Legal Echoes

For the second time in twenty years, the ICJ emphasized third states’ obligations arising from Israel’s violation of self-determination and other erga omnes obligations. The July 2024 Advisory Opinion (AO) on the Occupied Palestinian Territory (OPT) outlines all states’ duties of cooperation, non-recognition, non-aid, and non-assistance. Though criticized as “without real substance”, vague and uncertain, this contribution aims to give substance to third states’ obligations under international law. Examining the court’s reasoning (paras. 273-283), it concludes that these obligations are substantive but complex in practical application.

The Duty to Cooperate  

The ICJ calls upon third states to cooperate with the United Nations (UN). While emphasizing the UN’s primary role in ending “Israel’s illegal presence in the Occupied Palestinian Territory” and realizing Palestinian self-determination, member states have a corresponding duty to cooperate (para. 275). Cooperation lies “at the heart of the UN Charter”, however, a general obligation to cooperate is not part of existing international law. Thus, a state’s duty to cooperate concerning the OPT can exist only as a specific, duty-related aspect. However, the ICJ has not clarified this further, leaving the normative reasoning and substance of the duty rather vague in the AO.

Cooperation Under the Law of State Responsibility

According to Article 41 ARSIWA, states shall cooperate to end violations of ius cogens norms. Notably, the ICJ references cooperation via the Friendly Relations Declaration (para. 275) rather than Article 41. The International Law Commission (ILC) found that the obligation under Article 41 is “now recognized under international law”, referencing five judicial decisions. However, whether this conclusion is compulsory remains doubtful. Judicial decisions from the UK House of Lords, the German Federal Constitutional Court, and the Inter-American Court of Human Rights invoke Article 41(1) ARSIWA as recognized law, but the ILC had previously labeled this rule as a “progressive development of international law”. Even as state practice, these instances fail to meet the “extensive and virtually uniform practice” required for customary law.

The ILC also refers to the ICJ’s AO on the Palestinian Wall, which urged all states to eliminate impediments to the Palestinian right to self-determination. Here, the obligation to cooperate seems tied more closely to self-determination than a broader Article 41 duty. As such, the ILC’s conclusions align more closely with progressive development rather than binding obligations. To conclude, the existence of a general duty to cooperate to end ius cogens violations, even within the UN framework, remains uncertain under de lege lata.

Cooperation Under the Right to Self-Determination and the UN Charter

References in the ICJ’s AO to the Friendly Relations Declaration and Palestine-related UN Security Council and General Assembly resolutions (paras. 275-277) suggest the AO rather imposes a specific duty on states to cooperate with and within the UN, grounded in the right to self-determination and the UN Charter.

The right to self-determination is part of general international law. Article 55 of the UN Charter establishes the UN’s role in promoting human rights, based on respect for the principle of self-determination, while Article 56 requires member states to cooperate with the UN in this effort. The Friendly Relations Declaration further expands the understanding of this duty in regard to self-determination. Likewise, the right to self-determination entails not only a negative but also a positive obligation to promote its fulfilment. At least in the context of decolonization, UN member states have a positive obligation, according to the ICJ, to implement the right through cooperation with the UN. The duty to cooperate regarding the right to self-determination is thus not only a moral obligation, but is a general legal obligation inherently tied to the right to self-determination.

In any case, Article 2(2) of the UN Charter establishes a broader obligation for states to cooperate in good faith to fulfill the Charter obligations. States are under a duty to cooperate in relation to the specific organization’s goals, including self-determination and peace. This requires states to negotiate joint actions and decisions within UN organs in good faith. While the Security Council and General Assembly have broad discretion, decisions within these organs are subject to limitations under the UN Charter and international law. States must act “reasonably and in good faith” in fulfilling their internal roles as members of these organs.

Accordingly, concerning the OPT, UN organs have options ranging from condemnation to recommendations or Chapter VII measures, including sanctions. The duty to cooperate taken seriously implies that condemnation is only the first step in addressing illegal situations. Although this obligation requires good faith actions, neither self-determination nor the UN Charter prescribes specific outcomes. The obligation is “one of conduct and not of result”. Joint actions must reflect this principle, advancing the fulfillment of the right to self-determination and the UN’s objectives.

