ORAL PRESENTATION OF THE REPUBLIC OF FIJI

LEGAL CONSEQUENCES ARISING FROM THE POLICIES AND PRACTICES OF ISRAEL IN THE OCCUPIED PALESTINIAN TERRITORY, INCLUDING EAST JERUSALEM

Mr. President and members of the International Court of Justice, it is my honour to appear before you on behalf of the Republic of Fiji.
 
Mr. President, for many decades Fiji has built a tradition of peacekeeping. Our commitment to peacekeeping is unwavering, and we are resolute in our efforts to contribute to global stability. I have personally had the privilege of leading peacekeeping operations in the Middle East over a period of more than 20 years.
 
Mr. President, members of the Court. Fiji supports all efforts to establish a comprehensive, just, and lasting peace for both Israelis and Palestinians. Efforts that recognize the right of the Palestinian people to self-determination and the right of the Jewish State of Israel to exist as a sovereign state with secure borders. Efforts that emphasize the need for the parties to engage in constructive negotiations, as envisaged by the Security Council and the General Assembly.
 
Fiji affirms the important role of this Court as the highest judicial organ of the United Nations in resolving disputes between states and assisting UN organs in their activities.
 
In so doing, the Court must promote the purposes and principles of the UN Charter. According to Article 1 of the UN Charter, one of the main purposes of the United Nations is “to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples”. We strongly believe that the only way to achieve truly sustainable peace between Israel and the Palestinian people – indeed between any neighbours – is through mutual respect.
 
As reflected in our Written Statement, Fiji considers it essential to maintain and uphold the legal framework agreed between the parties and sanctioned by the Security Council to resolve the Israel-Palestine dispute. That framework is founded on the understanding that Jews and Arabs must co-exist in a small piece of territory. This requires direct negotiations between the parties for an agreed outcome.
 
Mr. President, members of the Court. The General Assembly has requested the Court to answer certain questions that focus on the legal consequences of the policies and practices of only one party to this dispute.
 
To answer these questions, the Court would need to carry out an independent judicial assessment of both the law and the facts, on virtually every aspect of the Israel-Palestine dispute, taking account of the relevant context. This is not an easy task. As Judge Higgins noted in her Separate Opinion in the Wall Advisory Opinion: the law, history and politics of the Israel-Palestine dispute is immensely complex”. Further, “context is usually important in legal determinations.”
 
In Fiji’s view, this Court has unfortunately been presented in these proceedings with a distinctly one-sided narrative. This fails to take account of the complexity of this dispute, and misrepresents the legal, historical, and political context.
 
In its Written Statement, Fiji provided several reasons why the Court should exercise its judicial discretion not to render an Advisory Opinion on the questions that have been posed by the General Assembly:
 
i. First, the Request is a legal manoeuvre that circumvents the existing internationally sanctioned and legally-binding framework for resolution of the Israel-Palestine dispute;

ii. Second, to give an opinion in this case “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”  and

iii. Third, due to the one-sided formulation of the questions posed in Resolution 77/247, the Court does not have before it the accurate and reliable information that it would need to render an opinion on the questions posed.

Mr. President, members of this honourable Court, in this oral presentation I will address the first and third of these issues.
The peace process and legally-binding framework
I turn to the existing framework.
 
In these proceedings, the Court has been asked to render an Advisory Opinion that may well mean, in effect, the “immediate”, “unconditional” and “total” end to the occupation – that is, withdrawal of all Israeli military and civilians from the entirety of the West Bank, East Jerusalem and Gaza. 

This withdrawal must not only be complete, but it must also be unconditional – in other words, Israel may not impose or require any limitations or conditions. This unconditionality is supposedly necessary in order that the Palestinian people have a sovereign state on such territory, which they assert is the only way to achieve justice and therefore peace.
 
Fiji respectfully submits that this demand of a complete and unconditional withdrawal circumvents the peace process and the agreements that have been made in pursuit of that process.
 
The fact is that, from 1993, Israel and Palestine entered into the series of agreements known collectively as the “Oslo Accords”. The parties expressed the intention to “put an end to decades of confrontation and to live in peaceful coexistence, mutual dignity and security, while recognizing their mutual legitimate and political rights.”

To that end, they agreed on a wide range of interim measures, pending the achievement of a final agreement through permanent status negotiations.
 
Some of those interim measures include:  
 
a) The Palestinian Authority was established.
 
b) Powers and responsibilities were transferred from the Israeli military government and its Civil Administration to the Palestinian Authority, while Israel continued to exercise powers and responsibilities not so transferred.
 
c) Direct, free and general political elections were to be held by the Palestinians.
 
d) The West Bank was divided into three areas – A, B and C. The Palestinians would obtain exclusive control over Area A; Area B would be under joint Israeli/Palestinian control; and Area C would be under exclusive Israeli control.
 
Lastly, the parties would enter negotiations on permanent status to resolve the remaining issues, which included “settlements”, “borders”, “Jerusalem” and “security”.
 
In addition, the Oslo Accords contain a specific dispute resolution mechanism, and do not permit either party unilaterally to commence or ask others to commence external legal proceedings.
 
