MFA_Report_on_the_occupied_territories_March_2016_1

Serious breaches of obligations under peremptory norms of general international law give rise to
additional consequences affecting not only the State bearing the responsibility, but also all other
States. As stated in the ILC commentary to the Articles on State Responsibility, “[e]very State,
by virtue of its membership in the international community, has a legal interest in the protection
of certain basic rights and the fulfilment of certain essential obligations.” 633 A significant role
in securing recognition of this principle was played by the International Court of Justice in the
Barcelona Traction case, in which the Court identified the existence of a special category of
obligations - obligations towards the international community as a whole. According to the Court,
“By their very nature the former [the obligations of a State towards the international community
as a whole] are the concern of all States. In view of the importance of the rights involved, all
States can be held to have a legal interest in their protection; they are obligations erga omnes”. 634
In its later proceedings the International Court has reaffirmed this idea. 635
Inasmuch as all States have a legal interest, particular consequences of a serious breach of an
obligation under peremptory norms of general international law include, inter alia, duties of States
to cooperate in order to bring to an end such breaches by lawful means and not to recognize
as lawful a situation created by a serious breach, nor render aid or assistance in maintaining
that situation. 636 The maxim ex injuria ius non oritur provides the basis for the obligation of nonrecognition;
that is, a legal right cannot stem from an unlawful act. As territory cannot be acquired
by the unlawful use of force, and States are obliged to not give legal credence – recognition of
authority over the territory – to the unlawful acquisition. 637 It is, at a minimum, intended to prevent
“the validation of an unlawful situation by seeking to ensure that a fait accompli resulting from
serious illegalities do not consolidate and crystallize over time into situations recognized by the
international legal order.” 638
The doctrine of the obligation of non-recognition of illegal territorial acquisitions and claims
to sovereignty can be traced back to the early practice of States in the beginning of twentieth
century. 639 The principle of non-recognition was reaffirmed by the International Court in its
Advisory Opinion on Legal Consequences for States of the Continued Presence of South Africa
in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970). 640 There
the Court held that the presence of South Africa in the mandated territory of Namibia, following
the revocation of the mandate, was illegal. 641 Accordingly, it held that States are under an
obligation not to recognize that unlawful situation and must refrain from “lending any support or
any form of assistance to South Africa with reference to its occupation of Namibia”. 642
The Court set out the scope of the doctrine of non-recognition at paragraphs 122-124 of the
Namibia Opinion. In the first place, States may not enter into treaty relations with an unlawful
regime with regard to the territory in question. In addition, States may not invoke or apply vis-à-
633
See James Crawford, The International Law Commission’s Articles on State Responsibility. Introduction, Text and Commentaries, op.
cit., commentary to Article 1, p. 79, para. 4.
634
See Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Judgment of the International Court of Justice of 05
Febrary 1970, I.C.J. <strong>Report</strong>s, para. 33.
635
See East Timor (Portugal v. Australia), Judgment of the International Court of Justice of 30 June 1995, I.C.J. <strong>Report</strong>s, para. 29; Legality
of the Threat or Use of Nuclear Weapons, Advisory Opinion of the International Court of Justice of 08 July 1996, I.C.J. <strong>Report</strong>s,
paras. 31-32; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina
v. Serbia and Montenegro), Judgment of the International Court of Justice of 11 July 1996, (Preliminary Objections), I.C.J. <strong>Report</strong>s,
paras. 31-32, See also James Crawford, The International Law Commission’s Articles on State Responsibility. Introduction, Text and
Commentaries, op. cit., commentary to Article 1, p. 79, para. 4.
636
See James Crawford, The International Law Commission’s Articles on State Responsibility. Introduction, Text and Commentaries,
op. cit., p. 69, and commentary to Article 41, pp. 249-253, paras. 1-14. See also UN General Assembly resolution 62/243 of 14 March
2008, entitled “The situation in the occupied territories of Azerbaijan”, operative para. 5.
637
See James Crawford, “Opinion on Third Party Obligations with respect to Israeli Settlements in the Occupied Palestinian Territories”,
op. cit., p. 18.
638
See Martin Dawidowicz, “The Obligation of Non-Recognition of an Unlawful Situation”, in James Crawford, Alain Pellet & Simon
Olleson (eds.), The Law of International Responsibility, op. cit., p. 678.
639
See James Wilford Garner, “Non-Recognition of Illegal Territorial Annexations and Claims to Sovereignty”, 30 The American Journal
of International Law 4 (1936); David Turns, “The Stimson Doctrine of Non-Recognition: Its Historical Genesis and Influence on
Contemporary International Law”, 2 The Chinese Journal of International Law 1 (2003).
640
See Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding
Security Council Resolution 276 (1970), Advisory Opinion of the International Court of Justice, I.C.J. <strong>Report</strong>s 1971.
641
See James Crawford, The Creation of States in International Law (Oxford: Oxford University Press, 2006, 2nd ed.), p. 163; James
Crawford, “Opinion on Third Party Obligations with respect to Israeli Settlements in the Occupied Palestinian Territories”, available at
.
642
See Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding
Security Council Resolution 276 (1970), op. cit., para. 119.
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