7
15.1. The parties recorded their intention of achieving “a just, lasting and
comprehensive peace settlement and historic reconciliation through the agreed
political process”.13
15.2. They agreed that permanent settlement would be “based on Security Council
resolutions 242 (1967) and 338 (1973)” and that their negotiations on that
subject would “lead to the implementation of Security Council resolutions 242
(1967) and 338 (1973)”.14
15.3. The parties further specifically agreed that the following matters would be the
subject of a negotiated settlement between them: “Jerusalem, refugees,
settlements, security arrangements, borders, relations and cooperation with
other neighbours, and other issues of common interest.”15
15.4. They also agreed a specific process for the resolution of disputes arising out of
the interpretation or application of Oslo I, or any subsequent interim agreement,
which involved negotiation, conciliation and/or arbitration.16
16. Following the conclusion of the framework agreement in Oslo I, Israel and the PLO
entered into several agreements establishing specific interim arrangements.17 This
culminated in the “Israeli-Palestinian Interim Agreement on the West Bank and the
Gaza Strip” (known as ‘Oslo II’), signed at Washington DC on 28 September 1995,
and witnessed by the United States, the Russian Federation, Egypt, Norway, the
European Union and Jordan.18
13 Oslo I, Preamble.
14 Oslo I, Article 1.
15 Oslo I, Article V(3).
16 Oslo I, Article XV (“Resolution of Disputes”). See also Israeli-Palestinian Interim Agreement on the West
Bank and the Gaza Strip signed at Washington DC on 28 September 1995 (Annex No. 11) (‘Oslo II’),
Article XXI (“Settlement of Differences and Disputes”).
17 See e.g., Agreement on the Gaza Strip and Jericho Area signed at Cairo on 4 May 1994, 33 ILM 626 (1994)
(Annex No. 6); Agreement on Preparatory Transfer of Powers and Responsibilities signed at Erez on 29
August 1994, 34 ILM 457 (1995) (Annex No. 7); Protocol on Further Transfer of Powers and Responsibilities
signed at Cairo on 27 August 1995 (Annex No. 8); Protocol Concerning the Redeployment in Hebron signed
at Jerusalem on 17 January 1997, 36 ILM 653 (1997) (Annex No. 9). As regards broader cooperation between
Israeli and the PLO, see e.g., Annex IV, Protocol on Economic Relations between the Government of the
State of Israel and the PLO signed at Paris on 29 April 1994, 33 ILM 696 (1994) (Annex No. 10).
18 Annex No. 11.
8
17. Oslo II provided for a phased withdrawal by the Israeli military from the Occupied
Palestinian Territories with a simultaneous transfer of security responsibilities to the
Palestinian authorities.19 It also reiterated the parties’ commitment to enter into
“permanent status” negotiations based on Resolution 242 (1967) and 338 (1973),20
with the very same scope, i.e., “Jerusalem, refugees, settlements, security
arrangements, borders, relations and cooperation with other neighbors, and other
issues of common interest”.21 This commitment to a negotiated settlement of these
issues was reinforced by the parties’ express agreement that:
“Neither side shall initiate or take any step that will change the status of
the West Bank and the Gaza Strip pending the outcome of the permanent
status negotiations.” 22
“The two Parties view the West Bank and the Gaza Strip as a single
territorial unit, the integrity and status of which will be preserved during
the interim period.”23
18. Israel and the PLO have reiterated this commitment in later memoranda between
them.24
19. The United Kingdom recognises the importance of the obligation to refrain from
taking any action to change the status of the Occupied Palestinian Territories. This is
an obligation that applies with equal force to Israel and the PLO. It not only precludes
the parties from taking unilateral steps to resolve the permanent status issues in
another forum without agreement, but also from taking steps to interfere with the
territorial integrity of the West Bank and the Gaza Strip. The United Kingdom’s
opposition to Israeli settlements, evictions and demolition in the Occupied Palestinian
19 See, in particular, Oslo II, Articles I(1), XI(2), XII and XIII.
20 Oslo II, Preamble.
21 Oslo II, Article XXXI(5).
22 Oslo II, Article XXXI(7).
23 Oslo II, Article XXXI(8). See also Oslo II, Article XI(1) and Oslo I, Article IV.
24 Wye River Memorandum signed at Washington DC on 23 October 1998, 37 ILM 1251 (1998) (Annex
No. 12), para. V (“Recognizing the necessity to create a positive environment for the negotiations, neither
side shall initiate or take any step that will change the status of the West Bank and the Gaza Strip in
accordance with the Interim Agreement”); The Sharm el-Sheikh Memorandum on Implementation Timeline
of Outstanding Commitments of Agreements Signed and the Resumption of Permanent Status Negotiations
signed at Sharm el-Sheikh on 4 September 1999, 38 ILM 1465 (1999) (Annex No. 13), para. 10
(“Recognizing the necessity to create a positive environment for the negotiations, neither side shall initiate
or take any step that will change the status of the West Bank and the Gaza Strip in accordance with the Interim
Agreement”).
9
Territories is well-known.25 It continues to call on both the Israelis and the
Palestinians to engage in good faith and resolve the dispute through the established
legal framework endorsed by the Security Council.
D. The Roadmap
20. In 2002, the Quartet on the Middle East (the United States, the European Union, the
United Nations, and the Russian Federation) was formed in order to assist the parties
in establishing the conditions necessary to resume negotiations.
21. The United Kingdom, alongside other Security Council Members, specifically
endorsed the ‘two-State solution’ and the Quartet’s diplomatic efforts in, inter alia,
Resolution 1397 (2002). That Resolution provides, in relevant part, as follows:26
“… Affirming a vision of a region where two States, Israel and Palestine,
live side by side within secure and recognized borders, …
Welcoming and encouraging the diplomatic efforts of special envoys
from the United States of America, the Russian Federation, the European
Union and the United Nations Special Coordinator and others, to bring
about a comprehensive, just and lasting peace in the Middle East …”.
22. As part of those diplomatic efforts, the Quartet prepared a ‘Roadmap for Peace’ (‘the
Roadmap’). This document provides for a phased diplomatic framework aiming to
achieve a full and final resolution of the Israeli-Palestinian dispute in accordance with
the agreed framework set out above. The Roadmap explains its objective as follows:27
“The settlement will resolve the Israel-Palestinian conflict, and end the
occupation that began in 1967, based on the foundations of the Madrid
Conference, the principle of land for peace, UNSCRs 242, 338 and 1397,
agreements previously reached by the parties, and the initiative of Saudi
Crown Prince Abdullah – endorsed by the Beirut Arab League Summit –
25 See, e.g., the statement of the Rt Hon. James Cleverly MP, Foreign Secretary (in his previous capacity as
the Minister for the Middle East and North Africa) before UK Parliament on 14 June 2021 (see Hansard,
House of Commons Debate, 14 June 2021, volume 697, no. 16, column 21WH, Annex No. 14): “the UK
position on evictions, demolitions and settlements is long-standing, public and has been communicated
directly to the Government of Israel. That position is that we oppose those activities”.
26 Security Council Resolution 1397, 12 March 2002, S/RES/1397 (2002) (UN Dossier No. 1316).
27 Letter dated 7 May 2003 from the Secretary-General to the President of the Security Council, S/2003/529
(UN Dossier No. 1333), Annex, p. 1; see also p. 8.
10
calling for acceptance of Israel as a neighbor living in peace and
security, in the context of a comprehensive settlement.”
23. As the Prime Minister of the Palestinian Authority observed at the time, the agreed
process is “one of direct negotiations to end the Israeli-Palestinian conflict and to
resolve all the permanent status issues and end the occupation that began in 1967
under which Palestinians have suffered so much”.28
24. The Roadmap therefore:
24.1. establishes a negotiating process between the Israelis and the Palestinians to be
conducted on the basis of both existing agreements between Israel and the PLO
and Security Council Resolutions 242 (1967) and 338 (173); and
24.2. accepts that a comprehensive peace settlement between the parties is required
in order to bring the occupation to an end.
25. Importantly, Security Council Resolution 1515 (2003), after recalling its previous
resolutions:29
“1. Endorses the Quartet Performance-based Roadmap to a Permanent
Two-State Solution to the Israeli-Palestinian Conflict (S/2003/529);
[and]
2. Calls on the parties to fulfil their obligations under the Roadmap in
cooperation with the Quartet and to achieve the vision of two States
living side by side in peace and security.”
E. Continued endorsement by the Security Council and General Assembly of the
two-State solution
26. Since 2003, the Security Council has on a number of occasions reiterated its vision
of a two-State solution.30 It has called upon the parties to adhere to their obligations
under the Roadmap, while calling upon all States and international organisations “to
28 Speech on the roadmap, Prime Minister Mahmoud Abbas, 4 June 2003, published in The Guardian
(Annex No. 15).
29 Security Council Resolution 1515 (2003), 19 November 2003, S/RES/1515 (2003) (UN Dossier No. 1337).
30 E.g., Security Council Resolution 1850 (2008), 16 December 2008, S/RES/1850 (2008) (UN Dossier
No. 1354), recitals; Security Council Resolution 2334 (2016), 23 December 2016, S/RES/2334 (2016)
(UN Dossier No. 1372), recitals.
