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In 2004 the International Court of Justice gave an Advisory Opinion in Legal Consequences of the construction of a wall in the occupied Palestinian territory, will the court's opinion make a difference?

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The construction of the wall has been condemned by most of the United Nations agencies and experts whom have described the wall as a violation of Palestinian rights. The UN Special Rapporteur has condemned the human rights situation in Palestinian territories occupied by Israel since 1967. The UN Special Rapporteur on the Right to Food, the UN Office for the Coordination of Humanitarian Affairs (OCHA), the World Bank, the United Nations Environment Programme (UNEP), and the Secretary-General have all also issued reports against the construction of the wall.

This led to the UN Security Council (SC) discussion on 14 October 2003, about a draft resolution urging Israel to cease construction of the wall, however the United States vetoed this resolution. This is not the first time that the Security Council has failed to react, the failure of the Security Council to act effectively (for example in Rwanda in 1994, Srebrenica in 1995 and Kosovo in 1999), when faced with clear threats to the peace could be said to be a major factor that has endangered the whole collective security edifice. Despite the SC having 'primary responsibility' for international peace and security it has been stated that 'there are alternative established institutional machineries for dealing with the implementation of human rights undertakings other than through enforcement measures under the UN'

The UN General Assembly (GA) could be said to be one of these machineries and it did indeed take action when it adopted a resolution requesting Israel to stop and reverse the construction of the section of the wall which departs from green line. The GA also asked the Secretary General to report on Israel's compliance. The former SG, Boutros-Ghali, presented An Agenda for Peace to the 47^th session of the GA, in which he recommended that more use should be made by the SC and the GA of the advisory competence of the ICJ. Both the SC and the GA reacted rather cautiously.

Thus, on 8 December 2003, the UN General Assembly asked the International Court of Justice (ICJ) a question on the legal consequences arising from the construction of the wall being built by Israel in the OPT. The Canadian government has questioned whether the request for an Advisory Opinion was a useful step, given the highly charged political environment that existed at the time and which still persists. On the 9^th of July 2004, the ICJ responded that the construction of the wall in departure of the Green Line was illegal and asked Israel to stop and dismantle it.

Even though this ICJ opinion may not have a direct and immediate impact on the construction of the wall as we might expect from a court in a domestic arena, Ian Williams encourages us not to loose hope in the system. He has commented It is worth remembering that even though the process is slow, it was such ICJ rulings that led to independence for Namibia and East Timor, so, just as the Israelis fear, there may well be tangible consequences when this decision is reported back to the United Nations.

The Uniting for Peace Resolution allows issues stalled by vetoes in the Security Council to be dealt with by the General Assembly. However the legality of the Uniting for Peace Resolution is regarded by many as a theoretical problem given that issues of order (and, increasingly, justice) are now in the hands of the Council. However, there are arguments that in exceptional cases, it should be revived. Arguably this should have happened in the Kosovo crisis, where the Security Council again appeared to be deadlocked

Perhaps aware that it was unlikely that Palestine as an unwilling party would comply with the ICJ's ruling the GA took action. On July 20, 2004, in the Tenth Special Emergency Session of the GA a resolution was adopted in which the Assembly accepted the Advisory Opinion. Furthermore, the Assembly demanded that Israel and all UN member states comply with the legal obligations spelled out in the Opinion; and requested that the UN Secretary-General set up a register of all damage caused to all the natural or legal persons in connection with Israel's construction of the wall in the Occupied Palestinian Territory. The General Assembly also reaffirmed the right and duty of all states to take action in accordance with international law to counter deadly acts of violence against the civilian population. The recorded vote in the Assembly was 150 in favor, to 6 against, with 10 abstentions. The Assembly has reserved the right to reconvene to consider further actions in the case of non-compliance, which could include non-binding sanctions.

