DR.
RAM MANOHAR LOHIYA NATIONAL
LAW UNIVERSITY
FINAL DRAFT OF
PUBLIC INTERNATIONAL LAW
On
International Public Order and the International Court's Advisory
Opinion on Legal Consequences of the Construction of a Wall in the
Occupied Palestinian Territory
Submitted to: Submitted by:
IV Semester
2019
Table of Contents
1
Topics addressed below........................................................................2
What was the Israel and Palestine war about?......................................3
The international public order/ the public order norms........................5
The public order norms violated during the course of construction of
the wall (as per the court).....................................................................6
The court’s opinion and public order duties of the state......................9
Conclusion..........................................................................................11
2
Topics addressed below
The intention here is to examine certain issues, in terms of both the Opinion and the Opinions
of individual judges which in some cases offer alternative perspectives of understanding the
pertinent legal issues. The above mentioned issues are:
1. the use of force,
2. the right of peoples to self-determination,
3. human rights and humanitarian law, their relevance in terms of the legality and legal
consequences of the construction of the wall
4. Most importantly, several issues of the operation of international public order (public
policy), confirming the interdependence between the conceptual essence of that public
order and its specific effect
The concepts to be set out by the opinion and the opinions of individual judges on the above
mentioned legal issues:
1. the concept of international public order
2. the Court's findings on the breaches of public order
3. the Court's treatment of the public order duties arising out of the fact of the
construction of the wall
3
What was the Israel and Palestine war about?
Israel is the world’s only Jewish state, located just east of the Mediterranean Sea.
Palestinians, the Arab population that hails from the land Israel now controls, refer to the
territory as Palestine, and want to establish a state by that name on all or part of the same
land. The Israeli-Palestinian conflict is over who gets what land and how it’s controlled.1 In
the late 19th century, the Ottoman Empire ruled over the land that is now known as Palestine.
The population there at that time was 87% Muslim, 10% Christian and 3% Jewish, the major
spoken/daily language was Arabic.
In the 19th century, the Jewish Journalist named Theodor Herzl believed that the Jews needed
to move out of Europe and settle in their own state. Zionism is the concept of Jewish
nationalism. Most Zionists were secular Jews, hence believing that Israel was a state for Jews
rather that a Jewish state. In 1917, the British government, to gain the support and trust of the
Jewish people, issued that Balfour Declaration promising “The establishment in Palestine of a
National Home for the Jewish people”; but till then the Palestine was still Ottoman. Later,
after the World War 1, the British decided it to be wise to rule Palestine until the Palestinians
were ready to govern themselves. The British then established different institutions for
Muslims, Christian and Jews, making it hard for to cooperate, making their governing easier
as the ‘divide and rule’ was being applied. Between 1920 and 1939, the British did honour
the Balfour Declaration and the Jewish population increased to 30%.
Though both Jews and Arab Muslims date their claims to the land back a couple thousand
years, the current political conflict began in the early 20th century. Jews fleeing persecution
in Europe wanted to establish a national homeland in what was then an Arab- and Muslim-
majority territory in the Ottoman and later British Empire. The Arabs resisted, seeing the land
as rightfully theirs. An early United Nations plan to give each group part of the land failed,
and Israel and the surrounding Arab nations fought several wars over the territory. Today’s
lines largely reflect the outcomes of two of these wars, one waged in 1948 and another in
1967. Many attempts have been made to broker a two-state solution, involving the creation of
an independent Palestinian state alongside an independent Jewish state or next to the State of
Israel (after Israel’s establishment in 1948). In 2007 a majority of both Israelis and
Palestinians, according to a number of polls, preferred the two-state solution over any other
solution as a means of resolving the conflict. Moreover, a considerable majority of the Jewish
1
https://www.vox.com/2018/11/20/18080002/israel-palestine-conflict-basics
4
public sees the Palestinians’ demand for an independent state as just, and thinks Israel can
agree to the establishment of such a state. A majority of Palestinians and Israelis view the
West Bank and Gaza Strip as an acceptable location of the hypothetical Palestinian state in a
two-state solution. However, there are significant areas of disagreement over the shape of any
final agreement and also regarding the level of credibility each side sees in the other in
upholding basic commitments.2
2
https://politics%20/the-israeli-palestinian-conflict-politics-essay.php
5
The international public order/ the public order norms
The public order norms in national legal systems are associated with fundamental norms
barring the application of conflicting foreign laws, but also with norms outlawing
transactions between legal persons which contradict good morals. The public order operates
with regard to acts and transactions accomplished outside or within the given legal system.
International public order is reflected in peremptory norms of general international law (jus
cogens), which operate in an absolute way and are non derogable, that is cannot be contracted
out.3
Jus cogens (or ius cogens) is a Latin phrase that literally means “compelling law.” It
designates norms from which no derogation is permitted by way of particular agreements.
