On 28 September 2018, the State of Palestine (“Palestine”) instituted proceedings in the International Court of Justice (“the Court”) against the United States of America (“United States”) regarding the relocation of the embassy of the United States of America in Israel to the Holy City of Jerusalem.
This article will explain the implications of this Application, including its factual background, Palestine’s claims on jurisdiction and merits, and the likely consequences of the filing.
On 29 November 1947, the United Nations General Assembly adopted the Partition Plan in Resolution 181 (II), providing for Jerusalem to be a ‘corpus separatum’ and for independent Arab and Jewish States in Palestine.
This principle of corpus separatum has been reiterated and supported in General Assembly and Security Council resolutions since the 1940s: General Assembly Resolution 303 (IV) of 9 December 1949; General Assembly Resolution 2253 (ES-V) of 4 July 1967; Security Council Resolution 252 of 21 May 1968; Security Council Resolution 267 of 3 July 1969; Security Council Resolution 271 of 15 September 1969; Security Council Resolution 298 of 25 September 1971; Security Council Resolution 476 of 30 June 1980; Security Council Resolution 478 of 20 August 1980; and Security Council Resolution 2334 of 23 December 2016.
On 6 December 2017, the President of the United States unilaterally recognised Jerusalem as the capital of Israel and announced the relocation of the United States Embassy in Israel from Tel Aviv to Jerusalem.
On 18 December 2017, due solely to the veto of the United States, the Security Council failed to adopt a resolution stating that the US action was invalid. A resolution was subsequently adopted to that effect by the General Assembly in Resolution ES-10/19, made in an emergency special session on 21 December 2017.
On 14 May 2018, the United States of America inaugurated its embassy in Jerusalem.
Palestine argues that the Court has jurisdiction over this dispute under Article I of the Optional Protocol to the Vienna Convention on Diplomatic Relations concerning the Compulsory Settlement of Disputes (“Optional Protocol”).
Palestine acceded to the Vienna Convention on Diplomatic Relations (“VCDR”) on 2 April 2014 and to the Optional Protocol on 22 March 2018, whereas the United States of America has been a party to both instruments since 13 November 1972.
Article I of the Optional Protocol provides that:
‘Disputes arising out of the interpretation or application of the Convention shall lie within the compulsory jurisdiction of the International Court of Justice and may accordingly be brought before the Court by an application made by any party to the dispute being a Party to the present Protocol.’
Article II of the Optional Protocol provides that:
‘The parties may agree, within a period of two months after one party has notified its opinion to the other that a dispute exists, to resort not to the International Court of Justice but to an arbitral tribunal. After the expiry of the said period, either party may bring the dispute before the Court by an application.’
On 14 May 2018, Palestine sent a note verbale to the United States State Department of its position that a dispute occurred in compliance with Article II of the Optional Protocol. The United States did not respond.
Palestine argues that the United States has breached various articles of the VCDR, which require that the functions of a diplomatic mission be performed ‘in the receiving state.’ Palestine’s argument is that because Jerusalem is not Israeli territory, moving the embassy there meant that it was not established in the receiving state and performing its functions in the receiving state.
The articles of the treaty it relies on are as follows.
Article 3(1)(a) of the VCDR provides that the functions of a diplomatic mission include, inter alia, ‘representing the sending State in the receiving State.’ Palestine suggests that this requires that the representational function of any diplomatic mission should be performed on the territory of the receiving State. Similar arguments are made about article 3(1)(b) and article 3(1)(d), which include as functions:
‘[p]rotecting in the receiving State the interests of the sending State and of its nationals, within the limits permitted by international law;’ and
‘[a]scertaining by all lawful means conditions and developments in the receiving State, and reporting thereon to the Government of the sending State.’
Palestine relies also on article 21(1) of the VCDR:
“The receiving State shall either facilitate the acquisition on its territory, in accordance with its laws, by the sending State of premises necessary for its mission or assist the latter in obtaining accommodation in some other way.”
