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GOOD FENCES MAKE GOOD NEIGHBORS?: THE “WALL DECISION” AND THE TROUBLING RISE OF THE ICJ AS A HUMAN RIGHTS COURT[*]
July 9, 2004 marked the culmination of a remarkable parallel process in which the same set of human rights issues almost simultaneously completed their procession through a domestic and international court. The Israeli Supreme Court (“ISC”), in Beit Sourik Village Council v. The Government of Israel (“Beit Sourik”),[1] and the International Court of Justice (“ICJ”), in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (“Legal Consequences”),[2] were faced with the same questions and issued their opinions within days of one another. They were separately charged to determine if the partially completed barrier[3] that the Israeli government was constructing was in contravention of international law. Both courts, relying heavily on human rights law, arrived at the same answer: at least some parts of the barrier are illegal and such segments need to be altered if Israel is to act consistently with international norms.
Although there is some comfort in the fact that the rulings are consonant, it is also disquieting. The two judicial bodies have markedly different mandates and are differently equipped to be panels ruling on human rights. The ISC, as Israel’s high court of justice, “enjoys a reputation as a powerful, influential, and activist court. . . , responsible for the development of civil rights, . . . freedom of religion, and other fundamental constitutional principles.”[4] It has engaged in judicial review of sensitive military decisions[5] and, while it has not always ruled in their favor, the ISC has given Palestinians rights of appeal and redress.[6]
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The ICJ, however, does not have such an activist, human rights oriented history. This is unsurprising, as the ICJ was founded to protect states’ rights, not human rights. Individuals do not have standing before the Court, and the Court cannot provide opinions without the consent of states or state representatives. However, in Legal Consequences, the ICJ departed from both its past and its mandate by engaging in an unprecedented degree of activist jurisprudence, accepting the case amidst significant opposition, arguably recognizing a de facto non-state petitioner, and ruling directly on human rights principles rather than those of humanitarian law—i.e., the Fourth Geneva Convention—on which it was asked to rule.[7] In short, Legal Consequences appeared as an attempt by the Court to assert itself as a tribunal competent to hear human rights cases, akin to the ISC or the European Court of Human Rights (“ECHR”).
The difficulty with the ICJ’s move into human rights is not its lack of legal authority. Its charge to provide interpretations of treaties[8] would seem to include the capacity to interpret those treaties concerning human rights. However, as Legal Consequences manifests, the ICJ is ill suited to the task of human rights jurisprudence, which largely explains its historic reluctance to address human rights concerns.[9] Further, a shift toward becoming a human rights court will likely negatively impact the legitimacy of the ICJ and potentially the protection of human rights generally.
In spring 2002, following several terrorist attacks, the Israeli government began construction of a wall that ran close to the 1949 cease-fire line (the “Green Line”) between Israel and the West Bank. According to Israel, the “sole purpose of the fence” is to prevent terrorist infiltration of Israel-proper, and once security improves the “temporary” structure will be dismantled.[10] If completed as planned, the wall would extend about 400 miles around the West Bank, and in places would reach as far as three miles into the West Bank to encircle Jewish settlements. Although the magnitude of the barrier’s impact is disputed, it is clear that the structure has already destroyed or limited Palestinian access to thousands of acres of farmland, and has made some irrigation waters completely inaccessible to Palestinian farmers.[11]
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The fence’s builders have been given broad authority to confiscate land. Beit Sourik arose from a complaint to the ISC from villages that had lost portions of their land through such seizures. Petitioners argued that the seizures were illegal under both Israeli administrative law and public international law. Moreover, they claimed that the fence violated the fundamental rights of the local inhabitants and that their resulting injuries were “severe and unbearable.”[12] The hearings and oral arguments were spread out over a number of sittings, beginning on February 29, 2004 and concluding on May 2, 2004. The ISC’s decision was rendered on June 30, 2004.
The path of this issue to the ICJ was more circuitous. On October 14, 2003, a resolution was introduced in the U.N. Security Council that would have found any wall departing from the 1949 armistice line illegal under international law. Though garnering ten votes, the resolution was not adopted due to a veto by the United States.[13]
One week later, the U.N. General Assembly (“UNGA”) adopted a resolution that contained language similar to that in the Security Council draft resolution. Moreover, in Resolution ES 10/14, adopted on December 8, 2003, the UNGA decided
to request the International Court of Justice . . . to urgently render an advisory opinion on the following question:
What are the legal consequences arising from the construction of the wall being built by Israel . . . in the Occupied Palestinian Territory . . . considering the rules and principles of international law, including the Fourth Geneva Convention . . . and relevant Security Council and General Assembly resolutions?[14]
The resolution received ninety votes in favor, eight against, and seventy-four abstentions. The split in votes illustrates the case’s political overtones. The official request for an opinion was sent to the ICJ, and following receipt of written statements and hearings, the Court ruled on July 9, 2004.
