On 19th July 2024, the International Court of Justice (ICJ) rendered an Advisory Opinion on the Legality of Israel’s Occupation of Palestinian Territories.The ICJ observed that Israel’s continued presence in the Occupied Palestinian Territory is unlawful and, therefore, it has an obligation to end its unlawful presence in the Occupied Palestinian Territory (OPT) and cease all new settlement activities. The opinion generated academic responses from scholars on issues like occupation, annexation, and extraterritorial application of human rights.
An intriguing part of the opinion is reflected in para 233, where the ICJ, for the first time, acknowledged the Right to Self-Determination (RSD) as a jus cogens norm. Hua Deng, in her excellent piece for the EJIL: Talk, provides insights on the unconvincing method adopted by the ICJ to identify jus cogens; Ingrid Brunk and Monica Hakimi have mapped whether Prohibition of Forcible Annexations of Territory a jus cogens norm. This post probes into the semantics of the ICJ in handling jus cogens vis-à-vis RSD and also critiques ICJ’s disinclination to provide substance to jus cogens.
Advisory Opinion on the Legality of Israel’s Occupation of Palestinian Territories
In Advisory Opinion on the Legality of Israel’s Occupation of Palestinian Territories the ICJ, in one stroke, observed, “in cases of foreign occupation such as the present case, the right to self-determination constitutes a peremptory norm of international law.” Thus, affirmed for the first time the jus cogens nature of RSD, but it did not go beyond this iteration or provide any methodological precision to identify RSD as jus cogens. Additionally, a significant portion of the opinion makes reference to erga omnes. The ICJ crafts this argument by mentioning its earlier cases and stuck to the legal consequences stemming from erga omnes rather than jus cogens. This was evident when the ICJ opined that “the obligations violated by Israel include certain obligations erga omnes.” Judge John Dugard (ad hoc) in the Armed Activities Case notes that ICJ’s function in interpreting the norms of international law has delayed the presence of jus cogens. In the Chagos, Judge Trindade summed this up by articulating a pressing need for elaborating the reasoning on jus cogens. The Declaration of Judge Tladi welcomed the ICJ adopting RSD as jus cogens. He also believed that because of not expanding on the nature and content of jus cogens, the observation of the ICJ would merely be an obiter. Therefore, the ICJ has merely reinforced the previous decisions regarding the erga omnes status of RSD, maintaining the status quo.
Rationale Behind the Reluctance
The lack of systematised enquiry on jus cogens in the context of RSD provides a limited opportunity to uncover the rationale behind the reluctance of the ICJ. However, a lot can be derived from the semantics of the ICJ within and outside the framework of RSD. Firstly, by referring to terms which might be akin to jus cogens, the ICJ has indirectly avoided jus cogens. For instance, in Legality of the Threat or Use of Nuclear Weapons, the ICJ stated that ‘fundamental rules are to be observed by all States whether or not they have ratified the convention’. It is unclear whether the wording establishes any legal obligation. Secondly, in cases of RSD, the ICJ employs the related yet distinct concept of erga omnes to avoid jus cogens, albeit both erga omnes and jus cogens norms emerged during the same period. Thirdly, the ICJ views the question of jus cogens as a periphery to the main arguments in advisory opinions. In the Chagos case, the ICJ considered addressing whether RSD was a jus cogens norm unnecessary. Perhaps the attitude of the ICJ is mirrored in Judge Abraham’s separate opinion in Belgium v. Senegal, where the prohibition of Torture was regarded as jus cogens, but according to the Judge, this was a mere obiter, which the court could have omitted. This interpretation is flawed because the advent of erga omnes in the Barcelona Traction case was seen by many as obiter not related to the facts the ICJ was deliberating upon. Yet its lasting influence is palpable in the current legal development in international law.
Fourthly, the ICJ might consider there is no sufficient evidence to support the jus cogens status of RSD, but the separate opinions of Judges disprove this claim. Moreover, State practice and the International Law Commission (ILC) take a contrary view. For instance, the Draft conclusions on identification and legal consequences of peremptory norms of general international law (jus cogens) 2022, provide a non-exhaustive list of norms which includes RSD. The list identified by the ILC was premised on the previous works of ILC. The ICJ could draw lessons and partner with the ILC, ensuring certainty in a decentralised legal order.
Fifthly, in East Timor and DRC v. Rwanda, the ICJ preferred State consent over jus cogens. In the words of the ICJ in DRC v Rwanda, “the Court deems it necessary to recall that the mere fact that rights and obligations erga omnes or peremptory norms of general international law (jus cogens) are at issue in a dispute cannot in itself constitute an exception to the principle that its jurisdiction always depends on the consent of the parties.” Judge Trindade attributes this trend to the court’s primacy to State consent over the realisation of justice by means of compulsory jurisdiction.
Conclusion
ICJ acknowledging the erga omnes nature of RSD would not necessarily establish legal obligations upon States. The substantive legal obligation flows from breaches of jus cogens as codified under Articles 40 and 41 of ARSIWA. RSD concerns the rights of peoples, therefore, ICJ needs to transcend the state-centric outlook and shed clarity on jus cogens in a detailed manner. In the Advisory Opinion on the Legality of Israel’s Occupation of Palestinian Territories, the ICJ categorised RSD as jus cogens in the context of foreign occupation. However, it did not elaborate its normative content or the method it adopted to arrive at this conclusion. Further, the reluctance of the ICJ to embrace jus cogens is self-induced, requiring internal reform.
Author
Mr. Atul Alexander is Assistant Professor of Law at the West Bengal National University of Juridical Sciences (WBNUJS), Kolkata, India.