11
contribute to an atmosphere conducive to negotiations”.31 The General Assembly has
done similarly.32
27. The Security Council continues to urge negotiations between the parties to achieve a
resolution of the Israeli-Palestinian conflict and to bring about the end of occupation,
based on the relevant Security Council resolutions, the Roadmap, and the two-State
solution. This is reflected in Security Council Resolution 2334 (2016). In that
Resolution, the Security Council:33
“Calls upon all parties to continue, in the interest of the promotion of
peace and security, to exert collective efforts to launch credible
negotiations on all final status issues …
Urges in this regard the intensification and acceleration of international
and regional diplomatic efforts and support aimed at achieving, without
delay a comprehensive, just and lasting peace in the Middle East on the
basis of the relevant United Nations resolutions, the Madrid terms of
reference, including the principle of land for peace, the Arab Peace
Initiative and the Quartet Roadmap and an end to the Israeli occupation
…
Confirms its determination to support the parties throughout the
negotiations and in the implementation of an agreement …”
28. In voting in favour of Resolution 2334, the United Kingdom representative observed
that its adoption was “first and foremost a clear reinforcement of the international
community’s conviction that a two-State solution remains the only viable route to
sustained Arab-Israeli peace”.34 As the United Kingdom’s representative further
recognised, the Resolution was also a clear acknowledgement that Israel’s settlement
activity “is corroding the possibility of the two-State solution”.35
31 Security Council Resolution 1850 (2008), 16 December 2008, S/RES/1850 (2008) (UN Dossier No. 1354),
paras 3 and 4.
32 E.g., General Assembly (Tenth Emergency Special Session) Resolution ES-10/13, 21 October 2003,
A/RES/ES-10/13 (UN Dossier No. 1225), recitals and para. 2.
33 Security Council Resolution 2334 (2016), 23 December 2016, S/RES/2334 (2016) (UN Dossier No. 1372),
paras 8-10.
34 Security Council Official Records, 7853rd meeting, 23 December 2016, S/PV.7853 (Annex No. 16), p. 10.
35 Ibid.
12
29. Under the terms of Resolution 2334, the Security Council remains seized of the
matter.36
F. 2023 communiqués
30. Against that background, the parties continue to recognise the need for a negotiated
settlement and have reaffirmed their commitment to their previous agreements. This
is illustrated in the communiqués issued following the recent meetings between
Israeli and Palestinian officials in early 2023. Specifically, the Aqaba communiqué
records the two sides’ “commitment to all previous agreements between them, and to
work towards a just and lasting peace” and their desire “to address outstanding issues
through direct dialogue”.37 These commitments were again reaffirmed at the
subsequent meeting at Sharm El-Sheikh on 19 March 2023.38
G. The lead-up to the Request for an advisory opinion
31. On 27 May 2021, the Human Rights Council established an open-ended Commission
of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel
(‘the Commission of Inquiry’).39 Along with eight other States,40 the United
Kingdom voted against the establishment of the Commission of Inquiry. Fourteen
other States abstained.41 The United Kingdom’s position was (and remains) as
follows: 42
“ … we oppose the open-ended nature of the Commission of Inquiry on
the situation in Israel, the West Bank, and Gaza and its vaguely defined
mandate.
36 Security Council Resolution 2334 (2016), 23 December 2016, S/RES/2334 (2016) (UN Dossier No. 1372),
para. 13.
37 Aqaba Joint Communiqué, 26 February 2023 (Annex No. 17), paras 1 and 5.
38 Joint Communiqué from the March 19 meeting in Sharm El Sheikh, 19 March 2023 (Annex No. 18),
paras 1, 3 and 5.
39 Resolution adopted by the Human Rights Council on 27 May 2021, A/HRC/RES/S-30/1, entitled “Ensuring
respect for international human rights law and international humanitarian law in the Occupied Palestinian
Territory, including East Jerusalem, and in Israel” (UN Dossier No. 1472), para. 1.
40 Austria, Bulgaria, Cameroon, Czechia, Germany, Malawi, Marshall Islands and Uruguay.
41 Bahamas, Brazil, Denmark, Fiji, France, India, Italy, Japan, Nepal, Netherlands, Poland, Republic of Korea,
Togo and Ukraine.
42 Foreign, Commonwealth & Development Office, Statement on the Human Rights Council Commission of
Inquiry on Gaza Report, 8 June 2022 (Annex No. 19).
13
The cause of advancing human rights in Israel and the Occupied
Palestinian Territories is not served by the disproportionate focus on
Israel. The UK is committed to improving the human rights situation in
Israel and the Occupied Palestinian Territories. We are also a firm
supporter of the Human Rights Council and believe strongly in its
mandate to protect human rights and secure accountability for abuses
wherever these occur. However, this Commission of Inquiry does not
further these goals.”
32. On 14 September 2022, the Commission of Inquiry issued its report to the General
Assembly, in which it reached conclusions on, inter alia, the legality of Israel’s
occupation.43 Taking the view that the Israeli occupation “cannot remain
unaddressed”, the Commission of Inquiry then opined as follows:44
“The International Court of Justice should be requested to advise on the
legal consequences of the continued refusal by Israel to end its
occupation and of the steps it has taken to entrench its control and
expansion into the occupied area through de facto annexation, and on
the obligations of third States and the United Nations to ensure that
Israel respects international law.”
33. At the conclusion of its report, the Commission of Inquiry issued the following
recommendation to the General Assembly:45
“… the General Assembly … [u]rgently request an advisory opinion from
the International Court of Justice on the legal consequences of the
continued refusal on the part of Israel to end its occupation of the
Occupied Palestinian Territory, including East Jerusalem, amounting to
de facto annexation, of policies employed to achieve this, and of the
refusal on the part of Israel to respect the right of the Palestinian people
to self-determination, and on the obligations of third States and the
United Nations to ensure respect for international law”.
43 Report of the Independent International Commission of Inquiry on the Occupied Palestinian Territory,
including East Jerusalem, and Israel, 14 September 2022, A/77/328 (UN Dossier No. 1408) (‘Commission
of Inquiry Report’), paras 75-84.
44 Commission of Inquiry Report, para. 84.
45 Commission of Inquiry Report, para. 92(a).
14
34. In parallel, Palestine46 expressed its intention to bring the parties’ bilateral dispute to
the International Court of Justice.
35. On 24 September 2021, the President of the Palestinian Authority, Mahmoud Abbas,
called on Israel to withdraw from the Occupied Palestinian Territories within one
year. In the event that Israel did not withdraw, Palestine indicated its intention to:
“… go to the International Court of Justice as the supreme international
judicial body, on the issue of the legality of the occupation of the land of
the Palestinian state and the relevant obligations for the United Nations
and States around the world in this regard and all will have to respect
the conclusions of the Court.”47
36. Following that indication, on 10 November 2022, Palestine48 initiated a resolution
under item 47 of the Fourth Committee (Special Political and Decolonization) at the
77th Session of the General Assembly.49
37. Following a brief debate, the very next day, on 11 November 2022, the draft
resolution was adopted by the General Assembly’s Fourth Committee without
change. It was adopted by a recorded vote: 98 votes in favour, 52 abstaining
(including the United Kingdom) and 17 against.50 26 UN Members did not attend.
38. Several UN Members placed on record their concerns and objections regarding the
propriety of making the Request. The UN Press Office has summarised their
statements as follows:51
46 For the avoidance of doubt, the United Kingdom does not recognise Palestine as a State. It will do so at a
time when it best serves the objective of peace. It refers to ‘Palestine’ in this Statement only to signify the
entity that has been accorded ‘Permanent Observer’ status at the United Nations and without any admission
thereby.
47 General Assembly Official Records, 76th session, 12th plenary meeting, 24 September 2021, A/76/PV.12
(Annex No. 20), p. 49 (Annex III, Address by President Mahmoud Abbas).
48 Palestine was listed in the original group of co-sponsors of the Resolution and concluded the debate on
item 47 before the General Assembly.
49 Revised Draft Resolution, 10 November 2022, A/C.4/77/L.12/Rev.1 (UN Dossier No. 1).
50 Against: Australia, Austria, Canada, Czechia, Estonia, Germany, Guatemala, Hungary, Israel, Italy,
Liberia, Lithuania, Marshall Islands, Micronesia (Federated States of), Nauru, Palau, United States of
America.
51 UN Press Release, ‘Fourth Committee, Concluding Its Work, Approves Six Draft Resolutions, Including
Request for ICJ Opinion on Israeli Occupation’ 11 November 2022, GA/SPD/771 (Annex No. 21). The
official records of the meeting are not yet available.
15
Australia
“… [the Australian delegation] does not support a referral to the
International Court of Justice. Doing so will not help bring the parties
together for negotiations, [Australia’s representative] said, adding that
advisory opinions should not be used to settle bilateral disputes.”
