Journal of the International Law Department of the University of Miskolc

Miskolc Journal of International Law

Miskolci Nemzetközi Jogi Közlemények
 

Vol. 2. (2005) No. 1. pp. 102-119.

Péter KOVÁCS[1]:
 

Rather Judgement than Opinion? Or can we speak about a third type judicial

procedure before the International Court of Justice?

 (Note under the Advisory Opinion of the International Court of Justice delivered about the „wall” built on Palestinian Territory)[2]

On July 9 2004, the International Court of Justice rendered probably one of its most important advisory opinions which will presumably be also among the most controversial ones.[3]

The facts are well-known: cca. two years ago, Israel took the decision to build an enormous wall surrounding the Palestinian territories in order to prevent the arrival of terrorists.

The different sections of the wall (the already finished one, the section under construction and the one which is only planned) are shown with different colors on the following map:

The construction was conceived as a unilaterally decided element of the „peace process” the ultimate aim of which is the establishment of a Palestinian state. Sharon’s government had to give not only a concession for „hardliners” in the Israeli Parliament to secure their approval of the continuation of internationally mediated talks (the so-called „Roadmap” process) but it was also challenged by the ongoing terrorist acts perpetrated into the intifada.  

The general idea about the construction is a „Berlin-type” wall but in fact at long sections, „only” installations of barbed-wire, cameras and electric sensors can be seen. At very long, continuous sections however a definite concret wall has been built.

         photo from: http://www.palestinemonitor.org         photo from: http://www.elca.org/middleeast/wall/ 
 

                                     photo from: http://mrandyc.care4free.net/YorkPSC/wall.htm

                                   photo from: http://mrandyc.care4free.net/YorkPSC/wall.htm

According to pools[4], the construction of the wall is backed by the immense majority of Israelis, they consider it as an important element of their legitimate self-defense based on the wish to live in peace and security. The results and methods of retaliatory actions of the Israeli army as well as the measures of self-defence have been criticized in international organizations[5] and mass media because of loss in civilian life and property. In the meantime, Arafat’s Palestinian Authority seems to be unable and maybe unwilling to control the situation on Palestinian side and the quasi head of state of the Palestinian Territory lost his credit as well in Israel as in the United States. The photos of Clinton, Rabin and Arafat shaking hands have faded: at the time of the procedure before the ICJ, only Arafat was still in office, but under a de facto internment by the Israeli army into the residence of Ramallah, sometimes very similar to a military siege. (Arafat could leave however his headquarter at the end of October 2004 in order to be hospitalized in Paris but even the best French military physicians could not save his life and he died on November 11, 2004.)

The Security Council, as usual, has been unable to act with efficacy in the matter but it has adopted a good number of resolutions in secondary questions of the peace process[6] and the fight against terrorism. This is the context in which the motion submitted by Arab states was backed by the General Assembly which asked the International Court of Justice to answer the question in the form of an advisory opinion: „What are the legal consequences arising from the construction of the wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem, as described in the report of the Secretary‑General, considering the rules and principles of international law, including the Fourth Geneva Convention of 1949, and relevant Security Council and General Assembly resolutions?”

When the International Court of Justice was seized of the matter, it decided to use the new communication facilities thus giving public access not only to memoranda and other written documents of cca. fourty states and international organizations but, for the first time, to auditions and the delivery of the opinion, which were transmitted „live” and with replay-possibilities from the World Court’s home page.

In the following pages, we try to highlight the most important dicta of the ICJ with references to the corresponding paragraphs of the advisory opinion. Our commentary does not want to be exhaustive: on the one hand we would like to put emphasis on top legal arguments related to the case and on general problems of international law as reflected in the opinion, on the other.

1. Does the Court have competence to deliver the opinion?

Participating in the written phase of the procedure, but abstaining from auditions, Israel challenged the legality of the resolution of the General Assembly, considering it as an ultra vires action. (§ 24) She also referred to the „Eastern-Carelia rule” when pledging the Court not to reply. (§ 46) Israel emphasized the complexity of the highly politicized Near-East issue where law is only one of the elements of a puzzle.(§ 46)

When deciding upon the first objection, the Court examined the regularity of the antecedents and the events of the Tenth Emergency Session of the G.A. and it referred to several aspects of the famous 377(V) resolution, known as „Uniting for Peace”. It is worth noting that the wording of the Court apparently does not reveal any doubt on the legality of the resolution so much questioned in the past. (§ 30).

