JUSTICE - No. 71

13 Spring 2024 Weapons Advisory Opinion, the ICJ said it “is mindful that it should not, in principle, refuse to give an advisory opinion. In accordance with the consistent jurisprudence of the Court, only ‘compelling reasons’ could lead it to such a refusal.”6 Once a request is appropriately made, the ICJ engages in a two-step process to determine whether to exercise its advisory jurisdiction. First, the Court determines whether it has jurisdiction. If the Court finds it has jurisdiction, it determines whether it should nevertheless decline to take the case.7 The ICJ’s predecessor court, the Permanent Court of International Justice, declined to render an advisory opinion a century ago in the Eastern Carelia dispute between Finland and Russia. The Permanent Court of International Justice noted that it lacked sufficient information to resolve factual disputes between the parties, and therefore it would be inappropriate to render an advisory opinion.8 II. The Pending ICJ Advisory Opinion Case On December 30, 2022, the UN General Assembly adopted Resolution 77/247.9 The Resolution recites a litany of criticisms of Israel and reads more like an indictment of Israel than a request for legal advice. The Resolution culminates in a request to the ICJ to render an advisory opinion regarding the following two questions: (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 . . . 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? The ICJ ordered parties to file opening briefs on July 25, 2023, and responsive briefs on October 25, 2023. (The ICJ did not extend the deadline following Hamas’s horrific October 7, 2023 terror attack against Israel.) Although only states are allowed to file briefs, the ICJ permitted the Organization for Islamic Cooperation to file but refused the same courtesy to the World Jewish Congress. The ICJ scheduled public hearings to commence on February 19, 2024. Jurisdictional Issues The first question arising from a request for an advisory ruling is whether the dispute resolution provisions of the Oslo Accords deprive the ICJ of jurisdiction or provide a “compelling” basis for the Court to decline the request. Article 37 of the ICJ statute provides that: Whenever a treaty or convention in force provides for reference of a matter to a tribunal to have been instituted by the League of Nations, or to the Permanent Court of International Justice, the matter shall, as between the parties to the present Statute, be referred to the International Court of Justice.10 The Oslo Accords contain no such provision. Instead, the parties negotiated for and agreed to comply with a binding internal dispute resolution process. This process requires that any type of dispute is to be resolved through negotiations within a Joint Israeli-Palestinian Liaison Committee. If the dispute cannot be resolved by negotiations within the Joint Liaison Committee, then the next step would be to resolve the dispute “by a mechanism of conciliation to be agreed upon by the parties.”11 Should that not produce a resolution, then the final avenue would be for the parties to mutually agree to submit the dispute to an Arbitration Committee to be established by the parties themselves. Under no circumstances do the Oslo Accords permit 6. Id., at 235, ¶ 14. 7. Malcolm Shaw, INTERNATIONAL LAW, 9th ed., 974 (Cambridge: Cambridge Univ. Press, 2021). 8. Status of Eastern Carelia, Advisory Opinion, 1923 P.C.I.J. 272, Series B No. 5, 28-29 (July 23) (emphasis added). 9. UN G.A. Res. 77/247, U.N. Doc. A/RES/77/247 (Dec. 30, 2022). 10. Statute of the International Court of Justice, art. 37, available at https://www.icj-cij.org/statute 11. Declaration of Principles on Interim Self-Government Arrangements (Oslo Accords), Oct. 11, 1993, art. XV, available at https://peacemaker.un.org/sites/peacemaker.un.org/files/IL%20PS_930913_DeclarationPrinciplesnterimSelf-Government%28Oslo%20Accords%29.pdf

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