JUSTICE - No. 71

14 No. 71 JUSTICE either party to commence (or to ask others to commence) legal proceedings before an external body, including the International Court of Justice. In other cases involving dispute resolution clauses, the ICJ asserts jurisdiction only when the parties specifically agree to confer jurisdiction on the Court. For example, in the Maritime Delimitation and Territorial Questions between Qatar and Bahrain case, the parties initially agreed on a binding dispute resolution process before the King of Saudi Arabia. Subsequently, however, the parties agreed in an exchange of letters to submit their dispute to the ICJ.12 In Cameroon v. Nigeria, the ICJ noted the practice of states to choose alternative dispute resolution processes and exclude such disputes from the ICJ’s jurisdiction.13 Here, by contrast, the Israeli and Palestinian sides never agreed in the Oslo Accords to submit disputes to the ICJ. Given the scope of the Oslo agreements which covers the entire set of issues dividing the parties, there is no legal basis for the ICJ to accept the General Assembly’s request to render an advisory opinion addressing any of those issues. Moreover, the 2004 Wall advisory opinion has no precedential impact on jurisdictional objections based on the dispute resolution provisions of the Oslo Accords, as the ICJ’s opinion completely ignored those provisions. If the ICJ decides it has jurisdiction over the issues raised in the General Assembly’s December 2022 request for an Advisory Opinion, then it effectively eliminates the authority of a dispute resolution clause in any future treaty. Why would international parties include internal dispute resolution language in their treaties if the Court could intervene at the behest of third parties? Substantive Issues The Oslo Accords and UN Security Council Resolution 24214 already provide the answers to the questions raised in the General Assembly’s December 2022 request for an advisory opinion. Palestinian Self-Determination Regarding the first issue, the General Assembly resolution asks the ICJ to determine “the legal consequences arising from the ongoing violation by Israel of the right of the Palestinian people to selfdetermination.” The premise of this question is factually and legally incorrect. The Palestinians negotiated for and agreed in writing in the Oslo Accords that they would obtain civic autonomy – but not self-determination – in Areas A and B of the West Bank and in the Gaza Strip during the interim period, prior to the completion of the permanent status negotiations. The Palestinians knowingly, voluntarily, and willingly agreed to defer their self-determination claims until the permanent status negotiations. Moreover, the Palestinians signed the Oslo Accords despite the complete absence of any promise or guarantee of future statehood. Few realize that the Oslo Accords did not predetermine an eventual outcome for future negotiations. They operated as a road map to negotiations discussing potential statehood, rather than as a promise of statehood itself. The Palestinians knew exactly what they were bargaining for at Oslo. Nothing was forced upon them against their will. As Mahmoud Abbas later wrote, the Palestinian delegation gave attention to every word, sentence and expression. It was even necessary to scrutinize every comma and full stop so that we could eliminate the likelihood of fatal pitfalls occurring in the future . . . the DOP documents were reviewed by our legal consultant, Taher Shash, whom we had sent to Oslo for this purpose just before they were initialed on 20 August 1993.15 The Palestinians nevertheless argue that selfdetermination is a core international legal norm, so fundamental that it cannot be negotiated away. The Palestinians also rely on dicta in the ICJ’s 2004 Wall advisory opinion, saying the Oslo Accords’ recognition of Palestinian “rights” should be interpreted to include the right to self-determination.16 Thus, the Palestinians would argue their right to selfdetermination trumps the deferred possibility of selfdetermination which they had agreed to in Oslo. But, as 12. Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Judgment, 1994 I.C.J. 112, 121-25 (July 1). 13. Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Judgment, 1998 I.C.J. REPORTS 275, 302-303 ¶ 56 (June 11). 14. UN S.C. Res. 242, U.N. Doc. S/RES/242 (Nov. 22, 1967). 15. Mahmoud Abbas, THROUGH SECRET CHANNELS (Reading, UK: Garnet Pub., 1997), 161-62. 16. Wall Advisory Opinion, supra note 3, at 182-83 ¶ 118 (citing East Timor (Port. v. Austl.), Judgment, 1995 I.C.J. 90, 102, ¶ 29 (June 30)).

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