It is generally not a good idea for a small struggling country, occupied by a larger, powerful country, to pick a fight with an even bigger country, a great power no less, especially when that country is the United States of America.
But Palestine did just that last Friday, when it instituted proceedings against the U.S. at the International Court of Justice (ICJ). The move has infuriated John Bolton, the U.S. National Security Adviser, who said the U.S. would "not sit idly by as baseless politicized claims are brought against us," not least by the "so-called State of Palestine."
As the principal judicial organ of the United Nations, the ICJ is a good place to challenge the policy of a global hegemon, as it is one of the few institutions that recognizes the sovereign equality of states, no matter how large or small, or powerful or weak, they may be.
The case concerns a dispute over the interpretation or application of the Vienna Convention on Diplomatic Relations. The dispute, in case anyone had doubts, is over President Donald Trump’s decision to recognize Jerusalem as the capital of Israel and to relocate the U.S. embassy to that city.
Prior to instituting proceedings against the U.S., Palestine had, on two separate occasions, expressed its view in communications with the State Department that the embassy move violated the Vienna Convention.
On 4 July, Palestine’s Foreign Ministry formally notified the State Department of the existence of a dispute under Article I of the Optional Protocol to the Vienna Convention - to which both the U.S. and Palestine are contracting parties.
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On Wednesday, Bolton announced that the U.S. was withdrawing from the Optional Protocol, and explicitly tied this decision to the looming lawsuit: "This is in connection with a case brought from the so-called State of Palestine naming the United States as a defendant, challenging our move of our embassy from Tel Aviv to Jerusalem."
Dramatic though Bolton's declaration was, it will make no difference to the case. That is because the U.S. was party to the Protocol when Palestine instituted proceedings at the ICJ on the 28 September. The U.S. is still going to have to fight this case in court.
In its application, Palestine argues that the U.S. has not established its embassy to Israel on territory "of the receiving state," as provided by the Vienna Convention, but in Jerusalem that has a special and distinct status in international law dating back to the 1947 UN Partition Plan that sought to establish a special regime for the city.
Palestine asks the ICJ to declare that the U.S. is in breach of its obligations under the Vienna Convention, and asks the Court to order the U.S. to withdraw its diplomatic mission from Jerusalem.
As there is a U.S. judge presently on the ICJ, Palestine has asked permission from the court to appoint a judge ad hoc, which it is entitled to apply for under Article 31 of Court’s Statute.
In order to assess whether Palestine can access the ICJ, the Court will have to decide whether Palestine is a state. This is because Article 34(2) of the Court’s Statute provides that "Only states may be parties in cases before the Court." [All italics are the author's own.] Moreover, Article 35(2) of the Statute upon which the whole case rests, provides:
"The conditions under which the Court shall be open to other states shall, subject to the special provisions contained in treaties in force, be laid down by the Security Council, but in no case shall such conditions place the parties in a position of inequality before the Court."
Observe the emphasis on the word "states."
The standing of Palestine at the ICJ is contentious given that it is not a member of the United Nations, but only a non-member observer state recognized in a UN General Assembly resolution passed in 2012. Only UN member states are ipso facto parties to the ICJ Statute, but Palestine’s application for membership of the UN divided the Security Council in November 2011, and Palestine was not admitted.
Palestine has, however, been recognized by 139 states with Colombia the most recent to recognize Palestine. Some states have expressly recognized Palestine on the borders of 4 June 1967 – including East Jerusalem. Others have not made their position on borders clear.
One of the states that has not recognized Palestine is the U.S. As Bolton told reporters Wednesday, Palestine "does not meet the customary international law test of statehood. It doesn’t control defined boundaries."
Cleary, there is a dispute between the U.S. and Palestine over the latter’s statehood, and this is precisely what the ICJ is going to have to address.
Article 35(2) clarifies that the conditions under which the Court shall be open to other states was to be laid down by the UN Security Council. Back in 1946, the Security Council did just that, when it adopted Resolution 9 that referred to Article 35(2) of the Court’s Statute and provided the conditions that would allow a non-member state like Palestine to have access to the ICJ without becoming party to the Statute by virtue of special provisions contained in treaties in force.
Other non-member states that have invoked Article 35(2) and Security Council Resolution 9 in cases before the ICJ include Italy in the Monetary Gold case in 1953, Germany in the North Sea Continental Shelf cases in 1967, and Germany in the Fisheries Jurisdiction case in 1972. Italy only became a member of the UN in 1955 and the Federal Republic of Germany in 1973.
Article 35(2) and Security Council Resolution 9 was also raised in the case concerning the application of the Convention on the Prosecution and Punishment of the Crime of Genocide brought by Bosnia against Serbia in 1993. In issuing provisional measures, the ICJ considered "that proceedings may validly be instituted by a State against a State which is a party to such a special provision in a treaty in force, but is not party to the Statute, and independently of the conditions laid down by the Security Council in its resolution 9 of 1946."