France (speaking on behalf of a group of countries)
“… proposals to request advisory opinions from the International Court of
Justice should be thoroughly discussed and consulted on with the United
Nations membership in a timely manner.”
Israel
“…calling for the Court’s involvement would decimate any chances of
reconciliation between Israel and the Palestinians. Urging delegations to
vote against that text, [Israel’s representative] said such resolutions
demonize Israel and exempt the Palestinians of any responsibility for their
current situation.”
Japan
“… acknowledged the Palestinians’ desire to explore any possible avenue,
given the dire situation on the ground. However, it is necessary to consider
which approach is most appropriate to achieve peace in the Middle East.”
Singapore
“ … expressed reservations on operative paragraph 18, saying it was not
appropriate to involve the Court in this manner.”
United Kingdom
“ … does not believe that referral to the International Court of Justice will
bring the parties back to the negotiating table.”
United States
“… there are no short cuts to the two-State solution and there is nothing in
the package of draft resolutions before the Committee that will ensure this.”
Uruguay
“… while advisory opinions from the International Court of Justice are
valuable for the international community, in this instance it would be
counterproductive and add an unnecessary element of tension.”
39. The Palestinian representative at the United Nations has since described the
Palestinian objective in seeking an advisory opinion in the following candid terms:
16
“we are proud of this … historic accomplishment of all of us, that we are
taking the entire Palestine question to be looked at by the highest court
in the globe, the International Court of Justice, and we hope that there
will be an opinion that is useful, to be rendered to get us closer to the
objective of the attainment of the inalienable rights of the Palestinian
people, which is the main objective of the Committee …”.52
40. In sum, the position is as follows:
40.1. The Request’s genesis was in both the Commission of Inquiry’s
recommendation that an advisory opinion be sought and Palestine’s indication
that it would seek an advisory opinion if Israel did not terminate the occupation.
40.2. The Request was inserted into the draft resolution before the Fourth Committee
without any specific articulation as to why an advisory opinion was necessary.
40.3. A large group of States voted against or abstained before the Fourth Committee.
This included key States involved in the peace process.
40.4. Israel, one of two parties to the bilateral dispute, voted against the resolution.
The other party to the dispute, Palestine, was a co-sponsor and the key
proponent of the resolution, and its representative to the United Nations stated
that “we are taking the entire Palestine question to be looked at” by the Court.53
40.5. The intention behind the Request appears to be two-fold: to have the Court
adjudicate on the key elements of the parties’ bilateral dispute and, in so doing,
confirm the Commission of Inquiry’s own legal conclusions as to the legality
of the occupation.
40.6. There was no request from the Security Council for an advisory opinion, despite
that body having established the enduring framework for the resolution of the
52 UN Committee on the Exercise of the Inalienable Rights of the Palestinian People, 411th Committee
meeting, 3 May 2023, available on UN Web TV at https://media.un.org/en/asset/k1l/k1ltjvklq6 (see minutes
1:07:15 – 1:07:52, statement of the Palestinian Permanent Observer at the United Nations). (Emphasis added.)
See further UN Press Release, ‘Permanent Observer Briefs Palestinian Rights Committee on Situation in
Occupied Territory Situation, Submissions Guidelines for Opinion Case to World Court’, 3 May 2023,
GA/PAL/1452 (Annex No. 22) (“The aim is to have a tremendous amount of information for the Court so
that the entire question of Palestine can be heard and receive a useful opinion, he underscored.”) (Emphasis
added.)
53 Ibid.
17
parties’ dispute, and despite the Security Council remaining engaged and seized
of the Palestinian question.54
H. UNGA Resolution 77/247 containing the Request
41. On 30 December 2022, the General Assembly considered the Fourth Committee’s
report on “Israeli practices and settlement activities affecting the rights of the
Palestinian people and other Arabs of the occupied territories”55 and adopted the
draft resolution as recommended.56
42. On this occasion, 87 UN Members voted in favour, 53 abstained and 26 voted against,
including the United Kingdom.57 27 UN Members did not vote at all.
43. UN Members again expressed their reservations about the propriety of the General
Assembly making a request for an advisory opinion. The United Kingdom explained
its position in the following terms:58
“The United Kingdom will vote against the draft resolution entitled
‘Israeli practices affecting the human rights of the Palestinian people in
the Occupied Palestinian Territory, including East Jerusalem’, because
we do not feel that a referral to the International Court of Justice is
helpful in bringing the parties back to dialogue.
It is also the position of the United Kingdom that it is inappropriate
without the consent of both parties to ask the Court to give an advisory
opinion on what is essentially a bilateral dispute. The proposal of
requesting an advisory opinion from the International Court of Justice
on the occupied Palestinian territories was a recommendation of a report
of the Human Rights Council commission of inquiry on the situation in
Israel, the West Bank and Gaza, established in May 2021. We reiterate
our regret at the establishment of that commission, which furthered the
54 Resolution 2334 (2016), 23 December 2016, S/RES/2334 (2016) (UN Dossier No. 1372), para.13.
55 Report of the Special Political and Decolonization Committee, ‘Israeli practices and settlement activities
affecting the rights of the Palestinian people and other Arabs of the occupied territories’, 14 November 2022,
A/77/400 (UN Dossier No. 2).
56 Resolution 77/247, 30 December 2022, A/RES/77/247 (UN Dossier No. 3).
57 Against: Albania, Australia, Austria, Canada, Costa Rica, Croatia, Czechia, the DRC, Estonia, Germany,
Guatemala, Hungary, Israel, Italy, Kenya, Liberia, Lithuania, the Marshall Islands, Micronesia (Federated
States of), Nauru, Palau, Papua New Guinea, Romania, Togo, and the United States.
58 General Assembly Official Records, 56th plenary meeting, 30 December 2022, A/77/PV.56 (Resumption 1)
(Annex No. 23), p. 4.
18
Human Rights Council’s disproportionate focus on Israel and failed to
include a time limit on the mandate.”
I. The General Assembly’s endorsement of the agreed negotiation framework
44. The General Assembly continues to accept the parties’ agreements, based on the
principles set out in Resolutions 242 (1967) and 338 (1973) and developed in the
Roadmap, as providing the relevant framework for the resolution of the Israeli-
Palestinian dispute and for the termination of the Israeli occupation.
45. In its resolution making the Request, the General Assembly recognised:59
“ … the need for full compliance with the Israeli-Palestinian agreements
reached within the context of the Middle East peace process, including
the Sharm el-Sheikh understandings, and the implementation of the
Quartet road map to a permanent two-State solution to the Israeli-
Palestinian conflict,”
“… the urgent need for efforts to reverse the negative trends on the
ground and to restore a political horizon for advancing and accelerating
meaningful negotiations aimed at the achievement of a peace agreement
that will bring a complete end to the Israeli occupation that began in
1967 and the resolution of all core final status issues, without exception,
leading to a peaceful, just, lasting and comprehensive solution of the
question of Palestine”.
46. The General Assembly’s decision to request an advisory opinion must be assessed in
that context.
59 Resolution 77/247, 30 December 2022, A/RES/77/247 (UN Dossier No. 3), recitals.
19
CHAPTER III
THE COURT’S DISCRETION IN THIS CASE
A. The Court’s power under Article 65(1) of the Statute
47. The Court’s power to issue an advisory opinion is derived from Article 65(1) of its
Statute, which provides:
“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.”
48. The following propositions are well-established by the Court:
48.1. The purpose of the Court’s advisory function under Article 65(1) is “not to
settle – at least directly – disputes between States, but to offer legal advice to
the organs and institutions requesting the opinion”.60
48.2. The Court must consider whether the jurisdictional conditions for the exercise
of its power are met, and, if so, whether there is any reason why the Court
should, in the exercise of its discretion, nonetheless decline to render an
advisory opinion.61
48.3. The Court’s answer to a request represents its participation in the United
Nations’ activities as its principal judicial organ, but the Court should decline
to answer a request for an advisory opinion if there are “compelling reasons”
for it to do so.62
60 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 226, at
p. 236, para. 15, referring to Interpretation of Peace Treaties, Advisory Opinion, I.C.J. Reports 1950, p. 65,
at p. 71.
61 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 226, at p. 232,
para. 10; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory
Opinion, I.C.J. Reports 2004, p. 136, at p. 144, para. 13; Accordance with International Law of the Unilateral
Declaration of Independence in Respect of Kosovo, Advisory Opinion, I.C.J. Reports 2010, p. 403, at p. 412,
para. 17; Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory
Opinion, I.C.J. Reports 2019, p. 95, at. p. 111, para. 54.