The degree of concordance between parts of the ICJ and the ISC holdings is remarkable. The ICJ held in Legal Consequences that the construction of the wall violates international law and that Israel must stop construction, dismantle the existing wall, and pay reparations for damage already caused by the barrier.[15] In Beit Sourik, the Israeli Court held that the route of the wall[16]
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was disproportionate as a matter of international law: “[The] route undermines the delicate balance between the obligation of the military commander to preserve security and his obligation to provide for the needs of the local inhabitants,” required under international laws of occupation.[17]
The cases’ parallel paths through international and national judiciaries diverged after decisions were rendered in each chamber. In the hours following the ICJ judgment, Israeli Prime Minister Ariel Sharon “rejected” the Court’s ruling.[18] By contrast, following Beit Sourik, the Israeli government immediately stated its intention to comply,[19] and Sharon authorized a reassessment of the wall’s route, taking into account the concerns raised by the ISC decision.
To many, Sharon’s rejection of the ICJ ruling—which exemplifies the dif-ficulty of enforcing international law[20]—was attributable to political realities, rather than any legal maladies of the decision.[21] However, this perspective ignores the legal issues surrounding the ICJ case, which provide reasons to question the holding. Several aspects of the case, from procedure to jurisdiction to the final ruling, suggest that the ICJ overreached its mandate. The Court will find it difficult to sustain such overreaching; it may negatively impact the Court’s own ability to protect human rights, as well as the ability of other international institutions more appropriate to the task.
While many ICJ cases have provoked arguments from states regarding the legal propriety of the Court taking the given case, the level of discord provoked by the UNGA’s referral in this case might make even the ICJ’s initial decision to accept the matter appear activist. Forty-four states filed written statements with the Court, with more than half requesting that the Court refuse to hear the case.[22] Such states argued, inter alia, that “the request seeks to embroil the Court in a charged and inflammatory political issue” (Republic of Palau), that it was “inappropriate in the current circumstances to bring before a judicial authority a question in respect of which highly political implications predominate” (Swiss Confederation), and that “broader negotiation, rather than the procedurally limited nature of a judicial hearing,” was the only way forward (Canada).[23] There were also significant questions raised regarding the legality of the UNGA’s request for an opinion on a matter of
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present interest to the Security Council,[24] and regarding the Court’s acceptance of jurisdiction over a matter in which it knew in advance that it would be denied full information by a critical party.[25] Even after the ICJ accepted jurisdiction, state protests did not subside. Those that had asked the Court to deny jurisdiction boycotted the proceedings, including Israel, and the hearings were conducted amid significant public protests from both sides.[26]
Further, the request for the advisory opinion itself seemed to reflect the UNGA’s attempt to enlist the Court as a human rights tribunal to redress Israeli wrongs. Under this view, what the UNGA requested was not properly an “advisory opinion.” Such opinions are “a means to enable an organ . . . in need of legal clarification . . . to obtain that clarification” so that it can properly engage in its work.[27] In this case, the UNGA “had already declared the . . . the wall to be illegal, and . . . [had] already determined the legal consequences by demanding that Israel stop and reverse its construction . . . .”[28]
In its decision, the ICJ made almost no references to Israeli security or the larger goals pursued by Israel in its construction of the wall. Though unyielding in this regard, such a lack of deference to state independence—a heretofore largely foreign concept in the state-driven ICJ—in the area of human rights is not entirely unprecedented. Human rights law, unlike humanitarian law, often dispenses with any balancing between necessity and rights; central tenets of human rights law are often non-derogable.[29] Consequently, the ICJ decision fits clearly into the wider trend of international human rights jurisprudence in which universal norms increasingly trump domestic prerogatives.
In the European context, the need to balance universal norms (as mandated under the European Convention of Human Rights) and the particular needs of member states of the Council of Europe led the ECHR to develop the doctrine of a “margin of appreciation.” The doctrine was subsequently adopted by courts charged with the enforcement of other human rights instruments[30] and, in its modern incarnation, appears to have been at least implicitly at work in the ICJ decision.
