Palestine Sues the United States in the ICJ re Jerusalem Embassy

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On Friday Palestine instituted proceedings against the United States of America before the International Court of Justice, claiming that the US violated the Vienna Convention on Diplomatic Relations by moving its embassy to Israel from Tel Aviv to Jerusalem. The application is here, the ICJ’s press release here; this is how the press release summarizes Palestine’s claim:

It is recalled in the Application that, on 6 December 2017, the President of the United States recognized Jerusalem as the capital of Israel and announced the relocation of the American Embassy in Israel from Tel Aviv to Jerusalem. The American Embassy in Jerusalem was then inaugurated on 14 May 2018.

Palestine contends that it flows from the Vienna Convention that the diplomatic mission of a sending State must be established on the territory of the receiving State. According to Palestine, in view of the special status of Jerusalem, “[t]he relocation of the United States Embassy in Israel to . . . Jerusalem constitutes a breach of the Vienna Convention”.

As basis for the Court’s jurisdiction, the Applicant invokes Article 1 of the Optional Protocol to the Vienna Convention concerning the Compulsory Settlement of Disputes. It notes that Palestine acceded to the Vienna Convention on 2 April 2014 and to the Optional Protocol on 22 March 2018, whereas the United States of America is a party to both these instruments since 13 November 1972.

In brief, Palestine argues that various articles of the VCDR, especially Article 3 thereof, require that the functions of the diplomatic mission be performed ‘in the receiving state,’ which means that the mission must be established in the receiving state. Jerusalem is not Israeli territory, and therefore moving the embassy there meant that it was not established in the receiving state. Ergo, there was a violation of the VCDR.

This case raises numerous issues, some obvious, some not. There are many objections that the US could raise, and will inevitably raise.

First, it could dispute the statehood of Palestine (on which the less is said, the better). Second, it could dispute the basic legal premise of the VCDR argument – that the fact that a diplomatic mission performs functions in the receiving state must also mean that it is physically located/established in the territory of the receiving state. It’s perfectly standard practice, for example, for (say) the ambassador of state X to Italy to at the same time be X’s ambassador to the Vatican, without having a physical presence in the Vatican. Third, it could dispute Palestine’s legal interest to bring the claim – remember that jurisdiction in this case stems from the VCDR and encompasses only violations of the VCDR, rather than those of any other rules of international law (such as UNSC resolutions or sovereignty or whatever). Even if Palestine’s interpretation of the VCDR’s requirements is correct, it does not seem obvious to me that any state other than the receiving state (i.e. in this case Israel) would have standing to bring a claim on this basis.

Finally, and most importantly, 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. Whether the Monetary Gold principle is interpreted more narrowly or more broadly, a case such as this one – which implicitly requires the determination of a dispute about territorial sovereignty – is precisely the type of case that must be captured by that principle. And there just doesn’t seem to be any way around it, even if Palestine argues that (say) other UN institutions such as the General Assembly and the Security Council made authoritative determinations re the status of Jerusalem. Note in that regard that Palestine’s application doesn’t even mention Monetary Gold – I assume because there was nothing helpful to say in that regard.

So, this case – whatever its merits – will just not go anywhere. The only question is how quickly the Court shoots it down, and what exactly it says in doing so. It could choose, if it wants to, to address some of the other legal issues raised by US objections before it invokes Monetary Gold. But to my mind it seems extremely improbable that the Court would (for instance) decide the enormously controversial question of Palestinian statehood and then say, oh, you know, Monetary Gold precludes us from going further. That’s just not how the Court generally operates.

The case should thus be seen simply as one more example of Palestinian strategic litigation which pursues all possible legal avenues to exert pressure on Israel (and on the US as its patron), while drawing an appealing big picture of Palestine as a law-abiding state willing to rely on international law against powerful adversaries, who are unwilling to submit themselves to binding dispute resolution. The case is, in other words, an exercise in constructing and furthering a particular narrative. And seen in that light the case will probably achieve its purpose (for whatever that’s exactly worth) even if it gets thrown out by the Court (which it will be).

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    Comments

    C Forrest says

    September 30, 2018

    Actually, it isn’t possible for an ambassador resident in Italy to also be accredited to the Vatican - the Vatican won’t allow it. The ambassador accredited to the Vatican must be resident elsewhere.

    Marko Milanovic says

    September 30, 2018

    Many thanks for the correction (one learns new things every day...). That said, my basic point stands - as far as I'm aware, missions to the Vatican (even if they are dedicated embassies to the Holy See) actually have their premises outside it, i.e. in Rome proper. Plus there are numerous examples of ambassadors covering multiple states, with a physical presence and premises in only one of those states.

