Date: 3 October 2024
Time: 12:00 - 15:00 SAST
Venue: Dean’s Committee Room, Faculty of Law & ZOOM
Register in advance to join via zoom
Abstract:
The Advisory Opinion (AO) delivered by the ICJ in July 2024 on the Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem, has important implications for third states. The court found that Israel’s policies and practices of prolonged occupation and settlement activities violate the prohibition of use force to acquire territory; the rights of the Palestinian people to self-determination as well as certain obligations under International Humanitarian Law and Human Rights Law. Observing that the obligations violated by Israel include certain obligations erga omnes which are by their very nature the “concern of all states” and “in view of the importance of the rights involved all states can be held to have a legal interest in their protection”, the ICJ invoked the obligations for third states. Twenty years ago, in the Wall AO (2004), the ICJ has already called upon thirds states obligations not to recognise the illegality of the Construction of the Wall nor render aid or assistance in maintaining the illegal situation. Back then Judge Kooijmans remarked in his separate opinion that it was “an obligation without real substance”. The Palestinian NGO Al Haq affirmed the failure of third states to comply with their obligations rendered by the AO. Akram and Lynk assume the “obligations were not explained, and the consequences to States unclear”. Such disillusioning and damning observations regarding the effects of an ICJ AO should not be replicated. This seminar will give substance to third state obligations deriving from the AO on Israel´s Military Occupation. It starts with the nature and (legal) effects of ICJ advisory opinions and then considers whether third state obligations addressed in the AO derive from breaches by Israel of ius cogens norms or erga omnes obligations or both. It then clarifies the obligations the AO has called upon for third states (para. 273-279) focusing specifically on the obligation to cooperate (para. 275), the obligation not to recognise as legal the situation arising from the unlawful presence of Israel in the Occupied Palestinian Territory (OPT), the obligation not to render aid or assistance in maintaining the situation created by Israel´s illegal presence in the OPT and the obligation to ensure compliance by Israel with international humanitarian law (IHL) as embodied in the Fourth Geneva Convention (para 279).Literature:
Jochen A. Frowein, Obligations erga omnes, in: MPEPIL Dezember 2008 Yoshifumi Tanaka, The Legal Consequences of Obligations Erga Omnes in International Law, in: Netherlands International Law Review 68 (2021) 1-33. Stefan Talmon, The Duty Not to ‘Recognize as Lawful’ a Situation Created by the Illegal Use of Force or Other Serious Breaches of a Jus Cogens Obligation: An Obligation without Real Substance?, in: C. Tomuschat/ J.-M. Thouvenin (eds), The Fundamental Rules of the International Legal Order, 2006 Leiden, 99-126. Helmut Philipp Aust, Legal Consequences of Serious Breaches of Peremptory Norms in the Law of State University of the Western Cape. Private Bag X17. Bellville 7535. South Africa. Responsibility, in Brill/ Nijhoff (eds.), Peremptory Norms of General International Law (Jus Cogens), 2021 Leiden, 227-256.Blog articles:
https://www.ejiltalk.org/implications-of-the-icj-order-south-africa-v-israel-for-third-states/https://www.ejiltalk.org/obligations-erga-omnes-norms-of-jus-cogens-and-legal-consequences-for-other-states-in-the-icj-palestine-advisory-opinion/
https://www.ejiltalk.org/implications-of-the-icj-advisory-opinion-for-the-eu-israel-association-agreement/
https://gpil.jura.uni-bonn.de/2021/01/germany-considers-israeli-settlement-activitiesin-the-occupied-palestinian-territories-illegal-under-international-law/
