The recent Advisory Opinion issued by the International Court of Justice (ICJ) on July 19, 2024, regarding the legal consequences arising from Israel’s policies and practices in the Occupied Palestinian Territory (OPT), including East Jerusalem, marks a significant moment in international law.
This comprehensive opinion, requested by the United Nations General Assembly, delves into fundamental principles of international law, notably the concepts of jus cogens and erga omnes obligations.
Why the Advisory Opinion?
The impetus for this Advisory Opinion stemmed from a formal request by the United Nations General Assembly (UNGA), articulated in its resolution 77/247 adopted on December 30, 2022. The UNGA sought the Court’s guidance on two primary questions:
- What are the legal consequences arising from Israel’s “ongoing violation… 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 Jerusalem, and from its adoption of related discriminatory legislation and measures?
- How do these specified policies and practices of Israel 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 Court diligently affirmed its jurisdiction to issue the opinion, concluding that the questions posed were inherently legal in character and properly submitted in accordance with the UN Charter and the Court’s Statute. Furthermore, the Court exercised its discretion to proceed with the opinion, finding no “compelling reasons” to decline. Arguments that the request related to a bilateral dispute, or that the opinion might undermine negotiations or the work of the Security Council, were addressed and dismissed. The Court emphasized that the General Assembly’s request concerned “wider questions of international peace and security, as well as certain obligations erga omnes of States,” affirming the long-standing and particular interest of the United Nations in the Palestinian question. The ultimate goal of the opinion, from the Court’s perspective, is to furnish the requesting organ—the General Assembly—with the “elements of law necessary for them in their action”.
Understanding jus cogens (peremptory norms of international law)
Jus cogens refers to peremptory norms of general international law from which no derogation is permitted. These are considered the highest-ranking norms in international law, reflecting fundamental values and concerns of the international community as a whole. A norm of jus cogens cannot be set aside by treaty or custom, and any act contrary to it is considered null and void.
In its Advisory Opinion, the ICJ made a powerful and explicit affirmation regarding the status of the right to self-determination:
- The Court considers that, “in cases of foreign occupation such as the present case, the right to self-determination constitutes a peremptory norm of international law”.
This statement is critically important. It means that the right of the Palestinian people to freely determine their political status and pursue their economic, social, and cultural development is an inalienable and fundamental right that cannot be compromised or violated, especially under foreign occupation. By declaring this right as jus cogens, the Court underscores its non-negotiable nature and its foundational importance to the international legal order. The Court’s finding that Israel’s “continued frustration of the right of the Palestinian people to self-determination” violates fundamental principles of international law further reinforces the jus cogens character of this right.
Understanding erga omnes obligations
Erga omnes obligations are duties owed by States towards the international community as a whole. Unlike traditional obligations that are owed bilaterally between two or more States, erga omnes obligations mean that all States have a legal interest in their protection, and any State can invoke the responsibility for their breach. These obligations relate to rights that are of fundamental importance to all States.
The Advisory Opinion extensively identifies several obligations violated by Israel that are of an erga omnes character:
- The obligation to respect the right of the Palestinian people to self-determination. The Court explicitly stated that this obligation is “owed erga omnes and that all States have a legal interest in its protection”.
- The obligation arising from the prohibition of the use of force to acquire territory. The Court reaffirmed that this prohibition is a “principle of customary international law” and a “corollary of the prohibition of the threat or use of force”. This signifies that the acquisition of territory through military conquest or belligerent occupation is inadmissible and cannot confer sovereignty.
- Certain obligations under international humanitarian law and international human rights law. The Court noted that many fundamental rules of the Fourth Geneva Convention are “intransgressible principles of international customary law” and incorporate obligations that are “essentially of an erga omnes character”.
Consequences of breaching Erga Omnes Obligations: Given Israel’s breach of these erga omnes obligations, the Court delineated specific legal consequences for other States and the United Nations:
- Duty of Non-Recognition: All States are under an obligation not to recognize as legal the situation arising from the unlawful presence of Israel in the Occupied Palestinian Territory. This includes not recognizing any changes to the 1967 borders, particularly regarding Jerusalem, other than those agreed upon by the parties through negotiations.