The 1969 and 1986 Vienna Conventions on the Law of Treaties stipulate that a treaty is void
if it conflicts with jus cogens (Art. 53 and 64). The same is true for unilateral declarations,
following the guiding principles adopted by the International Law Commission in 2006
(Principle 8). According to the Articles on Responsibility finalized by the same commission
in 2001 and 2011, states as well as international organizations shall cooperate to bring to an
end any serious breach of jus cogens, and shall not recognize as lawful a situation created by
such a breach, nor render aid or assistance in maintaining such situation (Art. 41/2001 and
42/2011). Moreover, if states or international organizations are to violate jus cogens, they
cannot invoke any circumstance precluding the wrongfulness of their conduct, such as
necessity or force majeure (Art. 26). Finally, countermeasures shall not affect jus
cogens obligations (Art. 50/2001 and 53/2011). No exhaustive list of peremptory norms has
been drawn officially, but it is commonly accepted as including the prohibition of the use of
force between states, the prohibition of slavery, racial discrimination, torture and genocide, as
well as peoples’ right to self-determination. 4 The Vienna Convention is the only source of
positive law recognising the relevance and legal effects of jus cogens. The effect of jus
cogens with regard to the acts and rules other than treaties does not mean that the effect of jus
cogens is limited to the law of treaties. The invalidating capacity of jus cogens also extends to
the actual acts and transactions of States offending against it.5
3
Dugard, Recognition and the United Nations (1987), 149; Mer on, Human Rights Law-Making in the United
Nations (1986), 198; Dupuy (2002), 282-283; Jaenicke, Zur Frage des Internationalen Ordre Public, 7 Berichte
der Deutschen Gesellschaft für Völker recht (1967), 96.
4
http://www.oxfordbibliographies.com/view/document/obo-9780199796953/obo-9780199796953-0124.xml
5
Suy, The Concept of Jus Cogens in International Law, Lagonissi Conference: Papers and Proceedings, volume
II, Geneva, Carnegie Endowment for International Peace (1967), p. 75; Merony Human Rights Law-Making in
6
The public order norms violated during the course of
construction of the wall (as per the court)
In the Advisory Opinion, the Court found that the construction of the wall violated several
fundamental norms of international law, such as the prohibition of the use of force, the right
of the Palestinian People to self-determination, human rights and humanitarian law. These
norms have peremptory status,6 which means that their breaches entail the consequences
essentially different from the breaches of ordinary norms. The Court acknowledged that it
dealt with the legal consequences of "the wall being built in the Occupied Palestinian
Territory, including in and around East Jerusalem." Erga omnes character of certain
obligations violated by Israel, i.e.
1. Obligation for all States not to recognize the illegal situation resulting from
construction of the wall and not to render aid or assistance in maintaining the situation
created by such construction.
2. Obligation for all States, while respecting the Charter and international law, to see to
it that any impediment, resulting from the construction of the wall, to the exercise by
the Palestinian people of its right to self-determination is brought to an end.
3. Obligation for all States parties to the Fourth Geneva Convention, while respecting
the Charter and international law, to ensure compliance by Israel with
international humanitarian law as embodied in that Convention.
Need for the United Nations, and especially the General Assembly and the Security
Council, to consider what further action is required to bring to an end the illegal situation
the United Nations (1986), p. 190.
6
33 On the prohibition of the use of force see Nicaragua, ICJ Reports, 1986, 100-101 and ILC, YblLC, (1966-
11), 248, ILC Report 2001, commentary to Article 40, 283, para. 4. Judge Elaraby, Separate Opinion, Wall
Advisory Opinion, para. 3.1. Dinstein, War, Aggression and Self-Defence (2001), 94. On the right to self-
determination see the Separate Opinion of Judge Ammoun, Barcelona Traction, ICJ Reports, 1970, 72; YblLC
(1963-11), 22; UN
Human Rights Commission Res2003/3; Shaw, Title to Territory in Africa (1986), 91; Gros Espiely Self
Determination and Jus Cogens, Cassese (ed.), UN Law/Fundamental Rights (1979), 167-171; Dugard,
Recognition and the United Nations (1987), 158ff; Cassese, Self-Determination of Peoples (1994), 171-172. On
humanitarian law, see Nuclear Weapons, ICJ Reports 1996, 257; Judge Bedjaoui, Declaration, ICJ Reports
1996, 273; Judge Weeramantry, Dissenting Opinion, 46; Judge Koroma, Separate Opinion, ICJ Reports, 1996,
574. ILC Report 2001, 284; Sassoli, State Responsibility for Violations of Humanitarian Law, 84 International
Red Cross Review (2002), 413-414; Werksman & Khalatschi, Nuclear weapons and the concept of jus cogens:
peremptory norms and justice pre-empted? Boisson de Chazournes & Sands (eds), International Law, the
International Court of Justice and Nuclear Weapons (1999), 194-196.
