The Advisory Opinion and a Negotiated Settlement?

The accepted framework for settling the Palestine question through bilateral negotiations, in legal terms, does not survive the Advisory Opinion of 19 July 2024. The degree to which the Advisory Opinion catalyses a new political framework remains to be seen. But the Advisory Opinion gives the Palestinians newfound agency in shaping one.

International authority on the Palestine question remains vested in the United States despite its waning global influence and its obstinate refusal to exercise that authority relative to Israel. The United States predictably will act to nullify the Advisory Opinion’s effect. It will block any effort in the Security Council to reformulate the political framework. It will take coercive measures against the Palestinians as they pursue alternative ways to change the framework. And it will allow Israel to mete out further punishment upon the Palestinians for this ‘diplomatic terrorism’. But the overwhelming vote in favour of the General Assembly resolution endorsing and implementing the Advisory Opinion demonstrates that Palestine enjoys broad, if not always deep, support. The global revulsion at Israel’s destruction of Gaza, a large swath of the West Bank and now Lebanon creates an opening for a new political paradigm. The tolerance of the Palestinian authorities and the Palestinian people for further pain at Israeli and American hands principally will determine whether and how that paradigm takes shape.

Overriding the Oslo Framework

But as for the Advisory Opinion itself: the Court could hardly have been more categorical, consistent with the prerogative of the General Assembly and Security Council to decide the ‘precise modalities’ for ending Israel’s unlawful occupation, in rejecting the necessity or primacy of bilateral negotiations to vindicate the Palestinian people’s right of self-determination (para. 281). To the United States (whose written statement and written comments used the phrase ‘direct negotiations’ 18 times in total¹⁾ and others who claimed the opinion would undermine the negotiation process prescribed in the Oslo Accords, the Court’s response was appropriately curt: ‘whether the Court’s opinion would have an adverse effect on a negotiations process is a matter of conjecture’ (para. 40). By this rejoinder, the Court acknowledged that whatever vestiges of the Oslo Accords’ interim arrangements may remain – and the Opinion brings that into question, as I shall discuss – Oslo as a framework for bilateral negotiations has expired.

The Court’s review of recent UN engagement on the Palestine question supports this view. It cited Security Council Resolution 1515 of 2003 (para. 69), which endorsed the Quartet ‘Roadmap’ towards the establishment of a Palestinian State. It also cited Resolution 2234 of 2016 (para. 71), which called for intensified ‘international and regional diplomatic efforts’ to achieve a settlement based on the terms of the Madrid Conference, the Arab Peace Initiative and the Quartet Roadmap, never mentioning the Oslo Accords. But it did not cite Resolution 1850, which declared ‘the irreversibility of the bilateral negotiations’. Judges Tomka, Abraham and Aurescu in their joint opinion expressed regret that the Court thereby ‘dismissed the Oslo Accords as being quasi-irrelevant’ (para. 43).

In fact, the Court’s rejection of Oslo as a compulsory negotiation framework was categorical. It resolved that the Palestinian people’s right of self-determination, as a peremptory norm, ‘cannot be subject to conditions on the part of the occupying Power,’ whether set within the framework of a negotiation or any other form of consensual dispute settlement (para. 257). The General Assembly implemented this principle in demanding that Israel quit the occupied territory within a year (para. 1).

Voiding Resolution 1850

Nor can the Palestinian right of self-determination, in view of its peremptory character, be subordinated to any conflicting Security Council decision. Take Resolution 1850, which in prescribing negotiation as the sole means of settling the Palestine question deviated from general international law. Articles 2(3) and 33 of the Charter do not prescribe a method by which States must discharge their duty of peaceful settlement, nor dictate that parties may only pursue one method at a time. The ICJ has recognised the legitimacy of negotiating concurrently with other methods of pacific settlement, including judicial resolution (Aegean Sea Continental Shelf [1978] ICJ Rep. 3, p. 13, para. 29²⁾; Diplomatic and Consular Staff [1980] ICJ Rep. 3, p. 24, para. 43). Furthermore, no matter how attenuated or protracted a negotiation process, ‘if a dead lock is reached, or if…one of the Parties definitely declares himself unable, or refuses, to give way…there can therefore be no doubt that the dispute cannot be settled by diplomatic negotiation’ (Mavrommatis Palestine Concessions, PCIJ Series A, No. 2, p. 13). Two decades of fruitless negotiations proved exactly that. We need no longer debate whether the right of States to choose between pacific settlement methods is jus dispositivum and/or whether Resolution 1850 lawfully displaced it: It is now void insofar as it purported to deny the Palestinians recourse to all peaceful means of dispute settlement in fulfilment of their right of self-determination.

