Palestine’s Application the ICJ, neither Groundless nor Hopeless. A Reply to Marko Milanovic

On Friday 30 September 2018, Palestine introduced an Application before the ICJ against the United States of America for violation of the Vienna Convention on Diplomatic Relations (VCDR), on account of the transfer of the US embassy from Tel Aviv to Jerusalem. This is yet another judicial episode of David vs Goliath, like the Military and Paramilitary Activities case (Nicaragua v. US) or the South China Seaarbitration (Philippines v. China) were. But this time the David seems even more fragile, since the Goliath disputes the statehood of Palestine and consequently the many rights attached to it – among them, recognition and respect of sovereign equality in the first place.

The seisin of the ICJ has taken international lawyers aback: the reactions went from enthusiastic excitement to sheer incredulity or scepticism. This is not surprising: the case, whether it is decided on the merits or not, has the potential of becoming one of the great cases of international law, those which will be studied for decades by international law students, which will give guidance on highly debated issues, like statehood and erga omnes obligations. It is not every day that the Court is offered such an occasion.

Now, of course, it is certain that the US will challenge the Court’s jurisdiction. The only question is whether they will formally introduce preliminary objections or opt for non-appearance (like China or Russia have lately done). Non-appearance having rarely served the cause of the recalcitrant State, the US would be well advised not to follow that path; all the more if their case on jurisdiction is as strong as Marko Milanovic considers it to be in his post of 30 Sept. 2018. Non-appearance is generally an epidermal reaction by a super-power to legal challenges against its policy. The US’ infuriated announcement of withdrawal from the Optional Protocol to the VCDR, made on 3 Oct 2018, denotes this attitude. But it has no effect on Palestinian proceedings, which were introduced before the denunciation could become effective. 

One may wonder instead why the United States have not made this move earlier. After all, Palestine did warn them, through a verbal note of 4 July 2018, of the dispute on the VCDR. And on the same day, Palestine deposited with the Secretary General a declaration recognizing the jurisdiction of the Court under the Optional Protocol (both texts are available as annexes to Palestine’s Application). Maybe no one in Washington considered that Palestine’s notifications should be taken seriously. Be that as it may, the Application was made on time and the consensual basis of jurisdiction will be difficult to challenge.

Unlike Marko, I do not think the arguments likely to be raised against the seriousness of the Application are either obvious nor compelling, at least not enough to dismiss it in limine litis. First, the question of statehood. Judging from some declarations by US officials, this may be the first argument put forward by the Respondent. Thus, the US National Security Adviser John Bolton was reported to consider the Application a political stunt by “the so-called state of Palestine.”Of course, under Art. 35 of the Statute, only States have standing before the Court. But unlike John Bolton, I don’t think the Court will necessarily appreciate whether Palestine meets “the customary international law test of statehood”. For the purposes of Art. 35 of the Statute, the Court could simply defer to the general recognition of Palestine as a State, in particular through its admission to the United Nations as a non-member observer State by resolution 67/19 of 4 Dec. 2012. The Court could then follow a reasoning similar to the one adopted in 2015 by the ICC Prosecutor, who considered that she could open a preliminary examination of the situation in Palestine, on account of the latter being admitted into the UN as an observer State. To quote the ICC Press Release of 16 January 2015, “[f]or the Office, the focus of the inquiry into Palestine’s ability to accede to the Rome Statute has consistently been the question of Palestine’s statusin the UN (…). The UNGA Resolution 67/19 is therefore determinative of Palestine’s ability to accede to the Statute pursuant to article 125, and equally, its ability to lodge an article 12(3) declaration.” If the United States chose to further deny Palestine’s statehood, for instance by invoking their declaration to the same effect made when Palestine ratified the Optional Protocol, the Court might have to address the issue directly. However, Palestine has a defined territory, a population and an effective government, and it is independent from any other stately entity. Since recognition is no longer constitutive, the US declaration will be as devoid of effect as the similar declarations made by the Arab States when they ratified several multilateral treaties to which Israel was also a party.