The “margin of appreciation” refers to “the latitude a government enjoys in evaluating factual situations and in applying the provisions [of] interna-
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tional human rights treaties.”[31] The “margin” is the deviation from norms that the ECHR allows states out of respect for their specific domestic circumstances. Initially, the “margin” allowed was consistently large, primarily because the first applications of the doctrine were in the context of derogations from treaty obligations due to self-proclaimed national emergencies.[32] In such circumstances, “the interest which the public itself has in effective government and in the maintenance of order justifies and requires a decision in favour of the legality of the Government’s appreciation.”[33]
However, in its recent jurisprudence, and especially in cases not involving a public emergency, the ECHR has reduced the margin, particularly in actions concerning human rights.[34] Opinions from tribunals such as the Inter-American Court of Human Rights and the U.N. Human Rights Commission have followed suit, signaling a global trend of multilateral enforcement bodies offering less deference to national decisions when municipal actions violate human rights norms.[35] This reduced margin has also been reinforced by increasing activity in domestic courts, which has provided new avenues for human rights jurisprudence and protections.[36] The ICJ decision, contrary to the Court’s own history of implicitly granting states a fairly wide “margin of appreciation,”[37] fits neatly into this stricter application. By according little space in its opinion, and even less value, to Israel’s contentions that it had provided “relevant and sufficient”[38] reasons to construct the wall, the ICJ mimicked the similarly reduced accordance that human rights tribunals have recently showed state parties. The ICJ went even further, however, by placing little weight on the Israeli argument that a public emergency[39]—a state’s determination of which human rights courts have usually accepted with deference[40]—justified the wall’s construction.
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Although it was asked an open-ended question, the ICJ was not charged to rule on as many issues, or in so broad a manner, as it did. The fact that the Court did so was also counter to its historical practice of judiciously tempering decisions. In Legal Consequences, the Court explicitly ruled in excess of the question asked by declaring that the Israeli settlements were illegal, that the wall was a de facto annexation of territory, and that the barrier impeded the right of Palestinian self-determination—all of which created a situation that the United Nations and other states were legally obligated to rectify.[41]
The ICJ justified its expansive ruling on the grounds that certain violations by the Israelis have produced “obligations erga omnes”—obligations for the world community to rectify, rather than duties imposed on a specific state.[42] Based on a common definition of such obligations—those founded on the “basic rights of the human person”[43]—the Court’s mere invocation of them arguably reflects its greater concern for human rights law than for humanitarian principles. As the Court was the initial source of erga omnes, it is apparent that it has addressed human rights in the past. However, the Court has been reticent to do so, limiting its concern for human rights protections to those rare cases in which it finds such rights “central” to state claims. Judge Higgins has argued, in reference to the Court’s provisional measures, that such measures have only provided for protection of human rights when those rights were the subject matter of the dispute, not more generally.[44] Even in the Iran Hostages case,[45] in which the United States asked the Court to protect its citizens’ rights, the Court dealt strictly with the states’ rights implicated in the matter. In the Nicaragua case[46] as well, the ICJ made no reference to the rights of the Nicaraguan peoples, but rather used the “language of inter-State disputes.”[47] If the ICJ did not regard the Nicaragua or Iran Hostages cases as centrally about human rights, it is difficult to see how it could define Legal Consequences as such.
Moreover, the Legal Consequences Court seemed to greatly expand the defini-tion of erga omnes. Although the term has been famously resistant to defini-tion,[48] with explication usually provided through example rather than true description, generally these obligations have been characterized narrowly. Some
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commentators even argue that they only arise in circumstances in which a state is implicated in a jus cogens violation.[49] Though Judge Elaraby’s separate opinion implied such a violation,[50] the majority did not implicate Israel in any such infraction. The Court, however, subscribed to a much broader view of erga omnes, claiming that the obligations violated by Israel are “its obligation to respect the right of the Palestinian people to self-determination and . . . [various] obligations [it has] under international . . . law.”[51] In applying erga omnes to either of these purported violations the Court greatly increased the operational ambit of the concept.
Regarding Palestinian self-determination, the Court relied on East Timor in finding that such a right is “irreproachably” erga omnes.[52] However, it is not clear what East Timor counsels in the current situation. In its relevant parts, that case demanded that the international community not recognize Indonesian control over the territory—non-recognition was an obligation erga omnes. In contrast, Israel has never asked for recognition of its control over the territory covered by the wall. Indeed, far from annexing territory, the Israelis aver that the wall is only temporary.[53] The difficulty, and the unjustified expansion of erga omnes, stems from the Court’s reliance on the wall as indicative of Israel’s de facto annexation of Palestinian territory. While East Timor clarifies the erga omnes obligations in the face of illegal laws, it is unclear what the law says about supposed illegal “facts,”[54] especially if those facts are disputed by claims that their de jure meaning differs from their de facto appearance.