62 Judgments of the Administrative Tribunal of the ILO upon complaints made against the UNESCO, Advisory
Opinion, I.C.J. Reports 1956, p. 77, at p. 86; Certain expenses of the United Nations (Article 17, paragraph
2, of the Charter), Advisory Opinion, I.C.J. Reports 1962, p. 151, at p. 155; 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, at p. 27, para. 41; Application for Review
20
48.4. The Court’s discretion exists, in part, “to protect the integrity of the Court’s
judicial function as the principal judicial organ of the United Nations”63 since
the Court “cannot, even in giving advisory opinions, depart from the essential
rules guiding its activity as a Court.”64 Moreover, it is submitted, issues of
judicial function should not be the only factor to lead the Court to refuse to
render an advisory opinion. The Court should, per Judge Keith, be willing to
consider other relevant matters,65 such as whether the “questions put to it are
relevant and have a practical and contemporary effect and, consequently, are
not devoid of object or purpose”.66
49. Unlike the Permanent Court,67 the Court has not yet had occasion to exercise its
discretion to refuse to answer a request for an advisory opinion (as opposed to
of Judgement No. 158 of the United Nations Administrative Tribunal, Advisory Opinion, I.C.J. Reports 1973,
p. 166, at p. 183, para. 40; Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 12, at p. 21, para. 23;
Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United
Nations, Advisory Opinion, I.C.J. Reports 1989, p. 177, at p. 191, para. 37; Legality of the Threat or Use of
Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 226, at p. 235, para. 14; Difference Relating to
Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory
Opinion, I.C.J. Reports 1999, p. 62, at p. 78, para. 29; Legal Consequences of the Construction of a Wall in
the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 136, at p. 156, para. 44;
Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo,
Advisory Opinion, I.C.J. Reports 2010, p. 403, at p. 416, para. 30; Judgment No. 2867 of the Administrative
Tribunal of the International Labour Organization upon a Complaint Filed against the International Fund
for Agricultural Development, Advisory Opinion, I.C.J. Reports 2012, p. 10, at. p. 25, para. 33; Legal
Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion, I.C.J.
Reports 2019, p. 95, at p. 113, para. 65.
However, the exercise of its discretion “should not … be unduly hampered by a label such as ‘compelling
reasons’”: Accordance with International Law of the Unilateral Declaration of Independence in Respect of
Kosovo, Advisory Opinion, I.C.J. Reports 2010, p. 403, Separate Opinion of Judge Keith, at. p. 483, para. 5.
63 Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory
Opinion, I.C.J. Reports 2019, p. 95, at p. 113, para. 64; see also Accordance with International Law of the
Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, I.C.J. Reports 2010, p. 403,
at p. 416, para. 29; Judgment No. 2867 of the Administrative Tribunal of the International Labour
Organization upon a Complaint Filed against the International Fund for Agricultural Development, Advisory
Opinion, I.C.J. Reports 2012, at p. 10, para. 33.
64 Judgment No. 2867 of the Administrative Tribunal of the International Labour Organization upon a
Complaint Filed against the International Fund for Agricultural Development, Advisory Opinion, I.C.J.
Reports 2012, p. 10, at p. 25, para. 34, citing Status of Eastern Carelia, Advisory Opinion, 1923, P.C.I.J.,
Series B, No. 5, at p. 29.
65 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo,
Advisory Opinion, I.C.J. Reports 2010, p. 403, Separate Opinion of Judge Keith, at. p. 483, para. 4; and see
the extra-judicial writing by Sir Christopher Greenwood, ‘Judicial Integrity and the Advisory Jurisdiction of
the International Court of Justice’, Gaja and Stoutenburg (eds) Enhancing the Rule of Law through the
International Court of Justice (2014) p. 63, at p. 65, footnote 8.
66 Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 12, at p. 37, para. 73. See also the matters
considered by the Court in Accordance with International Law of the Unilateral Declaration of Independence
in Respect of Kosovo, Advisory Opinion, I.C.J. Reports 2010, p. 403, at pp. 415-423, paras 29-48.
67 Status of Eastern Carelia, Advisory Opinion, 1923, P.C.I.J., Series B, No. 5.
21
reformulating it68). However, the Court has specifically identified circumstances in
which the exercise of its discretion to refuse to answer a request may be appropriate.
These are considered below in the context of considering the compelling reasons why
the Court should decline to answer the Request in the present case.
B. The compelling reasons why the Court should decline to answer the Request
50. The United Kingdom submits that there are four compelling reasons why the Court
should decline to answer the Request:
50.1. Responding to the Request would circumvent the principle that a State is not
obliged to require its disputes to be submitted to judicial settlement without its
consent (the ‘non-circumvention ground’): see Section 1 below.
50.2. The enormous scope of the factual enquiry that the Court would need to
consider in order to answer the Request cannot properly be performed by the
Court without trespassing the bounds of its judicial function in an advisory
opinion (the ‘inappropriate factual enquiry ground’): see Section 2 below.
50.3. Giving an advisory opinion in the circumstances of this case would be contrary
to the negotiation framework specifically agreed by the parties and endorsed
by both the Security Council and the General Assembly, and in conflict with
the relevant Israeli-Palestinian agreements (the ‘conflict with Security
Council-endorsed process ground’): see Section 3 below.
50.4. The object and purpose of the Request is unsuited to advisory proceedings. It
asks the Court to proceed on the basis of assumed unlawful conduct on the part
of Israel, in an attempt to elicit findings necessary to resolve the parties’
bilateral dispute (the ‘object and purpose ground’): see Section 4 below.
51. The United Kingdom sets out its case on each ground in turn.
68 The Court has “often been required to broaden, interpret and even reformulate the questions put”: Legal
Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J.
Reports 2004, p. 136, at p. 154, para. 38. See, e.g., Application for Review of Judgment No. 273 of the United
Nations Administrative Tribunal, Advisory Opinion, I.C.J. Reports 1982, p. 325, at pp. 348-350, paras 46-48;
Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo,
Advisory Opinion, I.C.J. Reports 2010, p. 403, at pp. 423-424, paras 49-52.
22
1) The non-circumvention ground
52. The Court’s advisory jurisdiction is distinct in nature and effect to its contentious
jurisdiction. An advisory opinion is not given to States, but instead to the United
Nations organ that has requested the Court’s advice.
53. However, the fundamental principle of consent remains highly relevant to the Court’s
exercise of its advisory jurisdiction in proceedings involving bilateral disputes. While
the lack of consent by interested States does not affect per se the Court’s jurisdiction
to render an advisory opinion,69 the Court has consistently recognised that an
interested State’s lack of consent engages considerations of judicial propriety and
may constitute a “compelling reason” to exercise its discretion to refuse to answer a
request. In its well-known passage in Western Sahara, the Court explained:70
“ … In certain circumstances … 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.”
54. Such circumstances may arise where:71
“… the question put to [the Court] was directly related to the main point
of the dispute actually pending between two States, so that answering the
question would be substantially equivalent to deciding the dispute
between the parties.”
69 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,
I.C.J. Reports 2004, p. 136, at p. 157, para. 47.
70 Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 12, at p. 25, para. 33 (Emphasis added). See
further Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory
Opinion, I.C.J. Reports 2019, p. 95, at p. 117, para. 85.
71 Interpretation of Peace Treaties, Advisory Opinion, I.C.J. Reports 1950, p. 65, at p. 72, referring to Status
of Eastern Carelia, Advisory Opinion, 1923, P.C.I.J., Series B, No. 5. In that latter case, “one of the States
concerned was neither a party to the Statute of the Permanent Court nor, at the time, a Member of the League
of Nations, and lack of competence of the League to deal with a dispute involving non-member States which
refused its intervention was a decisive reason for the Court's declining to give an answer”: Western Sahara,
Advisory Opinion, I.C.J. Reports 1975, p. 12, at pp. 23-24, para. 30. See also 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, at p. 24, para. 31.
23
55. Judge Owada elaborated on this criterion in a passage of his Separate Opinion in the
Wall proceedings, which the United Kingdom adopts and commends to the Court. He
said as follows:72
“Thus, acknowledging the fact that in the present case there is this
undeniable aspect of an underlying legal controversy or a dispute
between the parties involved, and keeping this aspect clearly in mind, I
wish to state that the critical test for judicial propriety in exercising
jurisdiction of the Court, which it undoubtedly has, should lie, not in
whether the request is related to a concrete legal controversy or dispute
in existence, but in whether ‘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’
(Western Sahara …). To put it differently, the critical criterion for
judicial propriety in the final analysis should lie in the Court seeing to it
that giving a reply in the form of an advisory opinion on the subjectmatter
of the request should not be tantamount to adjudicating on the
very subject-matter of the underlying concrete bilateral dispute that
currently undoubtedly exists between Israel and Palestine.”
56. The United Kingdom respectfully submits that the Court is right to recognise the
continued application of the principle of non-circumvention of the parties’ consent to
its discretionary assessment. It makes the following six points:
56.1. First, the principle is consistent with the relatively narrow language of
Article 96(1) of the UN Charter and Article 65(1) of the Statute compared to
the broader language of Article 14 of the League of Nations Covenant.73
56.2. Second, following on from this, as the Court stated in the Kosovo Advisory
Opinion, it is not the purpose of Article 65(1) to establish “a form of judicial
recourse for States”74 or, as put in different terms by Judge Donoghue, a “fall-
72 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,
I.C.J. Reports 2004, p. 136, Separate Opinion of Judge Owada, at p. 260, para. 13.
