In December 2023, South Africa instituted proceedings against Israel at the International Court of Justice (ICJ) under the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention). To date, ten third-party interventions have been submitted in the case. Eight states—Bolivia, Chile, Turkey, Spain, Mexico, Libya, Colombia, and the Maldives—have filed declarations of intervention under Article 63 of the ICJ Statute as state parties to the Genocide Convention. Nicaragua has requested permission to intervene under Article 62, asserting a legal interest which may be affected by the ICJ’s decision. Palestine, having acceded to the Genocide Convention in April 2014, has sought to intervene under both articles. As both Articles 62 and 63 provide for interventions by ‘states’, Palestine’s requests (particularly under Article 62), may raise the question of whether it qualifies as a ‘state’ for the purposes of the ICJ Statute—as an antecendent determination for the acceptance of its intervention requests.
This post first recalls some historical examples of international courts and tribunals confronted with questions of statehood as a preliminary issue, before considering possible approaches towards addressing the status of Palestine under the ICJ Statute in the context of its intervention request in South Africa v Israel. It also considers their wider legal and normative implications, particularly in the light of recent developments regarding the Chagos Archipelago.
Statehood as a preliminary question of legal standing before international courts and tribunals: a procedural approach
Palestine’s intervention request is by no means the first time an international court or tribunal has faced questions of statehood or legal status as a preliminary matter. In 1931, a representative of the ‘Confederacy of Six Nations of the Grand River’ (Confederacy) inquired under what conditions the Confederacy could submit to the Permanent Court of International Justice (PCIJ) ‘certain differences with the United States of America and Great Britain arising (inter alia) under the Boundary Waters Treaty of 1909’. The PCIJ Registrar referred the matter to the Court, which ultimately rejected a ‘flexible construction’ of the term ‘state’ in Articles 34 and 35 of the ICJ Statute, thereby denying the Confederacy access to the Court (PCIJ, Series E, no 8, 158).
Outside the PCIJ/ICJ realm, the issue of statehood arose in the context of the Larsen v Hawaiian Kingdom arbitration. In 1999, Lance Paul Larsen (a Hawaiian resident) and the Hawaiian Kingdom agreed to submit a dispute to arbitration in accordance with the Permanent Court of Arbitration Optional Rules for Arbitrating Disputes between Two Parties of which one only is a State (PCA Optional Rules). The tribunal (consisting of James Crawford, Christopher Greenwood and Gavan Griffith) eventually declined jurisdiction based on the Monetary Gold doctrine, finding that the dispute primarily concerned the United States’ role in the occupation of Hawaii. What is interesting for our purposes, however, was the preliminary question of whether the PCA Optional Rules were available to the parties, given the uncertainty over whether the Hawaiian Kingdom qualified as a ‘state’ thereunder. The PCA International Bureau, ‘having regard to the evident likelihood that the continuing status of the Hawaiian Kingdom after 1898 would or might be an issue’, declined to allow the arbitration to be conducted under its auspices unless it was conducted under the UNCITRAL Rules. The parties agreed to that change and thus the tribunal saw no need to examine the potential scope of application of the PCA Optional Rules (para 8.8).
In referring to those examples, there is no intention to compare the strength or validity of Palestine’s statehood claim with that of the Confederacy or the Hawaiian Kingdom. Rather, the aim is to illustrate how the PCIJ/ICJ Registrar (and the PCA’s International Bureau in Larsen v Hawaii) addressed the requirement of an entity being a ‘state’ as a preliminary procedural issue.
The question of whether the ICJ would have to make such a prior determination in the case of Palestine was vividly discussed following Palestine’s application to institute proceedings against the United States on the Relocation of the US Embassy to Jerusalem in September 2018 (see indicatively in this blog here, here and here). The case has been added to the ICJ General List and is currently pending. Some argue that the ICJ could recognise Palestine as a ‘state’ for the limited purpose of legal standing under Articles 34 and 35 of the ICJ Statute, drawing on Palestine’s non-member observer state status at the United Nations (UN). Such an approach would allow the Court to avoid engaging with the broader, politically sensitive question of Palestine’s statehood under general international law—a strategy similar to that employed by the International Criminal Court (ICC), as discussed below.