There are a few roadblocks to Palestine’s success in this claim.
First, it could be argued that Palestine is not a State and therefore does not have standing to bring claims to the Court. On 1 May 2018, shortly after Palestine’s purported accession to the Optional Protocol, the United States released a depositary notification stating that it did not recognise Palestine as a sovereign State and therefore Palestine was not entitled to accede to the Optional Protocol. Palestine countered that notification on 31 May 2018, where it relied on General Assembly Resolution 67/19 of 29 November 2012which accorded Palestine ‘non-member observer State status in the United Nations.’ It is likely on balance that Palestine would have sufficient statehood to be a treaty party (and therefore have standing under the VCDR).
Second, it could be argued on the merits that there is no requirement for a diplomatic mission to be physically located in the territory of the receiving state. There is no specific requirement for this under the VCDR.
Third, the United States could similarly dispute Palestine’s legal interest to bring the claim as jurisdiction in this case would depend on there being a violation of the VCDR, rather than any general customary international law. This argument can be answered in part by Palestine’s argument in its Application regarding the United States’ actions being in contravention of the object and purpose of the VCDR and the incorporation of broader public international law principles in the preamble to the VCDR.
However, the most important issue which has been identified is the potential for a Monetary Gold argument, i.e. an argument that Israel is an indispensable party. The Court does not adjudicate on claims that involve the legal interests of third parties without the consent of those parties: Monetary Gold at 32-33.
Palestine’s claim that Jerusalem is not Israeli territory and therefore cannot be the location of the United States’ diplomatic mission would clearly require the Court to rule on Israel’s rights regarding that territory. It is trite to suggest that Israel will not consent to the Court’s determination of those rights.
However, Monetary Gold has been reconsidered and refined in subsequent cases, including Military and Paramilitary Activities in and against Nicaragua; Land, Island and Maritime Frontier Dispute; Phosphates in Nauru; and East Timor.
Most crucially, Portugal had argued in East Timor that Monetary Gold did not apply because the principal matters on which its claims were based had already been decided by the United Nations General Assembly and the United Nations Security Council and therefore could be taken as ‘givens’: East Timor at .
The Court concluded that the resolutions did not go as far as what was required to support Portugal’s characterisation of the issues as ‘givens’: East Timor at . Furthermore, the Court noted that other States had acted similarly to Australia (i.e. had made treaties with Indonesia which did not include reservations as to East Timor) and that neither the General Assembly nor the Security Council had commented on it: East Timorat . Overall, however, the Court did not reject this argument that Monetary Gold would not exclude adjudication of issues which are ‘givens’.
Another argument possibly open to Palestine to defend itself against a Monetary Gold argument could be the existence of the Wall advisory opinion, which it could argue is similar to two of the issues in Monetary Gold which the Court was willing to rule on.
In Monetary Gold, the Court was willing to rule on two issues: first, the ownership of the gold disputed by Italy and Albania, and second, Albania’s responsibility to the United Kingdom. The Court does not say why but as Alexander Orakhelashvili has identified, the rationale was clearly that both issues had already been settled by international tribunals: the ownership of gold by an arbitrator and Albania’s responsibility to the United Kingdom by the Court itself in Corfu Channel. Here, Palestine may be able to argue that, in the same way, the question of whether Israel’s occupation of Jerusalem is illegitimate has been concluded. In the Wall advisory opinion, the Court concluded that the Israeli settlements in the Occupied Palestinian Territory (including East Jerusalem) have been established in breach of international law: Wallat . The Court ordered that Israel desist from these violations: .
As Palestine describes in its Application,Jerusalem is ‘endowed with unique spiritual, religious and cultural dimensions’ and therefore presents a unique challenge to the Court. It now remains to be seen how this challenge will be met.
Molly Thomas is a Judge’s Associate at the Supreme Court of Queensland. She holds the degrees of Bachelor of Arts (French & Spanish) and Bachelor of Laws (Hons I) from The University of Queensland. She is an Assistant Editor of the ILA Reporter.