The Iranian Association of United Nations Studies commenced its activities in the current academic year with a lecture by Dr. Jamshid Momtaz. The Association jointly with the Iranian House of Human Sciences Scholars and with the presence of Dr. Djamchid Momtaz held a meeting concerning the hierarchy of international legal order in the house of Human Sciences Scholars.
At the beginning, Dr. Nasrin Mosaffa welcomed participants and considered the opening of the Association’s program with a speech by Dr. Momtaz as a positive sign. She briefly explained about The Hague Academy of International Law, stating that “It is the first time that an Asian professor has taught in the summer course of the academy”. She continued affirming that “Due to the importance of the role of Dr. Momtaz in the field of international law, we are honored to dedicate the first program of this year to his lecture”. She, ultimately, highlighting the Association’s academic mission as well as the respect for eminent professors, she emphasized on the role of young researchers in the activities of the Association.
The hierarchy of international legal order
At the beginning, while welcoming participants and appreciating this chance to speak, Dr. Momtaz explained about the course taught in The Hague Academy, stating that the course subject was the hierarchy of international legal order. He continued: “By general course, it means that the invited professor would express his general view about international law, its development and ultimately his insight into international law and in the other words, he would offer a message in the field of International law for academies. Accordingly, choosing a course topic is one of the first hurdles for professors in this course. A professor would be invited five years before the course. It means that the professor has a five-year period opportunity to reflect and study about the topic, considering all surrounding situation and developments. The course will be taught during 15 sessions (a 50-minute session) in three weeks. Due to the attendance of more than 350 participants, debates and discussions would be relatively impossible. The authorities of the academy do essentially ask professors not to answer posed questions during courses. However, three two-hour sessions as seminar courses would be arranged in order to make up that deficiency. Of course, the professor may ascertain the topic of seminars according to the main subject of his course. In addition, there is the possibility of bringing up debates, questions, suggestions and criticisms during these seminars. Before going to the Academy, the professor has to prepare sources and documents about which he will lecture in the seminar courses and offers them to the secretary six months before the start of the course. Thus, students will have online access to them.”
He continued declaring three chosen subjects taught in the seminar courses:
- Common article 1 of the Geneva Conventions 1949 and the Additional Protocol I
- Responsibility to protect
- Fight against impunity.
If you look deeply, you would find out the hierarchy in all of the mentioned subjects. If the Common Article 1 requires state parties to the Geneva Conventions and Additional protocol I to encourage and respect humanitarian law, this means humanitarian law meets a superior position. Similarly, the theory of responsibility to protection is demonstrated because it causes the prevention of international crimes leading to the breach of some norms which are of high importance. Finally, the subject of hierarchy is also involved in the fight against impunity.
Though it is hard, I intend to review all those 15, 50-minutes sessions, I consequently have to eliminate some important parts of the course materials. However, as far as I can see there would be a limited time to answer some of questions.”
- Concept of Hierarchy
When it comes to the hierarchy, it would mean normative hierarchy related to the norms governing international community, and it is it not about the hierarchy of international law sources. Although some of law scholars believe that article 38 of the Statute of International Court of Justice do not have a preference among sources and put all of them in the same level, I do personally believe that development of international law and states’ practices reveal that we have to deal with some sort of hierarchy in sources of international law. For instance, General Principles of Law, to which is referred in article 38 and was ignored by lawyers for a long period of time, seems to regularly enjoy a higher position due to this normative hierarchy. Other example is the secondary sources stated in article 38 of the Statute which are prominent scholars of law and judicial practices, that is going to become the primary sources of International Law.
When it comes to normative hierarchy, we have to draw a distinguishing line between normative hierarchy in the form of a treaty and normative hierarchy in the form of International Customary Law. Interestingly, proponents of statutory law consider that normative hierarchy is only embodied in international treaties by the consent of all states parties. For example, reservation to some provisions is prohibited in many existing conventions and this prohibition denotes the superior position to these provisions.