On 4 July, the State of Palestine submitted a declaration recognizing the jurisdiction of the Court under Article 35(2) of the Statute and Security Council Resolution 9.
According to paragraph 5 of Resolution 9: "All questions as to the validity or the effect of a declaration made under the terms of this resolution shall be decided by the Court." A similar provision appears in Article 41 of the Rules of the Court: "If any question of the validity or effect of such declaration arises, the Court shall decide."
Accordingly, as a preliminary matter, the ICJ will have to decide whether Palestine is a state for the purposes of its own Statute, before it considers questions of jurisdiction and admissibility, let alone the merits of the case. It will be difficult for the U.S. to claim that Palestine is not a state for the purposes of customary international law, if the ICJ concludes otherwise.
The ICJ’s jurisprudence on Article 35(2) is patchy. In the Legality of Use of Force cases brought against various NATO member states, following the bombing of Belgrade in 1999, Yugoslavia alleged violations of the obligation not to use force against another state.
Article 35(2) was considered by the ICJ in the case, because of confusion over the status of Yugoslavia during its dissolution in the 1990s and whether it could still be considered a member of the United Nations.
Yugoslavia had invoked the Genocide Convention as a basis of jurisdiction, but the ICJ concluded that Article 35(2) only applied to treaties concluded before the Statute of the Court entered into force on 24 October 1945, and the Genocide Convention did not enter into force until after that date.
This part of the judgment was, however, subject to much criticism from Judges Ranjeva, Guillaume, Higgins, Kooijmans, Al-Khasawneh, Buergenthal and Elaraby (who also criticised the judgment in a separate opinion), so it is not watertight, and contradicts previous practice. Judge Elaraby expressed his opinion that "the interpretation adopted by the Court – limiting ‘treaties in force’ to treaties in force at the time the Court’s Statute came into force – is unduly restrictive."
The Optional Protocol to the Vienna Convention on Diplomatic Relations, which Palestine relies on as a basis of jurisdiction, postdates the entry into force of the Court’s Statute. Accordingly, it is possible that the Court could decide that Palestine is a state for the purposes of Article 35(2), but then also conclude that the provision does not provide an avenue for Palestine to have access to the Court because the phrase "treaties in force" in Article 35(2) only refers to pre-1945 treaties.
Were the Court to reach this conclusion, Palestine could still claim victory, however, if in rendering its decision, the Court were to decide that Palestine is indeed a state.
However, given that there is no doctrine of precedent, or stare decisis, in international law, it is also possible that the ICJ could reverse this judgment and rule in Palestine’s favor. We simply have to wait and see what arguments Palestine’s lawyers make.
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There is, however, one other legal hurdle.
As Marko Milanovic, Professor of International Law at the University of Nottingham, has argued, “Palestine’s claim runs headlong into the ICJ’s longstanding Monetary Gold jurisprudence – that it will not adjudicate on claims that involve the legal interests of third parties without the consent of these parties.
"When Palestine claims that Jerusalem is not Israel’s territory, this clearly involves the existence (or not) of the rights of Israel vis-a-vis that territory, and Israel will obviously not consent to the ICJ’s determination of these rights.”
Presumably, Israel will not consent to have the ICJ address Palestine’s claim against the U.S., because it claims sovereignty over Jerusalem, including over East Jerusalem and the Holy City, as is clear from reading its Basic Law on Jerusalem, and more recently, the Jewish Nation State Law.
And as the ICJ has clarified in several cases, it can only exercise jurisdiction over a state with its consent, especially when its legal interest would not only be affected by the decision, but would form the very subject-matter of the decision.
But - could Palestine argue that Israel has consented to the ICJ’s jurisdiction?
In the Monetary Gold case, the ICJ said that such consent could be given ‘expressly or by implication’ (p. 32). In the East Timor case, the ICJ further clarified that it would not necessarily be prevented from adjudicating "when the judgment asked of it might affect the legal interests of a State which is not a party to the case."
It could be argued that Israel consented to the jurisdiction of the ICJ when it accepted the 1947 UN Partition Plan – which Moshe Shertok, Israel’s foreign minister, described as having "binding force." Part C of that Plan stipulated that a declaration was to be made to the United Nations by the provisional government of each state before independence.
On 14 May 1948, Shertok made a communication to the UN Secretary-General in New York. The cablegram explicitly referred to several provisions of the Partition Plan and expressed a willingness to sign the declaration under Part One C and Part One D of that Plan, although according to Shabtai Rosenne, the Foreign Ministry Legal Adviser, the signed Declaration was never sent.
Nonetheless, in his communication to the UN Secretary General, Shertok paraphrased from Israel’s Declaration of Independence, which, inter alia, stated that Israel was "prepared to cooperate with the agencies and representatives of the United Nations in implementing the resolution of the General Assembly of the 29th November, 1947."
