The Normative Dimension of International Relations and the Advisory Opinion of the ICJ on the Separation Barrier

2005 ◽  
Vol 38 (1-2) ◽  
pp. 348-357 ◽  
Author(s):  
Arie M. Kacowicz
Keyword(s):  
International Relations ◽  
International Society ◽  
Advisory Opinion ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
Israeli Government ◽  
The Icj ◽  
Normative Dimension ◽  
Israeli Supreme Court

In this paper, I address the relevance of the normative dimension of international relations against the background of the Advisory Opinion of the International Court of Justice of July 9, 2004, with reference to the legality of the security barrier/fence being erected by the Israeli government since March of 2002. I examine different approaches to the study of norms in international relations, focusing upon the Grotian approach, which represents a middle ground between the extreme Hobbesian (Realist) and Kantian (idealist) traditions of international relations. According to the Grotian approach, international norms affect the foreign policy of individual countries through their institutionalization in the international society, usually through multilateral instruments of international law. In this sense, both the ruling of the Israeli Supreme Court of June 30, 2004, and the Advisory Opinion of the ICJ of July 9, 2004, represent and reflect those instruments. The International Court of Justice is the major legal institution of the United Nations, which is the embodiment of our international society. Hence, even if its ruling is considered biased or distorted (by Israel), it still carries an important normative and political baggage, by underlining paramount norms such as self-determination and protection of human rights.

scholarly journals Mara’abe v. Prime Minister of Israel

2006 ◽  
Vol 100 (4) ◽  
pp. 895-901
Author(s):  
Daniel Bodansky ◽  
Geoffrey R. Watson
Keyword(s):  
Supreme Court ◽  
Prime Minister ◽  
Advisory Opinion ◽  
Humanitarian Law ◽  
International Court Of Justice ◽  
High Court ◽  
Court Of Justice ◽  
International Court ◽  
Israeli Government ◽  
Israeli Supreme Court

Mara'Abe v. Prime Minister of Israel. Case No. HCJ 7957/04. At <http://elyonl.court.gov.il/eng/home/index.html> (English translation).Supreme Court of Israel, sitting as the High Court of Justice, September 15, 2005.In Mara ‘abe v. Prime Minister of Israel, the Israeli Supreme Court held that the routing of a portion of Israel's “security fence” in the northern West Bank violated international humanitarian law. The Supreme Court, sitting as the High Court of Justice, ordered the Israeli government to consider alternative paths for the barrier. The Mara'abe decision expanded on the Court's earlier ruling in Beit Sourik Village Council v. Israel, in which the Court ordered the rerouting of another segment of the obstacle. Mara ’abe also revealed some of the Israeli Court's views on Legal Consequences of the Construction of a Wall in Occupied Palestinian Territory— the 2004 advisory opinion of the International Court of Justice (ICJ) holding that construction of the barrier anywhere in occupied territory violates international law.

A Note on the ICJ Advisory Opinion on Kosovo

2010 ◽  
Vol 11 (7-8) ◽  
pp. 867-880 ◽  
Author(s):  
Robert Muharremi
Keyword(s):  
United Nations ◽  
International Law ◽  
General Assembly ◽  
Advisory Opinion ◽  
International Court Of Justice ◽  
Declaration Of Independence ◽  
Court Of Justice ◽  
International Court ◽  
Unilateral Declaration ◽  
The Icj

On 22 July 2010, the International Court of Justice (hereinafter the “ICJ”) delivered its advisory opinion on the accordance with international law of the unilateral declaration of independence in respect of Kosovo. The ICJ concluded that the declaration of independence dated 17 February 2008 did not violate any applicable rule of international law consisting of general international law, UNSC resolution 1244 (1999) (hereinafter the “Resolution 1244”) and the Constitutional Framework for Provisional Self-Government in Kosovo (hereinafter the “Constitutional Framework”). The ICJ delivered the advisory opinion in response to a question set out in resolution 63/3 dated 8 October 2008 of the General Assembly of the United Nations Organization (hereinafter the “General Assembly”), which asked if “the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo is in accordance with international law.”