In the traditional duel of the opinion on the Status of Eastern-Carelia[7] versus the opinion on the interpretation of the peace treaties with Bulgaria, Hungary and Romania,[8] the Court points out (§ 44) that „the very particular circumstances of the case” explained the PCIJ’s refusal, thus repeating the words of the advisory opinion on the Legality of the Threat or Use of Nuclear Weapons.[9] Even if, in the given case, it is evident that the advisory opinion would have a considerable impact on the forthcoming phases of dispute settlement, nevertheless the Court repeats verbatim from the Peace treaties advisory opinion that consent of States, parties to a dispute have a different vocation in a contentious case than in the procedure of an advisory opinion. (§ 47). The Court emphasizes its discretionary power and refers to the lack of compelling reasons which could oblige her to refuse the delivery of the opinion. (§ 45, 47) For the Court, the main reason is however that the issue is not (only) a bilateral dispute but a genuine matter of international concern: it does not share the view that “the subject‑matter of the General Assembly’s request can be regarded as only a bilateral matter between Israel and Palestine.  Given the powers and responsibilities of the United Nations in questions relating to international peace and security, it is the Court’s view that the construction of the wall must be deemed to be directly of concern to the United Nations.” (§ 49) The history of the mandate over Palestine and the partition of the territory by the United Nations are also evoked as reasons why the United Nations and especially the General Assembly are entitled to deal with the question of the wall. (§ 49)

Concerning the third objection, it is not surprising that the Court, in conformity with its long-standing jurisprudence, does not accept the argument based on the alleged lack of justiciability: it confirms the well established thesis that legal points can be adjudged in themselves without entering into the realm of politics. (§ 36-41) There is an interesting aspect of this argument which is also referred to as an illustration of the the finality of the advisory opinion in abstracto but also in concreto, as far as it is evident – and Israel also mentioned this fact in her memorandum - that the General Assembly has qualified the wall illegal long before the advisory opinion. (§ 60-61). According to the Court, as not all the possible consequences have been determined by the General Assembly, the opinion would have a real contribution in seeing properly the legal issues. (§ 62)

2. Nature and details of applicable law

After the lengthy presentation of the history of the different relevant resolutions of the General Assemby and the Security Council concerning the occupied territories (§ 68-78), the Court proves that the United Nations consequently appealed for the respect of international humanitarian law (in its customary and written forms as well) and for non recognition of territories acquired by force. The geographical and technical details and the history of the construction of the wall are presented mostly on the basis of the Secretary General’s report (§ 79-85) and the Court points out that there is sometimes a considerable difference between the Green line, Israel’s internationally recognized demarcation line – in lack of a recognized boundary - and the location of the wall. (§ 83) The difference means 975 km² and for the time being it is embracing 237 000 Palestinians, but after the completion of the Wall, another 160000 will be added to them. Moreover, these people are sometimes quasi closed in enclaves.

Concerning the applicable law for the status of these territories, the Court refers first to article 2(4) of the United Nations Charter, resolution 2625(XXV), the common article 1 of the 1966 Covenants and the different dicta of the judicial interpretation of the self-determination principle. (§ 87-88). Even if Israel is not a contracting party to the Fourth Hague Convention of 1907, the Court does not see any obstacle to the postulation of Israel’s obligations on the basis of customary law. (§ 89)