Implications for the Duty of Collective Cooperation

The Opinion, as bold and groundbreaking as it undoubtedly was, might have gone further. The Court elaborated, in greater detail than in the Namibia Advisory Opinion, the diplomatic implications of States’ duty to cooperate in bringing an unlawful territorial situation to an end. It could similarly have defined the political implications, specifically, that any State which obstructs the Palestinian people in their resort to peaceful means other than negotiation, i.e., blocks the Palestinians from exercising their right of self-determination without the agreement of the occupying Power, would breach its duty of collective cooperation to bring an end to a serious breach of a peremptory norm.³⁾ This, nevertheless, is the logical consequence of the Court’s conclusion. It follows that coercive non-forcible measures against Palestine and its officials for pursuing peaceful means other than negotiation might be a prohibited intervention (see Military and Paramilitary Activities [1986] ICJ Rep. p. 108, para. 205).

The Time for Negotiations has Passed

Those desperate to breathe life into the ancien régime of negotiation will point to the separate opinions of a handful of judges who would have qualified Israel’s obligation to withdraw ‘as rapidly as possible’ (para. 285(4), dispositif). Judges Nolte and Cleveland saw ‘significant practical issues’ which render it impractical for Israel to withdraw ‘in the same way, or at the same time, with respect to every part of the occupied territory’ (para. 16). Judge Iwasawa, referencing the principles of Security Council Resolution 242, stated that the withdrawal ‘should follow from arrangements arrived at on the basis of these principles under the supervision of the General Assembly and the Security Council’ (para. 20). But even these separate opinions did not suggest that Israel, as an illegal occupier, retained discretion over these decisions, let alone that the timing, means or conditions of withdrawal would be determined by negotiated agreement between illegal occupier and occupied. Certainly, nothing in the Opinion of the Court supports this view. The Court twenty years ago in the Wall Advisory Opinion concluded with a call for a ‘negotiated solution’ (para. 162). Not this time. While it quoted part of its exhortations from the Wall advisory opinion, it conspicuously omitted the negotiations part (para. 282-283). Judges Tomka, Abraham and Aurescu, by their objection, confirmed that this omission was deliberate (para. 43).

The Status of Oslo’s Interim Arrangement

So neither Oslo’s framework of bilateral negotiations nor the principle that negotiation is the sole legitimate method for peaceful settlement of the Palestine question survives the Advisory Opinion. What about Oslo’s interim arrangements? The Court again demonstrated its historical reluctance to engage with the concept of peremptory norms, which Judge Tladi detailed and criticised (para. 16). While recognising the right of self-determination in the Palestine context as a peremptory norm, the Court soft-pedalled the politically sensitive consequences of that conclusion, including the viability of the Oslo II interim agreement that gives effect and legal veneer to Israel’s suppression of Palestinian self-determination. Stating that ‘the Oslo Accords cannot be understood to detract from Israel’s obligations under the pertinent rules of international law…’, the Court chipped away in measured terms at certain interim arrangements (para. 102). For example, it deemed Oslo’s water allocation incompatible with Israel’s obligation under the law of occupation to act as administrator and usufructuary of natural resources and the Palestinians’ right to permanent sovereignty over natural resources (PSNR), but without drawing a connection between PSNR and the right of self-determination (para. 133). Elsewhere, the Court sought to reconcile certain aspects of the interim arrangements with the law of occupation (para. 140) as support for its conclusion that Israel’s ‘sustained abuse’ of its position as an occupying power rendered its presence unlawful (para. 261).

Some may see here the Court implicitly applying the Namibia exception to the non-recognition principle. In this view, a declaration that the interim arrangements as a whole conflict with the right of self-determination and are void would, practically speaking, only hasten the end of limited self-rule in the Palestinian Bantustans on the West Bank. This, the argument goes, would deprive the Palestinians of certain ‘advantages derived from international cooperation’,⁴⁾ such as recognition of the Palestinian passport by States which consider its validity contingent on the Oslo Accords. I suggest a simpler explanation. In judicial proceedings as in its international relations, caution rules the day. Oslo’s interim arrangements reflect and express Israel’s denial of Palestinian self-determination. But they also have allowed the Palestinian authorities to pursue self-determination from within the self-determination unit.⁵⁾ The Court was presumably careful in its treatment of the Oslo Accords not to provide Israel with a pretext to expel the Palestine Liberation Organization (PLO) from the occupied territory and revoke what remains of Palestinian self-rule.

A ‘Rather Complex Question’

Nevertheless, recognition of self-determination in the Palestine context as a peremptory norm has profound consequences for Oslo’s viability. Judge Tladi characterised the relationship between the right of self-determination and the Oslo Accords as a ‘rather complex question’ and suggested the Court should have, at minimum, declared that the Accords must be interpreted in a manner consistent with the right (para. 35).