Since 1993, an extensive set of arrangements have been put in place to operationalize the agreements.

In 2003, the UN General Assembly endorsed the Oslo Accords and the Security Council has "endorse[d] the Quartet Performance-based Roadmap to a Permanent Two-State Solution to the Israeli-Palestinian Conflict". This Court itself confirmed the importance of the Oslo Accords and the Roadmap in the Wall Advisory Opinion in 2004.
 
According to the Road Map, “a two state solution to the Israeli -Palestinian conflict will only be achieved through an end to violence and terrorism, when the Palestinian people have a leadership acting decisively against terror and willing and able to build a practicing democracy based on tolerance and liberty, and through Israel's readiness to do what is necessary for a democratic Palestinian state to be established, and a clear, unambiguous acceptance by both parties of the goal of a negotiated settlement."
 
The thrust of the Oslo Accords and the Road Map is mutual performance and good faith negotiation, leading to a consensual outcome.
 
The Oslo Accords are legally binding. Remarkably, the Palestinians do not refer to these agreements in their Written Statement, while only 12 months ago both Israel and Palestine reaffirmed their “unwavering commitment to all previous agreements between them” and “to address all outstanding issues through direct dialogue”.

Mr. President, it is our submission that the request to this Court to opine on questions that address the legal obligations of only one party to this dispute conflicts with the clear rights and obligations of both parties in the Oslo Accords and the Road Map, and which exclude recourse to this Court.
 
For this reason, Fiji respectfully submits that the Court should exercise its discretion not to render an Opinion on those questions.

Legal and factual evidence

Mr President, members of this honourable Court, I now turn to the issue of legal and factual evidence.
 
As stated, in Fiji’s view, the Court should decline to answer the questions posed. But were it to do so, it would need to gather and independently assess the probative value of evidence on issues raised within the established legal framework of the dispute.
 
This Court would have to decide, as it has previously explained, "whether [it] has before it sufficient information and evidence to enable it to arrive at a judicial conclusion upon any disputed questions of fact the determination of which is necessary for it to give an opinion in conditions compatible with its judicial character.”
 
In Fiji’s view the Court cannot simply defer to the reports of United Nations bodies. In order to fulfil its judicial function, the Court must reach its own independent findings of fact.
 
Further, Fiji submits that, due to the selective and one-sided formulation of the questions, the Court does not have before it all the evidence it would need in order for the Court to be able to exercise its judicial function.

The point here is that the Court is being asked to focus solely on the policies and practices of one of the parties to this dispute, to the exclusion of the policies and practices of the other. This is highly problematic. If the Court limits itself to consideration of the questions asked, it will be unable to consider the relevant broader context, and it will also not have before it sufficient information and evidence to enable it to arrive at a judicial conclusion upon questions of fact that are in dispute, but which would be necessary to give an opinion compatible with its judicial character. 
 
We will illustrate this by looking briefly at three of the issues raised by the questions that have been posed to the Court: withdrawal and security, territorial sovereignty, and the right to self-determination.

Withdrawal and security

First, withdrawal and security. Palestine argues that the occupation is illegal, and the legal consequence is that Israel must withdraw from the occupied territories. As highlighted earlier, any assessment of the questions posed would require the Court to consider the legal rights and obligations of both parties under the Oslo Accords.
 
The Oslo Accords were built upon UN Security Council resolutions 242 and 338, which were adopted following the 1967 and 1973 Arab wars against Israel. They recognize the legitimate security needs of Israel to prevent further attack.
 
Resolutions 242 and 338, and thus the Oslo Accords, do not oblige Israel to withdraw from all the territories.
 
Further, the resolutions refer to peace being established by the application of two mutually dependent principles:
“(i) Withdrawal of Israeli armed forces from territories occupied in the recent conflict; and
(ii) Termination of all claims or states of belligerency and respect for and acknowledgment of the sovereignty, territorial integrity and political independence of every State in the area and their right to live in peace within secure and recognized boundaries free from threats or acts of force.”
 
By incorporating these Resolutions into the Oslo Accords, the parties recognize that Israel’s withdrawal and the creation of conditions providing security to Israel are interdependent. As Judge Higgins stated in the Wall[1] Opinion, both “Israel and Palestine need to move in parallel to secure the necessary conditions - for Israel to withdraw from Arab occupied territory and for Palestine to provide the conditions to allow Israel to feel secure in so doing”.
 
In other words, if the Court is to consider the legal consequences of the alleged Israeli refusal to withdraw from territory, it must also look at what Palestine must do to ensure Israel’s security.
 
The events of 7 October 2023 have shown what could happen if there were a complete and unconditional withdrawal without the necessary arrangements in place to guarantee the security of Israel and its population. At the very least, the Court would need to examine and evaluate evidence concerning the question whether the 1949 Armistice Lines are "secure boundaries” within the meaning of Resolutions 242 and 338. This in turn would require examination of the threats facing Israel emanating from the occupied territories and the broader region.