In some cases, particularly in human rights conventions, the basic principles of human rights are mentioned. Similarly, as can be seen, regulators have distinguished between the basic principles and other legal principles stated in those instruments. In some cases, it is stated that some provisions of the instruments cannot be subject to suspension under no circumstances, such as human rights conventions and the 1966 International Covenant on Civil and Political Rights at the top.
In some cases, some of the provisions of a convention would be criminalized. States may be required to apply the principle of universal jurisdiction to the persons who breach these norms. These examples reveal the establishment of hierarchy in the form of an international treaty in many cases. Some of these norms are of the more importance and some of them are the less importance.
However, today we are not going to study hierarchy in the form of international treaties. I am going to explain hierarchy in the international custom. Of course, it should be beard in mind that the normative hierarchy in an international treaty may turn into a custom, and the hierarchy would be applied beyond that treaty. For example, in the judgment of the 1970 Barcelona Traction case, ICJ distinguishes between obligations of a state in relation to the other states and those to international community as a whole, namely Erga Omnes obligations”. Stated Dr. Momtaz.
Normative hierarchy was first brought up in the form of an international custom at time of adopting the 1969 Vienna Convention on the Law of Treaties. Article 53, determines the subject if hierarchy, stating that a treaty is void if it conflicts with a preemptory norm of general international law, dose not certainly have a mere contractual basis, but its regulators have codified international law. We know, in the course of negotiations and after the conference, when the hierarchy is first identified, which consequences and problems would appear. Some states, scholars and positivists were completely opposed to this principle. In fact, article 53 is not problematic, but the problem would rise from article 64 which states “if a new preemptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates”. This is an enormous hurdle for states.
France has objected article 64 and has not adhered to the 1969 Vienna Convention. This article obviously could disrupt the stability of contractual relations. Invoking this article, we revoked the right to intervention stated in the 1921 Treaty between USSR and Iran.
The convention, however, did not define Jus Cogens, but it provided the international community with an empty framework. Criticisms on why Jus Cogens was not defined by the International Law Commission were not proper, as it was not ILC duty to determine Jus Cogens, but it has the task of determining what consequences would be raised if a treaty conflicts the norms of Jus Cogens. One of the concerns of states who opposed the hierarchy mentioned in the Convention, is the emptiness of this framework.
Some criteria have been regularly established for the identification of customary and Jus Cogens norms. Here, we invoke article 66 of the 1969 Convention, anticipating that “any one of the parties to a dispute concerning the application or the interpretation of article 53 or 64 may, by a written application, submit it to the international court of justice for a decision unless the parties by common consent agree to submit the dispute to arbitration”. This should be kept in mind that article 66 can be reserved, and some of states have reserved this article. This shows that hierarchy is not a recognized principle of international law, but ICJ, all criminal tribunals and all regional human rights courts have played a vital role in the identification of this principle during past years. It can be said that prohibition of torture is one of the undeniable preemptory norm of International Law and all states are unanimous in the support of this norm.
The question that I raised in this course is whether the normative hierarchy stated in the 1969 Convention would remain in its own scope or it would extend to other parts of international law? For those who are francophone, I use two terms “contone” et “contaminet”. Contoner means restricted in the 1969 Vienna Convention and “contamine’ means like a contagious microbe would contaminates all parts of international law after being accepted”.
This is a main question and I want to answer it 40 years after the adoption of this convention. Should we restrict hierarchy to the law of treaties? Or do we observe the contamination of other parts of international law by hierarchy? What consequences has it had? This is one of the debates to which legal scholars have referred during past 20 years. There has been some sort of conflicts among legal scholars.
Positivist believed that the hierarchy would remain in the form of this convention and others argued that this was a factor to extend it to other parts of international law and finally, it would be considered as sort of international law development.
