Richard Ekins KC (Hon) is Head of Policy Exchange’s Judicial Power Project and Professor of Law and Constitutional Government, University of Oxford.
The International Court of Justice’s non-binding advisory opinion on Israel-Palestine poses an early test for Britain’s new government – and in particular for the law officers.
The advisory opinion on the “legal consequences arising from the policies and practices of Israel in the occupied Palestinian territory” is clearly a political victory for the Palestinian cause. But the scale of the victory, and its further consequences for international law and the future trajectory of the Israel-Palestine conflict, remain to be seen.
Much will turn on how the UK and other similar states respond to the opinion.
The temptation for our new government will be to treat the advisory opinion as if it were legally binding, taking it to settle Israel’s legal duties and, relatedly, to require the UK to change the approach it takes to the Israel-Palestine conflict and to call for an immediate Israeli withdrawal, not to mention payment of reparations to Palestinians.
This would be a sharp change of tack. Successive British governments have been firmly committed to a negotiated two-state solution, per the Oslo Accords and related Security Council resolutions, in which land will be traded for peace.
It is noteworthy that the Foreign Office’s initial response to the advisory opinion was to say that the Government remains committed to a negotiated two-state solution, while firmly opposing the expansion of illegal settlements – again, in common with successive British governments. The statement also notes that the Government is carefully considering the opinion before responding fully, while stressing that the UK respects the ICJ’s independence.
The Government should of course respect the ICJ’s independence. But this does not mean that the UK is obliged to accept either that the ICJ was right to issue this advisory opinion or that the opinion changes how the UK should understand Israel’s legal position or its own related obligations.
On the contrary, there are strong reasons for our government to object to the advisory opinion and to maintain Britain’s long-standing bipartisan policy in relation to the Israel-Palestine conflict.
The ICJ hears disputes between states when all parties have given their consent to the ICJ deciding the case. State consent is fundamental to binding dispute resolution.
It also issues advisory opinions at the request of certain UN organs and agencies, but these opinions are not legally binding. As the ICJ itself states: “the requesting organ, agency or organization remains free to decide, as it sees fit, what effect to give to these opinions.”
It is clearly an abuse of the ICJ’s advisory jurisdiction to seek to address an intra-state dispute without state consent. The principle of non-circumvention provides that the Court should refuse to provide an advisory opinion if giving such an opinion, in the ICJ’s own words: “would have the effect of circumventing the principle that a State is not obliged to allow its disputes to be submitted to judicial settlement without its consent”.
Yet this is exactly what has taken place in this case. Israel has not consented to its dispute with Palestine being resolved by the ICJ – and in any case does not recognise Palestine as a state. The General Assembly’s questions to the ICJ, seeking an advisory opinion, were clearly aimed at circumventing the ICJ’s lack of jurisdiction to settle the dispute.
It is for this reason that this country has consistently opposed the ICJ issuing an advisory opinion in this context. In July 2023, the UK asked the ICJ to decline to give an advisory opinion because it would be impossible to answer the General Assembly’s questions without “adjudicating on the very subject matter of the parties’ bilateral dispute”, and thus making a mockery of the principle of state consent.
The last Labour government took a similar position in relation to the 2004 Israeli Wall advisory opinion, which was another attempt to circumvent the limits of the ICJ’s jurisdiction. This position reflected Britain’s long-standing support for a negotiated solution to the Israel-Palestine conflict.
Israel is not the only state to suffer from an abuse of the ICJ’s power to issue advisory opinions. In 2019, in the context of a long-running dispute between the UK and Mauritius, the ICJ issued an advisory opinion stating that the UK’s continuing administration of the Chagos Islands was wrongful, even though the UK did not consent to its dispute with Mauritius being settled judicially.
The ICJ’s advisory opinion has since wrongly been treated as settling the dispute by the International Tribunal for the Law of the Sea, which illustrates the problem.
Between 2019 and 2022, the UK Government was adamant that the ICJ’s advisory opinion was not legally binding and that the UK was not legally obliged to surrender the Chagos Islands, which were and remain a vital strategic asset. The position seemed to soften in November 2022, when the Government announced that it was entering into negotiations with Mauritius about the status of the territory.
Policy Exchange argued that it would be a bad mistake for the Government to proceed on the footing that the ICJ’s advisory opinion changed the legal position. It was never entirely clear what the Labour Party’s position was, with shadow ministers sometimes criticising the Government for its response to the advisory opinion and yet at other times showing rather more caution.
Now that the Labour Party is in power, its approach to the ICJ’s advisory opinions, in relation to the Chagos Islands and now to Israel-Palestine, is critically important. The new government has made much of its commitment to “the international rule of law”, but it is wrong to think, as some legal commentators suggest, that this means that the UK must comply with the ICJ’s advisory opinions.