The significance of this ruling cannot be overstated. The Security Council is generally considered the only United Nations body with the authority to enforce international law. Yet the council is often prevented from taking action by its permanent members, who can veto any council resolution. The result is that the United Nations is often impotent in the face of international crises. The court's opinion, however, has the potential to restore the United Nations to a position of authority and could transform international diplomacy.

Nevertheless, in denouncing one wall, the court suggested another: a limit on the unbridled use of American diplomatic power. Gregory Khalil has stated that 'the world should take advantage of this opportunity to move in a new direction one in which law, and not the politics of force, prevails'.

Khalil however, is slightly hasty in his analysis. Whilst the GA taking power into its own hands whilst the SC was deadlocked may seem (and indeed is) somewhat revolutionary, no real change in the situation can occur without United States approval. The absence of article 43 agreements had to be faced and an alternative means for military enforcement action had to be found. Therefore without the backing of US military resources the chances are that very little will actually happen in terms of the wall in the Palestinian occupied territory. It would therefore seem that if the controlling party of the Security Council (ie the United States) does not want to deal with this issue then there are no further real options for these Palestinians whose rights are being taken away from them.

This situation of a wall in occupied Palestinian territory has managed to highlight how politics and national interest can interfere in the fair operation of international legal mechanisms. At their best international legal mechanisms facilitate the peaceful resolution of disputes and have a prophylactic effect, encouraging political actors to think about how their actions might hold up if scrutinized by a third-party, like a court. But there is a problem inherent in the international legal process that raises the question of whether this trend towards using legal bodies to enforce international rules is a positive development. Put simply, the political-judicial balance that at the domestic level allows legal bodies to offer independent and authoritative rulings, while keeping courts aligned with political sentiment, does not work well at the international level. International courts are more likely than most courts to generate conflict, yet the international legal and political system is less able to respond in a timely matter to address valid public concerns. Left unaddressed, these concerns erode support for the international legal system and multilateral strategies in general.

The political element in international law will forever be a burden upon its legitimacy and its strength. However, White has stated that the fact that we have undoubtedly moved into a situation in which politics dominates does not mean that we cannot step back from the edge of lawlessness.

Bibliography

Articles

Alter, Karen J, 'Resolving or Exacerbating Disputes? The WTO's New Dispute Resolution System', Northwestern University
Bekker, Pieter H.F, 'The World Court Rules that Israel's West Bank Barrier Violates International Law' American Society of International Law July 2004
Blokker, Niels, Is the Authorization Authorized? Powers and Practice of the UN Security Council to Authorize the Use of Force by 'Coalitions of the Able and Willing', European Journal of International Law, http://www.ejil.org/journal/Vol11/No3/art1.html#TopOfPage
Paulson,Colter, Compliance with Final Judgments of the International Court of Justice Since 1987 98 The American Journal International Law 434, July, 2004
Khalil, Gregory , Just Say No to Vetoes, New York Times July 19, 2004
Osterdahl, 'By all means, intervene!' (1997) Nordic Journal of International Law 241 at 95
Wellens, Karel, 'The UN Security Council and New Threats to the Peace: Back to the Future', 15 Journal of Conflict and Security Law, June 2003
White, N.D., 'On the Brink of Lawlessness: The State of Collective Security Law, Hilaire McCoubrey Memorial Lecture, University of Hull, 15 May 2002
White, N.D., The Legality of Bombing in the Name of Humanity, (2000) 5 Journal of Conflict and Security Law, 27

Websites

OCHA, The West Bank WALL, July 2003, available at http://www.reliefweb.int/hic-opt/
World Bank, Local Co-ordination Committee (LACC), Humanitarian and Emergency Policy Group (HEPG), The impact of Israel's Separation Barrier on Affected West Bank Communities, 4 May 2003, available at Report of the Special Rapporteur of the Commission on Human Rights, John Dugard, on the situation of human rights in the Palestinian territories occupied by Israel since 1967, UN Doc E/CN.4/2004/6 (2003) and E/CN.4/2004/6/Add.1(2004)