To answer this question, I would not deal with all parts of my course material which were taught in the Academy. The chosen framework is that, as far as I can see, ILC as a body which not only does codify but also gradually develops international law, tends to extend hierarchy to other parts of International Law. Obviously, when an organ is authorized to codify and develop, one of the most fundamental development would be the extension of the hierarchy to other parts. In contrary, I have concluded that ICJ, which is responsible for the application of international law, would not regulate new rules. In fact, it is the protector of International Law.
The attempts of ILC for the extension of hierarchy stated in the 1969 Vienna Convention encounter some objections. Similarly, when this was brought up in ICJ, ICJ tried not to ignore precaution and not to fundamentally transform International Law.
- Role of International Law Commission
Whenever new issues have been raised since the adoption of the 1969 Vienna Convention, ILC has considered the hierarchy and It has tried to be inspired by the hierarchy in codification if new subjects. I provide you with some examples and continue explaining the subject of States’ Responsibility which is a matter of high importance. Diplomatic protection which was put on the agenda of ILC and resulted in the 2006 draft of ILC, was very remarkable. It has long been believed that diplomatic protection is one of the expressions of sovereignty. Hence, states are allowed whether to protect their nations, who are victims of breach of International Law, or not to do so. This is not the victim’s right and the State may not protect its nation due to the prevention of disruption of, for example, trade relation.
However, I would like to draw your attention to the article 19 of ILC draft on Diplomatic Protection. The commission suggests States to protect their nations who, for instance, are victims of torture as the serious violation of International Law regardless of any political considerations. This results from the existence of hierarchy on Diplomatic Law. The second example is the ILC articles on the matter of reservation to the international treaties. One of the important debates conducted in ILC is whether states are allowed to reserve one of the provisions of a treaty which has become a preemptory norm. Basically it is not possible and in the prepared draft which was examined in 2011 by the general assembly of United Nations, the hierarchy had some effect. Nevertheless, in my observation, the most important work by ILC is the Draft Articles on the States’ Responsibility for Internationally Wrongful Acts 2001 and Articles on Responsibility of International organizations 2011. Interestingly, it was brought up how the issue of hierarchy should be dealt with in the articles of states’ responsibility. Mr. Ago, the special rapporteur of ILC for the Articles of States’ Responsibility, distinguishes between crime and offence. Mr. Gaia, one of Mr. Ago’s assistants, who is one the most outstanding judges of International Criminal Court offered a course in the academy titled «Jus Cogens beyond the law of treaties”. In other words, the question is whether the hierarchy governs the 1969 Convention or it can be generalized? As you may know the primary draft articles of the 1969 Convention encountered many problems, and finally distinction between offence and crime was eliminated in the 2001 draft articles. There are still some provisions regarding serious violation of Jus Cogens and Erga Omnes. It seems necessary to give more explanation about this subject.
In the first draft, Mr. Ago and, then, his successor presumed that the responsibility of states violating preemptory norms of International Law would be more serious than violating a common international norm. When it comes to more serious responsibility, it means that the state should compensate more, and it is not confined to mere compensation. This would result in punitive compensation and aggravated liability. As the US courts rendered a decision against Iran and reparation decision which was punitive. For example, 3$billion compensations for a family whose member was kidnapped, originated from hierarchy. The American courts follow this practice. In the sense that when a state violates preemptory norms of International Law, the responsibility would be aggravated. This, however, was not accepted in the 2006 draft articles but various consequences could be found for the serious violation of these norms, namely hierarchy, in this important document.
Let’s briefly give you explanations on the article 41 concerning the violation of Jus Cogens as well as article 48 concerning the violation of Erga Omnes norms.
Article 41 has 3 paragraphs. Interestingly, it does not determine certain duty for states violating Jus Cogens norms, but other states undergo some duties under this instrument. One of the underlying reasons is that aggravated responsibility is eliminated from the 2001 Draft Articles.