- Duty Not to Render Aid or Assistance: States are also obliged not to render aid or assistance in maintaining the illegal situation created by Israel’s unlawful presence. This encompasses abstaining from treaty relations or economic/trade dealings that might entrench Israel’s unlawful presence, and ensuring diplomatic missions do not imply recognition of this illegal presence.
- Duty to Distinguish: All States must distinguish in their dealings with Israel between the territory of the State of Israel and the Palestinian territory occupied since 1967.
- Duty for International Organizations: The duty of non-recognition also applies to international organizations, including the United Nations, “in view of the serious breaches of obligations erga omnes“. The UN General Assembly and Security Council are called upon to determine the precise modalities for bringing an end to Israel’s unlawful presence.
The interplay: Jus Cogens and Erga Omnes – a crucial distinction
While often discussed together and deeply interconnected, jus cogens and erga omnes refer to distinct, though overlapping, characteristics within international law.
- Jus cogens: the nature of the norm.
- Jus cogens relates to the imperative nature or hierarchical status of a norm itself. It signifies that a particular norm is so fundamental and universally accepted that no derogation from it is permitted. It’s about what the norm is: an unbreakable, supreme rule of international law. The Advisory Opinion explicitly categorizes the right to self-determination as jus cogens in the context of foreign occupation.
- Erga omnes: The scope of the obligation.
- Erga omnes refers to the scope or reach of an obligation. It defines to whom an obligation is owed. An erga omnes obligation is owed by a State to the international community as a whole, meaning all States have a legal interest in its protection and can invoke responsibility for its breach, even if they are not directly injured by the violation.
- Their relationship:
- The Advisory Opinion illustrates their relationship: a jus cogens norm (like the right to self-determination) inherently gives rise to erga omnes obligations. Because the right to self-determination is a peremptory norm, the obligation to respect it is owed to all States. Similarly, the Court notes that “intransgressible principles of international customary law” (which often correspond to jus cogens principles) incorporate obligations of an erga omnes character.
- Therefore, if a norm is jus cogens, the obligations it generates are necessarily erga omnes. However, it’s important to note that not all erga omnes obligations necessarily stem from jus cogens norms, although in this Advisory Opinion, the core erga omnes obligations highlighted are indeed tied to very fundamental principles. The consequence of an erga omnes breach is that the international community as a whole is entitled to act to ensure compliance.
In essence, the ICJ’s Advisory Opinion powerfully reinforces that the right to self-determination is not merely a conventional right but a fundamental, non-derogable principle of international law (jus cogens). This foundational status implies that the obligations to respect this right, along with the prohibition of acquiring territory by force and certain humanitarian and human rights laws, are owed to the entire international community (erga omnes). This shared legal interest imposes concrete duties on all States and the United Nations to not recognize or assist in maintaining the unlawful situation in the Occupied Palestinian Territory, and to collectively work towards its resolution.
On paragraphs 278 and 279
The paragraphs 278 and 279 of the Advisory Opinion are closely related and together they define the legal consequences for other States arising from Israel’s policies and practices in the Occupied Palestinian Territory (OPT) and the illegality of its continued presence there. While both paragraphs address obligations for States, they differ in their scope of application and the legal basis for these obligations, with paragraph 279 building upon and expanding the principles established in paragraph 278.
Here is a detailed explanation of their relationship:
- Paragraph 278: Specific Obligations for Member States Based on Resolutions This paragraph primarily focuses on the obligations of “Member States” (referring to Member States of the United Nations). These obligations are derived from and take note of various resolutions passed by the Security Council and the General Assembly concerning Israel’s actions in the OPT. The core obligations outlined for these Member States are:
- Non-Recognition of Changes: Member States are obliged not to recognize any changes in the physical character, demographic composition, institutional structure, or status of the territory occupied by Israel since 5 June 1967, including East Jerusalem. This non-recognition applies unless such changes are mutually agreed upon by the parties through negotiations.
- Duty to Distinguish in Dealings: Member States must distinguish in their dealings with Israel between the territory of the State of Israel and the Palestinian territory occupied since 1967.
- Practical Examples of Distinguishing: The paragraph provides concrete examples of how this duty to distinguish should be implemented:
- Abstain from Treaty Relations: This includes an obligation to refrain from entering into treaty relations with Israel if Israel purports to act on behalf of the OPT or any part of it on matters concerning that territory.