The Court’s expansiveness is also seen in its argument that erga omnes obligations arise vis-à-vis Israel’s duties to other states under its international commitments. However, it is highly contentious that the article on which the Court based this claim—Common Article 1 of the Geneva Conventions—imposes obligations on third party states not involved in a dispute. There is no evidence either in the conventions themselves, nor in their travaux préparatoires, that such a conclusion should be drawn.[55] Further, the only previous case law cited on this matter (Nicaragua) dealt with the erga omnes duty to abstain from actions,[56] not to engage in positive actions.
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Second, even if the link between third party states and the conventions were clearer, it is uncertain what happens to such obligations in the face of derogable components of international law, a category which includes the right to self-determination.[57] Although the Court refused any contention that the wall was militarily “necessary,”[58] which would have likely permitted Israeli derogation, the Court admitted that it did not have full information of the situation,[59] and its “fail[ure] to address any . . . evidence specifically rebutting Israel’s claim of military exigencies”[60] casts doubt on the legal validity of its disavowal.[61] Consequently Israel’s claims of derogation were, at minimum, not completely unjustified; thus the erga omnes obligations of third party states would be at least partly vitiated. If the Court nonetheless meant to hold that the obligations maintain their full force in the face of (at least partial) derogation, its understanding of erga omnes was even more expansive than an initial reading of the decision suggests.
Finally, the ruling’s expansiveness comes from the Court’s demand that third parties act to protect Palestinian human rights.[62] Though this edict was again contra historical ICJ jurisprudence[63] (as human rights are only tangential to the “state” interests at the heart of this matter—the defense of the integrity of Palestinian territory), this holding provides additional support to the contention that there actually were petitioners before the Court in this case—something prohibited in advisory opinions, and, in as much as the petitioners were individuals, impermissible in all ICJ proceedings. The alleged harms befell specific individuals—the same who filed Beit Sourik. This, combined with references to their implicit status as the aggrieved party in many written statements presented to the Court,[64] provides further evidence of the Court’s departure from its “states only” past.
The events that occurred after the ICJ ruling, primarily the UNGA’s attempt to make the decision binding law, also seemed to mimic actions common after rulings by human rights courts. After ECHR cases, member states of the Council of Europe are obligated to give effect to the decision in their na-
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tional law.[65] Without such implementing legislation regarding ICJ rulings, Legal Consequences seemed to reverse the U.N.’s “natural distribution of roles as between the principal judicial organ [ICJ] and political organ [UNGA].”[66] Instead of asking the Court for its opinion on a legal question in order to deduce the political consequences following from it, the reverse was done.[67] The acts of the UNGA after the decision reveal that its act of seeking the opinion was political, or at least “legislative,” confirming the suspicions of many states that the UNGA was using the advisory opinion as a tool to circumvent the right of states to determine whether to submit their specific disputes to judicial settlement.
Some might claim that the power and prestige of the ICJ, combined with the continuing need to deal with human rights abuses, makes any movement by the Court in the direction of addressing human rights a positive step. However, based on Legal Consequences, there at least three reasons to be concerned about such a shift. First, there are concerns regarding expertise and institutional competence. The ICJ has historically focused more on international humanitarian law than on international human rights law; one of its own judges bemoaned the fact that the Legal Consequences decision seemed to conflate the two branches of law, making it unclear just what was decided.[68]
Additionally, if the ICJ were to move into the role of not just interpreting, but trying to enforce human rights treaties, it would be supplanting the role of the Human Rights Commission and other U.N. treaty monitoring bodies. Legal Consequences manifests the strained and contradictory relationship such a role would place on both the ICJ and the treaty bodies. In general, human rights bodies are deemed to produce “soft law”[69] that may have persuasive authority but is not controlling. Yet, in parts of the decision, the ICJ cited the Human Rights Commission in a seemingly binding manner.[70] This aggrandizement was obviated by the ICJ’s debasement of the treaty bodies elsewhere: by responding to the advisory opinion at all—and using human rights and other treaty tools to do so—the ICJ undercut the enforcement of these treaties by preempting the decisions of the various bodies that are designed to monitor these situations in much closer detail.[71]
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The second concern is that human rights courts are almost universally appellate courts. This is important for two reasons. By taking a human rights case to the ICJ, one denies petitioners the right to appeal, given that there is no allowance for review of ICJ decisions. The appellate right, though comparatively new in international jurisprudence, has been thought critical to the fair dispensation of justice.[72] For inter-state disputes, agreement to forego appeal is implicit in the parties’ acceptance of the Court’s jurisdiction. No such agreement was reached with the de facto petitioners in this case. Thus, using the ICJ as a tool of human rights protection imposed significant and unwarranted risks on petitioners. It was only the existence of simultaneous proceedings at the domestic level—the Beit Sourik case—that protected the petitioners in this case.