A state observing the violation of Jus Cogens norm has three responsibilities: 1. It should not cooperate with violating state and terminates the violation; 2. It should not recognize the situation; 3. Its violation could have other consequences which the ILC does not deal with and it lets the issue open in order that International Law would probably experience required developments in this sphere. In this regard, it could be mentioned that non-recognition of amnesty, which is one of the significant issues of International Law and non-recognition of a government established by violating a Jus Cogens norm which are based in the paragraph 3 of article 41, is paragraphs 2 in these 3paragraphs that drawn my attention. Some justifications regarding the obligation of states encountering the violation of Jus Cogens norms are stated in this paragraph. According to the draft articles, states are required not to recognize such situations and not to contribute the violating state to maintain the situation caused by the violation of preemptory norms.
The history of non-recognition dates back to 1930s. However, there is no time to explain this. After Japan’s invasion to Manchuria Japan, the US minister of foreign affairs asked states not to recognize the successor government of Manchukuo, since the unlawful nature of the phenomenon. League of Nations adopted a Resolution in this regard. At time of annexation of Baltimore countries western countries similarly did not recognize the situation. This question which is one of the most important questions in International Law would come up whether the principle of non-recognition of unlawful situations by the violation of Jus Cogens norm has the customary or contractual basis? In the other words, by the adoption of article 41, has ILC initiated, regularly developed or codified? This is still controversial.
Some believes that this principle has turned into a customary rule since the ICJ, in its advisory opinion regarding Namibia, asks states not to recognize the legality of South African in Namibia. In 2004, in advisory opinion regarding separation wall, ICJ, similarly, asks states not to recognize legal consequences of the construction of the wall in occupied territories. However, for ICJ in the 2010 case of Kosovo, there was not enough evidence to accept the customary basis of the principle of non-recognition.
In my estimation, my colleague, Mr. Crawford, who was special Rapporteur in the course of preparation of the Draft Articles of States’ Responsibility, prioritized his personal interests to international community’s and international law. Interestingly, article 41 is one of the accomplishments of Mr. Crawford and it is interpreted by him. In his estimation, non-recognition principle stated in article 41 has customary basis. At that time, we did not know that he was the consultant of Australia in Australia – Portugal case 1995. He applied this opinion that Australia did not have any obligations of non-recognition of the annexation of Eastern Timor to Indonesia according to customary law. There, we were not aware of this, otherwise we would ask his opinion about the contractual basis of the principle. Amazingly, he stated that ICJ only requires states not to recognize the unlawful situations about which Security Council issues a resolution, requiring states not to recognize acts violating International Law. Mr. Crawford was the attorney of England in Kosovo case and invoked the same argument in 2010, regardless of the fact that he used to be the Special Rapporteur of ILC for the preparation of the Draft Articles of States’ responsibility, particularly he was the one who wrote article 41. However, ICJ was influenced by Mr. Crawford’s sayings and read a statement which was in conflict with its statement in 1971 and 2004 regarding Namibia and Separation Wall.
The only argument that could be raised by Mr. Crawford was that article 41 has developed regularly and has not turned into a codified law yet. However, I am doubtful, since ICJ has explicitly stated it twice. The League of Nations issued a resolution on this issue too.
The second point is the prohibition of rendering aid and assistance in maintaining the unlawful situation created by a violating state in the paragraph 2 of article 41. Here, we face some issues which refers to the matter of refraining contribution to the maintenance of current situation.
Question: is Islamic republic of Iran allowed to buy oranges produced by Israeli migrants in the occupied territories?
If we want consider article 41(2) as the base, the purchase of oranges would be an assistance to the maintenance of current unlawful situation. In other words, it would lead to the prevention of the application of self-determination principle by Palestinian populations. Similarly, this is the same in Western Sahara case. States of European Union drew contracts with the government of morocco for exploiting living resources of coastal parts of Western Sahara. By contract they strengthened the current situation caused by the occupation Western Sahara and Morocco impeded the application of self-determination principle. There are other examples of this sort to which I will not refer for lack of time.