Palestinian territory

Second, territorial sovereignty. Mr. President and members of the Court. The General Assembly’s Request speaks of Israel’s ‘… prolonged occupation, settlement and annexation of the Palestinian territory occupied since 1967,…’. This asks the Court to presuppose that all the territories held during the Jordanian and Egyptian occupation within the 1949 Armistice Lines are “Palestinian” – that is, that they are sovereign territories of Palestine, and thus not of Israel.
 
A precise definition of the scope of territorial claims is important because “territorial sovereignty is a fundamental principle of the international political and legal order… It‘serves to divide between nations the space upon which human activities are employed, in order to assure them at all points the minimum of protection of which international law is the guardian.
 
In the context of the questions put to this Court, territorial sovereignty is critical, because without clarifying the respective claims of Israel and the Palestinians concerning the sovereign status of the territory, it would be impossible to answer the questions of territorial scope of the Palestinian self-determination claim or the occupation.
 
Fiji notes that the question of the territorial scope - both of the State of Israel and of the self-determination claim of the Palestinian people - is in dispute as between the parties.
 
And yet the way the questions are drafted excludes the possibility of the Court considering Israel’s claims to sovereignty over the territory and asks the Court to assume without further investigation that these territories are somehow “Palestinian”.
 
Furthermore, the Court would need to assess whether the Palestinians have sovereignty, and if so, over which territory. This would include an examination, amongst other things, of the history of Palestinian assertions of claims, and of whether Palestinians make different assertions of sovereignty in different fora.

Palestine asserts that the provisions in the Mandate for Palestine concerning the establishment of a Jewish homeland as envisaged in the Balfour Declaration were illegitimate and in contravention of the Covenant of the League of Nations. It appears to claim that all the territory of Mandate Palestine – even including what is generally accepted to be the territory of the State of Israel – belongs to the Palestinian people.
 
Israel asserts that the Mandate for Palestine, including its provisions concerning the establishment of the Jewish homeland, such as the right of the Jewish people to live and closely settle the land, was a binding instrument of international law. Israel also argues that the relevance of the rights conferred by the Mandate for Palestine was affirmed in Article 80 of the UN Charter, the so-called “Palestinian clause”.
 
There is thus a dispute about territorial sovereignty[5]. Fiji submits that this dispute cannot and should not be resolved through means of the requested Advisory Opinion, for two reasons.

The first reason is that the question of “borders”, and therefore the scope of territorial sovereignty, was expressly agreed to be resolved through the permanent status negotiations to which the parties have committed themselves in the Oslo Accords. For the reasons set out earlier, this precludes the matter being adjudicated via an Advisory Opinion procedure.
 
The second reason is that, in any event, because of the way the questions to the Court have been formulated, the Court simply does not have before it sufficient information and evidence to enable it to arrive at a judicial conclusion on the disputed issue of the geographic limits of the territorial sovereignty of Palestine and Israel.

Self-determination

I turn now to self-determination.
 
The questions before the Court ask it to assume that Israel is violating “the right of the Palestinian people to self-determination”.  
 
The question of self-determination raises the question of its territorial scope. Thus raises the evidentiary concerns I have just expressed.
 
Moreover, Fiji notes that the right to self-determination is a relative right. Further, it must not involve changes to existing frontiers. In the context of Israel/Palestine, this means the Court would need to ascertain whether the Palestinians’ exercise of their right to self-determination has infringed the territorial integrity, political inviolability or legitimate security needs of the State of Israel.  
 
And yet, by asking the Court to look only at the policies and practices of Israel, Resolution 77/247 shields from the Court’s purview the policies and practices of Palestine. The result, in Fiji’s submission, is that the Court simply does not have before it sufficient information concerning the policies and practices of Palestine, and thus is unable to make a judicial determination on whether, in the exercise of their right to self-determination, Palestine has infringed the sovereignty of the State of Israel. 

Mr President and members of this honourable Court, in conclusion, the relationship between Israel and the Palestinian people is legally, factually, and historically complex. There are no simple answers. But there are two parties who need to jointly find a solution and be supported to do this.
 
Using the advisory opinion procedure to prosecute the violations of international law of one of the parties to a dispute, while ignoring possible violations by the other, will not promote dialogue, nor foster mutual respect. Rather, it is likely to undermine efforts towards peace that can be best settled through the re-commitment of the parties to the processes established under the Oslo Accords. In our view, this is why the General Assembly was seriously divided on whether these questions should be put to the Court for an advisory opinion, and it is also why this honourable Court should refrain from giving one.
 
Fiji respectfully submits that, for all these reasons, the Court should exercise its judicial discretion to decline to provide an Advisory Opinion on the specific questions put to it in UN General Assembly Resolution 77/247.
 
Fiji further submits that, were the Court to decide to provide an Advisory Opinion, which Fiji respectfully submits it should not, the Court should be cautious to ensure the Advisory Opinion rendered does not circumvent the binding agreement between the parties, but encourages them to promote fruitful negotiations, that it does not impose obligations and responsibilities only on one party, disregarding its legitimate concerns.
 
Mr. President, members of this Court, this brings me to the end of Fiji’s submission. I thank you.