ICJ’s decision predictions in the case of Palestine against U.S.

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Viktor Syrvatka

ICJ’s decision predictions in the case of Palestine against U.S.

[praca studencka]

2020

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Article written by Viktor Syrvatka 2020/2021

Course: Law of International Organisations (University of Verona) Teacher: prof. Annalisa Ciampi

ICJ’s decision predictions in the case of Palestine against U.S.

The purpose of the present essay is to propose a potential decision on the dispute over U.S. relocating its embassy to Jerusalem that the I.C.J is mostly likely to make in the court proceedings against U.S. initiated by the State of Palestine.

In 2017, U.S. President recognized Jerusalem as Israel’s capital and moved its embassy from Tel Aviv to Jerusalem locating it on 14 David Flusser street. Half of the embassy is placed in the territory of West Jerusalem, while the other half exceeds to the “no man’s land” between West and East Jerusalem. In September of 2018, the State of Palestine initiated court proceedings against U.S. in the ICJ. The State of Palestine requested to settle the dispute over U.S. embassy relocation to Jerusalem basing their application on the VCDR and the Optional Protocol.

As far as the dispute is concerned, it should be divided into two parts in terms of court proceedings. Firstly and in accordance with the decision of ICJ made issue in November of 2018, the question of the ICJ’s jurisdiction and the admissibility of the application submitted by the state of Palestine should be addressed before speculating over potential decisions that the court might make on the matter of the legality of U.S. moving its embassy to the Holy City of Jerusalem. As far as the jurisdiction is concerned, applying the principle of Kompentz-Kompetenz¹, art. 36 of ICJ Statute² and art. 1 of the Optional Protocol concerning

1 Alzoughb Basheer, “The Relocation of the U.S. Embassy from Tel Aviv to Jerusalem (Palestine v. United States of America): a Commentary on the Merits of the Case, Jurisdiction of the International Court of Justice and Admissibility of Palestine's Application,” University of Bologna Law Review, accessed April 6, 2020, p.

178, https://doi.org/10.6092/issn.2531-6133/9425.

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the Compulsory Settlement of Disputes, ICJ will determine by itself on the jurisdiction and the admissibility.

First of all, we shall address the issue of U.S. withdrawal from the Optional Protocol on Compulsory Settlement of Disputes following the State of Palestine’s court application.

The Optional Protocol does not provide a withdrawal proceeding. Therefore, the withdrawal from the Optional Protocol will be decided again by ICJ. However, it is clear that a state cannot legally withdraw from a treaty without having fully resolved its obligations in regard to that treaty (in this case, the claim of Palestine that U.S. does not recognize). In her reply to Marko Milanovic, international law professor Alina Miron argues that the withdrawal “[h]as no effect on Palestinian proceedings, which were introduced before the denunciation could become effective”³. Therefore, in no way does the withdrawal lift ICJ’s jurisdiction over this particular case. Since both states were parties to the Vienna Convention and the Protocol at the time of the application, the consent of both U.S. and the State of Palestine regarding ICJ’s jurisdiction regarding disputes stemming from the VCDR was “ipso jure given”.⁴

In 2012, The State of Palestine was given the status of a non-UN observer state by the UN General Assembly resolution 67/19. The key word is “state” that has granted the State of a formal recognition of UN and direct access to enter into international treaties. By the means of the UN resolution, Palestine has been acknowledged by the international community as a state since 2012, and the State of Palestine has extensively exercised the privileges of a state on the international arena since that time: the State of Palestine has acceded to UNESCO, the Vienna Convention, the Optional Protocol and accepted ICJ’s

3 Alina Miron, “Palestine’s Application the ICJ, neither Groundless nor Hopeless. A Reply to Marko

Milanovic,” Ejiltalk, published October 8, 2018, accessed 7 April 2020, p. 1, https://www.ejiltalk.org/palestines- application-the-icj-neither-groundless-nor-hopeless-a-reply-to-marko-milanovic/.

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jurisdiction by sending a declaration as a non-member to the Statute in accordance with art.

35 of the Statue and the Security Council Resolution nr 9.

Professor Alina Miron argues that Palestine fulfils the requirements to be a state⁵ which I believe is not a white-and-black issue. The four principles of statehood: defined territory, people, government in control over the territory and the ability to make treaties, seem to be vaguely fulfilled by the State of Palestine which U.S. might use as their counter- arguments. However, given the previous UN resolutions that had acknowledged the State of Palestine, I do not believe there is enough substantial proof for ICJ to question its statehood:

the territory (even though some of it is occupied) has been defined in the previous UN resolutions, the population amounts up to 5 million people, the ability to make treaties has been proved and the government exists, even though its control over the territory may raise some questions. Moreover, ICJ itself has recognised the statehood of Palestine by approving of their application for accepting ICJ’s jurisdiction as a non-member state to the Statute.