In some legal circles, the surrender of the Chagos Islands is a cause célèbre, notably championed by Philippe Sands KC (who has also acted as counsel for Mauritius), who was formerly a colleague of the new Attorney General at Matrix Chambers. Campaigners will campaign and advocates will advocate – and those comfortable with ‘double-hatting’ will do both.
But the Attorney General must now promote and protect the UK’s interests as far as consistent with the law. While in the past, as a human rights lawyer with one of the busiest ‘claimant’ practices at the Bar, he may have jumped at every expansionist or overreaching interpretation of international law; he will now need often to do the opposite, for this is what the robust defence of the UK’s legal rights, and our vital strategic interests, will require.
The UK must resist one-sided interpretations of the rules, including the abuse of the ICJ’s advisory jurisdiction to circumvent the fundamental principle of state consent. Like other responsible states, the UK should object when the ICJ acts incompatibly with the foundations of international law.
It should also object to last week’s advisory opinion on the more specific ground that it threatens to undermine the decades-long effort at achieving a mutually acceptable settlement between Israel and the Palestinian Authority. The Oslo Accords of 1993 and 1995 clearly provide that the conflict is to be settled through negotiations between the two parties.
In seeking in effect to adjudicate Israel’s dispute with Palestine, without Israel’s consent (and, relatedly, on the basis of a partial evidence base), the ICJ risks undoing the slow progress which has been made under the Oslo framework, for which the Palestinian Authority expressed its support as recently as March 2023, after the General Assembly made its request for an advisory opinion to the ICJ in 2022.
Frustration with the pace of progress under the Oslo process is understandable, but it does not follow that it can or should be short-circuited by way of the ICJ’s advisory jurisdiction.
A number of judges – including the French, Slovak and Romanian judges in their joint opinion – have expressed serious concerns about the direction that the Court has chosen in providing this advice. The UK must support their position, and ensure that sounder and more responsible views prevail.
When it makes a formal response, the Government should maintain that the ICJ’s advisory opinion is not legally binding and that the UK will continue to support a negotiated two-state solution. This course of action will require the government, and the law officers in particular, to resist the intense pressure that human rights and public international lawyers are likely to bring to bear, misleadingly framed in terms of “the international rule of law”.
If it resists, the Government will be taking seriously its responsibilities to govern, including to support the Israel-Palestine peace process, and to uphold the proper grounds and limits of international law and adjudication.
Richard Ekins KC (Hon) is Head of Policy Exchange’s Judicial Power Project and Professor of Law and Constitutional Government, University of Oxford.
The International Court of Justice’s non-binding advisory opinion on Israel-Palestine poses an early test for Britain’s new government – and in particular for the law officers.
The advisory opinion on the “legal consequences arising from the policies and practices of Israel in the occupied Palestinian territory” is clearly a political victory for the Palestinian cause. But the scale of the victory, and its further consequences for international law and the future trajectory of the Israel-Palestine conflict, remain to be seen.
Much will turn on how the UK and other similar states respond to the opinion.
The temptation for our new government will be to treat the advisory opinion as if it were legally binding, taking it to settle Israel’s legal duties and, relatedly, to require the UK to change the approach it takes to the Israel-Palestine conflict and to call for an immediate Israeli withdrawal, not to mention payment of reparations to Palestinians.
This would be a sharp change of tack. Successive British governments have been firmly committed to a negotiated two-state solution, per the Oslo Accords and related Security Council resolutions, in which land will be traded for peace.
It is noteworthy that the Foreign Office’s initial response to the advisory opinion was to say that the Government remains committed to a negotiated two-state solution, while firmly opposing the expansion of illegal settlements – again, in common with successive British governments. The statement also notes that the Government is carefully considering the opinion before responding fully, while stressing that the UK respects the ICJ’s independence.
The Government should of course respect the ICJ’s independence. But this does not mean that the UK is obliged to accept either that the ICJ was right to issue this advisory opinion or that the opinion changes how the UK should understand Israel’s legal position or its own related obligations.
On the contrary, there are strong reasons for our government to object to the advisory opinion and to maintain Britain’s long-standing bipartisan policy in relation to the Israel-Palestine conflict.
The ICJ hears disputes between states when all parties have given their consent to the ICJ deciding the case. State consent is fundamental to binding dispute resolution.
It also issues advisory opinions at the request of certain UN organs and agencies, but these opinions are not legally binding. As the ICJ itself states: “the requesting organ, agency or organization remains free to decide, as it sees fit, what effect to give to these opinions.”
It is clearly an abuse of the ICJ’s advisory jurisdiction to seek to address an intra-state dispute without state consent. The principle of non-circumvention provides that the Court should refuse to provide an advisory opinion if giving such an opinion, in the ICJ’s own words: “would have the effect of circumventing the principle that a State is not obliged to allow its disputes to be submitted to judicial settlement without its consent”.
