- Unmet Expectations: A Critical Evaluation of the Wall Opinion’s Impact
In the Wall, the Court determined the legal consequences of Israel’s act under international law. It primarily held that Israel is under the obligation to put an end to its internationally unlawful acts concerning the construction of a wall in the Occupied Palestinian Territory.(para.150) It is also under obligation to make a reparation, by compensating the locals who suffered from material damages as a result of the construction of the wall. (para.153) The responsible State’s obligation to put an end to an internationally wrongful act is well-established in international law. Yet, international law lacks an enforcement mechanism to ensure compliance with this obligation.
Although the Court found that Israel had violated a number of its obligations under international law and that these violations gave rise to an obligation to cease and repair, Israel’s response to the Court’s Advisory Opinion was to reject it and to continue the construction of the wall.
As shown earlier, while the advisory opinions of the ICJ have had a significant impact on the shaping of international law, they technically are not of a binding nature. At this point, to answer the question that may arise about the purpose and legal effect of an advisory opinion the Court’s advisory function must be examined.
Along with contentious proceedings, advisory opinions are one of the two ways the ICJ can exercise its jurisdiction. The ICJ Statute Article 65, grants it this power. As to the question of who may request an advisory opinion from the Court, Article 96 of the Charter already answers it. Accordingly, the UNGA or the UNSC may request the ICJ to give an advisory opinion on any legal question. Further, other organs of the UN and specialized agencies may also request advisory opinions of the Court arising solely within the scope of their activities. It is important to note that the UNGA and the UNSC cannot ask any “any legal question”. The legal question has to fall under the scope of the UN’s authority. As can be seen, in this procedure there are no States acting on their own behalf as such, or parties bringing a claim before the Court. Accordingly, an advisory opinion is not covered by Article 59 of the Statute which foresees that a decision rendered by the Court is not binding except on the parties to the current case.
The first consequence which emerges is that an advisory opinion has no binding character. Indeed, it is not binding either on the requesting UN body or States whose dispute is indirectly addressed in the opinion. Secondly, the ruling of the advisory opinion is not enforceable. The Court itself has pointed out in the Peace Treaties case and case on the Applicability of Section 22 of Article VI of the Convention on the Privileges and Immunities of the United Nations, that it lacks executive force. It follows that the Court cannot itself take any action to put an end to Israel’s acts contrary to international law, nor can it compel Israel to do so through an advisory opinion. It solely spells out what is the applicable law in the given case and detects breaches of this law.
At this point, one might wonder what exactly an advisory opinion is for if these decisions do not entail prima facie binding legal consequences on actors of international law. Advisory opinions have an important role to play in international law. To begin, the ICJ, which frequently refers to its precedents as a source of international law under Article 38 (1) (d) of the Statute, makes no distinction between the jurisprudential value of advisory opinions and judgements of contentious proceedings. Moreover, the Court’s remarks are nothing less than international law itself. It is worth noting at this point that the Court’s advisory opinions have greatly contributed to the development of general public international law. To the extent that the UN organ requesting the advisory opinion intends to provide a legal solution to the issue addressed by the advisory opinion, the point of law set out in the opinion becomes binding on that requesting organ. In this sense, it can also be concluded that the Court’s findings are one of the secondary sources of international law and have legal consequences “applicable” to the subjects of international law.
Finally, opinion is not res judicata judgment within the meaning of Article 60 of the Statute between the Parties of the dispute. To further explain, the principle of res judicata conserves the final and binding effect of judgments. This principle prevents the same issue from being relitigated in subsequent proceedings between the same parties due to the inadmissibility of duplicate claims, as established by the Court. The Court may therefore reconsider this issue in a contentious proceeding.
Suppose a state brings a contentious case against Israel and the Court has to deal with the same issue once again. Would this hypothetical lawsuit help us to overcome the shortcomings of the advisory opinion?
First of all, to make such a claim, “Palestine” would seem to be an eligible candidate as it has been directly affected by Israel’s actions. However, an entity must be a State to be a claimant or defendant before the Court. That is to say, the Court’s contentious jurisdiction cannot extend to disputes between subjects other than states under international law. At this point, it should be noted that the status of Palestine as a subject of international law is highly controversial. Besides, it is not a party to the ICJ Statute. Palestine’s capacity to resort to the ICJ is therefore a matter of particular debate and it remains as a question that the court has not yet encountered.
On the other hand, arguendo Palestine brought a case against Israel and the Court came to the same conclusion in its Wall Advisory Opinion. In such a hypothetical positin, Article 94 of the Charter could be invoked. In such a case, where Israel is a party to a contentious proceeding, it would be under an obligation to comply with the Court’s judgment. Moreover, if it fails to comply with the decision of the Court, the other party may resort to Article 94 (2) of the Charter. This article provides that “If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations, or decide upon measures to be taken to give effect to the judgment.” One may wonder what the Security Council can do in such a situation, or what it actually does. Surprisingly or not, the Security Council practice relating to Article 94 paragraph 2 has been disappointing. For instance, in the case concerning the Land, Island and Maritime Frontier Dispute between Honduras and El Salvador, Honduras, pursuant to Article 94, paragraph 2, requested the Security Council to request it to intervene and assist in securing the execution of and faithful compliance with the judgment of the ICJ. The Council did not take any decision on this matter. Further, Bosnia and Herzegovina, with reference to Article 94, paragraph 2, of the Charter, on 15 September 1993 made a request to the Security Council to “take necessary measures under Chapter 7 of the Charter in order to enforce the order of 13 September 1993 of the ICJ. The Council has again taken no action on the request.
Here, once again, we are faced with the major criticism of international law: unlike municipal law systems, there is no real enforcement mechanism under international law.