73 Article 14 empowered the Permanent Court to “give an advisory opinion upon any dispute or question
referred to it …” (“sur tout différend ou tout point”), and thus “… a mere comparison of the texts of the
Covenant and the Charter suffices at once to reveal the restrictions which were placed on the Court’s advisory
function”: Interpretation of Peace Treaties, Advisory Opinion, I.C.J. Reports 1950, p. 65, Separate Opinion
of Judge Azevedo, at p. 82, para. 7.
74 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo,
Advisory Opinion, I.C.J. Reports 2010, p. 403, at p. 417, para. 33.
24
back mechanism to be used to overcome the absence of consent to jurisdiction
in contentious cases”.75
56.3. Third, the distinction drawn in the Court’s Statute between its advisory and
contentious jurisdictions must be respected if the integrity of both functions is
to be preserved.76 Indeed the reason why the Court’s jurisdiction to render an
advisory opinion remains unaffected by issues of State consent is precisely
because the Court in giving an advisory opinion is not considered to be
adjudicating on a dispute between parties.77 In contrast, in contentious cases, it
is necessary for the Court to establish that the scope of consent of both States
is sufficient to encapsulate the dispute before the Court in order for it to exercise
jurisdiction in the case. In this context, the circumstances relating to the
formulation of the request for an advisory opinion may be of importance,
especially where the request has been formulated by only one party to the
dispute.
56.4. Fourth, the non-binding nature of an advisory opinion does not justify the
Court deciding a bilateral dispute or otherwise rectify the lack of State consent
to such a dispute being adjudicated in an advisory proceeding.78 While an
advisory opinion is not formally binding on the parties to a bilateral dispute and
is being rendered to the requesting UN organ, the Court makes statements of
law, which may have legal consequences,79 even if not intended by the Court
or required by the Statute.
56.5. Fifth, the fact that a bilateral dispute may be located in a “broader frame of
reference”80 does not render the non-circumvention rule inapplicable. Every
legal dispute falls within a broader context.81 The fact that a UN organ may be
75 Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory
Opinion, I.C.J. Reports 2019, p. 95, Dissenting Opinion of Judge Donoghue, at p. 266, para. 23.
76 Ibid.
77 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,
I.C.J. Reports 2004, p. 136, at pp. 157-158, para. 47.
78 Sir Gerald Fitzmaurice, The Law and Procedure of the International Court of Justice (1986), Vol. II, at
p. 568.
79 Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 12, Declaration of Judge Gros, at p. 73, para. 6.
80 Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 12, at p. 26, para. 38.
81 In a similar vein, see Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in
1965, Advisory Opinion, I.C.J. Reports 2019, p. 95, Dissenting Opinion of Judge Donoghue, at p. 265,
25
considering the legal dispute in such a context says nothing about the test to be
applied by the Court, viz, whether the specific request requires the Court to
determine in effect the specific legal dispute between the parties in
circumstances where to do so would circumvent the consent requirement.
56.6. Sixth, simply because a UN organ may have previously considered certain of
the issues contained in the Request does not somehow obviate the relevance
and application of State consent in the context of a particular case. The very
fact that the General Assembly has made the Request indicates its view that the
questions asked are of concern to a majority of its Members,82 but, again, this
is not the relevant test for the Court.
57. It is instead for the Court to compare the subject-matter of the bilateral dispute with
the issues presented by the request before the Court,83 recognising the significance of
the “origin and scope of the dispute … in appreciating, from the point of view of the
exercise of the Court’s discretion, the real significance in this case of the lack of …
consent” (as the Court noted in Western Sahara84). Above all, as it was put pertinently
by Judge Owada in Wall, “giving a reply in the form of an advisory opinion on the
subject-matter of the request should not be tantamount to adjudicating on the very
subject-matter of the underlying concrete bilateral dispute that currently undoubtedly
exists between Israel and Palestine.” 85
58. The United Kingdom submits that the principle is squarely engaged in this case. It
points to the following relevant factors:
58.1. Israel has not consented to the Court’s exercise of jurisdiction over the Israeli-
Palestinian conflict, having voted against Resolution 77/247. Instead, Israel
(along with the PLO) has consented to an entirely different dispute resolution
para. 20: “… any bilateral dispute that attracts sufficient support in the General Assembly so as to lead that
organ to request an advisory opinion could be described as falling within a ‘broader frame of reference’.
Were that not the case, the General Assembly would not vote to put the matter before the Court”.
82 Ibid.
83 Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory
Opinion, I.C.J. Reports 2019, p. 95, Dissenting Opinion of Judge Donoghue, at p. 263, para. 10.
84 Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 12, at p. 27, para. 42.
85 See para. 55 above.
26
mechanism, namely negotiation, conciliation and/or arbitration, as explained
above.86
58.2. Only one party to the bilateral dispute participated in the initiation of and
drafting of the Request.87 This stands in stark contrast to the position in a
contentious case, where both parties have the right to define the limits of the
Court’s adjudication of their dispute by restricting the scope of their respective
grants of consent to the Court.
58.3. The scope of the Request encompasses the matters at the very heart of the
Israeli-Palestinian dispute:
58.3.1. The Request focuses on the “legal status” of the Occupied Palestinian
Territories and the “legal consequences” of that status, explicitly asking
the Court to rule on both matters. The legal validity and effect of the
occupation are the primary subject matters of the two questions that
comprise the Request.
58.3.2. Further, the Request refers to a wide range of Israeli “policies and
practices” over the course of the occupation since 1967 in what it
presents as the factual basis for the Court’s adjudication of the Israeli
occupation. Not only do those “policies and practices” cover the entire
temporal scope of the occupation, but they are premised on Israel’s
violation of the Palestinian people’s right to self-determination. Putting
to one side the highly partisan nature of the terms of the Request
(addressed further below88), this manner of framing the Request makes
clear that the parties’ long-standing dispute over the sovereignty and
status of the Occupied Palestinian Territories is at the core of the
Request.
58.3.3. The Request, on any view, embraces core “permanent status issues” in
dispute between the Israelis and the Palestinians. It seeks the Court’s
determination of Israeli liability in relation to certain of those issues,
86 See para. 15.4 above; referring to Oslo I, Article XV; Oslo II, Article XXI.
87 See paras 36 and 40.4 above.
88 See paras 73-80 below.
27
having expressly identified both Israeli “settlements and annexation of
the Palestinian territory” and Israeli measures seeking to alter the
“composition, character and status of the Holy City of Jerusalem” in its
terms. The Request also generally requires consideration of matters of
security as part of any assessment of the legality of Israel’s alleged
measures. For these reasons, the Request has a direct parallel with key
permanent status issues, which, as noted above, expressly encompass
“Jerusalem”, “settlements”, “security arrangements”, “borders”, and
“other issues of common interest”.89
58.4. This comprehensive scope of the Request is consistent with Palestine’s stated
aim, which was to “tak[e] the entire Palestine question to be looked at by the
highest court in the globe, the International Court of Justice” with a view to
obtaining an opinion “to get us closer to the objective of the attainment of the
inalienable rights of the Palestinian people”.90
58.5. In those circumstances, were the Court to answer the Request, it would decide
on the “main point[s] of the dispute” between the Israelis and the Palestinians.
59. For all of those reasons, the United Kingdom respectfully submits that the Court
should decline to provide a response to the Request.
60. The United Kingdom further observes that the situation in the present case is readily
distinguishable from specific aspects of past advisory proceedings. By way of
example:
60.1. Interpretation of Peace Treaties: The request was solely concerned with the
applicability to certain disputes of the procedure for settlement instituted by the
Peace Treaties with Bulgaria, Romania and Hungary. The Court was not being
asked to engage in the merits of those disputes. Distinguishing the request at
issue in Eastern Carelia, the Court stated in terms that the request “in no way
touches the merits of those disputes”, and that “the legal position of the parties
89 Oslo I, Article V(3); Oslo II, Article XXXI(5). See further paras 15.3 and 17 above.
90 See para. 39 above.
28
to these disputes cannot be in any way compromised by the answers that the
Court may give to the Questions put to it.”91
60.2. Western Sahara: Although there was a “legal controversy” concerning whether
Western Sahara had been terra nullius, it was one that arose during the
proceedings of the General Assembly and “did not arise independently in
bilateral relations”.92 Moreover, as the Court explained, the issue between
Morocco and Spain regarding Western Sahara was not one as to the legal status
of the territory as of the date of the request, but one as to the rights of Morocco
over that territory at the time of colonization. Thus, the Court concluded: “The
settlement of this issue will not affect the rights of Spain today as the
administering Power … 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’.”93
60.3. Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory:
60.3.1. Unlike the current case, the subject-matter of the advisory opinion
sought in Wall did not concern the main – let alone core – aspects of the
legal dispute between the Israelis and the Palestinians. That case
concerned a particular measure taken by Israel, namely the construction
of the wall.
60.3.2. The Court indeed accepted that it could not properly address the core of
the Israeli-Palestinian dispute in advisory proceedings. In particular, the
Court acknowledged that the question of the wall was “part of a greater
whole”,94 but was satisfied that “the question that the General Assembly
has chosen to ask of the Court is confined to the legal consequences of
the construction of the wall”. The Court expressly noted that it “would
91 Interpretation of Peace Treaties, Advisory Opinion, I.C.J. Reports 1950, p. 65, at p. 72.
92 Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 12, at p. 25, para. 34.