House Approves Proposal Permitting ICJ to Advise Domestic Courts

1983 ◽  
Vol 77 (2) ◽  
pp. 338-340
Author(s):  
Jack M. Goldklang
Keyword(s):  
International Law ◽  
House Of Representatives ◽  
National Court ◽  
Advisory Opinion ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
Domestic Courts ◽  
The Icj ◽  
Advisory Opinions

On December 17, 1982, the House of Representatives adopted a resolution supporting an expansion of the advisory opinion jurisdiction of the International Court of Justice. The resolution (H.R. Con. Res. 86) urges the President to explore the appropriateness of establishing a United Nations committee to seek advisory opinions from the ICJ. The committee would act when asked by a national court seeking advice regarding any international law question under the national court’s jurisdiction.

scholarly journals He Got It Almost Right

AJIL Unbound ◽  
2014 ◽  
Vol 108 ◽  
pp. 116-117
Author(s):  
Frederic L. Kirgis
Keyword(s):  
Security Council ◽  
General Assembly ◽  
Advisory Opinion ◽  
International Peace ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
Peace And Security ◽  
The Icj

Larry Johnson’s answer to his own question is a qualified “no.” Surely he is correct when he says that the General Assembly does not need the Uniting for Peace resolution in order to consider a matter that is on the UN Security Council’s agenda. The International Court of Justice made that clear in its Advisory Opinion on the Construction of a Wall. It is only when the Security Council is actively pursuing the matter that UN Charter Article 12(1) requires the General Assembly to defer to the Council.Johnson is also correct when he says that Uniting for Peace does not serve to enhance the authority that the UN Charter itself supplies to the Assembly to adopt non-binding resolutions intended to keep or restore peace. The ICJ also made that clear in its Advisory Opinion on the Construction of a Wall. Without relying on the Uniting for Peace resolution, the ICJ in paragraphs 27 and 28 of its Opinion approved the practice of the General Assembly to deal with matters concerning maintenance of international peace and security. The Court turned to the Uniting for Peace resolution only in the ensuing paragraphs of its Opinion, dealing with procedural matters related to the Assembly’s request for an Advisory Opinion.

I. INTERNATIONAL COURT OF JUSTICE, ACCORDANCE WITH INTERNATIONAL LAW OF THE UNILATERAL DECLARATION OF INDEPENDENCE IN RESPECT OF KOSOVO, ADVISORY OPINION OF 22 JULY 2010

2011 ◽  
Vol 60 (3) ◽  
pp. 799-810 ◽  
Author(s):  
Dov Jacobs
Keyword(s):  
United Nations ◽  
International Law ◽  
General Assembly ◽  
Advisory Opinion ◽  
International Court Of Justice ◽  
Declaration Of Independence ◽  
Court Of Justice ◽  
International Court ◽  
Unilateral Declaration ◽  
The Icj

‘Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?’ It is to answer this question that the General Assembly of the United Nations (‘UNGA’) requested an advisory opinion of the International Court of Justice (‘ICJ’). The request, adopted in October 20081 and initially sponsored by Serbia, was triggered by the declaration of independence of Kosovo issued on the 17 February 2008.2 Some two years later, on the 22 July 2010, the ICJ delivered its Advisory Opinion.3 By a 10–4 vote, the ICJ found that the declaration of independence of Kosovo did not violate international law.

Individuals in Advisory Proceedings Before the International Court of Justice: Equality of the Parties and the Court’s Discretionary Authority

2012 ◽  
Vol 11 (2) ◽  
pp. 253-279 ◽  
Author(s):  
Eric De Brabandere
Keyword(s):  
International Organizations ◽  
Advisory Opinion ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
Review Procedure ◽  
The Icj ◽  
Obvious Inequality ◽  
Standing Question

Abstract The recent IFAD Advisory Opinion of the ICJ has resuscitated the long-standing question of the access of individuals to the Court in advisory proceedings when the Court is acting as a ‘review’ body for judgements rendered by administrative tribunals of international organizations. Under such circumstance, the ICJ is confronted with the existence of an actual underlying dispute between two parties, although only one of the parties to the original dispute may appear before the Court, thus creating an obvious inequality before the Court. This article examines the review procedure before the ICJ, and the position of the individuals before the ICJ in such proceedings. In particular, this article discusses the different inequalities resulting from such procedures, and how the ICJ has remedied these in order not to use its discretion to not reply to the request for an advisory opinion.

Toward Authoritativeness: The ICJ Ruling on Israel’s Security Wall

2005 ◽  
Vol 99 (1) ◽  
pp. 42-52 ◽  
Author(s):  
Richard A. Folk
Keyword(s):  
International Law ◽  
Advisory Opinion ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
Legal Obligations ◽  
International Court ◽  
The Icj ◽  
General Assembly Resolution ◽  
Palestinian Territory ◽  
Legal Consequences

On July 9, 2004, the International Court of Justice issued its advisory opinion on the legal consequences of Israel’s construction of a security wall on occupied Palestinian territory, declaring that the wall was in violation of international law. The advisory opinion also indicated that Israel should forthwith cease construction of the wall, dismantle what had been so far constructed, and make reparations to the Palestinians for all damages caused by the project. On July 20, 2004, at the Tenth Emergency Session of the General Assembly, Resolution ES-10/15 was adopted by a vote of 150 in favor, 6 opposed, and 10 abstentions, demanding that Israel comply with the legal obligations as specified by the advisory opinion.