    John R Morss says

    September 30, 2018

    Analogies to VHS aside -- however seductive! -- the Palestine move surely has a little more substance than described above? The preamble to VCDR from memory refers to wider/background CIL on its content and this would arguably refer to inherent privileges of statehood which might be said to include a right not to be belligerently occupied... Indeed the contestedness per se of Jerusalem as territory, irrespective of determination of shared or not shared sovereignty in due course, would seem adequate to support such a point, going to standing and to merit. (VCLT 31 might also assist.) We will see!

    Martins Paparinskis says

    September 30, 2018

    Could I raise a contrarian point on Monetary Gold? I think that there are two plausible – if not necessarily successful – ways around it, both referred to by implication in the application. The first is the point that you make regarding the position of other UN institutions. That is an allusion to the Portuguese argument 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 GA and SC and could be taken as “givens” ([30]). The Court dismissed the argument on the facts – the resolutions did not say what Portugal thought they said, other States had acted similarly to Australia, and UN institutions lately had taken no action on the issue – but the second paragraph of [32] appears to accept the exception of “givens” in principle. Palestine’s application ([12]-[20]) makes the same argument by implication, trying to tick the factual boxes on which Portugal’s argument failed: i.e., resolutions do settle the issue, there is no supportive State practice, and UN institutions are involved. The other exception is implicit in Monetary Gold itself: the Court could not rule on Albania’s responsibility to Italy, but was entirely comfortable discussing two other legal issues directly implicating Albania: ownership of gold disputed by Italy and Albania, and Albania’s responsibility to the UK. Why? The Court does not say so but the rationale must be that both issues had already been settled by international tribunals: the ownership of gold by the single arbitrator Sauser-Hall, and Albania’s responsibility to the UK by the Court itself in Corfu Channel. The nod to the Israeli Wall opinion in the application ([50]) could be an implied reliance on that point, i.e. that the disputed legal issues between the applicant and the third State have already been settled by the Court itself. Of course, there are further questions regarding validity and scope of these exceptions, as well as their application to the facts (do resolutions really settle the particular issue? Do they need to be binding to be “givens”? – a question left open in East Timor. Does an advisory opinion settle the issue in the sense that a binding award and judgment did in Monetary Gold?). But they do make Monetary Gold less of a deal-breaker: the answer is that the case may proceed even though third parties’ rights are directly implicated because they can be taken as “givens” (as per East Timor) or as already determined by the ICJ (as per Monetary Gold).

    Sotirios Lekkas says

    September 30, 2018

    Dear Marko,
    The US has submitted to the Depositary a statement not only disputing the statehood of Palestine (which is unsurprising), but also 'affirm[ing] that it will not consider itself to be in a treaty relationship with the ‘State of Palestine’ under the Optional Protocol.' (https://treaties.un.org/doc/Publication/CN/2018/CN.228.2018-Eng.pdf) Palestine seems to regret this fact (https://treaties.un.org/doc/Publication/CN/2018/CN.272.2018-Eng.pdf).
    In light of these facts, is it necessary for the Court to enter into a discussion into Palestine's statehood? In other words, is there any reason to consider the VCDR and its Optional Protocol binding in the relations between the parties to this dispute? Further to this, do you think that Palestine will have its day before the Court? I mean, is it possible that the case does not make it to the General List after all?
    Kind regards,
    Sotirios

    zhai says

    September 30, 2018

    Just on the point Sotirios made on US's statement on OP to VCDR: would there also be a question of whether the statement is valid and has effect in excluding any treaty relation between Palestine and US? The statement states that US does not recognize Palestine as a State, and "THEREFORE" the US believes that Palestine does not qualify to become a party to OP and US "will not consider itself to be in a treaty relationship" with Palestine. It seems that the US's statement was made on the basis of its view that Palestine was not a State. What happens if this basis is found to be groundless or invalid? Would it affect the validity of the statement altogether, or would the last sentence in the statement that US "will not consider itself to be in a treaty relationship" with Palestine subsists regardless of whatever views one may take on the basis/reason for this sentence (or regardless of whatever this basis/reason is valid at all)?

    zhai says

    September 30, 2018

    Also, on the point that an ambassador may be accredited to State X while having a physical presence in State Y (for instance- the ambassador may be accredited to more than one State at the same time):- would this require the consent of both States X and Y (which Palestine might wish to argue that this was absent)?

