The International Court of Justice should decline to answer a UN request for advice on the status of occupied territory in the Middle East, the UK government told the court at a hearing on Friday afternoon. There was a “serious risk that the court may undermine its judicial function by giving an advisory opinion in such a context”, it added.
As I explained last Monday, the UN court has been asked by the UN General Assembly to consider the consequences of the Six-Day War in 1967. The UK has urged it not to do so.
“We submit that the terms of the request do not allow the court to give an opinion in a manner consistent with its judicial functions,” said Sally Langrish, legal adviser to the Foreign, Commonwealth and Development Office.
Langrish listed three reasons, each of which she said “independently provides a cogent reason for declining to answer the request”.
They can be summarised as
The non-circumvention principle
Inappropriateness of a factual enquiry
Framework for resolution already exists
Those points were explained by Professor Dan Sarooshi KC, representing the UK government.
Non-circumvention principle
Sarooshi argued that where a request is directly related to the main point of a dispute between two parties, the court should refrain from giving an advisory opinion. To do so would circumvent the principle of international law that a state is not obliged to allow its disputes to be submitted to judicial settlement without its consent.
He added:
The court has held consistently that its advisory jurisdiction cannot be used to undermine the fundamental requirement of state consent. Further, it should not provide a form of judicial recourse for parties. Nor should the court resolve disputes between parties using its advisory jurisdiction.
The issue before the court was a long-standing dispute of extreme sensitivity, he pointed out. That dispute was “engaged” by the UN request for advice. Other states had asked the court, during the week-long hearing, to order Israel’s withdrawal from occupied territories — which was the main point of the dispute. Far from consenting to the dispute being resolved by the court, Israel had asked the court not to respond to the UN request.
“Given the content of the request as currently formulated,” said Sarooshi, “there is thus no basis on which the court should answer it.”
Inappropriateness of factual enquiry
Turing to his second point, the KC told the judges they were being asked to decide a long list of legal issues and make the necessary factual findings to support them. “This is by reference to the entire factual record stretching back some 57 years and a United Nations dossier spanning nearly 30,000 pages.”
He questioned whether the court could achieve this:
It is no answer to assume that the court can defer to the reports of United Nations bodies. The court must reach its own independent findings of fact. We emphasise that several states, including the United Kingdom, have expressed reservations about these United Nations reports.
The court’s task is further complicated by a factual landscape that is rapidly shifting in the context of an ongoing and active conflict. This creates the serious risk that the court may draw legal conclusions on an incorrect factual basis.
The problem is further heightened by the gravity of the accusations levelled against Israel, where it is not a party and where the proceedings have been expedited. As this court has long recognised, claims against a state involving charges of exceptional gravity must be proved by evidence that is fully conclusive.
In sum, the United Kingdom submits that there is a serious risk that the court may undermine its judicial function by giving an advisory opinion in such a context.
Existing framework for resolution
Making his third point, Sarooshi said there was already an “agreed framework for a permanent settlement of the parties’ disputes, as contained in Security Council resolutions 242 and 338 and in the parties’ interim agreements”.
That framework envisaged the negotiation of Israel’s withdrawal, he explained, not a court ordering it.
Other states had pointed out that the negotiation process had been stalled for some time. But that “underscores the need to strengthen that process, rather than undermine it”, Sarooshi argued. A negotiated solution under United Nations auspices was still the only possible way of resolving the conflict.
Some states had argued that an opinion would assist negotiations. In the UK’s view, said Sarooshi, that argument was flawed:
It would undermine the very premise of the [Security] Council’s framework if the court were to address the status of the occupation and require Israel’s withdrawal. As I observed earlier, that framework inextricably links withdrawal with security and applies on a reciprocal basis. An “unconditional” order directed at only one party contradicts that fundamental requirement…
Furthermore, an opinion addressing the parties’ obligations would prejudice their negotiating positions and thus contravene the court’s injunction in the Interpretation of Peace Treaties and the Western Sahara advisory opinions that “the legal position of the parties to [a dispute] cannot be in any way compromised by the answers that the court may give to the questions put to it”.
UK solution
Langrish concluded the government’s oral submissions by reminding the court of the UK’s position on implementing Security Council resolutions 242 of 1967 and 338 of 1973:
There must be an agreement on the borders of the two states based on the June 1967 lines with equivalent land swaps between the parties;
Security arrangements for the Palestinians must respect their sovereignty, and, for Israel, they must protect its security;
A just, fair, agreed and realistic solution to the refugee question must be put in place; and
the aspirations of both parties for Jerusalem must be fulfilled through negotiations on the status of Jerusalem as the future capital of both states
Earlier, the Foreign Office legal adviser had said her government “emphatically rejects” the characterisations of the UK’s motivations and conduct put forward by some other states.1
Fallback position
As you might expect, the UK’s legal team had a fallback position. If the court was minded to provide an opinion, despite arguments to the contrary, then the UK proposed an alternative course which was “firmly rooted in the court’s jurisprudence”.
As Langrish explained, this would involve reinterpreting the request for an advisory opinion or reformulating its terms. The court could then deliver an opinion based on the agreed framework. This would reaffirm the parties’ obligations to negotiate on permanent status issues.
She concluded:
In this way, the court could assist the General Assembly in achieving its stated objective, which is to support urgent progress towards a negotiated solution within the Security Council framework. The United Kingdom reiterates that a negotiated two-state solution is the only way in which the Israeli-Palestinian conflict will be resolved.
More details of the UK’s position can be found in written submissions dated 20 July 2023, which have now been published by the court. This is the document that is widely assumed to have been leaked by the Palestinians to the Guardian, as I reported last week.
Comment
At the end of last week, the UK government said that if the fundamental legal principle of non-circumvention is “ever to have any real meaning or application, the court must decline to answer the request as currently formulated”. I couldn’t have put it better myself.
Well, perhaps I could. As I argued at the beginning of the week, the court should have the sense to leave well alone.
As before, comments are disabled.
She rejected claims by the Palestinians that the UK had “negated” their right to self-determination under the League of Nations mandate for Palestine which took effect in 1923; and that the court’s advisory opinion in the Chagos proceedings had led the UK to agree to negotiate with Mauritius. The UK also rejected similar claims by the United Arab Emirates and Malaysia that the Chagos opinion had broken the deadlock in negotiations.