Moreover, providing original jurisdiction to the ICJ for matters in which individuals have standing at lower levels would neglect the fundamental political reality of the Court and the “obvious problems of the international legal system: its basis [in] consensual jurisdiction and the reluctance, and at times the recalcitrance, of States to comply with the Court’s decisions.”[73] In all cases in which the ECHR, the Inter-American Court of Human Rights, or the U.N. Human Rights Committee issue rulings, they do so only subsequent to the exhaustion of all domestic remedies on behalf of petitioners.[74] Without this initial procedural deference, the Israeli reaction to the ICJ ruling—unmitigated repudiation—would likely be much more common for those bodies as well. The ICJ has problems with compliance already;[75] by forcing human rights cases into its officially narrow competencies, such difficulties will only be exacerbated, much to the detriment of human rights on the ground.
The appellate function illustrates the critical link between international and domestic institutions, a factor that also provides the basis for a third difficulty created by the ICJ’s apparent new role. By taking on human rights cases, and attempting to enforce them with little reference to domestic realities, the ICJ implicitly contends that human rights protection properly derives from the international community and is imparted by the community on individual states. However, such a transference legally exists only when the states are compelled under Security Council Chapter VII dictates. The large footprints of the tribunals for the former Yugoslavia and Rwanda pro-
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vide an inaccurate impression of this model’s prevalence. These tribunals, erected under Chapter VII,[76] have primacy over domestic systems in the Balkans and Rwanda. In these instances, the international community is imparting human rights protections on these states.
However, the vast majority of instruments and bodies protecting human rights operate without Chapter VII authorization. This means that the primary onus of human rights protection is on individual states, rather than the international community. This reliance on state action—building human rights protections at the national level from the “ground up”—is the cornerstone of many human rights instruments, including the ICCPR, the Convention on the Elimination of All Forms of Discrimination Against Women, the African Charter on Human and Peoples’ Rights, and the American Convention on Human Rights. All of these agreements ask that individual states make certain concessions and/or recognize certain rights.[77] None of them attempts to apply international rules without reference to domestic processes,[78] a course that could prove dangerously ineffective in protecting human rights.[79]
It is true that the ICJ rendered only an “advisory” opinion. Nonetheless, advisory opinions carry weight and resonate,[80] and the actions of the ruling’s supporters subsequent to the case—converting the opinion into a UNGA resolution and attempting to convert it into a binding Security Council resolution[81]—suggests that many see the opinion as akin to compulsory law. Despite this seeming aggrandizement, the procedural and legal conundrum in which the referral placed the ICJ—and the resultant charges of the Court’s explicit “politicization”[82]—may end up harming both its status, and, more troubling, the larger ability of international bodies to promote and protect rights.
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By referring this matter to the ICJ, the UNGA asked the Court to embark on an endeavor for which it is uniquely ill-suited. The UNGA invited the ICJ to behave as an uncommonly activist human rights court: the Court accepted individuals as implicit parties, performed an essentially appellate function without a lower court, and did not insist on the exhaustion of domestic remedies. Despite all this, the Court’s ruling was unable to vindicate Palestinian rights, due to the Israeli government’s repudiation. Indeed, the juxtaposition of Legal Consequences and Beit Sourik suggests that those wishing to buttress Palestinian rights should focus on the enforceable domestic realm rather than draft the ICJ into an institutionally incompatible role. Striving to achieve more decisions like Beit Sourik appears to be the far more effective strategy to secure human rights and enforce international norms in Israel and the Occupied Territories.
—Adam M. Smith
[*] The Editors would like to thank Alexandra Chirinos, Jasmine Marwaha, and Allen O’Rourke for their assistance in editing this Recent Development.
[1]. H.C. 2056/04, Beit Sourik Vill.
Council v. Gov’t of Israel (June 30, 2004), available at http://62.90.71.124/eng/verdict/framesetSrch.html.
[2]. Legal Consequences of the Construction of a Wall
in the Occupied Palestinian Territory (Advisory Op. of July 9, 2004), available at http://www.icj-cij.org/icjwww/idocket/imwp/imwpframe.htm
[hereinafter Legal Consequences].