7
resulting from the construction of the wall and its associated régime, taking due account
of the Advisory Opinion.7
The Court considered that the status of the territories in question was also relevant. It
referred to several resolutions of the UN Security Council declaring illegal, in the context
of the Israeli occupation of the territories of West Bank, the acquisition of territory by war
(Resolution 242, 1967 (the unanimously adopted resolution called on Israel to withdraw
its armed forces from territories occupied in the 1967 conflict.)) and the lack of legal
force and total invalidity of Israel's legislative and administrative measures to change the
status of Jerusalem after its occupation, "including expropriation of land and properties,
transfer of populations and legislation aimed at the incorporation of the occupied section"
(Resolution 298, 1971 (confirmed in "the clearest possible terms" that all actions taken by
Israel to change the status of Jerusalem, such as land confiscation, were illegal.)). The
Court further referred to Resolution 478, 1980 (condemned in "the strongest terms" the
enactment of Israeli law proclaiming a change in status of Jerusalem. The resolution
called on all states "that have established diplomatic missions" in Jerusalem to withdraw
them from the city.), declaring null and void Israel's Basic Law making Jerusalem the
"complete and united" capital of Israel, as well as "all legislative and administrative
measures . . . which have altered or purport to alter the character and status of the Holy
City of Jerusalem.
The Court also referred to the voidness of actions contravening international humanitarian
law, especially to the treatment by the Security Council of "the policy and practices of
Israel in establishing settlements in the Palestinian and other Arab territories occupied
since 1967" in "flagrant violation" of the provisions of the Fourth Geneva Convention
dealing with the rights and responsibilities of the occupying power, especially Article 49.
The Court stated that "the route chosen for the wall gives expression in loco to the illegal
measures taken by Israel with regard to Jerusalem and the settlements, as deplored by the
Security Council." The building of the wall contributed to the "further alterations to the
demographic composition of the Occupied Palestinian Territory" through "the departure
of Palestinian populations from certain areas." The construction of the wall and its
associated régime could create a "fait accompli" that could well become permanent, in
which case it would be tantamount to de facto annexation of the territories by Israel. The
7
https://unispal.un.org/UNISPAL.NSF/0/B59ECB7F4C73BDBC85256EEB004F6D20
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Wall severely impeded "the exercise by the Palestinian people of its right to self-
determination, and is therefore a breach of Israel's obligation to respect that right."
The Court focused on the legality under international humanitarian law of the
construction of the wall and referred to Article 2 of the Fourth Geneva Convention of
1949,8 under which the Convention applies to territories not falling under the sovereignty
of one of the contracting parties, even if the occupation of the territory meets no armed
resistance.
Having affirmed the applicability of the Convention, the Court pointed out that "the
construction of the wall has led to the destruction or requisition of properties under
conditions which contravene the requirements of Articles 46 and 52 of the Hague
Regulations of 1907 and of Article 53 of the Fourth Geneva Convention." The Court held
that Israel was to cease the construction of the wall and dismantle the parts of the wall
which were situated in the Palestinian territory, as well as provide reparation to the
victims of violations by way of restitution, that is "to return the land, orchards, olive
groves and other immovable property seized from any natural or legal person for
purposes of construction of the wall in the Occupied Palestinian Territory," and pay
compensation.
8
Geneva Convention relative to the Protection of Civilian Persons in Time of War, 75 U.N.T.S. 287, entered
into force Oct. 21, 1950.
9
The court’s opinion and public order duties of the state
The obligations erga omnes violated by Israel are, according to the Court, the obligation
to respect the right of the Palestinian people to self-determination, and certain of its
obligations under intransgressible rules of international humanitarian law.
The Court considered that,
1. Due to the character and the importance of the rights and obligations involved,
"all States are under an obligation not to recognize the illegal situation resulting
from the construction of the wall in the Occupied Palestinian Territory, including
in and around East Jerusalem."
2. States "are also under an obligation not to render aid or assistance in maintaining
the situation created by such construction."
3. In addition, having earlier found that the construction of the wall on the
Palestinian territory involved the breaches of several provisions of the Fourth
Geneva Convention, the Court stressed that all the States-parties to the
Convention are under an obligation to ensure compliance by Israel with
international humanitarian law as embodied in that Convention.9
Judge Higgins denied that "the specified consequence of the identified violations of
international law have anything to do with the concept of erga omnes." She criticised the
Court's reference to erga omnes obligations, stating that "that dictum was directed to a very
specific issue of jurisdictional locus standi has nothing to do with imposing substantive
obligations on third parties to a case." Judge Higgins also criticised the reference to the erga
omnes nature of obligations in terms of the violations of humanitarian law, submitting that
the intransgressible principles of humanitarian law are generally binding because they are
customary international law.