93 Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 12, at p. 27, para. 42, citing Interpretation of
Peace Treaties, Advisory Opinion, I.C.J. Reports 1950, p. 65, at p. 72. (Emphasis added.)
94 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,
I.C.J. Reports 2004, p. 136, at p. 160, para. 54.
29
only examine other issues to the extent that they might be necessary to
its consideration of the question put to it.”95
60.3.3. The Court, moreover, went on to recognise in terms that negotiations to
achieve implementation of all relevant Security Council resolutions, in
particular Resolutions 242 (1967) and 338 (1973), were the “only” way
to resolve the dispute.96 By contrast, the present Request concerns
precisely the “greater whole” which the parties have specifically
reserved for direct negotiations between themselves, as explained
above.97
60.3.4. Consistent with this, Judge Higgins observed that the Court was “wise
and correct” to avoid “permanent status issues” and refrain from
“pronouncing on the rights and wrongs in myriad past controversies in
the Israel-Palestine problem”.98 As noted above, Judge Owada
accepted that the Court’s answer could not be “tantamount to
adjudicating on the very subject-matter of the underlying concrete
bilateral dispute that currently undoubtedly exists between Israel and
Palestine”,99 whereas Judge Koroma distinguished the request from one
that concerned “the Israeli-Palestinian conflict as such” or “its
resolution”.100
61. Against that background, the Request invites the Court to determine the core of the
parties’ bilateral dispute, namely the validity and effect of Israel’s occupation. That
engages key permanent status issues, including “Jerusalem”, “settlements”, “security
arrangements” and “borders”. The Request seeks to do so in a manner that is
intended to affect Israel’s current obligations as occupying power. Consistent with
95 Ibid.
96 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,
I.C.J. Reports 2004, p. 136, at p. 200, para. 162. See also para. 161.
97 See paras 15-18 above.
98 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,
I.C.J. Reports 2004, p. 136, Separate Opinion of Judge Higgins, at p. 211, para. 17.
99 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,
I.C.J. Reports 2004, p. 136, Separate Opinion of Judge Owada, at p. 263, para. 13.
100 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,
I.C.J. Reports 2004, p. 136, Separate Opinion of Judge Koroma, at p. 204, para. 3.
30
the Court’s judgment and the separate opinions in the Wall proceedings, these are not
matters that the Court can properly determine in the exercise of its advisory function.
For all those reasons, the United Kingdom invites the Court to decline to answer the
Request.
2) Inappropriate factual enquiry ground
62. A further circumstance warranting the Court’s refusal to answer a request for an
advisory opinion is where it lacks “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 with its
judicial character”.101
63. The United Kingdom makes the following observations as to this ground for refusal:
63.1. First, this is another manifestation of the Court’s duty to preserve its judicial
function. As noted above, in exercising its advisory function, the Court is
“bound to remain faithful to the requirements of its judicial character”.102
Questions of the Court’s judicial function are matters over which the Court has
inherent jurisdiction, including in advisory proceedings.103 This may require
the Court to exercise its discretion to decline to answer the Request, or to
provide an incomplete answer to the question posed.104
63.2. Second, a distinction is to be drawn between the Court’s treatment of evidence
in advisory and contentious proceedings. In the former category, there are no
parties as such, and there is no obligation to furnish evidence. This has the
consequence that the usual rules on the burden of proof have no application. In
particular, the Court may not draw any adverse inferences from a failure of an
101 Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 12, at pp. 28-29, para. 46. See also Sir Gerald
Fitzmaurice, The Law and Procedure of the International Court of Justice (1986), Vol. I, at p. 122.
102 Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 12, at p. 21, para. 23; see also Constitution of
the Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organization, Advisory
Opinion, I.C.J. Reports 1960, p. 150, at p. 153.
103 Case concerning the Northern Cameroons (Cameroon v. United Kingdom) Preliminary Objections,
Judgment of 2 December 1963, I.C.J. Reports 1963, p. 15, at p. 30.
104 This was the position in the Legality of the Threat or Use of Nuclear Weapons case, where the “elements
of fact at its disposal” did not permit the Court to make definitive findings on legality: Legality of the Threat
or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 226, at p. 266, operative para. 2(E).
See also para. 94.
31
interested party to submit evidence.105 In fact, it may have a heightened duty to
satisfy itself that it is in possession of all of the available facts.106 There is a
further consequence of the general lack of burden of proof in advisory opinions:
if the Court does not have sufficient evidence or information to “enable it to
resolve a particular issue of fact, it cannot fall back upon considerations of
burden of proof and may, therefore, be unable to answer the question in whole
or in part if it is to remain faithful to its judicial function.”107
63.3. Third, for these reasons, and as recognised by the Permanent Court in Eastern
Carelia, the general rule in advisory proceedings is as follows: “under ordinary
circumstances … the facts upon which the opinion of the Court is desired
should not be in controversy, and it should not be left to the Court itself to
ascertain what they are.”108
63.4. Fourth, even though the cases principally focus on sufficiency of evidence, it
follows that the Court must adhere to any principles or practices “required by
its inherent judicial character and by the good administration of justice”, such
as the equality of arms.109 In other words, the Court must comply with the
“essential rules guiding [its] activity as a Court”. 110
64. The Request before the Court makes no attempt to set out the factual premises on
which it is founded. Instead, the first question refers to the “occupation, settlement
and annexation … since 1967”, referring generally and non-exhaustively to
105 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,
I.C.J. Reports 2004, p. 136, Declaration of Judge Buergenthal, at p. 245, para. 10.
106 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,
I.C.J. Reports 2004, p. 136, Separate Opinion of Judge Owada, paras 20-21, referring, inter alia, to Nuclear
Tests (Australia v. France), Judgment, I.C.J. Reports 1974, p. 253, para. 31.
107 Judge Greenwood writing extra-judicially in ‘Judicial Integrity and the Advisory Jurisdiction of the
International Court of Justice’, Gaja and Stoutenburg (eds) Enhancing the Rule of Law through the
International Court of Justice (2014), p. 63 at p. 69.
108 Status of Eastern Carelia, Advisory Opinion, 1923, P.C.I.J., Series B, No. 5, p. 28.
109 Judgment No. 2867 of the Administrative Tribunal of the International Labour Organization upon a
Complaint Filed against the International Fund for Agricultural Development, Advisory Opinion, I.C.J.
Reports 2012, p. 10, at p. 30, para. 47. See also Legal Consequences of the Construction of a Wall in the
Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 136, Separate Opinion of Judge
Owada, at p. 266, para. 16.
110 Status of Eastern Carelia, Advisory Opinion, 1923, P.C.I.J., Series B, No. 5, p. 29. This has been regularly
endorsed by the Court: see, e.g., Judgment No. 2867 of the Administrative Tribunal of the International
Labour Organization upon a Complaint Filed against the International Fund for Agricultural Development,
Advisory Opinion, I.C.J. Reports 2012, p. 10, at p. 25, para. 34.
32
“measures aimed at altering the demographic composition, character and status of
the Holy City of Jerusalem” and Israel’s “adoption of related discriminatory
legislation and measures”. The second question then references the “policies and
practices of Israel” identified in the first question. There is no specific identification
of any of the “measures” or alleged “related discriminatory legislation and
measures”. That is left entirely to the Court.
65. The General Assembly’s phrasing of the Request in this way gives rise to two issues.
66. The first concerns the wide scope of the Request. Not only does it explicitly cover
the lifespan of the entire occupation (presently 56 years), but the “measures”
potentially engage a vast array of issues.
66.1. This is made plain upon a review of the multi-part dossier submitted to the
Court on 31 May and 22 June 2023 by the Secretariat of the United Nations,
which contains some 1,805 documents spanning nearly 30,000 pages. It
furnishes material said to be relevant to the Request published from 1967
onwards.111 The subjects covered by the dossier encompass, among other
matters: (i) Israeli settlements;112 (ii) the living conditions of the Palestinian
people;113 (iii) the situation of Palestinian women and children;114 (iv) natural
resources in the Occupied Palestinian Territories and related Israeli economic
and trade practices;115 (v) Jerusalem;116 (vi) expulsion and deportation;117
(vii) detention and imprisonment;118 (viii) refugees;119 as well as (ix) more
generalised UN reporting on Israeli practices in the Occupied Palestinian
Territories.120
111 See Introductory Note, 31 May 2023, para. 5.
112 See documents 4-72, 1546-1574 and 1674-1689.
113 See documents 73-147.
114 See documents 148-234.
115 See documents 235-285.
116 See documents 614-638.
117 See documents 781-793.
118 See documents 794-803.
119 See documents 943-1194.
120 See documents 652-779 and 811-862.
33
66.2. This approach contrasts with previous advisory proceedings, where the
questions and accompanying UN dossiers before the Court were considerably
narrower in scope. The most relevant comparison is the Wall advisory
proceedings, where the question before the Court was limited to identifying
“the legal consequences arising from the construction of the wall being built
by Israel … as described in the report of the Secretary-General”.121 Not only
was this a limited subject, but the General Assembly identified a specific UN
report as providing the factual premise for its request in the terms of the
question posed. The request was then accompanied by a limited UN dossier
(about 1,000 pages), containing the relevant UN report and further UN
documentation.
