Madrid, 21 July 2023
H.E. Ms. Joan E. Donoghue
President
International Court of Justice
Peace Palace
The Hague
Mr. President,
I have the honor to respond on behalf of the Spanish Government to the invitation by the
International Court of Justice, contained in its order No 186 of 3 February 2023 and transmitted
by the letter of the Registrar of 6 February to Member States of the United Nations to furnish
information on the questions submitted by the General Assembly of the United Nations in its
request for an advisory opinion on the legal consequences arising from the policies and practices
of Israel in the Occupied Palestinian Territory, including East Jerusalem.
This letter as well as the attached file constitute the national written statement of Spain.
INTRODUCTORY REMARKS
On the competence of the Court
1.1. The request by the General Assembly contained in resolution 77/247 was made under
Article 96, paragraph 1, of the Charter of the United Nations, pursuant to which the General
Assembly may request the International Court of Justice to give an advisory opinion on any legal
question.
1.2 The Spanish position regarding this matter is consistent with its attitude at the moment of
the adoption of Resolution 77/247 whereby the General Assembly decided to request the said
advisory opinion. Spain abstained in the vote on the Resolution, which was adopted with 98
States voting in favor, 52 abstaining and 17 against. The Spanish abstention is consistent with
the understanding -which underlies Spanish foreign policy since the Madrid Conference in 1991-
that the materialization of the two -state solution and its sustainability is a political question that
can only be the result of a negotiated process between the parties within the framework of
applicable UNSC resolutions. Therefore, Spain does not believe that such a solution can be the
outcome of the proceedings before the International Court of Justice or any other international
body.
1.3 Nonetheless, Spain joined other United Nations Member States on a Declaration published
on 16 January 2023 reconfirming its "unwavering support for the International Court of Justice
and international law as the cornerstone of our international order", as well as Spain's
"commitment to multilateralism". Furthermore, Spain rejected Israeli "punitive measures in
response to a request for an advisory opinion by the International Court of Justice, and more
broadly in response to a General Assembly resolution". By doing so, and through this written
statement, Spain shows its commitment to the central role of the International Court of Justice
to guarantee a rules -based international order
1.4. The power granted to the Court to give an advisory opinion derived from Article 65 of the
Statute is of a discretionary nature. Therefore, it is for the Court to determine whether it should
exercise its power of discretion in the present case by deciding or not to provide the requested
opinion. The observations below are submitted for consideration in the event that the Court
decides to respond to the questions posed by the General Assembly.
Applicable law and other elements of international law
- United Nations Charter
- International humanitarian law and particularly the Regulations annexed to the Fourth
Hague Convention of 1907; the Fourth Geneva Convention of 1949
- Human rights law and particularly the International Covenant on Civil and Political
Rights;
- Relevant United Nations Security Council Resolutions, particularly:
• UNSC resolution 242, dated 1967
• UNSC resolution 338, dated 1973
• UNSC resolution 267, dated 1969
• UNSC resolution 289, dated 1971
• UNSC resolution 446, dated 1980
• UNSC resolution 452, dated 1979
• UNSC resolution 465, dated 1980
• UNSC resolution 476, dated 1980
• UNSC resolution 478, dated 1980
• UNSC resolution 484, dated 1980
• UNSC resolution 904, dated 1994
• UNSC resolution 1073, dated 1996
• UNSC resolution 1379, dated 2002
• UNSC resolution 1515, dated 2003
• UNSC resolution 1850, dated 2008
• UNSC resolution 1860, dated 2009
• UNSC Resolution 2334 dated 2016
- Relevant jurisprudence:
• Western Sahara, Advisory Opinion ICJ Reports 1975, p.68, paragraph 162
• East Timor (Portugal v. Australia), Judgement ICJ Reports 1995, p.102, paragraph
29
• Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States of America) ICJ Report 1986
• Legal Consequences for States of the Continued Presence of South Africa in
Namibia (South West Africa) notwithstanding UNSC-R 276 (1970), Advisory
Opinion ICJ Reports 1971
• Judgement of the International Military Tribunal of Nuremberg, Report 1946,
• Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion ICJ Report
1996 (I)
• Gabcikovo-Nagymaros Project (Hungary v. Slovakia) ICJ Report 1997
• United States Diplomatic and Consular Staff in Tehran, Judgement ICJ 198
• Barcelona Traction, Light and Power Company, Limited, Second Phase Judgement
ICJ Reports 1970
• Haya de la Torre, Judgement ICJ 1951, page 82
• Western Sahara, Advisory Opinion ICJ Reports 1975
• East Timor (Portugal v. Australia), Judgement ICJ Reports 1995
• Legal consequences of the construction of a wall in the occupied Palestinian
territory. Advisory Opinion ICJ Reports 2004.