Palestine’s status under the Rome Statute: a functional approach
In 2009, Palestine first attempted to accept the ICC’s jurisdiction under Article 12(3) of the Rome Statute. However, then ICC Prosecutor Luis Moreno Ocampo declined to accept the declaration, citing Palestine’s uncertain status as a state. Following Palestine’s recognition as a non-member observer state by the UN General Assembly (GA) in 2012, a second declaration was lodged, this time accepted by ICC Prosecutor Fatou Bensouda. This paved the way for the ICC to open a preliminary examination into alleged crimes committed in the Occupied Palestinian Territory since 2014.
On 5 February 2021, the ICC Pre-Trial Chamber I (by 2:1 majority of Judges de Brichambaut and Alapini-Gansou; Judge Kovács dissenting) determined that Palestine is a state party to the Rome Statute and found that the ICC’s territorial jurisdiction extends to the West Bank, including East Jerusalem, and to Gaza under article 12(2)(a) of the Statute. The Chamber emphasised, however, that the ICC is not competent to determine matters of statehood that would bind the international community and its ruling was for the sole purpose of defining its territorial jurisdiction.
That functional approach may also recall the treatment of Kosovo by the Court of Justice of the European Union (EU) in 2023 as a ‘third country’ for the purposes of concluding international agreements with the EU, without prejudice to the position of individual member states as to Kosovo’s statehood (see in this blog). Such approaches are far from unprecedented; national courts have long relied on similarly functional approaches, independently of their recognition of the concerned entities as states under international law. For instance, in 1981, the English Court of Appeal held that Taiwan qualified as a ‘country’ for the purpose of membership to the International Amateur Athletic Federation, refusing to equate the term with the concept of ‘sovereign states in the international sense’.
Palestine’s status under the ICJ Statute: possible approaches and legal implications
The ICJ has previously skirted the issue of Palestinian statehood—consistent with the pattern of resistance often exhibited by international courts and tribunals in eschewing determination of politically sensitive questions, unless directly asked to do so by all parties involved. In its 2024 Advisory Opinion on the Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem, the Court was arguably ‘very careful to avoid saying anything directly on the statehood of Palestine’ (although it did refer to Israel’s obligation as occupying power ‘not to impede the Palestinian people from exercising its right to self-determination, including its right to an independent and sovereign State’ (para 237)). In his separate opinion, Judge Gómez Robledo lamented the Court’s reticence in that regard and argued in favour of Palestinian statehood under international law. He cited recent developments including UN GA Resolution ES-10/23 of May 2024, which extended Palestine’s rights as an observer state and stressed the GA’s conviction that Palestine is fully qualified for UN membership. He also attached persuasive weight to the above-mentioned approach of the ICC Pre-Trial Chamber, concluding that:
‘While it is true that the ICC was careful to note that its mandate did not permit it to pronounce on the statehood of Palestine, this decision nonetheless confirms that Palestine cannot be treated otherwise than as a State under international law.’ (para 11)
That said, the ICJ will most likely continue to sidestep the broader statehood issue. In the context of South Africa v Israel, it may do so by accepting Palestine’s relatively straightforward intervention declaration under Article 63 of the ICJ Statute, given that Palestine is a party to the Genocide Convention and was accordingly notified by the Registrar pursuant to Article 63(1) of the ICJ Statute—without substantively engaging with the question of its statehood under general international law.
Palestine has, however, sought intervention under both Articles 62 and 63, cumulatively and alternatively, noting that these requests ‘raise in part different legal issues’. If the ICJ agrees, it will proceed to examine the admissibility of Palestine’s request under Article 62 as well. Assuming that other requirements of the article are met (for which strong arguments exist; see e.g. here), the Court could recognise Palestine as a ‘state’ specifically for the purposes of Article 62—likely clarifying that that does not amount to a recognition of Palestine’s statehood under general international law (following, like the ICC Pre-Trial Chamber did, a form of ‘functional statehood’ confined to specific purposes). Note that even before the acceptance of Palestine’s observer state status, the ICJ had recognised certain procedural rights to Palestine (e.g. the ability to submit written statements) in the context of the advisory opinion proceedings in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory.
Of course, the ICJ could choose to take the opportunity (as Judge Gómez Robledo urged) to clarify Palestine’s legal status under international law—either in assessing Palestine’s intervention in South Africa v Israel or its standing to institute proceedings in Palestine v USA. In that—admittedly unlikely—scenario, such a clarification could carry significant legal implications. An incidental determination of statehood made in an interlocutory judgment (order) on intervention in South Africa v Israel would not in itself be binding. However, a determination of statehood embedded within the Court’s judgment (e.g. in Palestine v USA) could ‘possess[] binding force’ under Article 59 of the ICJ Statute if it is deemed ‘an essential condition to the Court’s decision’ (see Cheng, General Principles of Law as Applied by International Court and Tribunals 351–353).