66.3. In these circumstances, there is a real question as to whether the Court can
answer the questions posed in a manner consistent with its judicial character. It
would require the Court to embark on a fact-finding mission extending over a
56-year period. This is a task to which the Court is unsuited in the exercise of
its advisory function, which, as noted above, is not intended to grapple with a
complex and controversial factual record.
67. The second issue concerns considerations of fairness and due process. There are
several relevant points here:
67.1. Insofar as Israel does not participate in the advisory proceedings by furnishing
evidence relevant to the Request, the Court will lack “material explaining the
Israeli side of the picture”.122 While the Court may have felt able to proceed
without such material in the Wall proceedings, the present case is of an entirely
different order of magnitude. The General Assembly invites the Court to
engage with the core of the bilateral dispute and specifically targets Israel’s
“policies and practices” since 1967. The Court would risk the integrity of its
judicial function if it were to proceed without Israel’s full participation in those
circumstances.
121 General Assembly (Tenth Emergency Special Session) Resolution ES-10/14, 8 December 2003,
A/RES/ES-10/14 (UN Dossier No. 1226).
122 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,
I.C.J. Reports 2004, p. 136, Separate Opinion of Judge Owada, at p. 268, para. 22.
34
67.2. Even if Israel were to furnish evidence of general relevance to the Request, the
advisory procedure offers insufficient protection to the procedural rights of the
parties to the bilateral dispute, in a case where there are highly controversial
matters of fact with which the Court would be required to engage and where a
heightened standard of proof may apply, insofar as grave allegations are made
against Israel and the Court sees fit to determine them.123
67.3. Further and in any event, the Court should exercise particular caution in relying
on reports of UN bodies (such as those of the Commission of Inquiry) insofar
as those reports have been prepared (i) without Israel’s involvement and
(ii) without access to Israel or the Occupied Palestinian Territories. It is also to
be noted that the United Kingdom, along with several other States, has
expressed reservations about those reports, as set out above.124
68. Ultimately, the United Kingdom respectfully submits that the Court cannot be
confident that it would have a complete or accurate evidential picture before it, or
properly satisfy due process and fairness concerns. This means that it cannot proceed
in a manner compatible with its judicial character. For this additional reason, the
Court should decline to answer the Request.
3) Conflict with the Security Council-endorsed process ground
69. The Court has, on a number of occasions, considered the submission that it should
refuse to respond to a request for an advisory opinion on the basis of adverse political
consequences flowing from its opinion. As the Court reaffirmed in the Kosovo
Advisory Opinion, for such an argument to succeed, the Court must be able to
conduct an objective assessment of the relevant factors: 125
123 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 43, at p. 129, para. 209 (“The
Court has long recognized that claims against a State involving charges of exceptional gravity must be proved
by evidence that is fully conclusive”). See further Armed Activities on the Territory of the Congo (Democratic
Republic of the Congo v. Uganda), Judgment of 9 February 2022, para. 120.
124 See para. 31 above.
125 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo,
Advisory Opinion, I.C.J. Reports 2010, p. 403, at p. 418, para. 35, citing Legality of the Threat or Use of
Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 226, at p. 237, para. 17; Western Sahara,
Advisory Opinion, I.C.J. Reports 1975, p. 12, at p. 37, para. 73; Legal Consequences of the Construction of
a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 136, at pp. 159-160,
paras. 51-54.
35
“… Just as the Court cannot substitute its own assessment for that of the
requesting organ in respect of whether its opinion will be useful to that
organ, it cannot — in particular where there is no basis on which to make
such an assessment — substitute its own view as to whether an opinion
would be likely to have an adverse effect. As the Court stated in its
Advisory Opinion on Legality of the Threat or Use of Nuclear Weapons,
in response to a submission that a reply from the Court might adversely
affect disarmament negotiations, faced with contrary positions on this
issue ‘there are no evident criteria by which it can prefer one assessment
to another’ …”.
70. In this case, there is indeed a firm “basis on which to make … an assessment” that
the Request would undermine an established political process. As set out above, there
is an agreed negotiation framework for the resolution of the Israeli-Palestinian
conflict, which expressly aims to bring about the termination of the Israeli occupation
that the Request seeks. The parties’ commitment to that framework is an objective
fact sufficient to justify the Court’s exercise of its discretion to refuse to answer the
Request.
71. In this regard, the United Kingdom emphasises the following facts and matters:
71.1. The principles set down in Security Council Resolutions 242 (1967) and 338
(1973) for the final resolution of the parties’ dispute establish that questions of
sovereignty over territory and security go hand-in-hand.126 This is also reflected
in the Roadmap, which envisages that a comprehensive peace settlement
between the parties is required in order to bring the occupation to an end.127
71.2. Israel and the PLO have already agreed to enter into permanent status
negotiations based on principles set down in Resolutions 242 (1967) and 338
(1973), including on issues of settlements, Jerusalem, security and borders.
They continue to affirm the need for a negotiated comprehensive settlement to
secure Israel’s withdrawal.128
71.3. This is recognised by the Security Council and the General Assembly,
including in Resolution 77/247 itself, which underlines the “urgent need for …
126 See paras 10-13 above.
127 See paras 21-24 above.
128 See para. 30 above.
36
negotiations aimed at the achievement of a peace agreement that will bring a
complete end to the Israeli occupation that began in 1967”. It was also
expressly acknowledged by the Court in the Wall Advisory Opinion:129
“… [the] situation can be brought to an end only through
implementation in good faith of all relevant Security Council
resolutions, in particular resolutions 242 (1967) and 338 (1973).
The ‘Roadmap’ approved by Security Council resolution 1515
(2003) represents the most recent of efforts to initiate
negotiations to this end. The Court 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 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 neighbours,
with peace and security for all in the region.”
71.4. Moreover, Israel and the PLO specifically agreed not to “initiate or take any
step” that would “change the status of the West Bank and the Gaza Strip” and
confirmed that the “status” of those territories would “be preserved during the
interim period”.130 The parties also agreed a specific dispute settlement regime
for any disputes relating to their interim agreements, which did not involve
recourse to the International Court of Justice, in either its advisory or
contentious capacities.131 It is to be noted that the PLO has not sought to invoke
that dispute resolution mechanism in this case.
71.5. Further, there has been no endorsement by the Security Council or the Quartet
of the General Assembly’s request to the Court as conducive to, or at least
consistent with, the peace process. Nor has there been any suggestion from the
General Assembly, the requesting organ, that the advisory opinion would assist
in bringing the parties back to the agreed framework.
72. In those circumstances, there is an objective basis for the Court to conclude that
answering the General Assembly’s request for an advisory opinion on this occasion
129 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,
I.C.J. Reports 2004, p. 136, at p. 200, para. 162 (emphasis added).
130 See para. 17 above.
131 See para. 15.4 above; referring to Oslo I, Article XV; Oslo II, Article XXI.
37
would conflict with both the parties’ agreed framework for resolving the dispute and
their commitment not to take any steps to interfere with the status of the Occupied
Palestinian Territories, of which requesting an advisory opinion addressing that very
question is plainly one.
4) Object and purpose ground
73. Protecting the integrity of the Court’s judicial function has been identified as a reason
for refusing to answer a request for an advisory opinion, as explained above.
However, the Court “has not ever identified it as the only factor which might lead it
to refuse”.132 Indeed, the Court’s jurisprudence illustrates that it is willing to consider
matters beyond judicial propriety, including “object or purpose”.133
74. It is well-established that it is not for the Court to decide upon the extent to which its
opinion might impact upon the action of the General Assembly.134 It is equally wellestablished
that the Court will not give an advisory opinion as an end in itself. It will
only do so “once it has come to the conclusion that the questions put to it are relevant
and have a practical and contemporary effect and, consequently, are not devoid of
object or purpose”.135
75. The object and purpose of the request must also be consistent with the Court’s judicial
function and role as the principal judicial organ of the United Nations. That object
should be “to obtain from the Court an opinion which the General Assembly deems
of assistance to it for the proper exercise of its functions”, rather than “to bring before
the Court … a dispute or legal controversy, in order that it may later, on the basis of
the Court’s opinion, exercise its powers and functions for the peaceful settlement of
132 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo,
Advisory Opinion, I.C.J. Reports 2010, p. 403, Separate Opinion of Judge Keith, at. p. 483, para. 4 (emphasis
added); Sir Christopher Greenwood, ‘Judicial Integrity and the Advisory Jurisdiction of the International
Court of Justice’, Gaja and Stoutenburg (eds) Enhancing the Rule of Law through the International Court of
Justice (2014) p. 63 at p. 65, footnote 8.