However, in terms of article 48 which indicates that in case of the violation of Erga Omnes norms, all states are directly or in directly damaged and they can invoke the responsibility of the violating state. This, particularly the Erga Omnes obligations stated in an international treaty, is very important issue. I would like to draw your attention to the 2012 ICJ judgment in the dispute between Senegal and Belgium. Can Belgium, which is a party to the Torture Convention 1982 and whose nation was not suffered from torture by Chad, bring up the responsibility of Chad and Senegal on this ground that they sheltered that executioner? ICJ explicitly stated that this is possible.
The International Tribunal for the Law of the Sea invoked some provisions of the 1982 Convention on the Law of the Sea, for example, stating that the obligations regarding the protection and preservation of the marine environment of high seas and international deep zone is Erga Omnes and if a state damages the marine environment, all states which are indirectly damaged by this loss can bring up responsibility according to the article 48. The 2011 Advisory opinion of the International Tribunal for the Law of the Sea explicitly invokes article 48. This article entitles all states to prevent pollutions and bring a claim against the pollutant state. Last example is the case of Marshal Islands against 9 nuclear states in the ICJ which is one of the most important disputes. According to the N.P.T, five states are allowed to have nuclear weapons. The question is whether article 6 of the Convention concerning the prevention of expansion and proliferation of nuclear weapons is the Erga Omnes obligation or not. We have to wait for the answer of ICJ, but what is important in this petition is that the addressees of the marshal government are not solely the States Parties to the N.P.T, but non-state parties including Israel, Pakistan, India and north Korea are also considered. In the other words, non-state parties are required to consider this article and if they violate it, all states will be damaged.
This is exactly the case in human rights law. If a state misbehaves its nation and does not comply with its obligation according to human rights conventions, all states are beneficiary and they should notify the violating state. All states are beneficiary in the compliance with obligations, even if they did not directly suffer from the violation of human rights. We pursue this practice, when believing that the rights of Shia’ in Bahrain should be respected and it is an Erga Omnes obligation. This displays that contentions do still exist. Except for petition before a court, according to the anticipated arrangements which will be dealt with later, which mechanisms exists for states that are indirectly damaged? This is referred to in article 54 of the draft on States Responsibility. It states that States indirectly injured can “take lawful measures against that state to ensure cessation of the breach and reparation in the interest of the injured state or of the beneficiaries of the obligation breached”. For example, they can cut their diplomatic relation or if they are arranged to draw up a commercial contract, they would withdraw that. Article 54 does not indicate counter measures or sanctions. However, it was contained in the first draft, but due to the objection against primary draft of the article 54 in the 6th committee of the UN general assembly, it only regards “lawful measures”. Conversely, the 2005 resolution of International Law Institute authorized states to adopt sanctions. One of the arguments justifying the imposed sanctions to Iran is article 48 and article 5 of the 2005 Resolution. It should be accepted that this rule has found customary basis. During past decades, we have experienced the state violating an Erga Omnes obligation was sanctioned and no objection was brought up against it. Bear in mind, when URSS violated human rights, sanctions against Poland and URRS were not objected by the majority of States. Also, sanctions against Argentina after the occupation of Milionis Islands were approved by a large number of states.
- The role of international court of justice
The ICJ has been involved in cases that one of the parties invoked the hierarchy for its own purposes.
As you know, states employ consultants. They tell them about their purposes. Consultants mostly raise the issue of hierarchy in order to defend the case and reach the aim of convincing the court. We will see that the court is not easily convinced. Nevertheless, legal scholars determine that they support hierarchy and finally it finds its way.
I want to deal with two fundamental issues; 1. State, governmental officials, and international organizations immunity; and 2. The state’s consent in referring the case to international judicial courts or even arbitration.
