QUESTION #1

Does the security fence fall within the purview of the ICJ to give advisories?

As the date of the initial hearing of the ICJ approaches, this question looms large. To date, over thirty countries, including the United States and most of the European Union, have sent affidavits to the Hague requesting that the Court not issue an advisory in view of the political nature of the conflict which has, from the current government of Israel's perspective, necessitated the security fence.

However, it is unlikely that the ICJ will cancel the upcoming hearing, inasmuch as the referral did not request it to address the political ramifications of the fence, but rather its legal ramifications. This is in keeping with the first paragraph of Article 65 of the Statute of the ICJ:

The Court may give an advisory opinion on any legal question at the request of whatever body may be authorized by... the Charter of the United Nations...

In fact, the ICJ cited precisely this article and paragraph in defending its decision to issue an advisory in 1975, regarding land claims over the objections of the relevant countries who argued that the case was of a political nature; was already the subject of prior agreements; and involved facts which were not in the competence of the court to establish.

The ICJ's response went on to clarify that, the correctness of these objections notwithstanding, it has the competence to give an advisory legal opinion which can assist the United Nations in the exercise of its functions.

Furthermore, the ICJ pointed out that its opinion would not obligate the UN to seek any one political solution to the dispute in question, and thus the Court could not be viewed as interfering in the political process. Rather, in issuing an advisory, it was providing the UN with the tools to proceed with greater clarity.

So, in the current case, if the UN is correctly apprised of the legality of the fence, it can, in principle, subsequently proceed to issue resolutions and press for agreements accordingly. It would therefore seem that the ICJ is, in fact, duly authorized to issue an advisory regarding the fence, provided the Court only addresses its legal aspects.

Three reasons why the ICJ may not issue an advisory at the end of the hearings

Nevertheless, it remains in doubt that the ICJ will ultimately issue an advisory, for three reasons:

First, in light of the serious amount of opposition that has already been voiced against the ICJ dealing with the fence, the UN could decide to withdraw its request for an advisory.

Second, the nature of the question essentially forces the Court to enter complex issues, including issues of history, which are so controversial as to be truly beyond the competence of the Court, or - at the very least - would preclude the Court from being able to issue an advisory in a timely fashion.

Finally, the issue of propriety must also be considered by the ICJ. If the judges determine that the issue of the legality of the fence has been raised in an attempt to politicize the Court and/or that the high specificity of the case will set a precedent for expanding the scope of ICJ advisories - to such an extent that the meaningfulness of the International Court of Justice will be diminished - the Court could rule that while it technically has jurisdiction, it would be improper to invoke its authority, given the nature of the issue at hand.

Back to 10 Key Questions | Table of Contents | Next