Significantly, Part C of that Resolution contained a dispute resolution clause, which stated that, "Any dispute relating to the application or the interpretation of this declaration shall be referred, at the request of either party, to the International Court of Justice, unless the parties agree to another mode of settlement."
The reference to "either party" in the clause was a reference to the Arab and Jewish states envisaged in the UN Partition Plan.
In the end, the Arab state was never established by the Partition Plan, but by accepting the Plan, Israel arguably consented to the corpus separatum that was supposed to have been established in Jerusalem pursuant to that Plan, which it communicated to the UN-Secretary-General. Israel also consented to the principle that disputes over the status of Jerusalem were matters that could be referred to the ICJ.
Israel recognized that Jerusalem had a special status in international law and that given this special status the fate of the city was not exclusively within its domestic jurisdiction. This is why in 1949, after Israel had been admitted to the UN, the General Assembly adopted Resolution 303, expressing its intention that Jerusalem should be placed under a permanent international regime.
Israel could, of course, argue that its acceptance of the UN Partition Plan in 1947 did not amount to an expression of consent to the jurisdiction of the ICJ. Israel could submit a request to intervene in the case under Article 62 of the Court’s Statute. According to this provision: "Should a state consider that it has an interest of a legal nature which may be affected by the decision in the case, it may submit a request to the Court to be permitted to intervene."
If the ICJ concludes that Palestine is a state, that its Article 35(2) Declaration is valid, and that the Optional Protocol to the Vienna Convention is a valid basis of jurisdiction between Palestine and the U.S., it could proceed to address the merits, in which case the Court could pass judgment on the legality of President Trump’s decision to recognize Jerusalem as the capital of Israel and move the embassy there.
Until President Trump came along, it was consistent U.S. policy not to recognize Jerusalem as the capital of Israel. This was because successive U.S. governments acknowledged that the city had a special and distinct status in international law.
This is why the U.S. had, until recently, voted in favor of, or abstained from, several UN Security Council and General Assembly Resolutions stating that all legislative and administrative measures and actions taken by Israel which purported to change the character and status of Jerusalem were invalid.
Given the unique status of Jerusalem, the United Nations has, ever since 1947, never acquiesced to Israel’s annexation of Jerusalem. Security Council Resolution 478 (passed in 1980) even called upon those states that had established "diplomatic missions at Jerusalem to withdraw such missions from the Holy City."
The U.S. claimed that this provision of the resolution was not binding in the debate that followed, but the ICJ could conclude otherwise were it to address the merits of the case. This provision of the resolution was framed as a "decision," which according to the ICJ’s Namibia opinion, is binding on all UN members, "including those members of the Security Council which voted against it and those Members of the United Nations who are not members of the Council."
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More recently, the General Assembly adopted a resolution calling "upon all States to refrain from the establishment of diplomatic missions in the Holy City of Jerusalem, pursuant to resolution 478." Although General Assembly resolutions are not normally binding, it could be argued that this provision was a logical corollary of the duty of non-recognition in customary international law.
It is highly unlikely that the U.S. will recognize the Court’s jurisdiction.
As indicated by Bolton’s comments, the U.S. is planning to challenge Palestine’s statehood claim. In any event, it is doubtful the U.S. would comply with an adverse decision. The U.S. is a permanent member of the Security Council, the body, which is responsible for enforcing judgments. The U.S. would clearly veto any resolution seeking to enforce a judgment against it.
However, a favorable decision from the Court, could deter other states from moving their embassies to Jerusalem. Already, Paraguay has rescinded its decision to move its embassy to Jerusalem.
And a more law-abiding U.S. president may one day even decide to move the embassy back to Tel Aviv - or at least recognize Palestinian claims to the city.
A favorable decision could also influence events elsewhere – at the International Criminal Court, for example, where Palestine has requested that the Prosecutor open an investigation into war crimes committed by Israel on the territory of the State of Palestine.
Having an authoritative opinion from the ICJ on Palestine’s statehood could assist ICC lawyers with their preliminary examination regarding the jurisdiction and admissibility of Palestine’s request that it open an investigation.
A favorable decision on Palestinian statehood may also influence some European states to break ranks with the EU and recognize Palestine. Others could follow.
This is the first time the Palestinian leadership has taken up a case at the ICJ on its own initiative. On one previous occasion Palestine appeared before the Court following a vote at the UN General Assembly requesting an Advisory Opinion from the Court. Then, Palestine needed the support of the Arab bloc at the General Assembly. Given the divisions in the Arab world, Palestine’s leaders have chosen to go it alone this time.
Only history will tell whether Palestine v United States of America will serve Palestine’s long-term interests. But given current U.S. policy, which has crossed all of Ramallah’s red lines, Palestine’s leaders clearly believe they have little choice but to hunker down, and fight back where they can, lawfully and peacefully.
Victor Kattan is Senior Research Fellow at the Middle East Institute of the National University of Singapore (NUS) and an Associate Fellow at NUS Law. Twitter: @VictorKattan
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