Immunity was first brought up by the European human rights court. At the time of Kuwait occupation by Iraq or a couple of months later, the UK government arrested and tortured one of its nations, al-adsani, who helped Kuwait, and violated human rights norms. Returning to England, he brought a claim against UK in the England national courts and the European Human Rights Court. The judgment of 21 November 2001 dealt with the effects of hierarchy on immunity for the first time. In the sense that if a state breaches Jus Cogens norms, can it still invoke the state immunity? Or due to violating this norm, it is not possible. The European Human Rights Court dealt with this issue and judges disagreed the issue. Some international law scholars such as Swiss Caflisch and Italian Ferari Bravo believed that States could not invoke this principle because they committed serious breach of International Law. However, in Al-Adsani, the court voted to immunity and minority of judges could not prove this theory to the court that immunity could not be established in such cases.
Immunity was brought up in Congo- Belgium for the second time. The warrant was issued for the Minister of Foreign Affairs of Congo who committed gross crimes (war crimes and crimes against humanity), and the warrant was issue by a trial in Belgium. One would ask if Congo and the minister of foreign affairs could invoke their immunity.
The court explicitly pursues the judgment of the European Human Rights Court in 2002, stating that immunity is an absolute principle of International Law regardless of the nature of crimes committed by the state and the officials of a state should have immunity. There is no relation between immunity and responsibility. If the minister enjoys immunity, it does not mean that he is not responsible. Immunity is only a temporary shield and if he is not in charge of governmental responsibility, he would not meet immunity unless it was related to his official competency. Therefore, immunity and responsibility are two distinct entities and hierarchy cannot affect immunity.
Ultimately, we deal with the 2012 judgment in the Italy-Germany case. As you may know, prosecuting German army in the World War II happened in Italy, and some of survivors and victims of crimes against humanity brought claim against Germany in the domestic courts of Italy. Regardless of the subject of state immunity, the Italian court convicted Germany. It invokes hierarchy, stating that Germany committed heinous crimes, consequently it could not enjoy immunity. Germany believes that immunity is an absolute principle of international law. Mr. Depuis and Mr. Kolb were the consultants of Italy and Germany, respectively. Mr. Depuis believed that hierarchy has come out of the 1969 Vienna Convention, while Germany’s consultant believed that hierarchy is applicable only in the framework of the 1969 Vienna Convention. This is an interesting contention which has led to the clarity of two theories. Ultimately, the court voted against Italy and the practice of al-adsani and Yerodia was adopted. The argument of the court is remarkable.
The court rendered immunity for Germany regardless of the fact that the nature of committed crimes did not denote the identification of those heinous crimes. Immunity and responsibility are different. Then, by the recognition of immunity for Germany, does the ICJ violate article 41 of the Draft Articles of state responsibility? You remember that the second paragraph of article 41 states non-recognition the situation arising from the breach of Jus Cogens. The truth is that the enjoyment of Germany from immunity does not mean the recognition of committed crimes by Germany. Many criticized ICJ’s statement. In fact, they were influenced by their feelings. It cannot be said immunity would not mean the recognition of the crimes in WW II. The court raised state responsibility and required Germany to compensate victims of those crimes, but immunity principle is sacred and cannot be ignored. This was not generally accepted. We observe judgments in different countries which ignore the principle of immunity.
Let’s attract your attention to the Canada’s law adopted a couple of months after this judgment. It is presumed in principle that due to hierarchy, states committing serious breach of international law, torture and crimes do not meet immunity. Similarly, this practice is accepted in the US. Interestingly, Florence’s trial insisted on its position one or two years after the judgment of Germany. Therefore, we could see that international law has not been developed yet. That is true that ICJ chose this practice; however, if states’ objections continue, it could result in the modification of international law.
The immunity of international organization is the last matter which is raised here. Amazingly, the European human rights court resumed that in principle that those who are damaged due to the violation of international law by one of the international organizations, and there is no access to the established courts of that organization for the establishment of justice, the organization does not enjoy immunity. Two decisions of Kennedy and Vit were rendered by the European Human Rights Court in 1999. It reveals that the court follows a practice other than states and international courts. However, after Italy-Germany judgment, Srebrenica mothers, those who lost their children in Bosnia and Herzegovina massacre, presented a claim in Netherlands based on the failure of UN for taking actions in order to prevent genocides. The European Human Rights Court invoked the 2012 Germany–Italy judgment. It stated that international organizations enjoy immunity although United Nations is required to compensate damages resulted from serious breach of international law. The European Human Rights Court pursues this practice in Jones case. In the other words, we can conclude that the hierarchy has no effect on the states, official and international organization’s immunity though some national courts believe that the hierarchy should be effective.
