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Legal findings of interest in the Israeli Practices Opinion will be discussed in a multi-part series titled: “Review of the Israeli Practices Opinion”. This post serves as the first entry, and will focus on whether the Court should have exercised its advisory jurisdiction in this case, considering that it would result in pronouncing upon Israel’s international responsibility without its consent.
On 19 July 2024, the International Court of Justice handed down its Advisory Opinion in the “Legal Consequences Arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, Including East Jerusalem” proceedings. This Opinion was rendered in response to a Request that the Court determine the legal consequences arising from Israel’s violations of international law through its interference with the Palestinian people’s right to self-determination, effective annexation of Palestinian territory, and implementation of discriminatory legislation and measures. Although this Request was framed solely as a question of the legal consequences arising from Israel’s international responsibility, implicit in that Request was the question of whether Israel had violated international law in the first place (See Wall, para. 39). This implicit question did not go unnoticed, and was raised as a bar to the exercise of the Court’s advisory jurisdiction, given that Israel had not consented to have its international responsibility pronounced upon by the Court (Israeli Practices, para. 33).
However, this issue was summarily rejected, with the reasoning being that the principle of consent only comes into effect if the Court is asked to settle a bilateral dispute, which, in the Court’s view, it was not (Israeli Practices, para. 34). Furthermore, whatever bilateral character that could be attributed to Israel and Palestine’s differences could not be maintained when cast against the greater backdrop of the United Nations General Assembly’s “permanent responsibility towards the question of Palestine until the question is resolved in all its aspects in a satisfactory manner in accordance with international legitimacy” (Israeli Practices, para. 35).
In light of the Court’s swift dismissal of what could, and perhaps should have been a legitimate bar to the exercise of its jurisdiction, this piece aims to demonstrate that the principle of consent prevents the exercise of advisory jurisdiction whenever a State’s international responsibility is non-consensually engaged, and not just when the Court is called to effectively adjudicate a bilateral dispute in the exercise of its advisory functions. A possible counterpoint raised in Judge Nolte’s individual opinion will also be considered.
The principle of consent applies whenever a State’s international responsibility is non-consensually engaged
At the outset, it must be questioned why the Court believes the principle of consent prevents it from hearing disputes of a bilateral nature. After all, there is a possible albeit (highly) unlikely scenario where a dispute exists, and one of the parties to the dispute, with the consent of the other party, goes to the UNGA to request an advisory opinion from the Court regarding that dispute (See 2019 Chagos, paras. 83-91). Perhaps this may violate some other obscure procedural rule on the steps to obtain an advisory opinion, but it is difficult to see how this contradicts the rule on consent.
This misunderstanding that the principle of consent only comes into effect when the Court is asked to settle a bilateral dispute likely originates from a misreading of the 1923 Eastern Carelia Advisory Opinion. In that case, Finland, through the League of Nations, submitted a dispute it had with Russia to the Permanent Court of International Justice (“PCIJ”), even though Russia had declined to settle the matter through the League of Nations (para. 24). The PCIJ, in its final decision, exercised its discretion not to issue an opinion, under the reasoning that answering the question would be tantamount to deciding the dispute between Finland and Russia without Russia’s consent (page 28). Evidently, the bar to the Court’s advisory jurisdiction was not the bilateral character of the dispute, or even the fact that there was a dispute, but the fact that Russia had not consented to have its legal interests adjudicated.
As further confirmation of this reading, a cursory look at the Court’s jurisprudence reveals the principle of consent has always been understood to prevent the exercise of the Court’s jurisdiction when it concerns a non-consensual examination of a State’s legal interests, irrespective of whether such interests were to be litigated as part of a bilateral dispute. This holds true both for contentious (See 1954 Monetary Gold and similar caselaw leading up to 2023 Arbitral Award) and advisory proceedings (See 1950 Peace Treaties, p. 71, “The Court cannot, it is said, give the Advisory Opinion requested without violating the well-established principle of international law according to which no judicial proceedings relating to a legal question [not dispute] pending between States can take place without their consent”). Accordingly, in determining whether its exercise of jurisdiction was consistent with the principle of consent, the Court’s attention should have been focused not on whether a bilateral dispute had come into existence between Israel and Palestine, but instead whether it was pronouncing on Israel’s legal interests (including its responsibility) without its consent.
A Possible Counterpoint from Judge Nolte and Response
In explaining the reason for the Court’s limited and factual analysis, Judge Nolte stated “the Advisory Opinion has [not] undertaken […] a legal determination of Israel’s responsibility for individual acts”. Instead, the Court is merely “offer[ing] a ‘legal characterization’ of ‘the main features of Israel’s policies and practices’.” Presumably, this “legal characterization” of Israel’s practices and policies would have had practically no effect and Israel’s interests would be left unmolested by the Court’s judicial intervention.
However, this assertion of harmlessness contradicts the very paragraph Judge Nolte cites to make the above claim, which reads “[t]he Court need only establish the main features of Israel’s policies and practices and, on that basis, assess the conformity of these policies and practices with international law” (Israeli Practices, para. 77; see also the legal nature of the Court’s advisory findings in Wall, para. 39). Evidently, the Court, in the course of answering the question put to it, cannot avoid pronouncing on Israel’s international responsibility without its consent.
But even assuming Judge Nolte is correct in that the Court will limit itself to mere “legal characterization”, such characterization will still affect Israel’s legal interests, in an analogous fashion as to what would have happened to Russia’s interests in Eastern Carelia. In summation, it is simply impossible to frame Judge Nolte’s argument as one that genuinely leaves Israel's legal interests unaffected, as even a “legal characterization” inherently involves an assessment that can influence those interests.
Conclusion
In conclusion, rather than simply applying a template for consent developed for the specific facts of the Eastern Carelia, the Court should have determined what the requirements of consent called for in this case and properly investigated whether it had complied with those requirements. The prejudice caused by this failure to conduct a proper analysis of the consent principle is magnified by the fact that, contrary to Judge Nolte’s assertions, Israel’s international responsibility would not only be characterized, but pronounced upon.
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