The International Court of Justice (ICJ) emphasized third nations’ obligations resulting from Israel’s breach of the Palestinian people’s right to self-determination (PRSD) and other erga omnes commitments once again. The duties of collaboration, non-recognition, non-aid, and non-assistance are outlined in the July 2024 Advisory Opinion on the Occupied Palestinian Territory (OPT). This contribution attempts to give third states’ commitments under international law substance despite criticism that it is devoid of real substance, ambiguous, and opaque. After analyzing the court’s logic, it concludes that these duties are significant yet challenging to implement in real life.
State Responsibility Obligations
The ICJ urges third nations to collaborate with the UN, and its member states must cooperate while highlighting the UN’s essential role in putting an end to Israel’s unlawful presence in the OPT and achieving PRSD. Although the UN Charter strongly emphasizes cooperation, current international law does not contain a universal responsibility to cooperate. Therefore, a state’s obligation to collaborate on the OPT can only exist as a distinct, obligation-related element. However, the ICJ has not clarified more; the Advisory Opinion’s normative justification and obligation content are ambiguous.
States must work together to stop jus cogens norm infractions under Article 41 of the Responsibility of States for Internationally Wrongful Acts (ARSIWA) report duly approbated by the International Law Commission (ILC) in 2001. Interestingly, rather than using Article 41, the ICJ refers to collaboration in the UN Friendly Relations Declaration (FRD). Citing five court rulings, the ILC concluded that the duty under Article 41 is “now recognized under international law.” It’s unclear, though, if this conclusion is required. Although the German Federal Constitutional Court, the UK House of Lords, and the Inter-American Court of Human Rights have all cited Article 41(1) ARSIWA as a recognized law in their rulings, the ILC had previously referred to this provision as a “progressive development of international law.” These situations fall short of the “extensive and virtually uniform practice” necessary for customary international law, even though they are state practice.
The ICJ’s Advisory Opinion on the Palestinian Wall, which called on all governments to remove obstacles to the Palestinian people’s right to self-determination, is also cited by the ILC. In this case, the responsibility to collaborate appears to be more strongly related to PRSD than a more general Article 41 commitment. Therefore, rather than being legally binding, the ILC’s decisions align with ongoing evolution. In conclusion, under Lex Lata, it is still unclear if there is a universal need to work together to stop jus cogens abuses, even inside the UN system.
The Right to Self-Determination
Citations to the FRD and resolutions of the UN Security Council (UNSC) and UN General Assembly (UNGA) about Palestine in the ICJ’s Advisory Opinion imply that the Advisory Opinion instead places a specific obligation on states to collaborate with and within the UN, based on the UN Charter and the PRSD. A component of general international law is the right to self-determination. The UN’s responsibility to advance human rights is established by Article 55 of the UN Charter, which is predicated on respect for the concept of self-determination. Additionally, Article 56 mandates that member states collaborate with the UN in this endeavour. The FRD further clarifies this obligation concerning self-determination.
Similarly, the right to self-determination involves both a positive and a negative responsibility to support its realization. According to the ICJ, UN member states have a positive obligation to cooperate with the UN to exercise their rights, at least in decolonization. Therefore, in addition to being an ethical commitment, the duty to collaborate regarding the PRSD is also a general legal obligation intrinsically linked to the right to self-determination. In any event, governments have a more extensive duty to work together in good faith to achieve their commitments under Article 2(2) of the UN Charter. States must work together to realize the objectives of the particular organization, such as peace and self-determination. This necessitates governments to negotiate sincerely for decisions and cooperative activities inside UN bodies. The UN Charter and international law restrict the choices the UNSC and UNGA make, notwithstanding their extensive discretion. States must carry out their internal responsibilities as members of these organs reasonably and sincerely.
As a result, UN bodies have choices on the OPT that range from denunciation to suggestions to Chapter VII actions, such as sanctions. When the obligation to collaborate is taken seriously, denunciation is just the beginning of dealing with unlawful conditions. Neither self-determination nor the UN Charter-specific results, even if this duty calls for Bonafide measures. “One of conduct and not of result” is the duty. This idea must be reflected in cooperative efforts that further the UN’s goals and the realization of the right to self-determination.
