Summary
A Judge of the International Court of Justice who sat on the 9 July 2004 Advisory Opinion on the wall, voted against operative subparagraph (3)(D) on consequences for other States, and appended a separate opinion whose separate opinion is read in full in parts 2-3 of the ingest (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, PDF p.5, p.65-76).
Details
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His negative vote on (3)(D) rests on three reasons given at paragraph 1: the request did not make third-State obligations necessary (the Namibia analogy failing because there they were at the request’s heart and premised on a Security Council decision); the Court’s reasoning on them is not persuasive; and (3)(D) is “rather weak” in practice apart from the non-assistance finding, which he subscribes to (PDF p.65).
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On context: deliberate attacks on civilians are “the core element of terrorism”, every State has the right and duty to respond within international law, Israel has not respected those limits, and the Court should have reflected all interests throughout its reasoning rather than only at paragraph 162 (PDF p.66-68).
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He doubts the last part of paragraph 122’s self-determination breach finding while accepting that a structure separating Palestinians from each other makes realization of the right far more difficult, and he criticizes the historical résumé at paragraphs 70-78 as “rather two-dimensional” for omitting the West Bank’s period under Jordanian sovereignty, 1949-1967 (PDF p.66-67).
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On jurisdiction he fully shares the Court, while holding that resolution 377 A (V) also had a substantive effect on the interpretation of Charter Article 12, paragraph 1: the conclusion that ES-10/14 did not contravene that paragraph cannot be dissociated from the effect resolution 377 A (V) has had on its interpretation, though he doubts a recommendation of ES-10/13’s character could lawfully have been adopted while the Council was still considering the specific issue undecided (PDF p.68-69).
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On judicial propriety he felt considerable hesitation: compliance would inevitably politicize the Court, but refusal would politicize it just as much, and only strict adherence to its judicial function minimizes the risk; the request was far from “legally neutral”, so the Court was duty bound to reconsider its content proprio motu rather than assume what the Assembly “necessarily” must have assumed; the subject-matter finding at paragraph 49 is felicitously worded because a matter of concern to the organized international community and a bilateral dispute over it can exist simultaneously (PDF p.69-71).
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On the merits he finds no fault with the Court’s applicability and breach findings, but regrets paragraph 137 lists no treaty provisions breached; on self-determination, not every impediment to a right’s exercise is by definition a breach of the obligation to respect it, and the Court could not conclude a breach without further legal analysis; on proportionality, the route and its consequences are manifestly disproportionate to the interests Israel seeks to protect; on self-defence, the Court by-passed the new element in resolutions 1368 (2001) and 1373 (2001), but rightly concluded Article 51 cannot be invoked because the acts originate within territory under the victim State’s control (PDF p.71-73).
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On consequences for other States, the full argument behind his vote against (3)(D): the request did not necessitate determining them; ILC Article 41, paragraph 1, speaks of co-operation, encompassed in (3)(E), not of individual third-State obligations; the non-recognition duty in Article 41, paragraph 2, is intelligible for situations arising from formal or quasi-formal legal claims, but as applied to an illegal fact it amounts in his view to “an obligation without real substance”, 144 States having already condemned the construction in resolution ES-10/13; he fully supports the non-assistance duty and would have added a reminder of humanitarian assistance to the victims; and on common Article 1, following Kalshoven’s study of the travaux, he does not know whether the Court’s reading is correct as positive law, the Court having given no argument for it (PDF p.73-76).
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The same opinion is ingested as a standalone ICJ source at Separate opinion of Judge Kooijmans, Wall Advisory Opinion, PDF p.1-16, with its own pagination.
Related pages
International Court of Justice, Erga omnes obligations, Self-determination, Separation wall