Yet this is exactly what has taken place in this case. Israel has not consented to its dispute with Palestine being resolved by the ICJ – and in any case does not recognise Palestine as a state. The General Assembly’s questions to the ICJ, seeking an advisory opinion, were clearly aimed at circumventing the ICJ’s lack of jurisdiction to settle the dispute.
It is for this reason that this country has consistently opposed the ICJ issuing an advisory opinion in this context. In July 2023, the UK asked the ICJ to decline to give an advisory opinion because it would be impossible to answer the General Assembly’s questions without “adjudicating on the very subject matter of the parties’ bilateral dispute”, and thus making a mockery of the principle of state consent.
The last Labour government took a similar position in relation to the 2004 Israeli Wall advisory opinion, which was another attempt to circumvent the limits of the ICJ’s jurisdiction. This position reflected Britain’s long-standing support for a negotiated solution to the Israel-Palestine conflict.
Israel is not the only state to suffer from an abuse of the ICJ’s power to issue advisory opinions. In 2019, in the context of a long-running dispute between the UK and Mauritius, the ICJ issued an advisory opinion stating that the UK’s continuing administration of the Chagos Islands was wrongful, even though the UK did not consent to its dispute with Mauritius being settled judicially.
The ICJ’s advisory opinion has since wrongly been treated as settling the dispute by the International Tribunal for the Law of the Sea, which illustrates the problem.
Between 2019 and 2022, the UK Government was adamant that the ICJ’s advisory opinion was not legally binding and that the UK was not legally obliged to surrender the Chagos Islands, which were and remain a vital strategic asset. The position seemed to soften in November 2022, when the Government announced that it was entering into negotiations with Mauritius about the status of the territory.
Policy Exchange argued that it would be a bad mistake for the Government to proceed on the footing that the ICJ’s advisory opinion changed the legal position. It was never entirely clear what the Labour Party’s position was, with shadow ministers sometimes criticising the Government for its response to the advisory opinion and yet at other times showing rather more caution.
Now that the Labour Party is in power, its approach to the ICJ’s advisory opinions, in relation to the Chagos Islands and now to Israel-Palestine, is critically important. The new government has made much of its commitment to “the international rule of law”, but it is wrong to think, as some legal commentators suggest, that this means that the UK must comply with the ICJ’s advisory opinions.
In some legal circles, the surrender of the Chagos Islands is a cause célèbre, notably championed by Philippe Sands KC (who has also acted as counsel for Mauritius), who was formerly a colleague of the new Attorney General at Matrix Chambers. Campaigners will campaign and advocates will advocate – and those comfortable with ‘double-hatting’ will do both.
But the Attorney General must now promote and protect the UK’s interests as far as consistent with the law. While in the past, as a human rights lawyer with one of the busiest ‘claimant’ practices at the Bar, he may have jumped at every expansionist or overreaching interpretation of international law; he will now need often to do the opposite, for this is what the robust defence of the UK’s legal rights, and our vital strategic interests, will require.
The UK must resist one-sided interpretations of the rules, including the abuse of the ICJ’s advisory jurisdiction to circumvent the fundamental principle of state consent. Like other responsible states, the UK should object when the ICJ acts incompatibly with the foundations of international law.
It should also object to last week’s advisory opinion on the more specific ground that it threatens to undermine the decades-long effort at achieving a mutually acceptable settlement between Israel and the Palestinian Authority. The Oslo Accords of 1993 and 1995 clearly provide that the conflict is to be settled through negotiations between the two parties.
In seeking in effect to adjudicate Israel’s dispute with Palestine, without Israel’s consent (and, relatedly, on the basis of a partial evidence base), the ICJ risks undoing the slow progress which has been made under the Oslo framework, for which the Palestinian Authority expressed its support as recently as March 2023, after the General Assembly made its request for an advisory opinion to the ICJ in 2022.
Frustration with the pace of progress under the Oslo process is understandable, but it does not follow that it can or should be short-circuited by way of the ICJ’s advisory jurisdiction.
A number of judges – including the French, Slovak and Romanian judges in their joint opinion – have expressed serious concerns about the direction that the Court has chosen in providing this advice. The UK must support their position, and ensure that sounder and more responsible views prevail.
When it makes a formal response, the Government should maintain that the ICJ’s advisory opinion is not legally binding and that the UK will continue to support a negotiated two-state solution. This course of action will require the government, and the law officers in particular, to resist the intense pressure that human rights and public international lawyers are likely to bring to bear, misleadingly framed in terms of “the international rule of law”.
If it resists, the Government will be taking seriously its responsibilities to govern, including to support the Israel-Palestine peace process, and to uphold the proper grounds and limits of international law and adjudication.