    See for instance Article 5(1) of VCDR: "The sending State may, after it has given due notification to the receiving States concerned, accredit a head of mission or assign any member of the diplomatic staff, as the case may be, to more than one State, unless there is express objection by any of the receiving States."

    Marko Milanovic says

    September 30, 2018

    Many thanks to everyone for the comments!

    Sotirios and Zhai,

    I would say that the effects of the US statement are as follows: (1) it expresses the US view that Palestine is legally not a state, and accordingly that it cannot be a party to the treaty; (2) however, if that premise is wrong, i.e. Palestine does satisfy the criteria for statehood, the US statement is devoid of legal effect. In other words, the statement is merely declaratory. When states accede to multilateral treaties, the existing states parties do not have a unilateral right to render the treaty inoperative between themselves and the newly acceding state. That right only exists if the newly acceding state makes an otherwise valid reservation, to which an existing party objects and expressly declares that the reservation precludes the entry into force of the treaty between them - Art 20(4)(b) VCLT.

    (Obviously the foregoing is true only unless the treaty does not provide otherwise.)

    Martins,

    Thanks again for a very useful comment. I am sure Palestine would make arguments precisely along the lines that you suggested. But I am also pretty sure that the arguments will not succeed on the facts - in particular, there is enough ambiguity in the relevant resolutions with regard to the status of Jerusalem that the Court will do the exact same thing as in East Timor. Doing otherwise would open the door to the Court deciding disputes over territorial sovereignty without the consent of the parties (think e.g. Crimea) which could provoke the type of backlash that the Court has historically been quite wary of.

    Valentin Schatz says

    September 30, 2018

    I think that Martins' comment is quite on point when it comes to potential strategies Palestine could use to overcome a Monetary Gold objection by the United States.
    And I am sure the Palestinian legal team will be watching the UNCLOS Annex VII arbitration between Ukraine and Russia closely, because Ukraine is trying to use a similar strategy to overcome a Russian objection to jurisdiction based on an implicated territorial sovereignty question (see our post https://www.ejiltalk.org/insights-from-the-bifurcation-order-in-the-ukraine-vs-russia-arbitration-under-annex-vii-of-unclos/).
    Arguably, Palestine's position in the case at hand is better than that of Ukraine in the UNCLOS arbitration, because there is an advisory opinion of the ICJ (the same court that is hearing the case) and a solid number of UNSC resolutions (ambiguous or not) that could be used to claim that Israel cannot invoke a legitimate/plausible "legal interest" that would trigger Monetary Gold. The ICJ might not buy such an argument, but it is not an entirely absurd one to make.

    Liron A. Libman says

    September 30, 2018

    Thanks Marko, I find your analysis succinct and accurate. Just one point about the merits (which I agree the ICJ will not get to): the US ambassy moved to West Jerusalem, not to East Jerusalem, so all UNSC or other decisions concerning the status of East Jerusalem as occupied territory are not relevant. The Palestinians themselves do not claim that their territory should include more than East Jerusalem, so even if a third party could invoke VCDR, it is not clear that Palestinians have a recognized interest.

    Marko Milanovic says

    September 30, 2018

    Liron, thanks for that point. But correct me if I'm wrong - doesn't the new embassy actually lie in part on a no-man's land former demilitarized zone, the status of which is unclear? I.e. it is not entirely in West Jerusalem? https://www.reuters.com/article/us-israel-usa-embassy-land/u-s-jerusalem-embassy-lies-at-the-end-of-the-world-idUSKCN1IF1RE

    (Again, I have no idea what the situation is on the facts). Some variant of a condominium argument could perhaps also be made - but in any event, I agree that the Court won't go here.

    Serena Forlati says

    October 1, 2018

    Thank you Marko for a very interesting post. I agree that it is highly unlikely that the Court will decide on the merits of Palestine's claim. Leaving aside the other issues you raise, you rightly stress that whether the Court considers that Palestine is entitled at all to appear before the Court is a key aspect of the case.
    For the sake of completeness, I would point out that on 4 July 2018 Palestine has deposited a declaration under Security Council Resolution 9 (1946) (see here: https://www.icj-cij.org/en/states-not-parties) as regards "all disputes that may arise or that have already arisen covered by Article I of the Optional Protocol to the Vienna Convention on Diplomatic Relations Concerning the Compulsory Settlement of Disputes (1961), to which the State of Palestine acceded on 22 March 2018". There is therefore at least one argument that can't be raised to object to Palestine's ius standi: notably, that it can't appear before the Court because it does not fulfil the requirements set forth by Article 35 of the Statute (as was the case with Serbia in the Legality of the Use of Force cases).