133 Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 12, at p. 37, para. 73. See also the matters
considered by the Court in Accordance with International Law of the Unilateral Declaration of Independence
in Respect of Kosovo, Advisory Opinion, I.C.J. Reports 2010, p. 403, at pp. 415-423, paras 29-48.
134 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 226, at p. 237,
para. 16; see also Accordance with International Law of the Unilateral Declaration of Independence in
Respect of Kosovo, Advisory Opinion, I.C.J. Reports 2010, p. 403, at pp. 417-418, para. 34; Legal
Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion, I.C.J.
Reports 2019, p. 95, at p. 115, para. 76.
135 Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 12, at p. 37, para. 73.
38
that dispute or controversy”.136 In this connection, “[i]t is essential for the Court to
ensure, in performing its advisory function, that it is not exploited in favour of one
specific political strategy or another”.137
76. Against this backdrop, there are two notable features of the drafting of Resolution
77/247. In both the recitals and in the terms of the Request:
76.1. The General Assembly assumes that Israel has committed a series of violations
of international law and invites the Court to consider the status of the Occupied
Palestinian Territories on that basis. It presents both the recitals and the
questions themselves in tendentious terms, instead of framing the questions in
a neutral manner, consistent with normal practice.138
76.2. The General Assembly focuses exclusively on the actions of only one party to
the dispute, despite the Court having accepted that “[i]llegal actions and
unilateral decisions have been taken on all sides”.139
77. By these means, the General Assembly seeks to constrain the Court’s enquiry in a
manner that is inconsistent with its judicial function. That function “precludes it from
accepting, without any enquiry whatsoever, a legal conclusion which itself conditions
the nature and scope of the legal consequences flowing from it”.140 Were it to proceed
to answer the Request, the Court would have to decide a series of threshold legality
136 Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 12, at pp. 26-27, para. 39; see further
Interpretation of Peace Treaties, Advisory Opinion, I.C.J. Reports 1950, p. 65, at pp. 71-72; Legal
Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J.
Reports 2004, p. 136, Separate Opinion of Judge Higgins, at p. 210, para. 12; Legal Consequences of the
Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion, I.C.J. Reports 2019, p. 95,
Declaration of Vice-President Xue, at pp. 142-143, para. 4.
137 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo,
Advisory Opinion, I.C.J. Reports 2010, p. 403, Dissenting Opinion of Judge Bennouna, at p. 503, para. 15.
See also Sir Gerald Fitzmaurice, The Law and Procedure of the International Court of Justice (1986), Vol. I,
at p. 122, where the question being “framed in an ambiguous or tendentious way” was identified as a matter
relevant to judicial propriety.
138 Judgment No. 2867 of the Administrative Tribunal of the International Labour Organization upon a
Complaint Filed against the International Fund for Agricultural Development, Advisory Opinion, I.C.J.
Reports 2012, p. 10, at p. 36, para. 62.
139 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,
I.C.J. Reports 2004, p. 136, at p. 200, para. 162.
140 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, Separate
Opinion of Judge Dillard, at p. 151.
39
questions before addressing the questions expressly posed in the Request,141 since it
would be incompatible with the Court’s judicial functions to consider these matters
as having been determined by the General Assembly.142 Indeed the Court has held in
express terms that “the Charter ‘does not confer judicial functions on the General
Assembly’.”143
78. The General Assembly’s approach also suggests that the object and purpose of its
request is not to seek the Court’s opinion on a matter on which it requires assistance,
but instead, to seek the Court’s confirmation of particular legal conclusions relevant
to the resolution of the parties’ bilateral dispute.
79. This is consistent with the background set out above, in particular:
79.1. The Commission of Inquiry’s recommendation that the Court be called upon to
issue an advisory opinion, following its conclusion as to the status of Israel’s
occupation. 144
79.2. Palestine’s initiation of the advisory request, with the stated objective of
“taking the entire Palestine question to be looked at by … the International
Court of Justice” to obtain “ an opinion that is useful … to get us closer to the
objective of the attainment of the inalienable rights of the Palestinians”.145
80. For those reasons, the United Kingdom invites the Court to decline to answer the
Request on the further ground that the object and purpose of the Request is unsuited
to the discharge of the Court’s function in advisory proceedings.
141 These include: (i) whether Israel has lawfully occupied Palestinian territory since 1967; (ii) whether Israel
has settled Palestinian territory since 1967; if so, what territory and has it done so lawfully; (iii) whether Israel
has annexed Palestinian territory since 1967; if so, what territory and has it done so lawfully; (iv) whether
Israel has engaged in measures “aimed at altering the demographic composition, character and status of the
Holy City of Jerusalem”, and if so, what measures and are each of these measures lawful; (v) whether Israel
has adopted “related legislation and measures” and if so, what, and were they “discriminatory” in character;
and (vi) what is the content of the Palestinian people’s right to self-determination.
142 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo,
Advisory Opinion, I.C.J. Reports 2010, p. 403, at p. 424, para. 52.
143 Application for Review of Judgment No. 158 of the United Nations Administrative Tribunal, Advisory
Opinion, I.C.J. Reports 1973, p. 166, at p. 173, para. 17.
144 See para. 32 above.
145 See para. 39 above.
40
CHAPTER IV
CONCLUSION
81. For the reasons given above, the United Kingdom respectfully requests the
International Court of Justice to reaffirm the principles upon which it should exercise
its discretion under Article 65(1) of the Statute and decline to give answers to the
questions posed by the General Assembly in this case.
_______________________
Sally Langrish
Representative of the United Kingdom of Great Britain and Northern Ireland
20 July 2023
41
CERTIFICATION
I certify that the annexes are true copies of the documents reproduced therein.
_______________________
Sally Langrish
Representative of the United Kingdom of Great Britain and Northern Ireland
20 July 2023
42
LIST OF ANNEXES
The Annexes to the United Kingdom’s Written Statements are set out below and numbered
in the order in which they are referred to in the text.
Annex No. 1 Security Council Official Records, 1379th meeting, 16 November
1967, S/PV.1379
Annex No. 2 Security Council Official Records, 1382nd meeting, 22 November
1967, S/PV.1382
Annex No. 3 Security Council Resolution 338 (1973), 22 October 1973, S/RES/338
(1973)
Annex No. 4 Letters of Invitation to the Madrid Peace Conference, jointly issued
by United States and the Soviet Union to Israel, Syria, Lebanon,
Jordan and others
Annex No. 5 Declaration of Principles on Interim Self-Government Arrangements
signed at Washington DC on 13 September 1993
Annex No. 6 Agreement on the Gaza Strip and Jericho Area signed at Cairo on 4
May 1994, 33 ILM 626 (1994)
Annex No. 7 Agreement on Preparatory Transfer of Powers and Responsibilities
signed at Erez on 29 August 1994, 34 ILM 457 (1995)
Annex No. 8 Protocol on Further Transfer of Powers and Responsibilities signed at
Cairo on 27 August 1995
Annex No. 9 Protocol Concerning the Redeployment in Hebron signed at Jerusalem
on 17 January 1997, 36 ILM 653 (1997)
Annex No. 10 Annex IV, Protocol on Economic Relations between the Government
of the State of Israel and the PLO signed at Paris on 29 April 1994, 33
ILM 696 (1994)
Annex No. 11 Israeli-Palestinian Interim Agreement on the West Bank and the Gaza
Strip signed at Washington DC on 28 September 1995
Annex No. 12 Wye River Memorandum signed at Washington DC on 23 October
1998, 37 ILM 1251 (1998)
Annex No. 13 The Sharm el-Sheikh Memorandum on Implementation Timeline of
Outstanding Commitments of Agreements Signed and the
Resumption of Permanent Status Negotiations signed at Sharm el-
Sheikh on 4 September 1999, 38 ILM 1465 (1999)
Annex No. 14 Hansard, House of Commons Debate, 14 June 2021, volume 697, no.
16, columns 1-22WH
43
Annex No. 15 Speech on the roadmap, Prime Minister Mahmoud Abbas, 4 June
2003, published in The Guardian
Annex No. 16 Security Council Official Records, 7853rd meeting, 23 December
2016, S/PV.7853
Annex No. 17 Aqaba Joint Communiqué, 26 February 2023
Annex No. 18 Joint Communique from the March 19 meeting in Sharm El Sheikh,
19 March 2023
Annex No. 19 Foreign, Commonwealth & Development Office, Statement on the
Human Rights Council Commission of Inquiry on Gaza Report, 8
June 2022
Annex No. 20 General Assembly Official Records, 76th session, 12th plenary
meeting, 24 September 2021, A/76/PV.12
Annex No. 21 UN Press Release, ‘Fourth Committee, Concluding Its Work,
Approves Six Draft Resolutions, Including Request for ICJ Opinion
on Israeli Occupation’ 11 November 2022, GA/SPD/771
Annex No. 22 UN Press Release, ‘Permanent Observer Briefs Palestinian Rights
Committee on Situation in Occupied Territory Situation, Submissions
Guidelines for Opinion Case to World Court’, 3 May 2023,
GA/PAL/1452
Annex No. 23 General Assembly Official Records, 56th plenary meeting, 30
December 2022, A/77/PV.56 (Resumption 1)