- The state’s consent for the jurisdiction of ICJ
Article 36 of the ICJ statute assumes that the court is competent for a claim, if the parties to the dispute consent to the court’s jurisdiction. The article emphasizes on the consent of States. The question that should be asked here is that if the hierarchy put this principle also aside and a state commits the breach of Jus Cogens, cannot invoke the principle of consent, as it cannot invoke to the immunity?
This was first raised in the Portugal’s judgment. The question was that this could disrespect the rights of Indonesia’s rights. In the other words, if ICJ concludes that the occupation of Timor is the breach of Jus Cogens, Australia cannot establish a contract with Indonesia and this weakens the legal position of Indonesia though it was a party to the conflict and it didn’t announce its consent. The court invokes this article and the principle of Monetary Gold that thereof the court cannot decide in manner that influence the legal position of absent states and states which do not participate in the proceedings due to dissatisfaction. This was again raised in the Congo Vs. Rwanda case in 2006. Rwanda did not accept the court’s jurisdiction in genocide. Congo insisted that the consent is not applicable here. Therefore, the court pursues the practice in Eastern Timor and concludes that the breach of Jus Cogens does not spontaneously result in the court’s jurisdiction and cannot bring states to the court without their consent, even if they committed the most serious crimes.
According to the examples, it is obvious that the adherence of the court to the principle of consent was not undermine. However, it seems that the adherence of the court to this principle became unstable when the advisory opinion was issued. For example, as you may know when the court is asked for the advisory opinion regarding the separation wall, States can participate in written and oral proceedings, and even question the competency of the court.
In this regard, the argument of Israel is the principle of consent. Israel believes that the answer of the court to the question of legal effects of separation wall will ultimately influence Israel’s position, especially in negotiation with non-actor states such as Palestine and other states. Finally, Israel concludes that the court should not consider it competent and issue advisory opinion. Amazingly, some of the western states adopt this position. France, England, the US and all the western countries stated that the court should not answer this question.
Ultimately the court answered the question. How did it solve this problem? The answer focused on the hierarchy. ICJ would consider the hierarchy when the interest of international community, i.e. world peace, comes up. Ultimately, ICJ answered beyond what was asked. The court concludes that the construction of the wall is in conflict with international humanitarian law and the obligation of Israel according to the fourth Geneva Convention 1949. In addition, states are required to refrain from the recognition of its legal effects and the issue that whether Israel gives consent or not, cannot impede the Court issuing advisory opinion.
I personally believe that hierarchy is a flavor which contributes to the development of international law. In this sense we cannot expect that the hierarchy results in the development of international law and the collapse of all entities of international law like immunity, the principle of consent and the principle of state succession. When it comes to the flavor, it means that those states and scholars who support the generalization of hierarchy to other parts of international law, can use different opportunities to play a role in the formation and development of international law.
When the issue of immunity was brought up in international law commission and referred to the sixth committee and ultimately a working group was responsible for codifying the 2004 draft articles, some believed to benefit from this opportunity and determine hierarchy as an exception to immunity in the convention. This was first posed in the ILC that if a state commits a crime and violates Jus Cogens of international law, it should be stated in the convention that this state does not meet immunity. The attempts of these lawyers were not fruitful. The first draft and the 2004 Convention do not include any exception. This displays that the effectiveness of hierarchy depends on the states’ consent. And states are still reluctant that hierarchy contaminates all parts of international law and ultimately destroys international legal system such as infectious microbe,
The meeting terminated by the broadcast of a clip and selected images of professor Momtaz and the students’ appreciation at the Academy and the participants’ ovation which was tied to national pride.