[3]. In an effort at neutrality, this Recent
Development uses various appellations for this structure; no political meaning should be
attributed to any.
[4]. Yoav Dotan, Judicial Rhetoric, Government
Lawyers, and Human Rights: The Case of the Israeli High Court of Justice During the
Intifada, 33 Law & Soc’y Rev. 319, 324 (1999).
[5]. E.g., H.C. 680/88, Shnitzer v. Chief
Military Censor (Jan. 10, 1989), available at http://62.90.71.124/eng/verdict/framesetSrch.html.
[6]. E.g., H.C. 306/72, Hilu; H.C. 393/82, El
Masulia; H.C. 493/81, Abi Ita; H.C. 393/82, Gama’t Asachan; available at
http://62.90.71.124/eng/verdict/framesetSrch.html.
[7]. See Int’l Comm. for the Red Cross,
What is the Difference Between Humanitarian Law and Human Rights Law? (Oct. 31,
2002), available at
http://www.icrc.org/web/eng/siteeng0.nsf/iwpList104/F403C245E308981BC1256CF5005C3530
(arguing that humanitarian law seeks to balance humanity and military necessity, while human
rights laws are viewed as more immune from derogation).
[8]. Statute of the International Court of Justice,
June 26, 1945, art. 36, 59 Stat. 1055.
[9]. Rosalyn Higgins, Interim Measures for the
Protection of Human Rights, 36 Colum. J. Transnat’l L. 91, 95 (1997).
[10]. Israel Diplomatic Network, Official
Statement of Israeli Foreign Ministry (Mar. 17, 2004), available at http://securityfence.mfa.gov.il/.
[11]. Human Rights Watch, Israel’s
“Separation Barrier” in the Occupied West Bank (Feb. 2004), at http://hrw.org/english/docs/2004/02/20/isrlpa7581.htm.
[12]. Beit Sourik, H.C. 2056/04, ¶ 9.
[13]. The U.S. Ambassador to the U.N. argued that his
government viewed the “resolution put forward . . . [as] unbalanced . . . [as it] did
not condemn terrorism in explicit terms . . . .” Maggie Farley, U.S. Vetoes Bid to
Stop Israeli Fence, L.A. Times, Oct. 15, 2003, at A10.
[14]. G.A. Res. 10/14, U.N. GAOR, 10th Sess., Supp.
No. 1, U.N. Doc. A/RES/ES-10/14 (2003).
[15]. Legal Consequences, supra note
2, ¶¶ 151, 153.
[16]. Though Beit Sourik only referred to
certain parts of the wall (while the ICJ case addressed the entire structure), the Israeli
court’s decision led to the reassessment of the full route of the wall. Greg Myre,
Israel Adjusts Route of West Bank Barrier to Obey Its Court, N.Y. Times, July 30,
2004, at A4.
[17]. Beit Sourik, H.C. 2056/04, ¶
60.
[18]. Ken Ellingwood, Israel May Redraw Path of
Barrier, L.A. Times, July 14, 2004, at A3.
[19]. Myre, supra note
16, at A4.
[20]. Andrew Coleman, The I.C.J. and Highly
Political Matters, 4 Mel. J. Int’l L. 29, 29 (2003).
[21]. Ohad Gozani, Sharon in Attack on the
Hague, Daily Telegraph (London), July 12, 2004, at 10.
[22]. See Legal Consequences, supra
note 2 (Written Statements).
[23]. Id.
[24]. Id. ¶ 27.
[25]. Id. ¶ 1 (declaration of Judge
Buergenthal); id. ¶¶ 23–25 (separate opinion of Judge Owada).
[26]. Tovah Lazarus, Terror on Trial,
Jerusalem Post, Feb. 27, 2004, at 9.
[27]. Legal Consequences, supra note
2, ¶ 59.
[28]. Id.
[29]. See, e.g., International Covenant on
Civil and Political Rights, opened for signature Dec. 16, 1966, art. 8, 999 U.N.T.S.
171, 175 (entered into force Mar. 23, 1976) [hereinafter ICCPR].
[30]. See generally Yutaka Arai-Takahashi, The
Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of
the ECHR 4 (2002).
[31]. Id. at 2.
[32]. E. Benvenisti, Margin of Appreciation,
Consensus, and Universal Standards, 31. N.Y.U. J. Int’l L. & Pol. 843, 845
(1999).
[33]. Id.
