Interesting coincidence that a 7th Group hombre points this out.
The relevant opinion is found in paragraph 139 of the
advisory opinion delivered by our friendly neighborhood Communist Chinese judge regarding Israel's security barrier (emphasis added by me):
Quote:
139. Under the terms of Article 51 of the Charter of the United Nations:
“Nothing in the present Charter shall impair the inherent right of individual or collective self‑defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.”
Article 51 of the Charter thus recognizes the existence of an inherent right of self‑defence in the case of armed attack by one State against another State. However, Israel does not claim that the attacks against it are imputable to a foreign State.
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Textually, this is patently ridiculous. Where in Article 51 does it say that the attack must come from another Member? The answer, of course, is: nowhere. As Judge Higgins pointed out in his
separate opinion, the majority's view is not from the Charter, but from an earlier decision by the same Court (emphasis added by Judge Higgins):
Quote:
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33. I do not agree with all that the Court has to say on the question of the law of self‑defence. In paragraph 139 the Court quotes Article 51 of the Charter and then continues “Article 51 of the Charter thus recognizes the existence of an inherent right of self‑defence in the case of armed attack by one State against another State.” There is, with respect, nothing in the text of Article 51 that thus stipulates that self‑defence is available only when an armed attack is made by a State. That qualification is rather a result of the Court so determining in Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) (Merits, Judgment, I.C.J. Reports 1986, p. 14). It there held that military action by irregulars could constitute an armed attack if these were sent by or on behalf of the State and if the activity “because of its scale and effects, would have been classified as an armed attack . . . had it been carried out by regular armed forces” (ibid., p. 103, para. 195). While accepting, as I must, that this is to be regarded as a statement of the law as it now stands, I maintain all the reservations as to this proposition that I have expressed elsewhere (R. Higgins, Problems and Process: International Law and How We Use It, pp. 250‑251).
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The case to which he refers was on the mining of Nicaraguan harbors, a case on which the US refused to submit to the Court's jurisdiction. In that case, because the Court wanted to find not only that Nicaragua had been attacked, but had been attacked by the United States, it came up with that twist on Article 51. Otherwise, the mining would have been considered an intra-state, not inter-state act, and the Court couldn't get away with pontificating against the United States. It is an odd twist that I find confusing legally but perfectly understandable politically. They wanted to get at the US then; they want to get at Israel now.
The rank hypocrisy is also apparent when one considers that the Palestinian Authority is treated by the UN and the ICJ as a state in practically every respect, except when Israel would then have the right to defend itself. As Judge Higgins notes: "Palestine cannot be sufficiently an international entity to be invited to these proceedings, and to benefit from humanitarian law, but not sufficiently an international entity for the prohibition of armed attack on others to be applicable." BTW, give Higgins credit for pointing out the hypocrisy, but he still demonstrated moral cowardice by joining in the ultimate opinion of this kangaroo court.
PS: the Nicaraguan mining decision is
here.
PPS: I am sitting at home sick as a dog. Green chunky phlegm usually indicates something bacterial, doesn't it? Should I see about getting antibiotics or let it run its course?
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