The Kosovo Advisory Opinion: Conflict Resolution and Precedent

2011 ◽  
Vol 105 (1) ◽  
pp. 50-60 ◽  
Author(s):  
Richard Falk
Keyword(s):  
International Law ◽  
General Assembly ◽  
Advisory Opinion ◽  
Political Movements ◽  
International Court Of Justice ◽  
Sovereign State ◽  
Declaration Of Independence ◽  
Court Of Justice ◽  
International Court ◽  
The Icj

The somewhat surprising majority view in the advisory opinion of the International Court of Justice (ICJ) assessing Kosovo's declaration of independence has some bearingon prospects for an eventual end to the bitter conflict between Kosovo and Serbia. It may also have some relevance for a variety of political movements around the world whose leaders might be more inclined than previously to tempt fate by declaring their people and territory to be internationally independent of the sovereign state within which they are now geographically located. Significantly,the ICJ majority sidestepped the question put to it by the General Assembly, in a move objectionable to the four dissenting judges,recasting it in such a way as to limit its response to whether Kosovo's declaration of independence, issued on February 17,2008, was “in accordance with international law” to the rather bland assertion that the declaration did not violate international law. The Court did not say, and explicitly ruled out any interpretation suggesting, that Kosovo's declaration was acceptable under international law, although by Lotus reasoning, what a state is not expressly prohibited from doing is permitted.3 The majority also expressed its view that the declaration was not to be viewed as decidingupon Kosovo's final status in world diplomacy.

The Absence of State Consent to Advisory Opinions of the International Court of Justice: Judicial and Political Restraints

2010 ◽  
Vol 24 (2) ◽  
pp. 191-207
Author(s):  
Mahasen Aljaghoub
Keyword(s):  
Main Role ◽  
Advisory Opinion ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
Integral Role ◽  
The Icj ◽  
Palestinian Territory ◽  
Advisory Opinions

The International Court of Justice (ICJ) is the principal judicial organ of the United Nations, (UN) and its Statute is an integral part of the UN's Charter. The court's integral role within the UN has largely been misunderstood especially in the way the court has viewed its advisory jurisdiction. The ICJ always asserts that the delivery of an advisory opinion represents its participation in the UN's work and thus, in the absence of compelling reasons, a request for an opinion ought not to be refused. Some commentators note that the principle that the ICJ must participate in the work of the Organisation might sometimes conflict with its judicial character, which might result in not embracing the philosophy of “judicial restraint” in the court's advisory jurisdiction. They also contend that the absence of consent in advisory cases has led the court to overlook its judicial restraint. This article argues that those commentators have overlooked the main role of the ICJ's advisory function in clarifying the law and providing guidance for future action by the UN organs, and has consequently called for applying the principle of consent as a condition for giving an advisory opinion on questions relating to disputes pending between States. In the present article, the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory opinion is analysed to see whether the absence of Israeli consent has undermined the ICJ's judicial character. The author is of the view that the court, as the principal judicial organ of the UN, should, by a cautious judicial policy, provide enlightenment to the UN and participate to achieving its goals while at the same time adhering to its judicial character.

scholarly journals Precarious Finality? Reflections onRes Judicataand theQuestion of the Delimitation of the Continental ShelfCase

2018 ◽  
Vol 31 (2) ◽  
pp. 383-401 ◽  
Author(s):  
NICCOLÒ RIDI
Keyword(s):  
Nuclear Weapons ◽  
Advisory Opinion ◽  
International Court Of Justice ◽  
Res Judicata ◽  
Court Of Justice ◽  
International Court ◽  
The World ◽  
The Icj ◽  
International Adjudication ◽  
Rare Situation

AbstractThis article considers the approach to theres judicataprinciple taken by the International Court of Justice (ICJ or the Court) and, specifically, its application in its 2016 judgment on preliminary objections in the latest dispute between Nicaragua and Colombia. The judgment joins the small number of ICJ decisions in which the Court was evenly split, an altogether rare situation, which, at the time of the decision, had not occurred since theNuclear WeaponsAdvisory Opinion. Intriguingly, such a fracture seems to have been prompted by differences over the operation of a procedural principle the understanding of which is comparatively uncontroversial. Upon closer analysis, however, the disagreement reveals that more significant questions were at stake, with members of the minority issuing a vocal joint dissent and several individual declarations. This study will move in three parts: first, it will provide an overview of the nature and purpose of the principle ofres judicata, its application in international adjudication, and its use by the ICJ; second, it will analyze the Court's reading of the principle in the case at issue; third, it will expose the broader implications of one such approach for the role and authority of the World Court and the international judiciary.

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