[34]. See Alexander Orakhelashvili,
Restrictive Interpretation of Human Rights Treaties in the Recent Jurisprudence of the
European Court of Human Rights, 14 E.J.I.L. 529 (2003) (pointing to the Al-Adsani
and Bankovic cases as two of the most significant rulings in this regard).
[35]. Arai-Takahashi, supra note
30, at 4.
[36]. See Beth Van Schaak, In Defense of
Civil Redress: The Domestic Enforcement of Human Rights Norms in the Context of the Proposed
Hague Judgments Convention, 42 Harv. Int’l L.J. 141 (2001) (noting the growth in
domestic human rights litigation).
[37]. See William Aceves, Avena and
Other Mexican Nationals (Mexico v. United States) Provisional Measures Order, 97
A.J.I.L. 923, 928 (2003) (noting that the Court granted the United States a margin of
appreciation in implementing its obligations under the Vienna Convention).
[38]. See Murphy v. Ireland, [2003] Eur. Ct.
H.R. 44179/98, ¶ 57.
[39]. See Legal Consequences,
supra note 2 (Written Statement of Palestine,
ch. 6/Part 5, ch. 8, ch. 9/Part 3).
[40]. Benvenisti, supra note
32, at 845.
[41]. See Legal Consequences, supra
note 2, ¶ 40 (separate opinion of
Judge Kooijmans).
[42]. Id. ¶ 155.
[43]. Case Concerning the Barcelona Traction, Light
& Power Co. (Belg. v. Spain) (2d Phase), 1970 I.C.J. 3, ¶ 34 (Feb. 5) (separate
opinion of Judge Ammoun).
[44]. See generally Higgins, supra note
9.
[45]. U.S. Diplomatic & Consular Staff in Tehran
(U.S. v. Iran), 1979 I.C.J. 7 (Dec. 15).
[46]. Military & Paramilitary Activities in &
Against Nicaragua (Nicar. v. U.S.), 1984 I.C.J. 169 (May 10).
[47]. Higgins, supra note
9, at 95.
[48]. Antti Korkeakivi, Consequences of
“Higher” International Law: Evaluating Crimes of State and Erga Omnes, 2 J.
Int’l Legal Stud. 81, 97 (1996) (noting that “commentators still debate several
basic questions regarding [erga omnes] content”).
[49]. See generally Lauri Hannikainen,
Peremptory Norms (Jus Cogens) in International Law (1988) (defining jus cogens as
non-derogable, preemptory norms of international law, such as the mandate against slavery or
genocide).
[50]. See Legal Consequences, supra
note 2, ¶ 3.1 (separate opinion of
Judge Elaraby).
[51]. Id. ¶ 149.
[52]. Case Concerning East Timor (Port. v. Austl.),
1995 I.C.J. 84, ¶ 29 (June 30).
[53]. Report of the Secretary-General Prepared
Pursuant to General Assembly Resolution ES-10/13, Annex 1, at 8, U.N. Doc. A/ES-10/248
(2003) (stating that “the Government of Israel argues: there is no change in ownership
of the land; compensation is available for use of land, crop yield or damage to the land;
residents can petition the Supreme Court to halt or alter construction and there is no
change in resident status.”).
[54]. Legal Consequences, supra note
2, ¶ 44 (separate opinion of Judge
Kooijmans).
[55]. Id. ¶ 47. See Frits
Kalshoven, The Undertaking to Respect and Ensure Respect in All Circumstances, 1999
Y.B. Int’l Humanitarian L., Vol. 2, at 3–61.
[56]. See Legal Consequences, supra
note 2, ¶ 49 (separate opinion of
Judge Kooijmans) (stating that the “duty of abstention is completely different from a
positive duty to ensure compliance with the law”).
[57]. Id. ¶ 135; see ICCPR,
supra note 29, art. 4, § 2
(self-determination is not listed as a non-derogable right).
[58]. Legal Consequences, supra note
2, ¶ 137.
[59]. Id. ¶¶ 55–58
(rationalizing the Court’s jurisdiction despite the lack of full information).
[60]. Id. ¶ 7 (declaration of Judge
Buergenthal).
[61]. See id. ¶ 3 (arguing that
“[t]he nature of these [terrorist] attacks [which catalyzed Israel’s decision to
build the wall] and their impact on Israel . . . are never . . . seriously examined by the
Court . . . . [W]ithout this examination the findings . . . are not legally well
founded.”).
[62]. Id. ¶ 133.
[63]. See generally Higgins, supra note
9.
[64]. See Legal Consequences, supra
note 2 (Written Statement of Government of Israel on
Jurisdiction and Propriety, ¶¶ 0.1, 3.53–.86).