As the UN International Law Commission suggested, the International Court's passage in the
Nuclear Weapons Advisory Opinion on the intransgressible character of basic norms of
humanitarian law refers to their peremptory character. 10 This factor can justify the Court's
application of the principle of non-recognition to the breaches of relevant humanitarian laws.
9
Judge Koojmans agreed with the Court with regard to the duty not to render aid or assistance, and added that
the Court must have reminded States of the importance of rendering humanitarian assistance to the victims of
the construction of the wall.
10
ILC Report 2001, Commentary to Article 41, para. 5
10
A cluster of fundamental principles inherent in the two fundamental norms of the prohibition
of the use of force and the right to self-determination provide a legal basis for the refusal of
the United Nations to recognise Israel's sovereignty over East Jerusalem.
Jus cogens gives a new doctrinal coherence to the doctrine of non-recognition. Dugard
formulates this doctrine as follows:
"An act in violation of a norm having the character of jus cogens is illegal and is therefore
null and void. This applies to the creation of States, the acquisition of territory and other
situations, such as Namibia. States are under a duty not to recognise such acts."11
This is so, because
"Jus Cogens is a central feature in the modern doctrine of non-recognition as the violation of
a norm having the character of jus cogens is a prerequisite for the illegality that results in the
nullity and non-recognition.
The Court itself never expressly mentioned the concept of peremptory norms, but spoke of
erga omnes obligations. Judge Koojmans acknowledged that the legal consequences for third
States as stated by the Court were similar to those expressed in Article 41 of the ILC's
Articles on State Responsibility. However, Judge Koojmans avoided the question "whether
obligations erga omnes can be equated with obligations arising under a peremptory norm of
general international law.
In the face of Judge Higgins' criticisms, one could only defend the Court by assuming that it
referred to the erga omnes character of the pertinent obligations as the manifestation of the
peremptory character of the rules which give them rise.12
As Judge Koroma stated, "The Court's findings are based on the authoritative rules of
international law and are of an erga omnes character." This is due to the fact that, as Judge
Koroma specified, the Opinion's findings affirm "that the international community as a whole
bears an obligation towards the Palestinian people . . . not to recognize any unilateral change
in the status of the territory brought about by the construction of the wall."
11
Dugard (1987), 135.
12
It could be relevant in this context that the Court spoke about the character of the relevant obligations, not the
relevant norms.
11
Conclusion
Having reached the conclusion that the construction of the wall, and its associated
regime, are contrary to international law conclusion, the International Court of
Justice could finally answer the question put by the General Assembly, namely, what
are the legal consequences of the violation by Israel of its legal obligations. In this
respect the Court found, first, that Israel must immediately cease the construction of
the wall and repeal or render ineffective all measures taken which unlawfully restrict or
impede the exercise of the rights of the inhabitants of the West Bank; secondly, Israel
was found to be under an obligation to make reparation for all damage caused.
Furthermore, the Court found that all other States are under an obligation not to
recognize the illegal situation resulting from the construction of the wall and not to
render aid or assistance in maintaining the situation created by such construction. As
for the United Nations, in particular the Security Council and the General Assembly,
these organs should consider which further action would be required to bring to an end
the illegal situation resulting from the construction of the wall.
Finally, the Court called on both Israel and Palestine to observe scrupulously their
obligations under humanitarian law, ‘one of the paramount purposes of which is to
protect civilian life’, and urged the United Nations to redouble its efforts to bring the
Israeli-Palestinian conflict to a speedy and negotiated solution.
It is noteworthy that nearly all the Court’s findings were adopted virtuously
unanimously, namely with a majority of fourteen to one. The American judge was of
the view that the Court should have exercised its discretion and should have declined to
give the requested advisory opinion. Consequently he also had to vote against all the
Court’s findings on substance since an abstention (which in itself might have been
more appropriate) is not possible under the Court’s Statute. He, however, explicitly
stated that his negative vote ‘should not be seen as reflecting his view that the
construction of the wall (…) does not raise serious questions as a matter of
international law’. He felt, however, that the Court did not have before it the requisite
factual bases for its ‘sweeping statements’, even if he agreed with much in the opinion.
He criticized the Court, moreover (and three other judges shared this criticism) for not
having examined seriously the nature of the terrorist attacks coming from Palestine and
their impact on Israel and its population; he was of the view that the opinion would
12
have had more credibility if the Court had given sufficient consideration to Israel’s
legitimate concerns. 13
13
https://fanack.com/arab-palestinian-israeli-conflict/the-wall/
13
