QUESTION #2
What precedents from the history of ICJ advisory cases may be
relevant?
One might expect that attempting to review the history of ICJ advisory
cases would represent a daunting task. Surprisingly, however, there
have only been 24 advisory opinions issued by the Court since its
inception in 1946. In fact, there have only been 11 advisory opinions
issued in the past 40 years combined.
To afford a better understanding of the nature of ICJ advisories,
below is a list of all twenty-four ICJ advisories, listed in order
of date of publication:
| # |
Date of Advisory |
Topic of Advisory |
| 1 |
May 28, 1948 |
Admission of States to United Nations |
| 2 |
April 11, 1949 |
Compensation for Injuries Suffered while in Service to UN |
| 3 |
March 3, 1950 |
Right of UN General Assembly to Rule on State Admissions to
UN |
| 4 |
March 30, 1950 |
Interpretation of Peace Treaties with Bulgaria, Hungary and
Romania |
| 5 |
July 11, 1950 |
Right of South Africa to Unilaterally End Mandate of S.W.
Africa |
| 6 |
July 18, 1950 |
Interpretation of Peace Treaties with Bulgaria, Hungary and
Romania |
| 7 |
May 28, 1951 |
Right of Parties to Convention on Genocide to Reject Some
Elements |
| 8 |
July 13, 1954 |
Retraction of Compensation Made by the UN Administrative Tribunal |
| 9 |
June 7, 1955 |
Voting Procedure for UN General Assembly re South West Africa |
| 10 |
June 1, 1956 |
Admissibility of Petitioner Hearings by the Committee on S.W.
Africa |
| 11 |
Oct. 23, 1956 |
Competence of Administrative Tribunal to Judge UNESCO |
| 12 |
June 8, 1960 |
Make up of the Maritime Safety Committee |
| 13 |
July 20, 1962 |
Responsibility of UN for Expenses of UN Peace Operations |
| 14 |
June 21, 1971 |
UN Member Obligations re South African Occupation of Namibia |
| 15 |
July 12, 1973 |
Non-renewal of Contract with UN Development Program Official |
| 16 |
16 Oct. 16, 1975 |
Legal Status of Western Sahara and Competing Sovereignty Claims |
| 17 |
Dec. 20, 1980 |
Interpretation of 1951 Agreement between the WHO and Egypt |
| 18 |
July 20, 1982 |
Authority of Administrative Tribunal over GA re Staff Compensation
|
| 19 |
May 27, 1987 |
Judgement of Administrative Tribunal in Case of Rehiring UN
Staff |
| 20 |
April 26, 1988 |
Applicability of 1947 UN HQ Agreement re US Dispute with UN |
| 21 |
Dec. 15, 1989 |
Responsibility of Romania to their UN Human Rights Rapporteur
|
| 22 |
July 8, 1996 |
Legality of State Use of Nuclear Weapons in Armed Conflict |
| 23 |
July 8, 1996 |
Legality of the Threat or Use of Nuclear Weapons |
| 24 |
April 29, 1999 |
Immunity of Special Rapporteur of the Commission on Human
Rights |
As can be seen, most of the advisory cases have been fairly mundane,
and do not deal with the issue of actions taken on occupied territory.
It would seem that only advisories numbers 14 and 16 are at all
relevant as precedents for the current question regarding Israel's
security fence.
Below is an analysis of these two advisory cases and their possible
relevance to the current case:
#14 Advisory of June 21, 1971 regarding the South African occupation
of Namibia
Background:
After World War II, the Government of South Africa attempted to
convert its legal mandate over the territory of South West Africa
into a de jure annexation. The United Nations refused to accord
such recognition and turned to the ICJ for an advisory.
On July 11, 1950, the ICJ confirmed that South Africa did not
have the legal competence to unilaterally end the mandate of South
West Africa.
On October 27, 1966, the United Nations declared the mandate terminated
via General Assembly resolution 2145, and assumed full legal responsibility
for the territory until such time as the local population should
declare an independent State of Namibia. The South African authorities
refused to withdraw its forces, and thus began a stand-off which
was punctuated by the United Nations asking the ICJ for an advisory
regarding the legal ramifications of the South African occupation.
In this 1971 advisory, the ICJ ruled that South Africa's occupation
of Namibia was illegal because it had originally derived its right
to be in that territory via the mandate it freely accepted from
the former League of Nations. This acceptance thus created a legal
obligation to accept the later UN decision divesting South Africa
of control over the territory. According to the Court, South Africa
had a legal responsibility to withdraw all its personnel forthwith,
and other UN states were forbidden from in any way aiding South
Africa in its continued illegal occupation.