In regard to the intentions and the involvement of the State of Palestine in the matter, I do agree with Alina Miron who declared, “As far as standing (intérêt à agir) is concerned, I see no basis for denying it to Palestine when question concerns the status of Jerusalem, but also the fundamental obligations enshrined in the VCDR”.⁶

Another important issue that the ICJ might address is the Monetary Gold principle.

According to art. 62 of I.C.J Statute, if legal interests of another state are involved in the court proceedings then such a state is eligible for an application to be sent to the court and the court will decide by itself on the application and the court’s jurisdiction over the case.⁷ In our

7 Alzoughb Basheer, “The Relocation of the U.S. Embassy from Tel Aviv to Jerusalem (Palestine v. United States of America): a Commentary on the Merits of the Case, Jurisdiction of the International Court of Justice

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case, the idea behind it is that if the case decision of U.S. embassy relocation to Jerusalem legally involves Israel, which is not a member to the I.C.J Statue or the VCDR, the Monetary Gold principle can be applied upon the submission of an application by Israel and the court will terminate the case. According to art. 62 of the ICJ Statute, Israel’s legal involvement in the case will be up to the discretion of ICJ. Speaking of Israel’s legal interests, the Monetary Gold principle can take opposite turns depending on the interpretation of Israel’s involvement by ICJ as we have seen in the disputes between Marko Milanovic and Alina Miron. I tend to incline towards the interpretation expressed in University of Bologna Law Review Journal which does not include Israel’s legal interests: they argue that the matter involves U.S. as the sending state and opinion juris or an international law custom that has derived its legal power from common state practice and the UN resolutions not to locate embassies in Jerusalem.⁸ Distinguishing between Israel’s obligations and other states’ obligations in respect to Jerusalem, the Security Council resolution 478 calls upon all states not to locate embassies in Jerusalem and withdraw already present diplomatic missions.⁹ The Monetary Gold principle might not be applicable if the issue boils down only to U.S. and its obligations towards Jerusalem based on the Vienna Convention and the UN resolutions making “[t]he very subject-matter of the decision of the I.C.J […] the United States of America and not Israel”¹⁰.

What we need to bear in mind is that there will be much pressure on the court as the approval of the jurisdiction over the case and the admissibility of the application would lead and Admissibility of Palestine's Application,” University of Bologna Law Review, accessed April 6, 2020, p.

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ICJ to decide on its merit. For instance, Marko Milanovic, a fervent believer of U.S. legal superiority over the State of Palestine in the matter at hand, argues that it is a political case poorly disguised by the State of Palestine as a disagreement on diplomatic relations.¹¹ U.S.

might be forced by the court to begrudgingly recognize the State of Palestine not by the means of word, but by the means of action in the process of defending itself in the court against the claim of Palestine despite what U.S. might verbally claim. The approval to decide on the merits will already be a major political loss for U.S: by doing so, the ICJ will impartially embrace the statehood of Palestine and imply that the U.S. disapproval of the statehood of Palestine is political. Therefore, we need to bear in mind that the case entails some serious political implications that the court might trigger in their decision to proceed.

Another possibility is that U.S. will ignore and not appear in the court, but not showing up and dishonouring the authority of the ICJ will not necessarily serve U.S. well.

I reckon it is clear enough that U.S. best chance to win the case is to terminate it in its jurisdiction and admissibility stage (preventing the initiation process) where the State of Palestine is much more legally exposed. As soon as the court proceeds to decide on the merits, U.S. legal standing will dramatically drop and U.S. will have miserable chances of ICJ approving of its embassy relocation to Jerusalem. In the merit stage, it will no longer be U.S against Palestine, but U.S against the VCDR supported by the UN resolutions of the special status of Jerusalem, and U.S. interpretation of these documents against I.C.J’

interpretation.

The State of Palestine refers to art. 3 of the VCDR which outlines the rules of setting a diplomatic mission. One of the rules of art. 3 is “[r]epresenting the sending State in the

11 Marko Milanovic, “Palestine Sues the United States in the ICJ re Jerusalem Embassy,” Ejiltalk, published September 30, 2018, accessed 6 April, 2020, https://www.ejiltalk.org/palestine-sues-the-united-states-in-the-icj- re-jerusalem-embassy/.

