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Construction of Wall
Construction of Wall
Construction of Wall
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International Public Order and the International Court's
Advisory Opinion on Legal Consequences
of the Construction of a Wall
in the Occupied Palestinian Territory
1 Delivered on 9 July 2004, General List No. 131; hereinafter in the text and footnotes
"Opinion".
2 For this reason several States considered that the Court should have refrained from giv-
ing the Advisory Opinion in this case, as that would, so the argument went, obstruct the po-
litical process of a political, negotiated solution to the Israeli-Palestinian conflict, especially
in terms of the implementation of the "Roadmap" on the Permanent Two-State Solution to
the Israeli-Palestinian Conflict, proposed by the representatives of the US, the EU, the Rus-
sian Federation and the UN. The Court overruled the objections based on such concerns,
considering that its Opinion would not hamper the peace process. Opinion, paras 22, 51-54.
3 ICJ Statute, Article 65; Opinion, paras 14-65.
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International Public Order and the International Court's Advisory Opinion 241
focused upon; and, lastly, the Court's treatment of the public order duties
arising out of the fact of the construction of the wall will be evaluated.
The public order norms in national legal systems are associated with fun-
damental norms barring the application of conflicting foreign laws, but
also with norms outlawing transactions between legal persons which con-
tradict good morals. The scope of the two categories of norms overlaps
significantly. Thus, public order operates with regard to acts and transac-
tions accomplished outside or within the given legal system.4
There can be no legal system without its public order norms5 and, as
suggested in jurisprudence, there is a proper international public policy,
whose norms "have a peremptory character and universal scope."6 Inter-
national public order is reflected in peremptory norms of general interna-
tional law (jus cogens), which operate in an absolute way and are non-
derogable, that is cannot be contracted out.7 Norms are peremptory be-
cause of the values they protect.8 Such substantive value must be the value
which is not at the disposal of individual States.9 Otherwise it cannot be
explained why the given norm is non-derogable.
It is widely agreed that the purpose of jus cogens is to safeguard the
overriding interests and values of the international community as a whole
as distinct from the interests of individual States.10 Jus cogens embodies "a
4 Pillet & Niboyet, Manuel de Droit International Prive (II-1924), 417-418, 569, 584;
Meyer, Droit International Prive (1994), 14; Nussbaum, Deutsches Internationales Pri-
vatrecht (1974), 64-65; Niederer, Einführung in die Allgemeine Lehren des Internationalen
Privatrechts (1956), 288, 297; Zitelmann, Internationales Privatrecht (Bd.I, 1897), 319;
Raapey Internationales Privatrecht (1961), 92; Wolff, Das Internationale Privatrecht
Deutschlands (1954), 61-62, also noting that the concepts embodied in Article 138 of the
German Civil Code peremptorily safeguarding good morals and Article 30 of the Ein-
führungsgesetz banning foreign laws incompatible with public order are the same. Referen-
ces are made to Article 6 of the French Civil Code, Article 138 of the German Civil Code,
Article 12 of the Preliminary Provisions of the Italian Civil Code. On public policy with re-
gard to contract in English law see Chitty on Contracts (1999), 835-839 and Beatson,
Anson's Law of Contract (2002), 352-353.
5 McNair, The Law of Treaties (1961), 213-214; Verdross, Forbidden Treaties in Interna-
tional Law, 31 AJIL (1937), 572 .
° Separate Opinion or Judge Moreno-Quintana, Case ICJ Reports, 1958, 106-107.
7 Dugard, Recognition and the United Nations (1987), 149; Mer on, Human Rights
Law-Making in the United Nations (1986), 198; Dupuy (2002), 282-283; Jaenicke, Zur
Frage des Internationalen Ordre Public, 7 Berichte der Deutschen Gesellschaft für Völker-
recht (1967), 96.
8 Furundziia, Tudement of 10 December 1998, case no. IT-95-17/I-T 38 ILM 1999. 349.
9 Zemanek, New Trends in the Enforcement of erga omnes Obligations, 4 Max Plank
Yearbook of the United Nations Law (2000), 8.
10 Verdross, Jus Dispositivum and Jus Cogens in International Law, 60 AJIL (1966), 58;
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242 Alexander Orakhelashvili
Frowein, Jus Cogens, 7 EPIL 329; Rozakis, The Concept of Jus Cogens in the Law of
Treaties (1976), 2; Hannikainen, Peremptory Norms in International Law (1988), 2-5, 261;
Abi-Saab, The Concept of Jus Cogens in International Law, 2 Lagonissi Conference: Papers
and Proceedings, volume II, Geneva, Carnegie Endowment for International Peace (1967),
13; Jaenicke, (1967), 85-87; Virally, Reflexions sur le ajus cogens," 12 Annuaire Français de
Droit International (1966), 21; Klein, A Theory of the Application of the Customary
International Law of Human Rights by Domestic Courts, 13 Yale Journal of International
Law (1988), 351; Gormley, The Right to Life and The Rule of Non-Derogability: Peremp-
tory Norms of Jus Cogens, Ramcharan (ed.), The Right to Life in International Law (1985),
130; ZotiadeSy Staatsautonomie und die Grenzen der Vertragsfreiheit im Völkerecht, 17 Ös-
tereichische Zeitschrift für öffentliches Recht (1967), 109.