Israel is bound by the Fourth Geneva Convention of 1949 but before the Court, she did not admit its applicability to the occupied territories because of “the lack of recognition of the territory as sovereign prior to its annexation by Jordan and Egypt” and inferring that it is “not a territory of a High Contracting Party as required by the Convention”. (§ 90) It is worth noting that in 1982, the PLO acting as Palestine made a unilateral undertaking for the respect of this Convention even if Switzerland, the depositary did not pass a decision upon its formal request of accession submitted in 1989. Examining the finality of the Convention, as well as its travaux préparatoires and also the subsequent positions of the ICRC, the General Assembly and the Security Council, the Court gave a different interpretation to the allusion of article 2 to “contracting parties”. Contrary to its literal meaning “contracting parties” should simply be understood as “parties to the conflict” for the purpose of the applicability of the Convention.(§ 95-99). The Court also notes however that a military order issued in the “Six-Day War”as well as a judgment of Israel’s Supreme Court recognized expressis verbis the applicability of the Fourth Geneva Convention to the West Bank. (§ 93, 100) Consequently, the Court comes to the conclusion that the Fourth Geneva Convention is pertinent in the assessment of the current situation.

The applicability of the two UN human rights covenants of 1966 was similarly refused by Israel. (§ 102). The Court recalls “that the protection offered by human rights conventions does not cease in case of armed conflict, save through the effect of provisions for derogation of the kind to be found in Article 4 of the International Covenant on Civil and Political Rights.” In armed conflicts, the covenants (with the restriction above) and also the Convention on the Rights of the Child can and should be implemented paralelly to humanitarian law instruments. (§106). A country must not limit the applicability of these Covenants solely to her own territory when she is exercising a de facto power elsewhere on a territory under jurisdiction namely by military occupation. (§ 107-113). Here, the Court can also rely on the position of the UN Human Rights Committee.

The Court puts that “that the existence of a «Palestinian people» is no longer in issue” and the true existence of this people and their “legitimate rights” under which the right to self-determination is to be understood were recognized not only by the United Nations but also by Israel in different phases of the peace-negotiations (§ 118). The Court warns that there is “a risk of further alterations to the demographic composition of the Occupied Palestinian Territory resulting from the construction of the wall inasmuch as it is contributing (...) to the departure of Palestinian populations from certain areas.  That construction, along with measures taken previously, thus severely impedes 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.”(§122)

The Court also gives interpretation of Article 49, paragraph 6 of the Fourth Geneva Convention:  “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”  According to the Court “That provision prohibits not only deportations or forced transfers of population such as those carried out during the Second World War, but also any measures taken by an occupying Power in order to organize or encourage transfers of parts of its own population into the occupied territory.” Recalling the relevant Security Council documents, the Court concludes “that the Israeli settlements in the Occupied Palestinian Territory (including East Jerusalem) have been established in breach of international law.” (§ 120)  Although Israel gave “assurance (...) that the construction of the wall does not amount to annexation and that the wall is of a temporary nature” the Court considers that “the construction of the wall and its associated régime create a “fait accompli” on the ground that could well become permanent, in which case, and notwithstanding the formal characterization of the wall by Israel, it would be tantamount to de facto annexation.” (§ 121) 

As far as the Hague and Geneva Conventions are concerned, the Court cites mostly the rules concerning the respect of civilian property, the minimum intervention into day-to-day life and work of civilians. (§ 126).

From the International Covenant on Civil and Political Rights, the Court refers to Article 12 (1) (“Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.”) and Article 17(1) (“No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.”) The Court notes that Israel made use of the possibility of derogation under article 4 but only vis-à-vis article 9 of the ICCPR i.e. the habeas corpus rule.(§126) The Court combines the interpretation of these rules with obligations to grant free access to the Holy Places, as guaranteed in different documents in particular the 1878 Berlin Treaty, the 1922 British Mandate and 1949 General Armistice, stipulating the so called Green line as demarcation line between Israel and Jordan. (§ 129) As far as the International Covenant on Economic, Social and Cultural Rights and the Convention on the Rights of the Child are concerned, the Court refers mainly to the right to education, to an adequate standard of living, right to work, etc. (§ 130-131)

The Court seems to be shocked that “Qalqiliya, a city with a population of 40,000, is completely surrounded by the wall and residents can only enter and leave through a single military checkpoint open from 7 a.m. to 7 p.m.” (§ 133) and it considers that the construction of the wall has “serious repercussions for agricultural production” (§ 133). The Court builds its argumentation on the lengthily cited assessment of facts by different special rapporteurs appointed by the Secretary General.