- Abstain from Economic or Trade Dealings: States should avoid economic or trade dealings with Israel concerning the OPT or its parts that could serve to entrench Israel’s unlawful presence in the territory.
- Abstain from Recognition in Diplomatic Missions: When establishing and maintaining diplomatic missions in Israel, States must abstain from any recognition of Israel’s illegal presence in the OPT.
- Prevent Trade or Investment Assisting Illegal Situation: States are advised to take steps to prevent trade or investment relations that assist in the maintenance of the illegal situation created by Israel in the OPT. The Court explicitly draws a parallel to its previous Advisory Opinion on the Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), highlighting the precedent for such obligations.
- Paragraph 279: broader obligations for all States based on Erga Omnes obligations. This paragraph broadens the scope of obligation to “all States”, not just UN Member States, and anchors these obligations on a more fundamental legal ground: the “character and importance of the rights and obligations involved”. The Court specifies that these include obligations erga omnes, such as the obligation to respect the right to self-determination of the Palestinian people, the obligation arising from the prohibition of the use of force to acquire territory, and certain obligations under international humanitarian law and international human rights law. These erga omnesobligations are those “of concern to all States” due to the importance of the rights involved, meaning “all States can be held to have a legal interest in their protection”. The obligations for all States include:
- Non-Recognition of illegal situation: All States are under an obligation not to recognize as legal the situation arising from the unlawful presence of Israel in the Occupied Palestinian Territory.
- No aid or assistance: All States are also under an obligation not to render aid or assistance in maintaining the situation created by Israel’s illegal presence in the Occupied Palestinian Territory.
- Ensure cessation of impediments to self-determination: States must, while respecting the UN Charter and international law, ensure that any impediment resulting from Israel’s illegal presence in the OPT to the exercise of the Palestinian people’s right to self-determination is brought to an end.
- Ensure compliance with IHL (for parties to Fourth Geneva Convention): Additionally, all States parties to the Fourth Geneva Convention have the obligation, while respecting the UN Charter and international law, to ensure compliance by Israel with international humanitarian law as embodied in that Convention.
The relationship and complementarity:
The relationship between paragraphs 278 and 279 is one of progression and reinforcement:
- Scope and applicability:
- Paragraph 278 details obligations for “Member States” and is rooted in specific UN resolutions.
- Paragraph 279 extends these types of obligations to “all States” and bases them on fundamental principles of international law, including peremptory norms (jus cogens) like the right to self-determination and the prohibition on the acquisition of territory by force, and erga omnes obligations. This means that the duties in 279 are universal and stem from the very nature of the violations committed by Israel, which are deemed to be of concern to the entire international community.
- Legal basis:
- Paragraph 278’s directives are presented as flowing from existing UN resolutions.
- Paragraph 279 emphasizes the inherent nature and importance of the violated rights and obligations(e.g., erga omnes obligations), providing a stronger and more universal legal underpinning for the duties it outlines. The Court has found Israel’s continued presence to be unlawful due to violations of fundamental principles like the prohibition of acquisition of territory by force and the right to self-determination, which are continuous wrongful acts.
- Progression from specific to general principles:
- Paragraph 278 offers concrete, practical guidelines on how Member States should avoid recognizing or assisting Israel’s illegal presence (e.g., abstaining from certain dealings).
- Paragraph 279 states the overarching, more abstract principles of “non-recognition as legal” and “non-aid or assistance” that apply to all States, and adds the crucial duty to ensure the cessation of impediments to self-determination and compliance with humanitarian law. The specific actions listed in paragraph 278 can be seen as practical modalities for fulfilling the broader principles articulated in paragraph 279.
In essence, paragraph 278 sets out the specific actions and behaviors expected from UN Member States to avoid legitimizing or perpetuating Israel’s illegal presence, drawing on established resolutions. Paragraph 279 then elevates these responsibilities, declaring that all States bear these duties as a matter of fundamental international law due to the erga omnes nature of the rights violated, emphasizing the universal responsibility to ensure the Palestinian people’s right to self-determination and adherence to international humanitarian law. Together, they form a comprehensive framework of legal consequences for the international community.