Concluding thoughts: Chagos redux?
Beyond that, such determinations could exert a ‘softer’ yet significant normative influence. The 2021 judgment of the International Tribunal for the Law of the Sea (ITLOS) Special Chamber in Mauritius v Maldives may be instructive here. The Chamber considered that the ICJ Advisory Opinion in Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, constituted a ‘prior authoritative determination’ of Mauritius’ sovereignty over the Chagos Archipelago (para 244), though the opinion itself ‘c[ould ]not be considered legally binding’ (paras 202–203). Accordingly, the Chamber found no ongoing sovereignty dispute between the UK and Mauritius, even though the ICJ had framed its opinion as addressing the decolonization process rather than a specific bilateral sovereignty dispute (para 136). In the latest instalment to the Chagos saga, on 3 October 2024, the governments of UK and Mauritius issued a joint statement agreeing that ‘Mauritius is sovereign over the Chagos Archipelago’. While the ITLOS judgment, and the recent UK–Mauritius political agreement, have sparked broader debates on the legal and normative effect of advisory opinions, and ‘international lawfare’ in general (a discussion beyond this post’s scope), they also illustrate how the Court’s incidental or consequential findings may profoundly shape future disputes both within the ICJ and beyond.
In addition to the Art. 62 vs 63 distinction, there is also the question of whether Palestine is seeking to intervene as a party or non-party - see the NiCol judgment on Honduras's intervention application. If Palestine is seeking to intervene as a party, then the court will need to address the meaning and existence of Statehood not only for purposes of intervention under arts. 62 and/or 63, but also for party status under art. 34.
Palestine's application is unclear as to what type of intervention it is pursuing - see, on the one hand, its quotation referencing non-party intervention in para. 27, but, on the other hand, its statement at para. 33 that its application is aimed not only at informing the court but also at protecting Palestine's legal interests; see also its declaration under SC Res 9 for purposes of Art. 35(2) of the Statute. We should expect this issue to arise as submissions on the intervention application proceed.
Aditya Roy says
November 12, 2024
Hello
Thanks for an insightful article on a very relevant topic.
My question is
1. Did the ITLOS Chamber in Maldives/Mauritius dispute rely on the UNGA resolution which was adopted in light of the ICJ Advisory opinion on Chagos and therefore since it was based on the UNGA resolution therefore it has more authoritative and binding value as compared to a mere advisory opinion? To simplify, which is more authoritative/binding between an ICJ advisory opinion and an UNGA resolution?
2. Even without applying the Monetary Gold principle, relying on the principle of natural justice that "no one should be condemned unheard (audi alteram partem), Isn't it unfair on the part of ICJ in its advisory opinion or more so by the ITLOS Chamber in the Maldives/Mauritius to have ruled on the interests of UK without giving them a hearing ?
Thank you 🙏🏻
Nicolas Boeglin says
November 16, 2024
Dear Professor Papanastasiou
Thank you very much for your very interesting post.
Let me make a question regarding the time factor.
I note that South Africa submitted its application to the ICJ on 30 December, 2023 and that the first State to submit a request for intervention to the ICJ (based on Art.62) was Nicaragua in January 2024.
It may also be noted that Palestine submitted its request for intervention to the ICJ on the basis of both articles (62 and 63) a few days after the results of the elections in South Africa on 29 May: in your opinion, can the date chosen by Palestine to formally submit its request for intervention to the ICJ be considered to be linked - or not - to the outcome of these elections?
I would be very grateful if you could give me your opinion on this very particular point.
Yours sincerely
Nicolas Boeglin
Note: on Palestine´s declaration and request for intervention, please find this note I wrote:
Thank you for the engagement. You make an interesting point. However, it appears to me that Palestine is seeking to intervene as non-party in the SA v Israel case (based on para 27 of its intervention request that you already identified). I don’t see the intervention’s complementary purposes mentioned at para 33 (i.e., to inform the Court regarding its legal interest which is at the core of the dispute and to protect its interests of a legal nature that will be affected in those proceedings) as indicating that Palestine seeks to intervene as party to this dispute. A state may seek permission to intervene as non-party to inform the Court of its legal interests that might be affected by the decision in order to protect them. In addition, the Court has identified both ‘information’ and ‘protection’ as the object of non-party intervention (see eg Land, Island and Maritime Frontier Dispute (El Salvador v. Honduras), Application by Nicaragua for permission to intervene, Judgment of 13 September 1990, [1990] ICJ Rep. 92, paras 92 and 102ff; see also ZC Reghizzi, ‘The objects and effects of non-party intervention before the International Court of Justice’ (2022) 35 LJIL 163, 165-166). I don’t believe that Palestine’s declaration recognizing the competence of the ICJ in accordance with SC Res 9 changes the above - though I agree that the declaration also raises an antecedent question of statehood which may be discussed along the lines of the post. (Palestine had also submitted a similar declaration recognising the competence of the ICJ specifically for the settlement of disputes under Arts I and II of the Optional Protocol to the Vienna Convention on Diplomatic Relations, before instituting proceedings against the USA in 2018).