With respect to Judge Tladi, whose declaration was a tour de force, such a pronouncement would have been in error. The Vienna Convention on the Law of Treaties are applicable mutatis mutandis to international agreements like the Oslo Accords between States and other subjects of international law like the PLO. Article 44(5) VCLT denies separability to a treaty procured through threat or use of force in violation of jus ad bellum (i.e., coercion, article 52). The Advisory Opinion acknowledged that ‘an occupation involves, by its very nature, a continued use of force in foreign territory’ (para. 253). Because Israel’s occupation is unlawful, so is the use of force which sustains it. Article 44(5) also denies separability to a treaty concluded in violation of an existing peremptory norm (article 53). The Court did not specify when the right of self-determination of the Palestinian people acquired peremptory status. In my view, because self-determination as a peremptory norm emerged in the colonial context, the Palestinian right of self-determination acquired a peremptory character once the Israeli occupation became effectively ‘indistinguishable from unlawful regimes such as colonial domination or apartheid’ (written statement of Jordan, para. 5.13.).

But whether this describes the Israeli occupation when the Oslo Accords were concluded 30 years ago and whether Israel’s use of force to maintain the occupation then violated jus ad bellum are purely academic questions. Under article 64 VCLT, provisions of a treaty predating a new peremptory norm (jus cogens superveniens) remain valid only if they are properly separable from the remainder of the treaty.⁶⁾ Under article 44(3), separability requires that the ground of invalidity ‘relates solely to particular clauses.’ In my view, Oslo’s incompatibility with the right of self-determination lies in its structure: while Israel devolved certain competences to a Palestinian ‘Council’, it retained overriding authority over every last detail of the modus vivendi the agreements established. No provision of the agreements, no matter how quotidian, operates outside this structural denial of Palestinian self-determination. None survive recognition of the peremptory character of this right.

A New Legal Paradigm for the Question of Palestine

I am not naïve: the vestiges of Oslo’s interim arrangements will apply de facto until and unless Israel decides otherwise. The United States and certain other States will still demand that the Palestinians negotiate with their captor. But neither am I jaundiced: the Advisory Opinion has overhauled the law governing the Palestine question. International authority, whether expressed by Security Council resolution or US diktat, may no longer lawfully insist on the exclusivity or even the primacy of negotiation. For that Palestinian officialdom deserves its flowers. The long game – enhancing Palestine’s legal subjectivity by accretion – has paid a handsome dividend in this advisory opinion. Now these officials must hold their nerve. They may draw inspiration from their people who remain steadfast and unbowed.

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I close with a personal reflection on this symposium and the broader conversation amongst international lawyers on the Palestine question.

I have a law degree from an Israeli university. I know personally several of the Israeli contributors to this forum and I collaborate with other Israeli academics from time to time. They, like all others, are entitled to contribute to the legal literature on Palestine.

But I regret that too many Israeli voices in this conversation are constitutionally unable to see that we Palestinians are the protagonists in our own story, our condition, our struggle for freedom. We, too, are the protagonists in this Advisory Opinion, which is principally about the Palestinian people’s unqualified and overriding right of self-determination. Israel is not the principal in the Advisory Opinion. It is the antagonist: The military occupier which, through spectacular violence, denies Palestinians their right of self-determination and maintains domination over them by enforcing a system of apartheid in their territory.

By the standard of Palestinian legal academics, I am a conservative: a legal Realist who appreciates that we are a small fish swimming in a big, reactionary pond. My work has accordingly emphasised the need to preserve institutions like the PLO and UNRWA that, while diminished, are irreplaceable and indispensable to our steadfastness, our political aspirations and our eventual freedom. I have never opposed dialogue with Israel or with Israelis. But like all my compatriots, I have tired of the solipsistic Israeli narrative that has lost currency in all quarters except perhaps the United States Congress and the international law establishment: Israel the perennial victim, righteously established and peace-loving in its first two decades, burdened and corrupted by an occupation it never wanted and which the incorrigible Arab natives will not allow to end.

This hoary narrative survives in part because Israeli legal apologia follows a pattern: signal humanity by opening with criticism of some ‘excess’ of Israeli practices before leaping to the defence of the policy and worldview that undergird those practices: that Israeli security is a preeminent and overriding consideration, which is a polite way of saying that Israeli lives simply mean more than Palestinian lives. This is not an ad hominem attack but methodological observation. It is a matter of time before international lawyers, too, come to reject this narrative and its embodiment in legal scholarship. In the meantime, it must be called out.