Fifth anniversary of the International Court of Justice opinion on The Wall – the first attempt at legal clarification, according to Egypt's Judge Al-Araby

From the separate opinion of Justice Nabil el-Araby of Egypt, in the International Court of Justice’s opinion on The Legality of the Construction of A Wall in the Occupied Palestinian Territory, on 9 July 2004, who argued that the UN has a special responsibility for Palestine:
“What I consider relevant to emphasize is that this special responsibility was discharged for five decades without proper regard for the rule of law. The question of Palestine has dominated the work of the United Nations since its inception, yet no organ has ever requested the International Court of Justice to clarify the complex legal aspects of the matters under its purview. Decisions with far-reaching consequences were taken on the basis of political expediency, without due regard for the legal requirements. Even when decisions were adopted, the will to follow through to implementation soon evaporated. Competent United Nations organs, including the General Assembly and the Security Council, have adopted streams of resolutions that remain wholly or partially unfulfilled. The United Nations special responsibility has its origin in General Assembly
resolution 118 (II) of 29 November 1947 (hereafter, the Partition Resolution). Proposals to seek advisory opinions prior to the adoption of the Partition Resolution were considered on many occasions in the competent subsidiary bodies but no request was ever adopted … The Sub-Committee in its report, some two weeks before the vote on the Partition Resolution, recognized that: ‘A refusal to submit this question for the opinion of the International Court of Justice would amount to a confession that the General Assembly is determined to make recommendations in a certain direction, not because those recommendations are in accord with the principles of international justice and fairness, but because the majority of the representatives desire to settle the problem in a certain manner, irrespective of what the merits of the question or the legal obligations of the parties might be. Such an attitude will not serve to enhance the prestige of the United Nations. . . .”  The clear and well-reasoned arguments calling for clarification and elucidation of the legal issues fell on deaf ears. The rush to vote proceeded without clarifying the legal aspects. In this context, it is relevant to recall that the Partition Resolution fully endorsed referral of “any dispute relating to the application or interpretation” ‘ of its provisions to the International Court of Justice. The referral “shall be . . . at the request of either party. Needless to say, this avenue was also never followed. Thus, the request by the General Assembly for an advisory opinion, as contained in resolution 10114, represents the first time ever that the International Court of Justice has been consulted by a United Nations organ with respect to any aspect regarding Palestine”.

Justice el-Araby’s opinion, part of the International Court of Justice’s Advisory Opinion on The Wall,  can be read in full here.