Best,
Alina
Alina Papanastasiou says
November 21, 2024
Dear Aditya (if I may),
Thank you for your kind comment. In response to your questions:
1. The ITLOS Special Chamber first relied directly on the ICJ AO on Chagos, which, albeit not legally binding, was considered an ‘authoritative statement of international law’ with ‘legal effects’ (paras 203-205). The Chamber distinguished between the existence of such a prior authoritative determination from ‘political statements’ included in UN GA resolutions, whose relevance and persuasive weight depends largely on their content and context of their adoption (see paras 244, 225). When referring to UN GA Res 73/295, the Chamber considered it relevant to assessing the legal status of the Chagos Archipelago, as it was adopted after the Chagos AO and the GA was accordingly ‘entrusted to take necessary steps toward the completion of the decolonization of Mauritius’ (paras 226-228). See also the summary at para 246.
2. As to your second question, you raise an interesting point. It seems to me that the audi alteram partem principle has mainly been linked to the procedural equality of the parties to a case (eg with respect to the presentation of additional facts and legal considerations). That said, there could be an argument based on that principle running parallel to and in addition to a Monetary Gold argument (but I don’t see how such an argument would work unless the court finds that there is an indispensable third party, in which case it would not exercise its jurisdiction based on the MG principle in any case). For example, Judge Shahabudeen, in his separate opinion in Certain Phosphate Lands in Nauru, referred to the Monetary Gold case, noting that, if the ICJ had adjudicated Albania’s responsibility, that would also have been an affront to the the audi alteram partem rule (which, according to the judge, is a precept of judicial behaviour with general application to all courts, domestic and international, regardless of whether their jurisdiction is based on consent) (p 57). In Phosphate Lands, however, the Court did not need to make a judicial determination of the responsibility of a non-party State as a pre-requisite to making a determination of responsibility against Australia (and therefore that principle was not engaged either). Here too, it’s not likely that an argument grounded on that principle would succeed in the Chagos cases. Even assuming that the principle would apply in advisory proceedings, in the ICJ Chagos AO proceedings, the UK participated by submitting written statements. The fact that the Court’s majority eventually ruled that the opinion would not have the effect of circumventing the principle of consent and opined on Chagos’ decolonisation, does not mean that the UK was not ‘heard’ in this case (cf Judge Donoghue’s dissent on the consent issue). As to the ITLOS Chamber, it ruled that there was no existing sovereignty dispute involving the UK and its interests (see para 246) – and therefore no Monetary Gold issue, let alone an audi alteram partem one.
Best,
Alina
Kawser Ahmed says
December 26, 2024
I feel I should share an observation on this excellent blog post.
Just as only “states” can be parties to a case under Articles 34 and 35 of the ICJ Statute, only “states” may intervene in a contentious case under Articles 62 and 63. Therefore, reason dictates that the term “states” should be interpreted consistently throughout the Statute, including in Articles 62 and 63. As a result, Palestine’s capacity to intervene depends on its statehood status. As I argued in "Will the ICJ Objectively Assess the Statehood of Palestine? A Brief Reflection" [(2023) 22(1) The Law and Practice of International Courts and Tribunals 119-136], the ICJ cannot avoid making an objective determination of Palestine’s statehood when its status as a state is contested. While Palestine has been recognized as a non-member observer state by the UN General Assembly, this designation does not settle the legal question of statehood as a prerequisite for access to the Court. The ICJ must objectively examine the factual and legal elements of Palestine's statehood before allowing it to intervene, as failing to do so could set a problematic precedent.