Non-recognition Obligation
The requirement of non-recognition, which is based on the idea that legal rights cannot result from an illegal act, assesses state behaviour and illegality resulting from violations of peremptory standards of international law. According to the ILC, under Article 41(2) ARSIWA, governments must refrain from recognizing a situation that results from a significant violation of a jus cogens norm as legal according to the ICJ in its Advisory Opinions on South West Africa (1971) and the Palestinian Wall (2004). Acts that indicate recognition are prohibited under non-recognition, which entails seclusion and deliberate abstinence. The conquest of territory by force or assault is a prime example. We contend that in this instance, third parties must avoid any diplomatic or consular ties with Israel that would suggest acknowledging Israel’s dominance over the OPT. This involves denying legal legitimacy to Israeli actions in the OPT, such as issuing travel papers or expropriating land and moving or establishing a diplomatic mission or commercial representation from Israel there. Some precedents include the decision of the EU Member States to deny Russian travel papers from Georgia and Ukraine’s seized territories.
Additionally, the ICJ requires nations to avoid treaty ties in which Israel claims to act on behalf of the OPT and asks for a distinction between Israel’s territory and the Palestinian land that has been occupied since 1967. This would require, for example, that goods coming from the OPT be excluded from the EC-Israeli Association Agreement. Non-recognition does have its limitations, though. Avoiding all contact with the state that is in violation is not required. We do not consider the unlawful position in the OPT to be acknowledged by welcoming Israeli authorities. Furthermore, neither Israeli settlers nor Palestinians should be denied the benefits of international collaboration as a result of the Israeli government in the OPT. Therefore, because these documents are not a part of the optional relations between States (and the resulting rights and privileges) that rely on the cooperation or consent of other states, public services like the registration and documentation of births, marriages and deaths of Israeli settlers may still be recognized. Contrary to specific academic assertions, non-recognition does not compel governments to acknowledge Palestine as a state, even if 145 UN members have previously done so, most notably Sweden, Norway, and Ireland. This type of recognition is a sign of legitimacy, which countries like Germany may refuse to acknowledge if they do not believe that Palestine has a representative government that is operating effectively.
Non-Obligation Ambit
This duty relates to states’ voluntary relations. Article 41(2) ARSIWA mentions help and assistance, and it is connected to Article 16 ARSIWA dealing with aid or assistance in transacting globally unlawful acts. Since there is not enough state practice, it is unclear how much help must contribute to upholding violations of jus cogens norms, even if there must be a substantial connection between the wrongdoing and the aid provided. For instance, the US warned that India was on the wrong side of history because of its oil imports from Russia during the latter’s 2022 invasion of Ukraine. Similar criticism has been levelled at Israel for obstructing Ukraine’s acquisition of Pegasus spyware and Turkey for being reluctant to prohibit Russian aircraft from entering its airspace. It is challenging to evaluate violations of non-aid responsibilities without clear rules for determining when aid has a sufficient connection to illegal circumstances, even while it raises valid concerns about double standards.
Nonetheless, it is acknowledged that states violate their non-assistance duties without requiring evidence of knowledge or purpose, as required under Article 16 ARSIWA. It is “hardly conceivable,” according to the ILC, for a state to be ignorant of a significant violation of a peremptory rule. Avoiding financial relationships with offenders is part of a more comprehensive understanding, as demonstrated by Germany’s refusal to approve the Nord Stream 2 project following Russia’s 2022 invasion of Ukraine, as Russian gas profits significantly support its military. The Advisory Opinion makes clear that helping unlawful occupations, such as providing guns and information to help manage the OPT, is forbidden, even while the ICJ does not require a complete economic boycott like the Boycott, Divestment, and Sanctions campaign. As a result, it is forbidden to send military hardware and munitions intended for OPT control.
Way Ahead
Although their implementation is complicated, third states have substantive duties, and states must work together in good faith to achieve the PRSD; the UN does not need to take any unique joint action. Additionally, they must avoid recognizing the Palestinian territories as a part of Israel, especially by making a distinction between Israel and the OPT in international relations and commerce. However, varied practice and ambiguous rules make this commitment more challenging, states must avoid supporting violators. The political will of the international community to handle grave violations of international law as a whole will determine how these obligations are clarified.