- Relevant United Nations General Assembly resolutions, particularly:
• UNGA resolution 181 (II), dated 1947;
• UNGA Resolution ES -10/2;
• UNGA Resolution ES -10/13;
• UNGA Resolution 10/14;
• UNGA resolution ES -10/19 "Status of Jerusalem"
• UNGA resolution 2625 (XXV);
• UNGA resolution 377 (V) "Uniting For Peace".
• UNGA resolution 66/225 "Permanent sovereignty of the Palestinian people in the
Occupied Palestinian Territory, including East Jerusalem, and the Arab population
in the occupied Syrian Golan over their natural resources"
• UNGA resolution 67/19 "Status of Palestine in the United Nations"
• UNGA resolution 77/208 "The right of the Palestinian people to selfdetermination"
• UNGA resolution 77/247 "Israeli practices affecting the human rights of the
Palestinian people in the Occupied Palestinian Territory, including East Jerusalem"
• UNGA resolution 77/328 "Report of the Independent International Commission of
Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and
Israel"
ASSESSMENT
General observations
2.1. The law of armed conflict strikes a balance between humanitarian demands and military
needs attending to the principles of necessity, proportionality and humanity. Therefore, all
related measures must be reasonable in terms of intensity, duration and scale. In the context of
an occupation, international humanitarian law ensures consistency between humanitarian aims
and the occupier's security needs and reduces the risk of a deterioration in relations between
the occupying Power and the occupied. Any examination of necessity and proportionality in
circumstances of prolonged occupation when hostilities have ceased must be more rigorous,
since stricter conditions govern the imposition of restrictions on the fundamental rights of
protected persons.
2.2. Spain, at the national level but also as a Member of the EU, has repeatedly shown concern
over the successive cycles of violence throughout decades of conflict, which have contributed
to the failure of negotiations and therefore deferred the implementation of the two -state
solution. Spain has repeatedly acknowledged the legitimate concerns of Israel with regard to the
continued terrorist violence, which all Spanish governments have unequivocally condemned in
the strongest possible terms, as well as Israel's right to self-defense under international law.
2.3. The EU and Spain have also repeatedly condemned the disproportionate use of violence by
the Israeli authorities and increasing settler violence and requested Israel to exercise its right to
self-defense in a proportionate manner and according to International Humanitarian Law, as
well as to protect civilian population in the Palestinian territories, according to its status as an
occupying power. Its actions on the grounds of self-defense or national security must respect
international humanitarian and human rights law. Respect for such norms is essential in order
to improve the humanitarian situation of persons living under prolonged occupation and to bring
about a just and lasting peace.
The Spanish national position and the EU consensus
3.1 The General Assembly of the United Nations adopted Resolution 77/247 presents its request
to the Court as follows:
'18. Decides, in accordance with Article 96 of the Charter of the United Nations, to request the
International Court of Justice, pursuant to Article 65 of the Statute of the Court, to render an
advisory opinion on the following questions, considering the rules and principles of international
law, including the Charter of the United Nations, international humanitarian law, international
human rights law, relevant resolutions of the Security Council, the General Assembly and the
Human Rights Council, and the advisory opinion of the Court of 9 July 2004:
(a) What are the legal consequences arising from the ongoing violation by Israel of the right of
the Palestinian people to self-determination, from its prolonged occupation, settlement and
annexation of the Palestinian territory occupied since 1967, including measures aimed at altering
the demographic composition, character and status of the Holy City of Jerusalem, and from its
adoption of related discriminatory legislation and measures?
(b) How do the policies and practices of Israel referred to in paragraph 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?'
3.2. The position of Spain regarding the elements included in the questions presented to the
Court has long been anchored in EU policy —which Spain has contributed to shape- and
particularly, inter alia, the Berlin Declaration from 24-25 March 1999; Council Conclusions on
the Middle East Peace Process from July 2014, Council Conclusions on the Middle East Peace
Process from November 2014, Council conclusions on the Middle East Peace Process from July
2015, Council conclusions on the Middle East Peace Process from January 2016 and, more
recently, in the Statement of the European Union with the European Union's position for the
Association Council's 12th meeting from 3 October 2022 as well as the Joint Statement of the EU
and its Member States from 8 march 2023. These positions have been mirrored by Spain's own
national statements and as a Member of the West Bank Protection Consortium. For ease of
reference, all these elements are provided to the Court as attachments to this letter.
The right of self-determination and the two -State solution
4.1. The Heads of State and Government of the European Union reaffirmed in the Berlin
Declaration in 1999 "the continuing and unqualified Palestinian right to self-determination
including the option of a state".On that understanding, the EU has for decades championed the
two -state solution as a central element of its Common Foreign and Security Policy (CFSP).