Statehood as an Incidental Issue in International Adjudication: Reflections on Palestine’s Intervention Request in South Africa v Israel
Written by Alina PapanastasiouIn December 2023, South Africa instituted proceedings against Israel at the International Court of Justice (ICJ) under the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention). To date, ten third-party interventions have been submitted in the case. Eight states—Bolivia, Chile, Turkey, Spain, Mexico, Libya, Colombia, and the Maldives—have filed declarations of intervention under Article 63 of the ICJ Statute as state parties to the Genocide Convention. Nicaragua has requested permission to intervene under Article 62, asserting a legal interest which may be affected by the ICJ’s decision. Palestine, having acceded to the Genocide Convention in April 2014, has sought to intervene under both articles. As both Articles 62 and 63 provide for interventions by ‘states’, Palestine’s requests (particularly under Article 62), may raise the question of whether it qualifies as a ‘state’ for the purposes of the ICJ Statute—as an antecendent determination for the acceptance of its intervention requests.
This post first recalls some historical examples of international courts and tribunals confronted with questions of statehood as a preliminary issue, before considering possible approaches towards addressing the status of Palestine under the ICJ Statute in the context of its intervention request in South Africa v Israel. It also considers their wider legal and normative implications, particularly in the light of recent developments regarding the Chagos Archipelago.
Statehood as a preliminary question of legal standing before international courts and tribunals: a procedural approach
Palestine’s intervention request is by no means the first time an international court or tribunal has faced questions of statehood or legal status as a preliminary matter. In 1931, a representative of the ‘Confederacy of Six Nations of the Grand River’ (Confederacy) inquired under what conditions the Confederacy could submit to the Permanent Court of International Justice (PCIJ) ‘certain differences with the United States of America and Great Britain arising (inter alia) under the Boundary Waters Treaty of 1909’. The PCIJ Registrar referred the matter to the Court, which ultimately rejected a ‘flexible construction’ of the term ‘state’ in Articles 34 and 35 of the ICJ Statute, thereby denying the Confederacy access to the Court (PCIJ, Series E, no 8, 158).
Outside the PCIJ/ICJ realm, the issue of statehood arose in the context of the Larsen v Hawaiian Kingdom arbitration. In 1999, Lance Paul Larsen (a Hawaiian resident) and the Hawaiian Kingdom agreed to submit a dispute to arbitration in accordance with the Permanent Court of Arbitration Optional Rules for Arbitrating Disputes between Two Parties of which one only is a State (PCA Optional Rules). The tribunal (consisting of James Crawford, Christopher Greenwood and Gavan Griffith) eventually declined jurisdiction based on the Monetary Gold doctrine, finding that the dispute primarily concerned the United States’ role in the occupation of Hawaii. What is interesting for our purposes, however, was the preliminary question of whether the PCA Optional Rules were available to the parties, given the uncertainty over whether the Hawaiian Kingdom qualified as a ‘state’ thereunder. The PCA International Bureau, ‘having regard to the evident likelihood that the continuing status of the Hawaiian Kingdom after 1898 would or might be an issue’, declined to allow the arbitration to be conducted under its auspices unless it was conducted under the UNCITRAL Rules. The parties agreed to that change and thus the tribunal saw no need to examine the potential scope of application of the PCA Optional Rules (para 8.8).
In referring to those examples, there is no intention to compare the strength or validity of Palestine’s statehood claim with that of the Confederacy or the Hawaiian Kingdom. Rather, the aim is to illustrate how the PCIJ/ICJ Registrar (and the PCA’s International Bureau in Larsen v Hawaii) addressed the requirement of an entity being a ‘state’ as a preliminary procedural issue.
The question of whether the ICJ would have to make such a prior determination in the case of Palestine was vividly discussed following Palestine’s application to institute proceedings against the United States on the Relocation of the US Embassy to Jerusalem in September 2018 (see indicatively in this blog here, here and here). The case has been added to the ICJ General List and is currently pending. Some argue that the ICJ could recognise Palestine as a ‘state’ for the limited purpose of legal standing under Articles 34 and 35 of the ICJ Statute, drawing on Palestine’s non-member observer state status at the United Nations (UN). Such an approach would allow the Court to avoid engaging with the broader, politically sensitive question of Palestine’s statehood under general international law—a strategy similar to that employed by the International Criminal Court (ICC), as discussed below.
Palestine’s status under the Rome Statute: a functional approach
In 2009, Palestine first attempted to accept the ICC’s jurisdiction under Article 12(3) of the Rome Statute. However, then ICC Prosecutor Luis Moreno Ocampo declined to accept the declaration, citing Palestine’s uncertain status as a state. Following Palestine’s recognition as a non-member observer state by the UN General Assembly (GA) in 2012, a second declaration was lodged, this time accepted by ICC Prosecutor Fatou Bensouda. This paved the way for the ICC to open a preliminary examination into alleged crimes committed in the Occupied Palestinian Territory since 2014.