The Court comes to the conclusion that “the construction of the wall and its associated régime impede the liberty of movement of the inhabitants of the Occupied Palestinian Territory (with the exception of Israeli citizens and those assimilated thereto) as guaranteed under Article 12, paragraph 1, of the International Covenant on Civil and Political Rights.  They also impede the exercise by the persons concerned of the right to work, to health, to education and to an adequate standard of living as proclaimed in the International Covenant on Economic, Social and Cultural Rights and in the United Nations Convention on the Rights of the Child.  Last, the construction of the wall and its associated régime, by contributing to the demographic changes referred to in paragraphs 122 and 133 above, contravene Article 49, paragraph 6, of the Fourth Geneva Convention and the Security Council resolutions.” (§ 134)

It is certainly true that military necessities can be invoked by States to avoid abiding to some rules of humanitarian law but the Court emphasizes that according to the text of the Geneva Convention e.g. the prohibition of the transfer of population cannot be suspended on this basis. This exception can theoretically live together with the rule of the respect of property and interdiction of destruction, but the Court is not convinced about the existence of such an absolute necessity as required by the Convention. (§ 135) In the interpretation of the so called limitation rules of the Covenants, the Court puts emphasis on the finality and proportionality of the intervention of a State (for public order or national security) in the enjoyment of these rights, conditions which are not met in the present issue, as the ICJ underlined. (§ 136-137)

Israel also invoked the legitimacy of self-defence in order to justify the construction of the wall. (§ 138). The Court recognizes the applicability of self-defence in international law only in a state-to-state armed attack: in a very elegant (but slightly contradictory) way, it refuses the transposition of the “9/11 self-defence” concept although it recognizes retroactively the correctness of the relevant Security Council resolutions adopted in the aftermath of the WTC-tragedy. ”The Court also notes that Israel exercises control in the Occupied Palestinian Territory and that, as Israel itself states, the threat which it regards as justifying the construction of the wall originates within, and not outside, that territory.  The situation is thus different from that contemplated by Security Council resolutions 1368 (2001) and 1373 (2001), and therefore Israel could not in any event invoke those resolutions in support of its claim to be exercising a right of self‑defence.” (§ 139)

The Court asks whether the state of necessity can be evoked in this case as an eventual exculpation of wrongfulness. The International Law Commission’s Articles on Responsibility of States for Internationally Wrongful Acts is used for this purpose and especially the reference to “grave and imminent peril”. The answer is however negative: ”In the light of the material before it, the Court is not convinced that the construction of the wall along the route chosen was the only means to safeguard the interests of Israel against the peril which it has invoked as justification for that construction.” (§ 140) Although recognizing that Israel has “the right, and indeed the duty, to respond in order to protect the life of its citizens” (§ 141), the Court warns that “the measures taken are bound nonetheless to remain in conformity with applicable international law” (§ 141). Accordingly, the Court comes to the conclusion “that the construction of the wall, and its associated régime, are contrary to international law.” (§ 142)

3. Legal consequences of the judicial appreciation of the situation

The Court considers that the consequences of this statement concern essentially Israel, but also other countries and  “where appropriate” the United Nations as well. (§ 148)

First, “Israel is bound to comply with its obligation to respect the right of the Palestinian people to self‑determination and its obligations under international humanitarian law and international human rights law.  Furthermore, it must ensure freedom of access to the Holy Places that came under its control following the 1967 War.” (§ 149) Secondly, “Israel also has an obligation to put an end to the violation of its international obligations flowing from the construction of the wall in the Occupied Palestinian Territory.” (§ 150) This means not only that Israel should put an end to the construction but she should repeal all legislative and administrative  acts related thereto.(§151) Israel has the obligation to make reparation for the damage caused to all the natural or legal persons concerned (§ 152) and in case of immobile properties (where possible) to apply the principle of the in integrum restitutio, and where this is impossible, to compensate damages and losses. (§ 153)

