The Obligation of Non-recognition, Occupation and the OPT Advisory Opinion

In the OPT Advisory Opinion, the ICJ considered that Israel’s abuse of its position as an Occupying Power, through de jure and de facto annexation of the Occupied Palestinian Territory (OPT) and continued frustration of the right of the Palestinian people to self-determination, renders Israel’s presence in the OPT unlawful (para. 261). In determining the legal consequences of this illegal presence, the Court held by a vote of 12:3, that all States are under an obligation “not to recognize as legal the situation arising from the unlawful presence of the State Israel in the Occupied Palestinian Territory” (paras. 279, 285(7)). This holding was not accompanied by any concretization in either the Advisory Opinion or any of the many declarations and separate opinions attached to it. This absence is hardly surprising given that the obligation of non-recognition is inapplicable to a situation of occupation, even if unlawful.

The issue before the Court

The phrase “situation arising from the unlawful presence” of Israel in the OPT appears nowhere in the Advisory Opinion prior to the discussion of the consequences of the illegality, nor is it explicated or developed anywhere. Nevertheless, the Court was only asked to opine on the legal consequences of Israel’s policies and practices for the status of the occupation, the phrase must be understood as relating to the legality of Israel’s presence in the OPT as an occupying power. That said, the Court did not entirely refrain from commenting, obiter dictum, on the consequences of Israel’s purported annexation of territory in the OPT, noting the obligation of non-recognition declared in this regard by Security Council and General Assembly resolutions (paras. 276–278).

The Court’s wording evokes the obligation of non-recognition under general international law as it is articulated in the Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA). Articles 40–41 stipulate that States are under a duty not to recognize as lawful “a situation created by a serious breach” of peremptory norms, namely one that is gross or systematic. Although the Court did not explicitly mention ARSIWA, it is difficult to imagine that it considered an obligation to exist that was entirely separate from the existing articulation of the law but did not mention its basis or scope. Its characterization of Israel’s abuse of powers as “sustained”, of the occupation as “prolonged” and of the frustration of the right to self-determination as “continued” seem to place the violations of the peremptory norm squarely within the scope of ARSIWA Article 40.

As the examples provided by the International Law Commission show, “situations” that have been denied recognition along the lines of the obligation under ARSIWA Article 41(2) concern claims of sovereignty based on territorial acquisition or independence, when those are based on violation of the prohibition on the use of force or the right to self-determination. Examples include Iraq’s claim of sovereignty over Kuwait in 1990, Russia’s current claim of sovereignty over Crimea, the alleged independence of the South African Bantustans in the 1970s and 1980s and of the Turkish Republic of Northern Cyprus in 1983, as well as South Africa’s claim over Namibia (indecisively alternating between sovereign and Mandatory power). Exceptional in this regard is the Bernard Mornah case,

The difficulty with what the Court said

A comparison of the Court’s instruction “not to recognize as legal the situation arising from the unlawful presence of Israel in the Occupied Palestinian Territory”, with the standard formulation in ARSIWA Articles 40–41 “not to recognize as legal the situation arising from the breach of a peremptory norm”, indicates that “Israel’s unlawful presence in the OPT” constitutes, in the eyes of the Court a “breach of a peremptory norm”. This raises various difficulties and questions.

Linguistically, the word “unlawful” seems superfluous: as the obligation is to deny the legality of a given situation, there seems to be no need to re-state its illegality. It is nonetheless difficult to imagine that the Court failed on a basic issue of drafting. Why, then, did it not simply hold that the obligation is “not to recognize as legal the situation arising from Israel’s unlawful presence in the OPT”?

For one thing, it cannot be said that the occupation (or presence) arises from a breach of a peremptory norm. In fact, the occupation preceded the breach and enabled it. It is the unlawfulness of the occupation that arises from the breach. This might explain the insertion of the word “unlawful” despite its linguistic inappropriateness. A more flexible approach to the obligation might be to regard it as extending to a situation maintained in violation of a peremptory norm even if it was initially created lawfully. This was the approach adopted by the ICJ in the Namibia Advisory Opinion (para. 126). But the question remains as to what “the situation” is.

However, the difficulties in applying the obligation of non-recognition in response to the illegality of Israel’s presence in the OPT are fundamental and go much further. First, the obligation of non-recognition pertains to a claim of legal title (capable of being granted recognition or otherwise), not to a fact (as cogently pointed out by Judge Kooijmans in a separate opinion in the 2004 Wall Advisory Opinion, para. 44). For example, Iraq’s claim of sovereignty over Kuwait was based on annexation, in violation of the prohibition on the use of force. Consequent to this illegality, Iraq’s claim to sovereignty was not recognized. Yet Iraq’s (illegal) presence in Kuwait was certainly acknowledged as a matter of fact (rendering its status there that of an occupant). In the same vein, Israel’s claim of sovereignty over East Jerusalem (or exercise of sovereign acts over territory) is grounded in the violation of peremptory norms, thus the purported sovereignty must be denied recognition. But Israel’s presence in the territory, while unlawful, is a fact. There is no “situation” arising from it.