On 5 February 2021, the ICC Pre-Trial Chamber I (by 2:1 majority of Judges de Brichambaut and Alapini-Gansou; Judge Kovács dissenting) determined that Palestine is a state party to the Rome Statute and found that the ICC’s territorial jurisdiction extends to the West Bank, including East Jerusalem, and to Gaza under article 12(2)(a) of the Statute. The Chamber emphasised, however, that the ICC is not competent to determine matters of statehood that would bind the international community and its ruling was for the sole purpose of defining its territorial jurisdiction.
That functional approach may also recall the treatment of Kosovo by the Court of Justice of the European Union (EU) in 2023 as a ‘third country’ for the purposes of concluding international agreements with the EU, without prejudice to the position of individual member states as to Kosovo’s statehood (see in this blog). Such approaches are far from unprecedented; national courts have long relied on similarly functional approaches, independently of their recognition of the concerned entities as states under international law. For instance, in 1981, the English Court of Appeal held that Taiwan qualified as a ‘country’ for the purpose of membership to the International Amateur Athletic Federation, refusing to equate the term with the concept of ‘sovereign states in the international sense’.
Palestine’s status under the ICJ Statute: possible approaches and legal implications
The ICJ has previously skirted the issue of Palestinian statehood—consistent with the pattern of resistance often exhibited by international courts and tribunals in eschewing determination of politically sensitive questions, unless directly asked to do so by all parties involved. In its 2024 Advisory Opinion on the Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem, the Court was arguably ‘very careful to avoid saying anything directly on the statehood of Palestine’ (although it did refer to Israel’s obligation as occupying power ‘not to impede the Palestinian people from exercising its right to self-determination, including its right to an independent and sovereign State’ (para 237)). In his separate opinion, Judge Gómez Robledo lamented the Court’s reticence in that regard and argued in favour of Palestinian statehood under international law. He cited recent developments including UN GA Resolution ES-10/23 of May 2024, which extended Palestine’s rights as an observer state and stressed the GA’s conviction that Palestine is fully qualified for UN membership. He also attached persuasive weight to the above-mentioned approach of the ICC Pre-Trial Chamber, concluding that:
‘While it is true that the ICC was careful to note that its mandate did not permit it to pronounce on the statehood of Palestine, this decision nonetheless confirms that Palestine cannot be treated otherwise than as a State under international law.’ (para 11)
That said, the ICJ will most likely continue to sidestep the broader statehood issue. In the context of South Africa v Israel, it may do so by accepting Palestine’s relatively straightforward intervention declaration under Article 63 of the ICJ Statute, given that Palestine is a party to the Genocide Convention and was accordingly notified by the Registrar pursuant to Article 63(1) of the ICJ Statute—without substantively engaging with the question of its statehood under general international law.
Palestine has, however, sought intervention under both Articles 62 and 63, cumulatively and alternatively, noting that these requests ‘raise in part different legal issues’. If the ICJ agrees, it will proceed to examine the admissibility of Palestine’s request under Article 62 as well. Assuming that other requirements of the article are met (for which strong arguments exist; see e.g. here), the Court could recognise Palestine as a ‘state’ specifically for the purposes of Article 62—likely clarifying that that does not amount to a recognition of Palestine’s statehood under general international law (following, like the ICC Pre-Trial Chamber did, a form of ‘functional statehood’ confined to specific purposes). Note that even before the acceptance of Palestine’s observer state status, the ICJ had recognised certain procedural rights to Palestine (e.g. the ability to submit written statements) in the context of the advisory opinion proceedings in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory.
Of course, the ICJ could choose to take the opportunity (as Judge Gómez Robledo urged) to clarify Palestine’s legal status under international law—either in assessing Palestine’s intervention in South Africa v Israel or its standing to institute proceedings in Palestine v USA. In that—admittedly unlikely—scenario, such a clarification could carry significant legal implications. An incidental determination of statehood made in an interlocutory judgment (order) on intervention in South Africa v Israel would not in itself be binding. However, a determination of statehood embedded within the Court’s judgment (e.g. in Palestine v USA) could ‘possess[] binding force’ under Article 59 of the ICJ Statute if it is deemed ‘an essential condition to the Court’s decision’ (see Cheng, General Principles of Law as Applied by International Court and Tribunals 351–353).