Analysis:
Perhaps the most striking aspect of the ICJ's 1971 advisory is
that, by contrast, the United Nations has never called on the ICJ
to issue an advisory regarding the legal ramifications of Israel's
military presence in the West Bank, or indeed any of the disputed
territories. It is particularly noteworthy and questionable, therefore,
that thirty-six years after Israel conquered the West Bank, the
United Nations - which in many of its resolutions has referred to
the alleged illegality of the Israeli military occupation - has
only now thought to turn to the ICJ, and then, solely in reference
to a security fence which only partially extends into the West Bank.
The reticence of the United Nations to probe the fundamental issue
of the legality of the Israeli occupation via the proper channel
of the International Court of Justice suggests that the UN is
less than confident that the occupation is indeed illegal, despite
its own proclamations and resolutions on the matter.
In relation to the UN resolutions which term the Israeli occupation
illegal, it should be borne in mind that neither the UN Security
Council, nor the General Assembly are authorized to determine International
Law, though they are enjoined to be guided by it. The Charter of
the United Nations authorizes solely the International Court of
Justice to adjudicate International Law. Hence, until the ICJ rules
on the legality of Israel's military presence in the disputed territories,
that point will remain officially undecided.
Interestingly enough, the advisory case now before the ICJ may
well force it to make that determination, because the legality of
the fence depends a priori on the legality of the occupation, i.e.
there is little relevance to discussion of the fence, if the occupation
as a whole is deemed to be illegal.
Should the ICJ study its 1971 advisory to see whether it can be
used as a precedent regarding the occupation of the West Bank, it
will most likely find that the South African occupation of Namibia
was fundamentally different. There is a similarity in that, in both
cases, the UN took the view that the very fact that there is a population
deserving of independence, under the rule of a country unauthorized
by the UN, makes the occupation illegal.
However, in International Law, there is definitely a concept of
legal occupation, even in such cases, particularly when it is a
result of a justified, defensive war (cf. Iraq and Afghanistan).
This means that the circumstances of the beginning of an occupation
constitute, at least in part, the grounds by which the legality
of that occupation is judged. This is why the ICJ found it necessary
to cite South Africa's legal obligations created by its acceptance
of the mandate, and not just the mere fact of an unauthorized military
occupation of a stateless people. Not fulfilling a prior existing
commitment to the UN is what made South Africa's occupation of Namibia
manifestly illegal.
The case of Israel's presence in the West Bank is fundamentally
different, in that the occupation began as a result of a war which
could easily be characterized as defensive in nature. The beginning
of the occupation was not inherently illegal. Furthermore, no binding
Security Council resolutions have ever called on Israel to exit
the West Bank. Thus, the case of South Africa and Namibia is ultimately
not comparable to the case of Israel and the West Bank.
#16 Advisory of October 16, 1975 regarding Legal
Status of Territory of Western Sahara
Background:
For most of its history, the territory of Western Sahara, sandwiched
between Morocco and Mauritania, had been populated by several confederations
of nomadic tribes with no central authority, though religious allegiance
was given to Islamic leaders, and in particular the Sultan of Morocco.
In the 1880's, Spain began to colonize Western Sahara, and so the
territory came to be known as "Spanish Sahara".
After Morocco and Mauritania attained independence, both laid
claim, as well, to the disputed territory, and began their own programs
of militarization, colonization and annexation. In response to the
on-going dispute, the United Nations General Assembly passed Resolution
3292 on December 13, 1974 declaring the right of the local tribes,
now referred to as the Sahrawi people (also spelled "Saharawi"),
to full independence, and calling for full decolonization. Resolution
3292 also included a request for an advisory from the ICJ to give
its opinion on the claims of the three countries claiming sovereign
rights.
Ten months later, the ICJ declared that the Spanish claims were
unjustified since the territory could not have been considered terra
nullius (unowned territory) at the time of the initial Spanish colonization,
as the local tribes had a sufficient social and cultural network
to be considered as custodians of the land. The claims of Morocco
and Mauritania were similarly rejected. While the Court did acknowledge
that both countries had long-standing legal ties to the peoples
of Western Sahara on the basis of religious affiliations, it maintained
that these ties were insufficient for establishing a right to sovereignty.
Analysis:
As with the advisory dealing with Namibia and South Africa, there
seems to be no immediate relevance to the current question of the
security fence, or the general question of the legality of Israel's
presence in the West Bank, as none of the countries involved entered
the disputed territory in circumstances of arguable self-defense.
