Review of the Israeli Practices Opinion, Pt. II: Had a Bilateral Israel-Palestine Dispute Come into Existence That Would Bar the ICJ’s Exercise of Jurisdiction?

Legal findings of interest in the Israeli Practices Opinion will be discussed in a multi-part series titled: “Review of the Israeli Practices Opinion”. This post serves as the second entry, and will focus on whether there existed a bilateral dispute between Israel and Palestine that would bar the ICJ’s exercise of advisory jurisdiction.

Part 1, which is concerned with whether the Court’s advisory jurisdiction extends to pronouncing upon Israel’s international responsibility without its consent, can be found here.

In the first post of this series, the principle of consent was shown to bar the Court’s advisory jurisdiction where, in the course of rendering its advisory opinion, the Court would have to pronounce on a State’s legal interests (or responsibility) without that State’s consent. This reading was a departure from how the Court read the applicability of the principle of consent in its 19 July 2024 Israeli Practices Advisory Opinion. There, the Court’s view was that the principle of consent would only be circumvented if the Court was asked to settle a bilateral dispute without the consent of one or both of the parties involved (para. 34).

Relying on that premise, the Court stated that its involvement in the expression of divergent views between Israel and Palestine “d[id] not convert the present case into a bilateral dispute” (para. 34), implying that no previous dispute existed between Israel and Palestine. The Court then went on to say that Israel and Palestine were not engaged in a purely “bilateral matter” (note how the Court avoided recognizing the relations between them as a “dispute”) due to the involvement of the United Nations General Assembly (“UNGA”), given the UNGA’s “permanent responsibility towards the question of Palestine until the question is resolved in all its aspects in a satisfactory manner in accordance with international legitimacy” (para. 35). Judge Tladi, in his Declaration, concurred with the Court’s “institutional reasoning” (para. 12) but went further, and suggested that the violations in question are of an integral nature in that they are, to borrow the language normally used to describe erga omnes obligations, of concern to the international community as a whole and not just one or two States (para. 11, 13).

In response to these assertions, this piece aims to prove the following: (1) a bilateral dispute had come into existence between Israel and Palestine; (2) the Court’s institutional responsibility argument does not modify the bilateral character of the Israel-Palestine dispute; and (3) the integral character of the obligations at the heart of a bilateral dispute does not modify the bilateral character of the dispute.

A bilateral dispute had come into existence between Israel and Palestine

In the caselaw of the Court, three cases immediately spring to mind when delineating a threshold beyond which a difference in opinion transforms into a dispute: 1924 Mavrommatis Palestine Concessions, which defines a dispute as “a disagreement on a point of law or fact, a conflict of legal views or of interests between two persons” (p. 11); 1962 South West Africa, which defines a dispute as a situation where “the claim of one party is positively opposed by the other” (p. 328); and 2016 Nuclear Disarmament, which requires either knowledge or constructive knowledge on the part of the respondent that the applicant holds positively opposing views (p. 41). Of those three cases, Nuclear Disarmament is of particular interest, considering that it was the first and only case thus far dismissed for lack of a dispute, given that the parties in that case, much like two ships passing in the night, (supposedly) did not clearly understand that they held opposing views on one of the States’ international responsibility.

Unlike Nuclear Disarmament, however, both Israel and Palestine have been extremely vocal about their disagreements with one another, even to the extent of resorting to use of force. In fact, it is much harder to conceive of a world in which Israel and Palestine are ignorant of each other’s views than one in which their conflict is unmistakably evident. This clear and longstanding opposition demonstrates that the differences between Israel and Palestine meet the threshold of a dispute as defined by the Court’s precedents, thus challenging the Court’s rationale in dismissing the principle of consent for lack of a bilateral dispute.

Why the UNGA’s permanent responsibility has no effect on the bar to the exercise of the Court’s jurisdiction caused by the principle of consent

The underlying premise of the Court’s assertion that the UNGA has a permanent responsibility towards Palestine is that even if there was a bilateral dispute between Israel and Palestine, the inclusion of the United Nations as a third actor diffuses the matter’s previous bilateral character.

This is unconvincing for four reasons:

Firstly, no evidence has been furnished that the UNGA, as a distinct entity from its constituent Members, has become a party to the dispute, i.e. Israel and the UNGA do not share positively opposed views. This is further evident from the fact that the Court’s reference to the UNGA’s involvement in the dispute was not of disagreement, but of responsibility (Israeli Practices, para. 35).

Secondly, even if the UNGA was in dispute with Israel, this would have no effect on the parallel dispute Israel has with Palestine. In other words, the UNGA’s involvement would not trilateralize a bilateral matter, but simply create a second bilateral matter. It would then be up to either the Court or the UNGA to demonstrate precisely how one bilateral matter would affect the other.

Thirdly, assuming the Court meant to say that adding a third actor to a bilateral dispute “un-bilateralizes” a dispute, this would run up against its predecessor’s East Carelia Opinion, which, as I described in my last post, prevented Finland from engaging the League of Nations to settle through the PCIJ a dispute it had with Russia. Additionally, this would set a dangerous precedent, where States caught in a bilateral dispute can simply involve another State or organization to “un-bilateralize” their dispute and have it de facto settled through the Court’s advisory function.

Fourthly, an alternative reading of the Court’s holding is that the UN has always been involved in the question of Palestine, meaning the UN’s inextricable involvement prevents bilateral disputes from arising between Palestine and other States. However, Palestine’s own practice contradicts this interpretation, as it has submitted its dispute with the United States to the ICJ in the 2018 Embassy Relocation case, without any hindrance caused by the UN’s involvement.  

Together, these four arguments show that the bilateral dispute which came into existence between Israel and Palestine cannot now be modified by pointing to the UN’s permanent responsibility towards Palestine.

The integral character of the obligations at the heart of a bilateral dispute does not modify the bilateral character of the dispute

In his Declaration, Judge Tladi asks: “how can a case where some of the most fundamental norms of international law, in particular norms of jus cogens, are at stake be a bilateral dispute [?]” (para. 11) Here, the reason for Judge Tladi’s confusion is a failure to distinguish between the character of the obligation as opposed to the character of the dispute. After all, the mere fact that a State breaches an erga omnes or jus cogens norm does not inherently generate a dispute; it is completely conceivable that in response to such a breach, the entire international community does not express opposing views on the breaching State’s international responsibility. 

Now, what should happen if one State were to express an opposing view? Then there would simply be a single bilateral dispute concerning an erga omnes obligation. Suppose then this disagreement occurred in an international forum, in which every State had the opportunity to comment on that one State’s actions, and fifty States opined that that one State had breached its obligations. Then there would simply be a bundle of fifty bilateral disputes between those fifty States and the one breaching State.

The fact of the matter remains that the character of the obligation has little influence over whether the dispute takes on a bilateral character or not. At best, it simply opens the door up for more disputes, considering that more States’ legal interests are affected, but it does not compel any of them to take the necessary action to constitute a dispute.

Conclusion

In conclusion, the International Court of Justice’s dismissal of the principle of consent due to the absence of a bilateral dispute is unconvincing, as the arguments presented herein demonstrate that (1) a bilateral dispute clearly exists between Israel and Palestine, (2) the involvement of the UNGA does not alter this reality, and (3) the fact that the impugned obligations have a collective interest nature does not affect the bilateral character of the dispute of which it forms the subject-matter.