Obligation of Non-recognition

The obligation of non-recognition evaluates state conduct and illegality stemming from breaches of peremptory norms of international law, grounded in the principle that “legal rights cannot derive from an illegal act.” The ILC asserts that a serious breach of a ius cogens norm obligates states not to recognize a situation created by such a breach as lawful (Article 41(2) ARSIWA). This principle, articulated by the ICJ in its AOs on South West Africa (1971) and the Palestinian Wall (2004), raises questions: What does “non-recognition” entail? Does it require formal declarations, or specific actions to avoid implied recognition?

Non-recognition involves isolation and active abstention, prohibiting acts implying recognition. A classic example is territorial acquisition through force or aggression. In the present case, we argue, third states must refrain from any relations (diplomatic or consular) with Israel that imply recognition of Israel’s authority over the OPT. This includes the relocation or installation of a diplomatic mission or trade representation from Israel in the OPT and denying legal validity to such Israeli acts in the OPT as land expropriation or issuing travel documents. Precedents exist, such as an agreement between the EU Member States to reject Russian travel documents from occupied areas of Ukraine and Georgia.

The ICJ also calls for distinguishing between Israel’s territory and the Palestinian territory occupied since 1967 (para. 278), requiring states to avoid treaty relations where Israel purports to act on behalf of the OPT. For instance, this would mean that the EC-Israeli Association Agreement must exclude products originating from the OPT. However, non-recognition has limits. It does not mandate avoiding all interactions with the violating state. Welcoming Israeli officials is not, in our view, a recognition of the illegal situation in the OPT. Further, the Israeli administration in the OPT should not result in depriving the people living there (neither Israeli settlers nor Palestinians) of advantages from international cooperation. Therefore, public services like the registration of births, deaths, and marriages for Israeli settlers may nonetheless be recognized because these documents are not part of the optional relations between States (and the resulting rights and privileges) that depend on the consent or cooperation of other states.

Non-recognition, in our opinion, also does not obligate states to recognize Palestine as a state, contrary to some scholarly claims, and even though 145 UN member states have already done so, most recently Sweden, Norway, and Ireland. Recognition of this kind reflects an acknowledgment of legitimacy, which states like Germany may withhold if they do not perceive a functioning representative government for Palestine.

Obligation Not to Render Aid or Assistance

This obligation concerns optional relations between states. Aid and assistance are noted in Article 41(2) ARSIWA, linked with Article 16 ARSIWA, which covers aid or assistance in the commission of internationally wrongful acts. A sufficient nexus must exist between aid rendered and the wrongful act, but the extent to which aid must contribute to maintaining breaches of ius cogens norms remains unclear due to insufficient state practice.

For instance, India’s oil purchases from Russia during the latter’s 2022 invasion of Ukraine prompted the US warnings about being on the wrong side of history. Similarly, Turkey’s reluctance to close its airspace to Russian planes and Israel’s blocking of Ukraine’s Pegasus spyware purchase have faced scrutiny. While raising legitimate questions about double standards, assessing breaches of non-aid obligations is challenging without defined criteria for when aid has a sufficient nexus to unlawful situations.

However, it is recognized that States breach non-assistance obligations without needing proof of knowledge or intent (as Article 16 ARSIWA demands). The ILC argues it is “hardly conceivable” for a state to be unaware of a serious breach of a peremptory norm. A broader interpretation includes abstaining from economic ties with violators. Germany’s withholding of Nord Stream 2 pipeline approval after Russia’s 2022 invasion of Ukraine illustrates this, as Russian gas revenues heavily fund its military.

While the ICJ does not mandate a full economic boycott akin to the Boycott, Divestment, Sanctions movement, the AO clarifies prohibited assistance to illegal occupations, including arms and intelligence aiding the control of the OPT (para. 277(c)). Therefore, delivering military equipment and weapons destined to control the OPT is prohibited.

Conclusion

Third states’ obligations are substantive, though their application is complex. States must cooperate in good faith, to fulfill the Palestinian people’s right to self-determination, without requiring specific joint actions by the UN. They are also obliged not to recognize the Palestinian territories as part of Israel, particularly by distinguishing between Israel and the OPT in trade and international affairs. States must refrain from aiding violations, though inconsistent practice and unclear standards complicate this obligation. Clarifying these duties depends on the international community’s political will to address serious breaches of international law collectively.