However, it is in the continuation of the story of Western Sahara
that we find a remarkable parallel to the security fence.
Morocco's 1000 mile long security barrier in occupied Western
Sahara
Morocco has always insisted on the “Moroccanity” of
Western Sahara.
In reaction to the 1975 ICJ advisory, Morocco stepped up clashes
with the nascent Sahrawi liberation group, the Polisario, in preparation
for increased settlement of what the UN and ICJ recognized as Sahrawi
land.
In 1976 Morocco annexed the northern two-thirds of Western Sahara
without international recognition and in rejection of the relevant
UN resolutions and ICJ advisory.
After Mauritania's withdrawal from the southern third in 1979,
Morocco annexed that, too.
Then, between 1980 and 1987, Morocco built a 1,000 mile (1,600
kilometer) long defensive barrier to prevent the Polisario from
continuing its attacks on occupation forces.
The Moroccans refer to this barrier as “the berm”,
and this is the term employed in a number of UN Security Council
and General Assembly documents, reports, and press releases, which
occasionally expand the term to “the defensive berm”.
The Moroccan security wall cuts diagonally through Western Sahara
from the northeast to the southwest, granting Morocco the two-thirds
of the territory which contain most of the fertile land, the coast
with its excellent fishing industry, huge phosphate deposits, and
recently discovered oil reserves.
Most of the local Sahrawi fled the Moroccan occupied territory
to refugee camps in Algeria, while some 200,000 Moroccans settled
in the occupied territory.
During this period, the United Nations on a yearly basis reaffirmed
its support for decolonization and Sahrawi independence, yet never
condemned the Moroccan occupation or the security barrier.
United Nations movement towards recognition of Moroccan occupation
In 1991, a UN brokered ceasefire was reached between Morocco and
the Polisario on the basis of a referendum of the original inhabitants.
But a decade of dispute over voter eligibility prevented the referendum
from being held, and the ceasefire broke down.
On June 20, 2001, UN Secretary General Kofi Annan published in his
official report on the situation in Western Sahara a proposal for
a new framework agreement. The agreement, actually drawn up by Annan's
envoy and former US Secretary of State James Baker, called for Sahrawi
autonomy within Moroccan sovereignty.
Since July 2003, due to the influence of Annan and Baker, all UN
resolutions on Western Sahara have dropped the call for a referendum,
decolonization and independence, and support the new plan.
Legal ramifications of Morocco's security barrier and occupation
of Western Sahara
How relevant is the case of the Moroccan security barrier and
its occupation of Western Sahara to the ICJ's current advisory on
Israel's security barrier?
- On the one hand, the ICJ is certainly not bound to consider
the Israeli barrier legal simply because the UN has reacted indifferently
to the Moroccan barrier.
- On the other hand, the fact that the UN appears to relate to Morocco's
security barrier as legal clearly hints to the fact that such barriers
can, in principle, be legal, even when they are built in occupied
territory that the UN has designated as belonging to another people.
Precisely why the UN has adopted this seemingly self-contradictory
position is unclear, but beyond pragmatic considerations, the most
likely reason is that it doesn't consider Morocco's occupation to
be illegal.
Possible legality of Morocco's occupation and annexation of Western
Sahara
The idea that the UN could view Morocco's occupation and even
annexation of Western Sahara may sound surprising, but it should
be remembered that the ICJ's advisory acknowledged that Morocco
had legal ties to the land on the basis of the religious allegiance
of some of the local tribes to the Sultanate in Morocco. More to
the point, the ICJ did not rule that a Moroccan presence would constitute
illegal occupation per se, but rather only that its ties did not
constitute a claim to rightful sovereignty. The exact wording of
the advisory's conclusion was,
... the Court has not found legal ties of such a nature
as might affect the application of General Assembly Resolution
1514 in the decolonization of Western Sahara...
In other words, the Court gave the General Assembly the right
to proceed with its vision of a decolonized and independent Western
Sahara, on the basis that no other country had a rightful claim
to sovereignty.
But the ICJ's ruling did not obligate the UN regarding the final
political status of the disputed territory, and specifically, it
did not assign sovereign rights to the tribal peoples who became
the Sahrawi nation. Given that Morocco had legal ties based on its
history with the disputed territory, it is easier to understand
its presence there, and indeed, as noted earlier the UN has begun
to seriously consider recognizing Moroccan sovereignty over Western
Sahara.
Parallels:
With the above analysis it can now be seen how the 1975 advisory
could represent a precedent for the Court to rule on Israel's security
fence, in the context of the broader question of the legality of
the Israeli occupation.