Concluding thoughts: Chagos redux?
Beyond that, such determinations could exert a ‘softer’ yet significant normative influence. The 2021 judgment of the International Tribunal for the Law of the Sea (ITLOS) Special Chamber in Mauritius v Maldives may be instructive here. The Chamber considered that the ICJ Advisory Opinion in Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, constituted a ‘prior authoritative determination’ of Mauritius’ sovereignty over the Chagos Archipelago (para 244), though the opinion itself ‘c[ould ]not be considered legally binding’ (paras 202–203). Accordingly, the Chamber found no ongoing sovereignty dispute between the UK and Mauritius, even though the ICJ had framed its opinion as addressing the decolonization process rather than a specific bilateral sovereignty dispute (para 136). In the latest instalment to the Chagos saga, on 3 October 2024, the governments of UK and Mauritius issued a joint statement agreeing that ‘Mauritius is sovereign over the Chagos Archipelago’. While the ITLOS judgment, and the recent UK–Mauritius political agreement, have sparked broader debates on the legal and normative effect of advisory opinions, and ‘international lawfare’ in general (a discussion beyond this post’s scope), they also illustrate how the Court’s incidental or consequential findings may profoundly shape future disputes both within the ICJ and beyond.
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Daniel Purisch says
November 11, 2024
In addition to the Art. 62 vs 63 distinction, there is also the question of whether Palestine is seeking to intervene as a party or non-party - see the NiCol judgment on Honduras's intervention application. If Palestine is seeking to intervene as a party, then the court will need to address the meaning and existence of Statehood not only for purposes of intervention under arts. 62 and/or 63, but also for party status under art. 34.
Palestine's application is unclear as to what type of intervention it is pursuing - see, on the one hand, its quotation referencing non-party intervention in para. 27, but, on the other hand, its statement at para. 33 that its application is aimed not only at informing the court but also at protecting Palestine's legal interests; see also its declaration under SC Res 9 for purposes of Art. 35(2) of the Statute. We should expect this issue to arise as submissions on the intervention application proceed.
Aditya Roy says
November 12, 2024
Hello
Thanks for an insightful article on a very relevant topic.
My question is
1. Did the ITLOS Chamber in Maldives/Mauritius dispute rely on the UNGA resolution which was adopted in light of the ICJ Advisory opinion on Chagos and therefore since it was based on the UNGA resolution therefore it has more authoritative and binding value as compared to a mere advisory opinion? To simplify, which is more authoritative/binding between an ICJ advisory opinion and an UNGA resolution?
2. Even without applying the Monetary Gold principle, relying on the principle of natural justice that "no one should be condemned unheard (audi alteram partem), Isn't it unfair on the part of ICJ in its advisory opinion or more so by the ITLOS Chamber in the Maldives/Mauritius to have ruled on the interests of UK without giving them a hearing ?
Thank you 🙏🏻
Nicolas Boeglin says
November 16, 2024
Dear Professor Papanastasiou
Thank you very much for your very interesting post.
Let me make a question regarding the time factor.
I note that South Africa submitted its application to the ICJ on 30 December, 2023 and that the first State to submit a request for intervention to the ICJ (based on Art.62) was Nicaragua in January 2024.
It may also be noted that Palestine submitted its request for intervention to the ICJ on the basis of both articles (62 and 63) a few days after the results of the elections in South Africa on 29 May: in your opinion, can the date chosen by Palestine to formally submit its request for intervention to the ICJ be considered to be linked - or not - to the outcome of these elections?
I would be very grateful if you could give me your opinion on this very particular point.