11 Brundner, The Domestic Enforcement of International Covenants on Human Rights,
35 University of Toronto Law Journal (1985), 249-250.
12 Zemanek (2000), 6.
13 Scbwarzenberger, The Problem of International Public Policy, 18 Current Legal Prob-
lems (1965), 212-214; Schwarzenberger, A Manual of International Law (1967), 29-30; per
contra Sir Robert Jennings, Nullity and Effectiveness in International Law, Cambridge Es-
says in International Law (1965), 74.
14 Report on the Law of Treaties, YblLC 1954(11), 154-155.
15 Second Report on the Law of Treaties, YblLC 1963(11), 52.
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International Public Order and the International Court's Advisory Opinion 243
the actual acts and transactions of States offending against it.16 As Judge
Lauterpacht emphasised, "the concept of jus cogens operates as a concept
superior both to customary international law and treaty".17 Practice also
extends the operation of jus cogens beyond the law of treaties, especially
to the areas such as extradition,18 unilateral acts,19 State responsibility,20
and amnesties.21 Therefore, "the criticism of any attempt to extend jus co-
gens beyond the confines of the law of treaties is firmly premised on an
outmoded perception of international public order".22
If jus cogens had no impact on acts other than treaties, States could de-
rogate from jus cogens through such acts and actions, for the derogation
from jus cogens could happen not only formally as outlawed in Article 53
VCLT, but also informally, through State practice.23 In a decentralised le-
gal community, the actions of States can be a source of rights and obliga-
tions, and contribute to the formation and modification of legal relations
through the establishment of inter se relations different from general in-
ternational law. If such actions offend against jus cogens, the function of
the latter is to prevent the former from becoming an element of a new inter
se legal relation. The relevant acts and actions of States must be void, i.e.
incapable of giving rise to new commitments inconsistent with the
peremptory norm.
By virtue of the principles of recognition or tolerance an unlawful act
may begin to have legal effects: ex factis jus oritur.24 But Fitzmaurice
speaks of "cases in which overriding rules of jus cogens produce a situa-
tion of irreducible obligation and demand that illegal action be ignored or
not allowed to affect obligations of other States."25 Within the law of
treaties, jus cogens invalidates the conflicting transactions and, as Gug-
genheim submits, the validity and nullity of international legal acts must
16 Suy, The Concept of Jus Cogens in International Law, Lagonissi Conference: Papers
and Proceedings, volume II, Geneva, Carnegie Endowment for International Peace (1967),
p. 75; Merony Human Rights Law-Making in the United Nations (1986), p. 190.
17 Application of the Genocide Convention, ICJ Reports, 1993, p. 440 (Separate
Opinion).
18 Yearbook of the Institute of International Law, (1981) 59, Part I p. 150; see also, Vol. 60,
Part II, 1983, p. 234.
19 Fifth Report on Unilateral Acts by Special Rapporteur Rodriguez-Cedeno, A/CN.4/
525/Add.l,pp.6-10.
20 Articles on State Responsibility, ILC Report 2001, pp. 206-209, 277-292.
21 Furundzija (ICTY, Trial Chamber), 10 December 1998, IT-95-17/I-T, paras. 155-156.
22 Dueard (1987), n. 142.
23 As Judge ad hoc Fernandez suggested in Right of Passage, State practice diverging from
jus cogens is derogation and has no effect, ICJ Report 1960, 135.
M Suy(1967),75.
25 Fitzmaurice, The general principles of international law considered from the stand-
point of the rule of law, Recueil des cours, Volume 92 (1957-11), 122.
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244 Alexander Orakhelashvili
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International Public Order and the International Court's Advisory Opinion 245
In the Advisory Opinion, the Court found that the construction of the
wall violated several fundamental norms of international law, such as the
prohibition of the use of force, the right of the Palestinian People to self-
determination, human rights and humanitarian law. These norms have
peremptory status,33 which means that their breaches entail the conse-
quences essentially different from the breaches of ordinary norms. The
Court's approach confirms that it has followed this principle.