Moreover, the obligation of non-recognition derives from the concept of ex injuria ius non oritur, namely that no one should benefit from their own wrongdoing. Non-recognition denies such benefit by invalidating the consequences of unlawful conduct. However, when it comes to the consequences of a State’s presence in foreign territory, there are specific rules governing the matter of consequences, namely the laws of armed conflict, including the law of belligerent occupant. This law applies irrespective of the legality of the manner in which the occupation came about (para. 251). Effectively, the laws of armed conflict are leges speciales in relation to the obligation of non-recognition. To hold that similarly to sovereignty, an occupation created or maintained illegally is invalid and does not generate the same consequences as an occupation created or maintained legally, would constitute a major overhaul to the laws of armed conflict. The Court thus correctly emphasized that Israel remains bound to comply with its obligations under international humanitarian law and international human rights law (para. 272).

What then, may the consequences be of not recognizing the legal consequences of the occupation because of its unlawfulness if that is what the Court meant to instruct? One might query whether it is significant that the Court mentioned that Israel remains bound only by obligations, perhaps implying that the consequence of the illegality is that it may not benefit from its status. However, strictly speaking, neither the law of occupation nor international human rights law confer rights on the occupant. Rather, they curb its power. Conceptually, then, the same obstacle arises as before: claims may be denied and rights may be withheld; power is a matter of fact. There are also practical difficulties in holding an occupant bound by obligations but devoid of power.

All this does not mean that the creation or maintenance of an occupation in violation of the laws on the use of force or the right to self-determination does not generate consequences for third States. For example, as the Court noted, States must not “render aid or assistance in maintaining the situation created by Israel’s illegal presence” in the OPT (para. 285(7)). It is possible to refrain from assisting the maintenance of a factual situation; but it is meaningless to speak of not recognizing that the situation prevails.

The difficulty with what the Court did not say

Against this background, it is not surprising that the Court did not suggest that the occupation be denied validity, as ought to be the consequence of the obligation of non-recognition. It is surprising, however, that the Court did not suggest any consequence for the obligation of non-recognition, nor indicate conduct that States must refrain from lest it imply their recognition of the legality of “the situation arising from Israel’s unlawful presence in the OPT”. This silence contrasts with the detailed guidance that the Court provided obiter dictum on measures that States might take in order to comply with the obligation of non-recognition of Israel’s purported sovereignty in the OPT. The examples it provides in this context include entry into treaties in which Israel purports to act on behalf of the OPT, and recognition of the OPT as falling within the jurisdiction of diplomatic missions accredited to Israel (para. 278).

Not only the Advisory Opinion but also the separate opinions and declarations are almost mute on what the obligation of non-recognition entails. A few of them comment on whether the obligation derives from the erga omnes character of the norms or from their peremptory character, but there are no remarks on the content of the obligation.

The OPT Advisory Opinion is not the first time that the ICJ declares an obligation of non-recognition without clarifying its consequences. It did so in the Wall Advisory Opinion with respect to the illegal situation arising from the construction of the separation barrier. Nor is the ICJ alone in declaring an obligation of non-recognition with respect to an occupation, and failing to elucidate it. In the above-mentioned Bernard Mornah case, the African Court reiterated that African Union Member States have the responsibility not to do anything that would give recognition to Morocco’s occupation of Western Sahara, but stopped short of clarifying what that entails. Indeed, in the Wall Advisory Opinion, Judge Kooijmans considered the duty not to recognize the illegal situation created by the construction of the wall in the West Bank to be an “obligation without substance”.

Conclusion

The Advisory Opinion is significant in many ways – it puts to rest any doubt as to the status of the right to self-determination as a peremptory norm; it recognizes the notion of de facto annexation; it recognizes that the laws on the use of force continue to apply in armed conflict; and probably most innovatively, it holds that an occupation that is maintained in violation of these laws and the right to self-determination may not continue. As this post shows, the Advisory Opinion is also innovative in expanding the obligation of non-recognition beyond claim to title over territory. Yet how the obligation applies and what are its consequences remain a mystery.

An indecipherable judicial pronouncement is always problematic, but it is particularly so when at issue is an advisory opinion. As is well known, such an opinion is not binding by virtue of the institution’s formal dispute-settlement authority. Unlike a verdict in contentious proceedings, which, even if obscure, at least resolves a particular dispute, an advisory opinion’s main value is in providing guidance to the UN as well as to States seeking to conduct themselves in accordance with international law. Its sway lies solely in the quality of its opinions and their reasoning, as the views of persons most highly regarded for their professional expertise. If the Court fails to explain itself, what are States seeking its guidance expected to do?