Yours sincerely
Nicolas Boeglin
Note: on Palestine´s declaration and request for intervention, please find this note I wrote:
https://derechointernacionalcr.blogspot.com/2024/06/gaza-israel-palestina-declara-reconocer.html
Alina Papanastasiou says
November 21, 2024
Dear Daniel (if I may),
Thank you for the engagement. You make an interesting point. However, it appears to me that Palestine is seeking to intervene as non-party in the SA v Israel case (based on para 27 of its intervention request that you already identified). I don’t see the intervention’s complementary purposes mentioned at para 33 (i.e., to inform the Court regarding its legal interest which is at the core of the dispute and to protect its interests of a legal nature that will be affected in those proceedings) as indicating that Palestine seeks to intervene as party to this dispute. A state may seek permission to intervene as non-party to inform the Court of its legal interests that might be affected by the decision in order to protect them. In addition, the Court has identified both ‘information’ and ‘protection’ as the object of non-party intervention (see eg Land, Island and Maritime Frontier Dispute (El Salvador v. Honduras), Application by Nicaragua for permission to intervene, Judgment of 13 September 1990, [1990] ICJ Rep. 92, paras 92 and 102ff; see also ZC Reghizzi, ‘The objects and effects of non-party intervention before the International Court of Justice’ (2022) 35 LJIL 163, 165-166). I don’t believe that Palestine’s declaration recognizing the competence of the ICJ in accordance with SC Res 9 changes the above - though I agree that the declaration also raises an antecedent question of statehood which may be discussed along the lines of the post. (Palestine had also submitted a similar declaration recognising the competence of the ICJ specifically for the settlement of disputes under Arts I and II of the Optional Protocol to the Vienna Convention on Diplomatic Relations, before instituting proceedings against the USA in 2018).
Best,
Alina
Alina Papanastasiou says
November 21, 2024
Dear Aditya (if I may),
Thank you for your kind comment. In response to your questions:
1. The ITLOS Special Chamber first relied directly on the ICJ AO on Chagos, which, albeit not legally binding, was considered an ‘authoritative statement of international law’ with ‘legal effects’ (paras 203-205). The Chamber distinguished between the existence of such a prior authoritative determination from ‘political statements’ included in UN GA resolutions, whose relevance and persuasive weight depends largely on their content and context of their adoption (see paras 244, 225). When referring to UN GA Res 73/295, the Chamber considered it relevant to assessing the legal status of the Chagos Archipelago, as it was adopted after the Chagos AO and the GA was accordingly ‘entrusted to take necessary steps toward the completion of the decolonization of Mauritius’ (paras 226-228). See also the summary at para 246.
2. As to your second question, you raise an interesting point. It seems to me that the audi alteram partem principle has mainly been linked to the procedural equality of the parties to a case (eg with respect to the presentation of additional facts and legal considerations). That said, there could be an argument based on that principle running parallel to and in addition to a Monetary Gold argument (but I don’t see how such an argument would work unless the court finds that there is an indispensable third party, in which case it would not exercise its jurisdiction based on the MG principle in any case). For example, Judge Shahabudeen, in his separate opinion in Certain Phosphate Lands in Nauru, referred to the Monetary Gold case, noting that, if the ICJ had adjudicated Albania’s responsibility, that would also have been an affront to the the audi alteram partem rule (which, according to the judge, is a precept of judicial behaviour with general application to all courts, domestic and international, regardless of whether their jurisdiction is based on consent) (p 57). In Phosphate Lands, however, the Court did not need to make a judicial determination of the responsibility of a non-party State as a pre-requisite to making a determination of responsibility against Australia (and therefore that principle was not engaged either). Here too, it’s not likely that an argument grounded on that principle would succeed in the Chagos cases. Even assuming that the principle would apply in advisory proceedings, in the ICJ Chagos AO proceedings, the UK participated by submitting written statements. The fact that the Court’s majority eventually ruled that the opinion would not have the effect of circumventing the principle of consent and opined on Chagos’ decolonisation, does not mean that the UK was not ‘heard’ in this case (cf Judge Donoghue’s dissent on the consent issue). As to the ITLOS Chamber, it ruled that there was no existing sovereignty dispute involving the UK and its interests (see para 246) – and therefore no Monetary Gold issue, let alone an audi alteram partem one.
Best,
Alina
Kawser Ahmed says
December 26, 2024
I feel I should share an observation on this excellent blog post.
Just as only “states” can be parties to a case under Articles 34 and 35 of the ICJ Statute, only “states” may intervene in a contentious case under Articles 62 and 63. Therefore, reason dictates that the term “states” should be interpreted consistently throughout the Statute, including in Articles 62 and 63. As a result, Palestine’s capacity to intervene depends on its statehood status. As I argued in "Will the ICJ Objectively Assess the Statehood of Palestine? A Brief Reflection" [(2023) 22(1) The Law and Practice of International Courts and Tribunals 119-136], the ICJ cannot avoid making an objective determination of Palestine’s statehood when its status as a state is contested. While Palestine has been recognized as a non-member observer state by the UN General Assembly, this designation does not settle the legal question of statehood as a prerequisite for access to the Court. The ICJ must objectively examine the factual and legal elements of Palestine's statehood before allowing it to intervene, as failing to do so could set a problematic precedent.