The Court adds that “both Israel and Palestine are under an obligation scrupulously to observe the rules of international humanitarian law, one of the paramount purposes of which is to protect civilian life.  Illegal actions and unilateral decisions have been taken on all sides, whereas, in the Court’s view, this tragic situation can be brought to an end only through implementation in good faith of all relevant Security Council resolutions”. (§ 162)

Laying stress on the erga omnes character of some violated norms (i.e. self-determination (§ 155-156) and humanitarian law (§ 157-158)), the Court proclaims the obligation of all the States i.e. “not to recognize the illegal situation resulting from the construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem. They are also under an obligation not to render aid or assistance in maintaining the situation created by such construction.  It is also for all States, while respecting the United Nations 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.” (§ 159) Moreover – even if it is not really clear how States can do so – the Court calls them “to ensure compliance by Israel with international humanitarian law (...)” (§ 159)

What are the duties of the United Nations and in particular those of the General Assembly and the Security Council?

The Court hereby emphasizes “the urgent necessity for the United Nations as a whole to redouble its efforts to bring the Israeli‑Palestinian conflict, which continues to pose a threat to international peace and security, to a speedy conclusion, thereby establishing a just and lasting peace in the region.” (§ 161) The Court is going further when referring 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.” (§ 162)

Here – with all the respect due to the judges – we are far from the wording of the original demand for an advisory opinion. These wishes – let us hope that not merely wishful thoughts – draw the great lines of a comprehensive solution. Certainly, there is nothing here which could not be backed by series of resolutions adopted by the Security Council or the General Assembly, nevertheless this obiter dictum is very close to what one could qualify as judicial activism.

 4. Effective contribution to the peace process?

It is of paramount importance that the decision about the jurisdictional competence of the Court to give the advisory opinion was adopted with total unanimity and the decision about complying with the request was adopted in quasi unanimity with only one vote against, namely Buergenthal’s, the American judge’s. The same 14:1 score can be seen in the different subpoints, with the exception of the reference to obligations binding in this matter all the states when judge Buergenthal was backed by judge Koijmans.

Judges Koroma, Higgins, Koijmans, Al-Khasawneh, Elaraby and Owada appended separate opinions to the advisory opinion, and judge Buergenthal appended a declaration thereto.

It is not easy to foresee the real impact of the advisory opinion on the issue itself. The first official reactions in Israel were very negative and reflected a complete refusal. (It is known however that the already mentioned decision of the Supreme Court[10] legally obliged the Israeli government to change slightly the exact line of the wall and the government promised to execute[11] this ruling.) Even if there are considerable differences between the two documents, starting with the actual case under examination[12] but especially the fact that the Supreme Court is accepting security as basic motivation of the construction policy[13], it is very important however to see how close the logic of the Israeli Supreme Court and the International Court of Justice are to each other in the assessment of the pertinence of relevant international humanitarian law treaties and the ensuing consequences.[14] „The route disrupts the delicate balance between the obligation of the military commander to preserve security and his obligation to provide for the needs of the local inhabitants. (…) The route that the military commander established for the security fence … injures the local inhabitants in a severe and acute way while violating their rights under humanitarian and international law.”[15] Related to the specificities of the war against terrorism, one of the basic thoughts of the Supreme Court could also have been pronounced by the ICJ "at the end of the day, a struggle according to the law will strengthen [Israel's] power and her spirit.  There is no security without law."[16]