[65]. See Jenny S. Martinez, Towards an
International Judicial System, 56 Stan. L. Rev 429, 498 (2003) (noting that states
either incorporate the ECHR into domestic law or “introduce legislative amendments,
reopen judicial proceedings, grant administrative remedies, and pay monetary damages to
individuals whose treaty rights have been violated”).
[66]. See Legal Consequences, supra
note 2, ¶ 23 (separate opinion of
Judge Kooijmans).
[67]. Id.
[68]. Id. ¶¶ 23–24 (separate
opinion of Judge Higgins).
[69]. Jose Alvarez, The New Dispute Settlers:
(Half) Truths and Consequences, 38 Tex. Int’l L.J. 405, 422 (2003).
[70]. Legal Consequences, supra note
2, ¶¶ 109, 110, 136.
[71]. See id. ¶¶ 26–27
(separate opinion of Judge Higgins) (arguing that “one may wonder about the
appropriateness of asking for advisory opinions from the Court on compliance by States
parties with such [treaty] obligations, which are monitored . . . by a treaty body
established for that purpose”).
[72]. See, e.g., ICCPR, supra
note 29, art. 14 (regarding the right of
appeal).
[73]. See Coleman, supra note
20, at 29.
[74]. See ECHR, art. 35(1), Sept. 3, 1953, 213
U.N.T.S. 222; Inter-American Convention on Human Rights, art. 46(1)(a), July 18, 1978, 1144
U.N.T.S. 123; Optional Protocol to the ICCPR, art. 2, Mar. 23, 1976, 999 U.N.T.S. 302.
Domestic courts attempting to enforce universal jurisdiction or other forms of
extra-territorial control also consistently speak of the need for deference and judicial
comity among nations. See, e.g., F. Hoffmann-La Roche Ltd. v. Empagran S.A., 124 S.
Ct. 2359, 2367 (2004); Turners & Growers Exporters Ltd. v. The Ship “Cornelis
Verolme” [1997] 2 NZLR 110; Robinson v. Bland, 97 Eng. Rep. 717 (1760).
[75]. See generally Colter Paulson,
Compliance with Final Judgments of the International Court of Justice Since 1987, 98
A.J.I.L. 434 (2004).
[76]. See S.C. Res. 827, U.N. SCOR, 48th
Sess., U.N. Doc. S/RES/827 (1992) (the former Yugoslavia); S.C. Res. 955, U.N. SCOR, 49th
Sess., U.N. Doc. S/RES/955 (1994) (Rwanda).
[77]. See ICCPR, supra note
29, art. 2; Convention for the Elimination of All
Forms of Discrimination Against Women, adopted Dec. 18, 1979, 1249 U.N.T.S. 13
(entered into force Sept. 3, 1981); African Charter on Human and Peoples’ Rights, art.
1, June 27, 1981, 21 I.L.M. 58; Inter-American Convention on Human Rights, supra note
74, art. 1. See also Paolo Carozza,
Subsidiarity as a Structural Principle of International Human Rights Law, 97 A.J.I.L.
38, 62 (2003) (noting that the margin of appreciation incorporates “local discretion
[and action] into the legal doctrines of international human rights”).
[78]. See Katherine Doherty & Timothy
McCormack, “Complementarity” as a Catalyst for Comprehensive Domestic Penal
Legislation, 5 U.C. Davis J. Int’l L. & Pol’y 147, 152 (1999) (noting that
only after the State has proven unable to address the wrong and/or requests
intervention could the ICC assert jurisdiction).
[79]. See K. Pease & D. Forsythe, Human
Rights, Humanitarian Intervention and World Politics, 15 Hum. Rts. Q. 290, 314 (1993)
(arguing that “[the human rights] revolution has yet to undermine the primacy of state
sovereignty when it comes to [enforcement of] . . . individual rights”).
[80]. See Catherine Cook, Israel, the Wall
and the Courts: Sending the Wrong Message, Global Beat Syndicate (Mar. 1, 2004),
at http://www.nyu.edu/globalbeat/syndicate/cook030104.html
(citing an advisory opinion that influenced the imposition of international sanctions
against South Africa).
[81]. Warren Hoge, Remove Wall, Israel is Told by
the U.N., N.Y. Times, July 21, 2004, at A10.
[82]. Ben Thein, Is Israel’s Security Barrier
Unique?, 11 Middle East Q. 25, 30 (2004).
HLSHRJ@law.harvard.edu
This file was last modified: Wednesday, 03-Aug-2005 10:44:20 EDT