By Prof. Bharat H Desai
The beginning of 2023 came with resounding audacity of hope for Occupied Palestinian Territory (OPT) – the oldest problem inherited by the United Nations (UN) from its predecessor the League of Nations. In a divided world, it vividly reflects the relevance of the UN as well as underscores the majesty of International Law for resolution of long-standing intricate global disputes. In a communication of January 17, 2023 to the International Court of Justice (ICJ) President Joan E. Donoghue, the UN Secretary-General (UNSG) Antonio Guterres transmitted the General Assembly resolution 77/247 of December 30, 2022 (adopted by 87-26-53 votes). The resolution has explicitly recalled the previous UNGA requested ICJ advisory opinion (9 July 2004) entitled: Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory.
Invoking Legal Technique of ICJ Opinions
The UNGA resolution came in the wake of the Human Rights Council resolution S - 30/1 of May 27, 2021 (24 in favor, 9 against, 14 abstention) as well as October 3, 2022 report of the GA mandated (resolution 76/80 of December 9, 2021) Special Committee to Investigate Israeli Practices Affecting the Palestinian People. The UNGA has reiterated that all measures and actions taken by Israel, the occupying Power, in the Occupied Palestinian Territory, including East Jerusalem, in violation of the relevant provisions of the Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949, and contrary to the relevant resolutions of the Security Council, are illegal and have no validity. It has demanded that Israel, the occupying Power, comply fully with the provisions of the Fourth Geneva Convention of 1949 and cease immediately all measures and actions taken in violation and in breach of the Convention.
The UN Charter has explicitly conferred competence (Article 96) on the UNGA to “request the International Court of Justice to give an advisory opinion on any legal question”. In turn, the Court has competence under Article 65 of its own Statute to render an advisory opinion. The UNGA as a plenary organ with 193 member states has spread a very wide canvass for the UN’s principal judicial organ to examine the legal issues on the basis of the rules and principles of international law, including the Charter of the United Nations, international humanitarian law, international human rights law, relevant resolutions of the Security Council, the General Assembly and the Human Rights Council as well as the ICJ advisory opinion of the Court of 9 July 2004.
The Legal Questions
The UNGA resolution comprises two well-calibrated concrete legal questions that encapsulate the entire history of the vexed Palestinian question. It shows drafting dexterity, expectation from the Court and the indication of future trajectory for resolution of the issue:
(a) What are the legal consequences arising from the ongoing violation by Israel 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 the Holy City of Jerusalem, and from its adoption of related discriminatory legislation and measures?
(b) How do the policies and practices of Israel referred to in paragraph 18 (a) above 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?
Towards an Opinion: What May Happen
The Palestinian question has over the years witnessed many ups and downs including direct negotiations between the Israeli Government and the Palestinian Authority (initially headed by late Yasser Arafat and now Mahmoud Abbas). Many interlocutors played roles for its resolution starting with the UN Mediator in Palestine (vide UNGA resolution resolution 186 of 14 May 1948) Count Folke Bernadotte who was assassinated on September 17, 1948 by the Jewish militia Stern Gang of the time. It led to the celebrated April 11, 1949 ICJ advisory opinion on Reparation for Injuries Suffered in the Service of the United Nations (Latest developments | Reparation for Injuries Suffered in the Service of the United Nations | International Court of Justice (icj-cij.org).
The connoisseurs of International Law have marveled at the sheer engineering skills marshalled by the ICJ (largely due to election of outstanding International Law scholars with wide horizons as judges) in the development of International Law. In providing legal opinions as well as through interpretation and elaboration of complex questions of the time, the ICJ has made enormous contribution. Article 65 (ICJ Statute) empowers the Court to “give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request”. As a corollary, such legal questions need to be “laid before the Court by means of a written request containing an exact statement of the question upon which an opinion is required”. Upon receipt of the request the Court calls upon the UN member states and others to provide written and oral statements on the issue at stake. Neither the ICJ is bound to give an opinion nor the requesting organ is under any obligation to adhere to the Court’s legal opinion. Notwithstanding this, the ICJ has, as the practice show, always provided an opinion sought by the UNGA and, in turn, it has accepted in letter and spirit the opinions rendered by the ICJ.
India Needs to Help the ICJ
Though India abstained in the UNGA resolution (77/247 of December 30, 2022), it shall have vital stakes in the future ICJ opinion on the OPT in view of consistent Indian legal claim to the Pakistan Occupied Kashmir (POK), as contended by this author (EPW (vol. 52, no.5, February 4, 2017), based on the “title to the entire territory of erstwhile princely state of Jammu and Kashmir, as reflected in the exercise of sovereign will of the Maharaja (Hari Singh)” who signed the Instrument of Accession to join India on October 26, 1947. Hence, it would be advisable for the Indian External Affairs Minister to put into place a robust mechanism comprising genuine outstanding Indian International Law scholars, for preparation of a written statement for the ICJ proceedings. India provide a written statement (June 20, 1995) for the advisory opinion (July 8, 1996) on Legality of the Threat or Use of Nuclear Weapons. In fact, India needs to help the Court in the elaboration of International Law of Occupation as the ICJ also came to India’s help in the resounding judgement of July 17, 2019 in the Jadhav Case (India v. Pakistan). As the ICJ proceedings unfolds in the coming months, it would provide yet another opportunity to the ICJ to elaborate on International Law of Occupation. It would provide concrete legal contours for the negotiated advent of the Palestinian State (currently a non-member Observer State in the UN).
Professor Dr. Bharat H. Desai is Jawaharlal Nehru Chair and Professor of International Law at the Centre for International Legal Studies of SIS, JNU. He served as a member of the official Indian Delegations to various multilateral negotiations (2002-2008), coordinated the Making SIS Visible initiative (2012-2020) and Inter-University Consortium: JNU; Jammu; Kashmir; Sikkim (2012-2020) as well as contributes as the Editor-in-Chief of Environmental Policy and Law (IOS Press: Amsterdam).