The American government, either republican[17] or democrate[18] will hardly exercise any pressure for compliance with the dicta of the opinions the advisory nature of which were emphasized in the American media, even if Sir Gerald Fitzmaurice, one of the best known international lawyer of the English speaking world rightly pointed out before the International Law Commission of the UN (and in a similar manner as his predecessors in the thirties[19]) that „although advisory opinions are not binding, there are two cases in which they would appear to be in practice negatively binding, i.e. to have prohibitory force, namely, first, where the opinion indicates that a certain course of action would be contrary to international law or to the Charter or to some other international instrument – in such a case it would be virtually impossible for the requesting organ to follow that course, and difficult for any individual Member state to do so; second, where the opinion indicates that, of various possible courses, only one is the correct course legally – here again, if anything is done at all, it would appear difficult in practice not to follow the course advocated by the Court.”[20]. Nevertheless, there are minor signs that Washington has expectations of changes in Israeli policy[21]. In this way, the US confirms the critical approach[22] which could be observed already in 2003 paralel to the veto against a draft resolution condemning the wall. It is to note however that the United States is concerned by the ruling not only as Israel’s closest ally, but also by the substantive article (§§ 138-139, precited) about legitimate self-defence. In the debate of the General Assembly, the American ambassador critized this point sharply, representing the refusal of the so-called enlarged self-defence concept of today’s America fighting against international terrorism.[23] The European Union’s position submitted before the Court by Ireland[24], assuming the tasks of the presidency in rotation, was however ambiguous: it condemned the wall[25] but it also opposed the delivery of the advisory opinion as politically inappropriate. Nevertheless, the countries of the European Union abstained  at the voting on the motion about the request of the General Assembly, but voted in favour of resolution ES-10/L.18, adopted in the aftermath of the pronouncement of the ruling which was received „with respect” and which „(1) Acknowledges the advisory opinion, (2) Demands that Israel, the occupying Power, comply with its legal obligations as mentioned in the Advisory Opinion, (3) Calls upon all States Members of the United Nations to comply with their legal obligations as mentioned in the Advisory Opinion” etc..

5. Looking further...

The view of the ICJ about the failure of execution of international commitments and the breaches of international law can hardly be challenged: what the judges said did not differ from what had already been said several times by the political organs of the United Nations, sometimes also by the Security Council, not to speak of other international organizations, the International Committee of the Red Cross, most state-chancelleries, UN-special rapporteurs, etc. It is true that the comprehensive, judicial recapitulation of previous resolutions and evaluations, the authoritative interpretation of commitments based on treaty law as well as hard and soft law type UN-documents created a qualitatively different situation. Richard Falk is rightly stating that „such a plain-spoken ruling from the characteristically cautious International Court of Justice will test the respect accorded international law.”[26]

A most important issue of recent judicial stock-taking has already been raised in the title: can the decision of the ICJ be considered as an opinion or is it a quasi judgement disguised in the form of consultative opinion.?

The logic of the wall opinion suggests that since July 9 2004, a UNO vs. State dispute can apparently be adjudged without explicit statutory habilitation. Does this mean that a third type judicial procedure was born in the practice of the International Court of Justice?

It is certainly a delicate situation when procedures launched on the basis of headquarter-agreements should be qualified as advisory opinion. It is also clear that some international organizations can live together with Organization vs. State (or vica versa State vs. Organization) lawsuits, the best known example being the internal judicial complex of the European Communities.

In the history of the International Court of Justice, one cannot forget the Advisory Opinion concerning the Legal Consequences for States of the Continued Presence of South Africa in Namibia[27], which was delivered in a similar situation, even if posterior to the real decision i.e. the revocation of the mandate by the General Assembly and the Security Council. The advisory opinion about certain expenses of the United Nations[28] is also an example for the conflict between the Organization and – in the given case not one but two - failing states.  The advisory opinion on Western Sahara[29] was de facto an appreciation of the legal and historical backgrounds of Mauritanian and Maroccan territorial pretensions over the territory: here, the Assembly acted quasi as the representant of a people, beneficiary of the right of self-determination. In the Mazilu-case (advisory opinion on the Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations)[30], the Economic and Social Council asked the ICJ whether the mentioned point was applicable to the situation of the Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities which was unsuccesfully denied by Ceausescu’s Romania. However the introductory phrase already clearly reflected that the the issue had organization vs. state nature.[31] The advisory opinion on the Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights[32], was linked to a similar organization vs. State type conflict concerning the status of Cumaraswamy, Special Rapporteur on the Independence of Judges and Lawyers.[33]

