Law - Legal Consequences, Orakhelashvili.docx

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Western University
Political Science
Political Science 3201F/G
Dan Bousfield

LEGAL CONSEQUENCES IN THE OCCUPIED PALESTINIAN TERRITORY – ORAKHELASHVILI  This contribution examines the court’s treatment of the points of substantive international law applicable to the construction of the Wall and the ensuing legal consequences  The Wall is designed, according to Israel, to prevent the terrorist threat against civilians and to separate some parts of the occupied Palestinian territory from the rest of it  This contribution will examine the findings of the court on the points of substantive law; then the court’s treatment of the Wall’s legal consequences will be focused upon  The court affirmed the relevance of jus ad bellum in terms of the legality of the wall  The court affirmed that this norm is part of customary law  There may be no official annexation of the Palestinian territory in effect transferred to Israel by the construction of the wall, but it is impossible to avoid the conclusion that we are here faced with annexation of Palestinian territory  The wall incorporated illegal Israeli settlements that form the subject of negotiations between Israel and Palestine  Israel has disclaimed any intention to annex the relevant territories, submitting that the barrier is a temporary measure, it does not annex territories to the state of Israel and that Israel is ready and able at tremendous cost, to adjust or dismantle a fence if so required as part of a political settlement  The opinion is also specific in its treatment of the practical implications of the Palestinians’ right to self-determination, as opposed to the mere existence and applicability of such right  A people can only exercise the right to self determination within a territory. The amputation of Palestinian territory by the Wall seriously interferes with the right of self determination of the Palestinian people as its substantially reduces the size of the self determination until already small, within which that right is to be exercised  Judge Kooijmans failed to distinguish between acts that harm the cause of self-determination and the specific and purposive action by the state, in this case the occupying power, that impedes the exercise of the right to self determination  The law of occupation applies to the areas over which the occupying power exercises effective control. It doesn’t apply to situations where the army of the adversary is still capable of fighting, thereby precluding the exclusive control of the would-be occupying power  A court affirmed that human rights treaties apply both in peacetime and wartime  Disapproval by the UN Committee on economic and social rights of Israel’s attitude and the Palestinian population was excluded from the protection of the covenant because the covenant does not apply to areas that are not subject to its sovereign territory and jurisdiction  The special rapporteur had furthermore observed that in the closed zone between the wall and the green line – the western boundary of the occupied Palestinian territory – there are no hospitals. Those living in such zones must therefore cross the barrier at a checkpoint to reach hospitals  The court concluded that the wall and its associated regime impede the exercise by the persons concerned of the right to work, to health, to education and to an adequate standard of living as proclaimed in the International Covenant on economic social and cultural rights  Judges Buergenthal and Higgins opposed the court’s approach, suggesting that article 51 of the UN Charter does not expressly limit the exercise of the right to self defence to attacks originating from the state  Until recently, the issue of the actor who conducts armed attack has not been raised and it has always been presumed that the source of an armed attack is the state  The separate opinion of judge Kooijmans recognized that before the attacks of 11 September 2001 the right to self defence has extended only to armed attacks perpetrated by the state  The simple involvement of non-state actors in trans-boundary violence does not present with any essentially new and original conceptual phenomenon. It has long been recognized that the action of non-state actors from the territory of the state is attributable to that state as an act of aggression  It seems therefore that every armed attack on the state that justifies the exerci
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