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receiving State”¹². The argument of Palestine is very simple: Jerusalem (corpus separatum) is not Israel’s territory and, as a result, the diplomatic mission of U.S. is not established in the receiving state. I believe that is a very powerful statement that can guarantee the victory.

Moreover, the VCDR indicates that diplomatic missions should be conducted in appropriate diplomatic manners, and, if interpreted in our context, the recognition of Jerusalem as Israel’s capital and the relocation of the U.S. embassy to Jerusalem as a reinforcement of that recognition are political. Applying this interpretation, the mission was not conducted in appropriate diplomatic manners, but the embassy relocation was used as a tool of achieving political objectives. As a confirmation to this interpretation, prof. Alina Miron sees the relocation of the embassy as an abuse of diplomatic relations by bringing up the US Diplomatic and Consular Staff in Tehran case as an example.¹³ In its application, the State of Palestine defines a diplomatic mission in the following way,

It is clear from the above provisions that the Convention on Diplomatic Relations requires the sending State to establish a diplomatic mission “in the receiving State” to perform its functions and demands that the diplomatic mission performs its functions while respecting the rule of law, especially international law.¹⁴

I believe that in no way does the exact location of the embassy matter as long as it is located in Jerusalem, even though U.S. legal standing would undoubtedly be worse had they located the embassy in the East Jerusalem (occupied territory). The “Basic Law” issued by Israel proclaimed the whole city to be Israel’s territory which UN legally refuted. I believe that any embassy to Israel located in the city of Jerusalem with no difference between West or East Jerusalem is a reinforcement of the “Basic Law”. Furthermore, the UN resolutions address the whole city of Jerusalem. In University of Bologna Law Review Journal, the

12 “Vienna Convention on Diplomatic Relations, 1961,” Legal.un, accessed April 12, 2020, p. 3, https://legal.un.org , https://legal.un.org/ilc/texts/instruments/english/conventions/9_1_1961.pdf.

1414 “The of the United States embassy to Jerusalem,” the Application of the State of Palestine, ICJ, p. 12, https://www.icj-cij.org, https://www.icj-cij.org/files/case-related/176/176-20180928-APP-01-00-EN.pdf

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position is that locating an embassy in West Jerusalem (unoccupied territory) is still in violation of international resolutions and customary law, and, given the continuous practice of other states of not placing their embassies in Jerusalem together with the continuous flow of the UN resolutions in that matter, the prohibition from locating embassies in Jerusalem is not “a courtesy or a comity but a binding custom”¹⁵:

By its annexation of the occupied section of Jerusalem, Israel aimed at the de facto unification of the whole city and thus moving an embassy to any part of the city would explicitly and/or implicitly approve or recognize the de facto illegal unification, annexation and other measures taken by Israel which have been described by the Security Council and General Assembly as null…¹⁶

The lawful point of reference in the application is the VCDR as Palestine requests to

“resolve the dispute in accordance with its Statute and jurisprudence, based on the Vienna Convention on Diplomatic Relations (VCDR) read in appropriate context”¹⁷.The resolutions the State of Palestine mentions in its application are supplementary to the VCDR and are utilized to re-emphasise the special status of Jerusalem. In its application to the ICJ, Palestine chronologically mentions the General Assembly resolutions and then the Security Council resolutions relative to the city of Jerusalem starting with the resolutions 181 and 303 that granted the city the international regime status and established Jerusalem as corpus separatum, and the resolution 2253, the Security Council resolution 252 and 476 which

declared any action taken by Israel to change the international status of Jerusalem to be illegal and called upon Israel to terminate the actions aimed at changing the legal status of the city. The most important resolution in regard to the city of Jerusalem that the State of

129-130 https://doi.org/10.6092/issn.2531-6133/9425.