The Court demonstrated that the situation it dealt with was not taking
place in the factual or legal vacuum but in the context which was relevant
for determining the legality and legal consequences of the construction of
the wall. As the starting-point of its analysis, the Court acknowledged
that it dealt with the legal consequences of "the wall being built in the
Occupied Palestinian Territory, including in and around East Jerusa-
lem."34 The Court considered that the status of the territories in question
was also relevant. It referred to several resolutions of the UN Security
31 Tomuschat, Obligations Arising for States without or against Their Will, 241 Recueil
des Cours (19931 d. 276.
32 Cassese, Self-Determination of Peoples (1994), p. 140.
33 On the prohibition of the use of force see Nicaragua, ICJ Reports, 1986, 100-101 and
ILC, YblLC, (1966-11), 248, ILC Report 2001, commentary to Article 40, 283, para. 4. Judge
Elaraby, Separate Opinion, Wall Advisory Opinion, para. 3.1. Dinstein, War, Aggression and
Self-Defence (2001), 94. On the right to self-determination see the Separate Opinion of
Judge Ammoun, Barcelona Traction, ICJ Reports, 1970, 72; YblLC (1963-11), 22; UN
Human Rights Commission Res2003/3; Shaw, Title to Territory in Africa (1986), 91; Gros-
Espiely Self-Determination and Jus Cogens, Cassese (ed.), UN Law/Fundamental Rights
(1979), 167-171; Dugard, Recognition and the United Nations (1987), 158ff; Cassese, Self-
Determination of Peoples (1994), 171-172. On humanitarian law, see Nuclear Weapons, ICJ
Reports 1996, 257; Judge Bedjaoui, Declaration, ICJ Reports 1996, 273; Judge Weeramantry,
Dissenting Opinion, 46; Judge Koroma, Separate Opinion, ICJ Reports, 1996, 574. ILC Re-
port 2001, 284; Sassoli, State Responsibility for Violations of Humanitarian Law, 84 Interna-
tional Red Cross Review (2002), 413-414; Werksman & Khalatschi, Nuclear weapons and
the concept of jus cogens: peremptory norms and justice pre-empted? Boisson de
Chazournes & Sands (eds), International Law, the International Court of Justice and Nu-
clear Weapons (1999), 194-196.
34 Opinion, para. 67.
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246 Alexander Orakhelashvili
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International Public Order and the International Court's Advisory Opinion 247
rial sphere over which the Palestinian people are entitled to exercise their
right of self-determination".39 The Court stated that "the route chosen for
the wall gives expression in loco to the illegal measures taken by Israel
with regard to Jerusalem and the settlements, as deplored by the Security
Council." The building of the wall contributed to the "further alterations
to the demographic composition of the Occupied Palestinian Territory"
through "the departure of Palestinian populations from certain areas."
The construction of the wall and its associated régime could create a "fait
accompli" that could well become permanent, in which case it would be
tantamount to de facto annexation of the territories by Israel. The Wall
severely impeded "the exercise by the Palestinian people of its right to
self-determination, and is therefore a breach of Israel's obligation to re-
spect that right."40
It must be noted that the Court's treatment of the impact of the Palestin-
ian right to self-determination is entangled with the effects of the illegality
of territorial acquisitions resulting from the threat or use of force: the
Court's analysis focused on the territory it characterised as falling within
the scope of that principle and also confirmed that the violation of the
principle of self-determination in the instant case would inter alia be
caused by an illegal annexation of the territory.
The Court focused on the legality under international humanitarian law
of the construction of the wall and referred to Article 2 of the Fourth
Geneva Convention of 1949,41 under which the Convention applies to ter-
ritories not falling under the sovereignty of one of the contracting parties,
even if the occupation of the territory meets no armed resistance. This in-
terpretation was preferred, as it reflects the intention of the drafters "to
protect civilians, who find themselves, in whatever way, in the hands of
the occupying power." The Fourth Geneva Convention is aimed at pro-
tecting not so much the interests of contracting parties, but protecting the
inhabitants of the occupied territory, regardless the status of that territo-
ry.42 Having affirmed the applicability of the Convention, the Court
pointed out that "the construction of the wall has led to the destruction or
requisition of properties under conditions which contravene the require-
ments of Articles 46 and 52 of the Hague Regulations of 1907 and of Ar-
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248 Alexander Orakbelashvili
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International Public Order and the International Court's Advisory Opinion 249
Judge Higgins approached the Court's treatment of this issue with a cer-
tain degree of criticism, stating that the dictum on erga omnes obligations
from Barcelona Traction ais frequently invoked for more than it can
bear." She denied that "the specified consequence of the identified viola-
tions of international law have anything to do with the concept of erga
omnes." Judge Higgins criticised the Court's reference to erga omnes obli-
gations in terms of the Barcelona Traction dictum, stating that "that dic-
tum was directed to a very specific issue of jurisdictional locus standi
Court with regard to the duty not to render aid or assistance, and added
have reminded States of the importance of rendering humanitarian assi
of the construction of the wall, Separate Opinion, para. 45.
