While justiciability lato sensu factors are exterior to the international matter before the Court and do not affect irreversibly its non justiciable character which can be affirmed once these factors cease to exist, this is not the case with justiciability stricto sensu. There, the reasons of the matter’s non justiciability are embedded in it and cannot be separated from it, unless a change in the very essence of the issue occurs. In order to practically demonstrate the aforementioned remark, the advisory opinion on Israel’s security fence (hence the Opinion), will be used as an example. The treatise will argue that apart from non justiciability lato sensu issues, which could on their own lead to the non adjudication of the case such as the alleged bias of Judge Elaraby, the political motives behind the request, its high technical character as well as the lack of evidence, the Court should decline to render an opinion mainly due to reasons of non justiciability stricto sensu, attached to the very nature of the issue. In particular, these reasons can be found in the issue’s bilateral, contentious character and in the fence’s utter connection with the issue of the Israeli settlements.
Monday, March 8, 2010
Solomon: The Justiciability of International Disputes: The Advisory Opinion on Israel's Security Fence - A Case Study
Solon Solomon has published The Justiciability of International Disputes: The Advisory Opinion on Israel's Security Fence - A Case Study (Wolf Legal Publishers 2009). Here's the abstract: