22 No. 75 JUSTICE perpetuating its illegal occupation of certain sectors of the Republic of Guinea-Bissau.”84 However, General Assembly resolutions are not binding on States.85 54. Considering this practice, it is submitted that there is arguably insufficient support for the proposition that the existence of an occupation can be considered to be illegal even if it arises from an unlawful use of force (which it has not in the current situation). State practice and opinio juris is not sufficiently uniform to establish such a principle as a matter of customary international law. The existence of an occupation is, rather, a matter of fact. There is no basis in public international law to conclude that an occupation preventing the exercise of the right of self-determination is illegal 55. Considering the foregoing, it is submitted that it is still more doubtful whether State practice and opinio juris is sufficiently uniform to support the conclusion that an occupation arising from a lawful use of force can become illegal by virtue of actions taken in its context. Ronen, however, argues that “an occupation may be considered illegal if it is [sic] involves the violation of a peremptory norm of international law that operates erga omnes, and is related to territorial status. Accordingly, illegal occupations are primarily those achieved through violation of the prohibition on the use of force and of the right to self-determination, or maintained in violation of the right to self-determination” (emphasis added).86 Lieblich and Benvenisti argue that the “an occupation can become per se illegal” when “a state that was mandated to administer a territory remains there after its mandate is revoked.” The “paradigmatic example for such cases,” they say, was “South Africa’s continuing control of Namibia long after its mandate was terminated.”87 Portugal’s continuing occupation of Guinea-Bissau is relied upon as an additional example. 56. Benvenisti further argues that “an occupation regime that refuses earnestly to contribute to efforts to reach a peaceful solution should be considered illegal. Indeed, the failure to do so should be considered outright annexation.”88 This submission is, however, unsupported by analysis of State practice and opinio juris showing that a customary international law rule has developed with sufficiently widespread acceptance to the effect that an occupation regime that refuses earnestly to contribute to efforts to reach a peaceful solution is illegal. Notably, Benvenisti’s argument is couched in the conditional future tense (i.e. such a regime “should be” considered illegal); as such, it appears to reflect the author’s view of the lex ferenda rather than the lex lata. In any event, in the circumstances of this matter, it cannot be said that the responsibility for not resolving the conflict lies with Israel alone. 57. State practice and opinio juris do not support the existence of a rule of customary international law providing that a lawfully created occupation may subsequently become illegal on account of violations of the right to selfdetermination of the population under occupation.89 In its Advisory Opinion of 2004 on the Wall, the Court found Israel responsible for several breaches of the law of belligerent occupation, but it refrained from characterising the Israeli occupation as “illegal” as a whole, or otherwise to opine on the legality of Israel’s presence in the West Bank.90 Ronen concludes that the “advisory opinion thus supports the proposition that individual acts, even when they adversely affect the right to self-determination, do not render an occupation illegal.”91 84. G.A. Res. 3061 (XXVIII), U.N. GAOR, 28th Sess. Supp. No. 30, U.N. Doc. A/9030 (Nov. 2, 1973). 85. South West Africa Voting Procedure Advisory Opinion, 1955 I.C.J. at 115 (H. Lauterpacht, J., concurring). 86. Ronen, abstract. 87. Lieblich and Benvenisti, p. 34. 88. E. Benvenisti, The International Law of Occupation (Oxford 2012), p. 245 (hereinafter “Benvenisti – Occupation”). 89. Zemach, p. 313. 90. In a separate opinion, Judge Elaraby referred to “the illegality of the Israeli occupation regime itself.” Wall Advisory Opinion, Separate Opinion of Judge Elaraby, p. 256. 91. Ronen, p. 221.
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