4/ Separate Opinion, para. 37.
n Separate Opinion, para. 40.
** Separate Opinion, para. 38; see also Legal Consequences of the Co
South Africa in Namibia (South- West Africa) notwithstanding Security
276 (Advisory Opinion), ICJ Reports, 1971, 16.
50 Separate Opinion, para. 39.
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250 Alexander OrakheUshvili
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International Public Order and the International Court's Advisory Opinion 251
the recognition is withheld from an entity not because that entity lacks the
ingredients of statehood, but because it is illegally brought about.56 The
South African homeland-States arguably met the requirements of state-
hood laid down in the Montevideo Convention, but no State except South
Africa recognised them.57 Similarly, <c A cluster of fundamental principles
inherent in the two fundamental norms of the prohibition of the use of
force and the right to self-determination provide a legal basis for the re-
fusal of the United Nations to recognise Israel's sovereignty over East Je-
rusalem."58
Jus cogens gives a new doctrinal coherence to the doctrine of non-
recognition.59 Dugard formulates this doctrine as follows:
"An act in violation of a norm having the character of jus cogens is illegal and is therefore null
and void. This applies to the creation of States, the acquisition of territory and other situa-
tions, such as Namibia. States are under a duty not to recognise such acts."60
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252 Alexander Orakhelashvili
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International Public Order and the International Court's Advisory Opinion 253
cogens, without explicitly referring to it, when it spoke of erga omnes ob-
ligations in Barcelona Traction.68 Therefore, the erga omnes nature of an
obligation is not a source or determinant of the public order nature of a
norm, but merely a consequence of such nature.69 It is not the erga omnes
nature of an obligation following from a rule of international law which
confers an imperative character on that rule or itself determines any of the
consequences of its breaches. On the contrary, the erga omnes nature of an
obligation merely refers to the invocability of legal consequences of the
violation of the rule, as these consequences themselves are determined by
the jus cogens nature of a rule from which the obligation in question fol-
lows.
This state of things could confirm that Judge Higgins is perhaps right in
asserting that "The obligation upon United Nations Members of non-
recognition and non-assistance does not rest on the notion of erga
omnes,"70 to the extent that, in the process of State responsibility, the phe-
nomenon of erga omnes obligations does not by itself imply the mandato-
ry consequential duties for the State which is the author of the violation or
the third States. On the other hand, the approach that the duty of non-re-
cognition in situations like that involved in the case at hand can only
follow from the institutional determinations of the principal organs of the
United Nations is not justified from the perspective of international pub-
lic order. The existing practice and doctrinal opinion confirms that once
the breach of a peremptory norm is capable of causing a legally relevant
change, the nullity of the relevant acts or actions follows and the duty of
non-recognition is among the natural consequences of the breach, inde-
pendently of any institutional determination to that effect. If the opposite
were the case, then peremptory norms would not be able to take their ef-
fect in the face of fundamental illegalities, unless the principal organs of
the United Nations decide accordingly. This perspective would reduce
peremptory norms to a dead letter.
In the face of Judge Higgins' criticisms, one could only defend the
Court by assuming that it referred to the erga omnes character of the per-
tinent obligations as the manifestation of the peremptory character of the
Crime? Definitely, Yes! 10 EJIL (1999), 429; Malanczuk, Counter-measures and Self-
defence, in Spinedi & Simma (ed.), The United Nations Codification on State Responsibility
(1987), 230-231.
68 Frowein, Jus Cogens, 7 EPIL 328; De Hoogh, The Relationship between Jus Cogens,
Obligations Erga Omnes and International Crimes: Peremptory Norms in Perspective, 42
Österreichische Zeitschrift für öffentliches Recht und Völkerrecht (1991), 183; Malanczuk,
First ILA Study Group Report on State Responsibility (2000), 44-45, para 141.
69 As Meron writes at the example of human rights, "being erga omnes is a consequence,
not a cause of a right's fundamental character," Meron, Human Rights Law-Making in the
United Nations (1986), 183.
70 Separate Opinion, para. 38.
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254 Alexander Orakhelasbvili
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International Public Order and the International Court's Advisory Opinion 255
Conclusion
Summary
How does international law respond to fundamental illegalities, such as the Israeli construc-
tion of a wall in the Occupied Palestinian Territories and what role can the International
Court of Justice, the principal judicial organ of the United Nations, play in this process?
The fact that the Court was asked by the UN General Assembly to deliver an advisory
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256 Alexander Orakbelashvili
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