17 “The of the United States embassy to Jerusalem,” the Application of the State of Palestine, ICJ, p. 2, https://www.icj-cij.org, https://www.icj-cij.org/files/case-related/176/176-20180928-APP-01-00-EN.pdf

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Palestine brings up must be the Security Council resolution 478. The previous resolutions focused on Israel’s action, whereas the resolution 478 called upon all member-states to withdraw existing embassies and refrain from locating embassies in Jerusalem and not to recognize the “Basic Law” (Israel proclaiming the whole city of Jerusalem as its capital) and actions aimed at changing the status of Jerusalem. Resolutions of the Security Council are legally binding, and U.S is legally required to accept such resolutions. The U.S. embassy relocation to Jerusalem is in breach with the resolution 478 (and obviously the others) as it is an action of the recognition of Israel’s “Basic Law”, the city occupation and the attempt to change the legal status of Jerusalem. The application of Palestine also provided information on new developments, such as the Security Council failure to adopt a new resolution in regard to the matter and the non-binding General Assembly ES-10/19 that reaffirmed that any action of changing Jerusalem’s status is invalid. I do believe in the validness of the previous resolutions and I do not see how the failure by the Security Council to adopt another resolution makes the other resolutions invalidated and annulled. Moreover, as mentioned in University of Bologna Law Review Journal, the practice of not locating embassies in

Jerusalem and the continuous flow of the General Assembly and the Security Council resolutions reaffirming the special status of Jerusalem prove the issue to be under international customary law which is also a legal binding force.

Given the arguments provided above, if I were in the position to make a decision on the issue, I would accept the jurisdiction of the court and the admissibility of the application, and I would proceed to decide on the merits. My decision on the merits would be against the U.S. embassy relocation to Jerusalem on the basis of the VCDR supplemented by the UN resolutions that reaffirm the special legal status of Jerusalem. However, the issue is not black and white. Even though I believe the State of Palestine stands high chances of winning the case based on the arguments presented in the present essay, we need to admit that it is hard to

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predict ICJ’s decision, because the decision can go in various directions based on the future legal argumentation and actions of the states and ICJ’s interpretations of the documents in this particular case. I reckon the best position U.S. can find itself in is in the jurisdiction and admissibility stage where the State of Palestine is more legally vulnerable. The more the case moves forward, the weaker the U.S. legal argumentation will continue to be. In other words, the less the focus on the State of Palestine becomes and the more on the U.S. actions, the worse for the United States will the situation evolve. The U.S. legal and political state strength enormously overpowers the State of Palestine’s. However, at some point in her response, prof. Alina Miron wonders why U.S did not act sooner.¹⁸ Agreeing with this statement, I believe that U.S. was taken aback and did not take the issue seriously, but rather as a threat coming from a little mouth. At the end of the day, the advantage of surprise and the U.S. ignorance towards the issue might give the State of Palestine enough leverage to stand a very solid chance at winning the case. For instance, U.S. could be standing on the firmest ground right now had they taken some action beforehand. For instance, since U.S.

withdrew from the Optional Protocol in any case, U.S. could have withdrawn from the Protocol before locating its embassy in Jerusalem or before the Palestine’s application to the ICJ. This way, the State of Palestine would have had trouble finding the legal basis for their case.

18 Alina Miron, “Palestine’s Application the ICJ, neither Groundless nor Hopeless. A Reply to Marko Milanovic,” Ejiltalk, published October 8, 2018, accessed 7 April 2020, https://www.ejiltalk.org/palestines- application-the-icj-neither-groundless-nor-hopeless-a-reply-to-marko-milanovic/.

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Sources

Basheer, Alzoughb, “The Relocation of the U.S. Embassy from Tel Aviv to Jerusalem ( Palestine v. United States of America): a Commentary on the Merits of the Case, Jurisdiction of the International Court of Justice and Admissibility of Palestine's Application.” University of Bologna Law Review. Accessed April 6, 2020, p. 178.

https://doi.org/10.6092/issn.2531-6133/9425.

Miron, Alina, “Palestine’s Application the ICJ, neither Groundless nor Hopeless. A Reply to Marko Milanovic.” Ejiltalk. Published October 8, 2018. Accessed 7 April 2020, p. 1.

https://www.ejiltalk.org/palestines-application-the-icj-neither-groundless-nor- hopeless-a-reply-to-marko-milanovic/.

Milanovic, Marko, “Palestine Sues the United States in the ICJ re Jerusalem Embassy.”

Ejiltalk. Published September 30, 2018. Accessed 6 April, 2020.

https://www.ejiltalk.org/palestine-sues-the-united-states-in-the-icj-re-jerusalem- embassy/.

“Vienna Convention on Diplomatic Relations, 1961.” Legal.un. Accessed April 12, 2020, https://legal.un.org,

https://legal.un.org/ilc/texts/instruments/english/conventions/9_1_1961.pdf.

“The relocation of the United States embassy to Jerusalem.” The Application of the State of Palestine. ICJ. Accessed 10 April 2020, https://www.icj-cij.org,

https://www.icj-cij.org/files/case-related/176/176-20180928-APP-01-00-EN.pdf