4.2. On the occasion of the 12' meeting of the EU-Israel Association Council, the EU reaffirmed
this long-standing position on the Middle East Peace Process:
"12. The EU is united in its commitment to achieving a two -state solution —based on the
parameters set out in the Council conclusions of July 2014 that allows the State of Israel
to live side by side in peace, security and mutual recognition with an independent,
democratic, contiguous, sovereign and viable State of Palestine, with Jerusalem as the
future capital of both states".
Annexation and settlement policy
5.1. The EU and its Member States in the recent Statement of 8 march 2023 -and the
Government of Spain at the national level- have repeatedly rejected expansion of Israeli
settlements in the Palestinian occupied territories and particularly all recent measures aiming
at an accelerated expansion thereof, and considered them as contrary to the international law,
and an obstacle to peace and to the materialization of the two -state solution. This assessment
is based in UNSC Resolution 465 (1980) and particularly UNSC Resolution 2334 (2016), in which
the Security Council:
"1. Reaffirms that the establishment by Israel of settlements in the Palestinian territory
occupied since 1967, including East Jerusalem, has no legal validity and constitutes a
flagrant violation under international law and a major obstacle to the achievement of
the two -State solution and a just, lasting and comprehensive peace;
2. Reiterates its demand that Israel immediately and completely cease all settlement
activities in the occupied Palestinian territory, including East Jerusalem, and that it fully
respect all of its legal obligations in this regard.
3. Underlines that it will not recognize any changes to the 4 June 1967 lines, including
with regard to Jerusalem, other than those agreed by the parties through negotiations;
4. Stresses that the cessation of all Israeli settlement activities is essential for salvaging
the two -State solution, and calls for affirmative steps to be taken immediately to reverse
the negative trends on the ground that are imperiling the two State solution."
5.2. The EU has consistently rejected the continued settlement expansion and all measures that
may be tantamount to a de iure or de facto annexation of the Palestinian territories. In its
Statement on the 12th meeting of the EU-Israel Association Council,
"16. The EU calls on Israel to halt continued settlement expansion, which have reached
record highs in the past years, evictions, demolitions and forced transfers".
5.3. In the context of the current escalation of tensions, the aforementioned EU statement and
Spanish national statements have condemned constant and increasing settler violence and
reminded Israel of its obligations as the occupying power under international law, calling for
accountability. In this line, the Statement of the EU and its Member States from 8 March 2023
states that "Israel must stop settlement expansion, prevent settler violence and ensure the
perpetrators are held accountable".
Israeli continued occupation
6.1. Spanish and European efforts towards peace are rooted in the firm belief that the
occupation is a temporary solution that must preserve the viability of a future Palestinian state
until the negotiation process brings about a definitive solution to the conflict. In this regard, on
3 October 22, on the occasion of the 12th meeting of the EU-Israel Association Council the EU
stated that:
"12. (...) The EU is gravely concerned that the occupation of the Palestinian territory that
began in 1967 continues to this day".
Measures aimed at altering the demographic composition, character and status of the Holy
City of Jerusalem
7.1. The EU has constantly opposed measures that are intended to alter the situation in favor of
the Occupying Power, including in Jerusalem. On 3 October 2022, on the occasion of the 12th
meeting of the EU-Israel Association Council, the EU stated that:
12. "(...) The EU and its Member States will continue to respect the international
consensus on Jerusalem embodied in the relevant United Nations Security Council
Resolutions until the final status of Jerusalem is resolved".
(..)
18. The EU recalls the specific significance of the Holy Sites and makes a strong call for
upholding the status quo put in place in 1967 for the Temple Mount/Haram al-Sharif in
line with previous understandings and with respect to Jordan's special role. Underlining
the necessity to respect the status quo also for the Christian holy sites, which are under
increasing pressure, the EU reiterates the importance of maintaining peaceful
coexistence of all three monotheistic religions and their practitioners.
CONCLUSION
8.1. Spain firmly believes in the need to materialize the two State -solution through a negotiated
process, as it is the only answer to the legitimate national aspirations of Palestinians and Israelis.
The result of this process needs to be a State of Israel and a State of Palestine living side by side
in peace, security and mutual recognition, with Jerusalem as the future capital of both states,
according to relevant UNSCR resolutions.
8.2. The Israeli occupation of Palestinian territories is subject to International Law, which it must
fully respect, in particular International Humanitarian law and the International Human Rights
Law. Any practice conducive to de lure of de facto annexation of the Palestinian occupied
territories would render such an occupation illegal.
Respectfully yours,
Signed: Jose Manuel Albares Bueno
Minister of Foreign Affairs of the Kingdom of Spain
Written statement of Spain