    Aditya Roy says

    October 1, 2018

    Professor Milanovic,
    I have some fundamental questions/clarifications.

    1. Can an entity apart from states be a party to an international treaty such as palestine as palestine is not a state and is also not a member of United NATIONS. It is only a UN non- memeber observer state?

    2. Can Palestine bring a matter to the ICJ even if it is not a member of UN?

    3.Please explain the monetary gold principle and the arguments which are there in favor of Palestine to bypass that monetary gold principle or How Palestine can refute that argument which is called the monetary gold principle?

    I request any of you to please clarify the above aspects.

    Marco Longobardo says

    October 1, 2018

    Great post, Marko, many thanks!

    I agree on many points. However, please let me add that the ICJ has already recognised some procedural rights to Palestine which are linked to its status in 2003.

    Indeed, the ICJ "2. Decides further that, in light of General Assembly resolution A/RES/ES-10114 and the report of the Secretary-General transmitted to the Court with the request, and taking into account the fact that the General Assembly has granted Palestine a special status of observer and that the latter is co-sponsor of the draft resolution requesting the advisory opinion, Palestine may also submit to the Court a written statement on the question within the above time-limit" (https://www.icj-cij.org/files/case-related/131/131-20031219-ORD-01-00-EN.pdf).

    Claearly, that was an advisory proceeding and this is not a game-changing factor. However, it is a significant statement, particularly beacause it was issued before the GA's recognition of Palestine as a "non-member State" (emphasis on the last word) in 2012.

    David Hughes says

    October 1, 2018

    Dear Marko and Liron,
    Regarding the Embassy’s location in Jerusalem’s Arnona neighbourhood – It does in fact lie (in part) in the territory designated as no-man’s land in 1949 and which subsequently came under Israeli occupation in 1967. For those that are interested in the legal status of this territory and how (or whether) the Embassy’s location in Jerusalem matters from the perspective of international law, I’ve written about this here: http://www.qil-qdi.org/wp-content/uploads/2018/07/02_US-Embassy-in-Jerusalem_HUGHES_FIN.pdf

    Avigael Cassel says

    October 1, 2018

    It is probable that the US will not succeed in convincing the ICJ that Palestine is not a state, with 140 countries already recognising it, and many more posed to recognise Palestine. The ICJ has already given an advisory opinion on the matter see https://www.icj-cij.org/files/case-related/131/131-20040709-ADV-01-00-EN.pdf ; ICC has accepted Palestine as a state for their atrocity crimes case, relying on the UN Secretary General's advice that Palestine was a state See also https://www.duo.uio.no/bitstream/handle/10852/52006/201.pdf?sequence=11 ; Palestine heads the G77 https://thewire.in/world/palestine-to-lead-g77-uns-largest-group-of-developing-nations.

    Unlike the US and Israel, Palestine has made enormous efforts to abide by Int law and uphold the Int institutions as time progresses. The reticence of the judges to reward the US [therefore Israel] for their destructive behavior, arrogance and impunity is unlikely.

    I suspect this case will be a game changer, rather than a non-starter, despite the technical difficulties faced.

    Nicolas Boeglin says

    October 2, 2018

    Dear Marko

    Many thanks for this very extremely valuable article and all the information provided, as well as by some extremely usefull data of some colleagues in their comments. In addition to the exchange of notes between US and Palestine concerning the Optional Protocol to VCDR, do you know if, when Palestine acceded to ICCPR in 2014 (see official status at: https://treaties.un.org/Pages/ViewDetails.aspx?chapter=4&clang=_en&mtdsg_no=IV-4&src=IND), US stated some note disputing the statehood of Palestine?

    I have tried to find it, with no success, and I was just wondering if Palestine is considered as a State for some UN treaties and not for others by US State Department.

    Sincerely yours

    Nicolas Boeglin

    Marko Milanovic says

    October 2, 2018

    Thanks again to everyone for the comments. David, thanks in particular for that clarification of the facts. Nicolas, I honestly don't know whether the US gov't has consistently objected to Palestine's accession to multilateral treaties, or whether it has let some of them slip through, as it were. But whether Palestine is a state or not, or a party to any given treaty or not, would not in any event depend on a bilateral US objection. The Court could say (even if probably won't) that Palestine is a state full stop, or a state for the purpose of applying the VCDR, but it can't say that Palestine is a state in its relationship with some states but not with others.