In the jurisprudence of the Permanent Court of International Justice, the possibilities to disguise the apprehension of the Organization for breaches of international law committed by a state in form of an advisory opinion, were even more evident. It mustn’t be forgotten that the separation of interstate litigations and advisory opinions has never been very clear either in the Covenant, in the statute and rules of the Permanent Court of International Justice[34] or in its jurisprudence. The simplicity with which a particular state vs. state problem was transformed into an advisory opinion[35] is spectacular. In the thirties, Csiky, a Hungarian international lawyer belonging to the Buza-school[36] called this phenomenon as „adjudging opinion”[37] in his book about the PCIJ[38]. Csiky’s approach[39] (which is however not completely identical with the characteristics of the UN debate about the Wall[40]) was not at all completely incompatible with authoritative tendencies of the contemporary doctrine: thus on the basis of the report presented by the French Albert de Lapradelle and the Rumanian Démètre Négulesco, judge of the PCIJ, the Institute of International Law adopted in 1937 a resolution on the legal nature of advisory opinions of the Permanent Court of International Justice and on their value and significance in international law[41] calling on the use of advisory opinion procedure in case of impossibility of submitting interstate claims.[42] According to Négulesco and Lapradelle[43], one can speak in these cases about an „advisory arbitration” (arbitrage consultatif) and Robert Redslob called the same possibility as „limited arbitration” (arbitrage limité).[44] This could complement the possibility what de Vischer qualified as an abstract advisory opinion having the vocation to exclude the emergence of an eventual (or even probable) dispute on interpretation in the future.[45]

The competences attributed to the Permanent Court of International Justice in the system of the protection of minorities under the auspices of the League of Nations show some theoretical similarities with the present issue because the demands for advisory opinions were always linked to real problems, breaches of law, alleged by petitions or claims submitted by states. Even if de jure, the examination of the complaints in the League of Nations was the duty of the Council, behind the questions submitted by the Council for advisory opinions to the PCIJ, concret allegations were recognizable. Let us refer, first of all to the the well known Mossoul-issue[46] where the PCIJ confirmed that the Council was entitled to take a binding decision quasi in the capacity of an arbitral tribunal, mandated by the common will of the parties as reflected in the peace treaty[47]. The disguised character of interstate disputes is manifest in some advisory opinions delievered in the protection of minorities, e.g. i. on certain questions relating to settlers of German origin in the territory ceded by Germany to Poland[48], ii. on the access to German minority schools in Upper Silesia[49] and iii. on minority schools in Albania[50].

The former two were linked to a legal dispute between Germany and Poland, the latter concerned a tension between Greece and Albania. In the two opinions on schools the questions[51] submitted to the PCIJ are evidently linked to the merits of the case, so the answer to the question could have had a decisive effect on the settlement of the dispute, respectively with the success of the German and the Albanian positions. In the opinion on settlers the wording of the original question[52] and that of the reply[53] show astonishing similarity with the opinion on the wall. There is another similarity between minority protection issues and the wall case, namely the role played by the two organizations, respectively the League of Nations as guardian and guarantor of the minority commitments[54] and the United Nations having a charter proclaiming the right to self-determination and the task of the Organization to secure international peace and stability, rules containing arguments in favor of a special locus standi. Moreover, the deep involvement of the UNO from the beginning in the realisation of coexistence between Israel and a Palestinian state could also be felt by the judges as justifying the interests of the organization. In a similar way, neither the LON Covenant, nor did the UN Charter recognize expressis verbis this competence based on other treaties and hard & soft law type documents of the respective organizations.

It should certainly be left to future judgement whether the International Court of Justice took here the politically right decision.[55] In the Near-East, no interstate questions can be answered solely on the basis of international law.  This is actual reality: hopefully, the present decision of the International Court of Justice will contribute to the birth of a climate where the contradictory and prima facie inconciliable interests can equally be taken into consideration during the final settlement under the patronage of the United Nations.

Does this very special advisory opinion – which was, in fact, a quasi judgement (even if, of course, without a direct, binding nature) - falling upon a State in a lawsuit launched on a very peculiar basis remain an isolated phenomenon or does it mean the opening of a new jurisprudence in the metamorphoses of international law and the United Nations at the Millennium? Although the answer to this question is a matter of the future, nevertheless a few examples can be found in the practice of the Permanent Court of International Justice and the International Court of Justice that the judges in The Hague can rely upon.

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