    Nicolas Boeglin says

    October 2, 2018

    Dear Marko

    Many thanks for your kind answer: if, following US views, Palestine has sometimes statehood, and sometimes not, we can consider that the US objection is not very consistent (nor persistent), and other conclusions can be made in a legal controversy between US and Palestine before ICJ when facing a US objection on Palestine´s statehood.

    Sincerely yours

    Nicolas Boeglin

    Oleksii Maslov says

    October 2, 2018

    Dear Marko,

    Thank you for your very thought-provoking post. It indeed provoked a quite interesting discussion.

    One thing I wonder about is whether the fact that Palestine acceded to the Optional Protocol in March 2018 (i.e., after the dispute arose) can be interpreted against it. It is quite clear that Palestine acceded to the Protocol primarily to invoke US's responsibility under the VCDR. Do you think this may be treated as a 'forum-shopping' by Palestine and whether this defence may be pursued by the US to dismiss the application?

    Kind regards,
    Oleksii

    Uuta says

    October 2, 2018

    I have always been unclear about this:
    Was it the United States who recognized Jerusalem as the capital of Israel, or was it Trump (personally) who did so?

    And did the US Congress confirm that?

    Avigael Cassel says

    October 4, 2018

    Trump declared all of Jerusalem the capital of Israel and the US intent to move the embassy there by Presidential Proclamation on 6th December 2017. See https://www.whitehouse.gov/presidential-actions/presidential-proclamation-recognizing-jerusalem-capital-state-israel-relocating-united-states-embassy-israel-jerusalem/

    Avigael Cassel says

    October 4, 2018

    Congress passed the Jerusalem Embassy Act 1995 on Nov 8 1995, declaring Jerusalem Israel's capital since 1950. See https://www.congress.gov/104/plaws/publ45/PLAW-104publ45.pdf

    Victor Kattan says

    October 8, 2018

    Some of your readers may find this article of mine of interest as it directly addresses some of the issues raised in the post by Marko on Palestine's chances of success at the ICJ: Palestine Declares (Legal) War on the United States of America, Haaretz, 4 October: https://www.haaretz.com/middle-east-news/.premium-palestine-declares-legal-war-on-the-united-states-of-america-1.6527711

    If you can't get past the firewall, you can also read the article here: http://victorkattan.com/work/haaretz-publishes-my-take-on-palestine-v-united-states-of-america/

    Md. Rizwanul Islam says

    October 8, 2018

    Some readers may have an interest on my piece here in Bangkok Post https://www.bangkokpost.com/opinion/opinion/1553566/palestine-objects-to-us-embassy-move-at-icj

    https://www.haaretz.com/middle-east-news/.premium-palestine-declares-legal-war-on-the-united-states-of-america-1.6527711 says

    October 8, 2018

    "....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...."

    Leila Sadat says

    October 11, 2018

    Thanks for this really helpful post, Marko, and also for the excellent and helpful comments posted too. It seems to me that assuming the monetary gold obstacle is overcome, the statehood question as a general matter is not difficult to overcome either. For the same reason that the ICC accepted Palestine’s referral, after the GA voted it nonmember observer state status, once it has ratified a particular treaty, if the Secretary General has accepted its instrument of accession or ratification, i believe that is the end of the story in terms of whether or not it has become a party to the treaty. So the US and Palestine are in a legal relationship and the compromissory clause governs. The fact that the US does not recognize Palestinian statehood would not seem to me to be dispositive. What does seem contestable is whether the ICJ Statute clearly covers the case as all States Members of the UN are parties to the Statute and Palestine can’t join the UN as a Member. Does anyone know whether that issue has been litigated before the Court before? To me it is more a question of the Court interpreting its statute than a question of Palestinian statehood in the abstract.

    Minh Tran says

    October 16, 2018

    I find that the argument of Sotirios Lekkas is very brilliant. The question of whether a party state can reject the treaty relationship with a newly acceded party to a multilateral treaty is very interesting.
    On the one hand, the whole international law is built on the basis of the consent of states. States have sovereignty and thus have the right to establish or not to establish a legal relationship with each other. They may have the same right to reject the treaty relationship with new party to a treaty.
    On the other hand, by becoming a party to a multilateral treaty, a state must have known that other states will accede to that treaty in future, and that it is expected to have new party and a treaty relationship with those new parties. When a state joins a multilateral treaty, it has given an implicit consent to establish a treaty relationship with new parties in future.

    Minh