Second, one may wonder indeed if the dispute is about the interpretation and application of the VCDR. However, the transfer of an embassy triggers important consequences, for the sending and the receiving State, but also for third States (cf. Art. 40 VCDR). It would be difficult for the Court to reject the Application on grounds of the absence of a dispute under the VCDR, at least on a preliminary basis, without entering the merits. As far as standing (intérêt à agir) is concerned, I see no basis for denying it to Palestine when the question concerns the status of Jerusalem, but also the fundamental obligations enshrined in the VCDR. In the United States Diplomatic and Consular Staff in Tehran judgment, the Court called them an “edifice of law carefully constructed by mankind over a period of centuries, the maintenance of which is vital for the security and well-being of the complex international community of the present day” (§ 92). There, at issue was the inviolability of the diplomatic missions and their personnel. Here, is the obligation not to abuse the law on diplomatic relations by establishing a mission in a territory which is not in the receiving State.

Third, Marko, but also Victor Kattan, consider that the Application could be dismissed by virtue of the Monetary Goldprinciple. We know that this principle prevents the Court from pronouncing itself on the rights and obligations of a third State, which is not a party to the proceedings. Israel would be, in the present case, this third State. In response, I would point out several things: the Monetary Goldprinciple is not about affecting the legal interestsof the third State, but about protecting its rights and obligations from international adjudication without its consent. To quote the East Timor case, “[t]he Court emphasizes that it is not necessarily prevented from adjudicating when the judgment it is asked to give might affect the legal interests of a State which is not a party to the case.” (East Timor (Portugal v. Australia), Judgment 1995,§ 34). But the Court is indeed prevented from exercising jurisdiction when the third State’s “rights and obligations would (…) constitute the very subject-matter of such a judgment” (ibid). Are Israel’s rights and obligations the very subject-matter of the dispute submitted by Palestine? Unlike Marko, I don’t think the answer is a definitive yes. Indeed, Palestine framed its claims in such a way as the Court could answer them without determining the extent of Israel’s territory. Similarly, the Application does not ask the Court to pronounce itself upon violations by Israel of international law, in particular through occupation and colonization.

Palestine’s quarrel is with the United States: it asks the Court to consider whether the transfer of the US embassy to Jerusalem could be held bona fide to be “in the receiving State territory” within the meaning of the VCDR, considering the special status of Jerusalem under international law. Moreover, Palestine asks the Court if this transfer is compatible with the purposes of a diplomatic mission, which is to promote peace. To answer these questions, the Court does not need to pronounce on international law violations by Israel. US obligations can indeed be assessed separately from those of Israel.

The basic premise of the case rests of course on the special status of Jerusalem “established as a corpus separatum under a special international regime” (GA Res 181 (II) of 29 nov 1947). This special regime freezes the territorial situation until an agreement is reached by the Palestinian and the Israeli States. As such, it creates an objective territorial situation, opposable erga omnes. This special regime was recognized on the international level, not only by UN resolutions, but also by the Court itself in the Wall opinion. In fact, the United States have not challenged the existence of this special status. Quite the contrary, until the recent decision to transfer the embassy to Jerusalem was taken, the US adhered to this international consensus.  

This special regime imposes obligations not only upon the two particularly interested parties, but also on third States, including the United States. The numerous resolutions adopted by the General Assembly and the Security Council requiring States to withdraw their diplomatic missions from the Holy City, or to refrain from establishing any therein, are just particular consequences of this special objective regime. Now, and this is where the VCDR comes into play, could any State consider bona fidethat the embassy is established in “in the receiving State territory” within the meaning of the VCDR, when the special status of Jerusalem is widely known and accepted? This is the question submitted to the Court.

It is within this framework that the Monetary Gold principle can be overridden. A similar line of argument was pursued, although subsidiary and unsuccessfully, by Portugal in the East Timor case. But as Martins Paparinskis noted in reply to Marko’s post, the Court “dismissed the argument on the facts – the resolutions did not say what Portugal thought they said (…) and UN institutions lately had taken no action on the issue”. The legal context was indeed very different and third States obligations much less clear. And I would add, unlike US, Australia had not specifically adhered to an international consensus regarding the special regime of East Timor and the specific obligations deriving from it.

Last but not least, the Monetary Gold principle should not be used as a pretext to evade highly debated issues, especially if the Court’s jurisdiction is established. It is not a Joker to avoid deciding when the decision is difficult and politically significant. I find it encouraging that in the Marshall Islands case the Court did not refer to it. And ITLOS equally rejected this objection in the Norstar case: even though the ship was arrested by Spain, the case was about Italy’s obligations and, as long as the Tribunal would only pronounce upon those, the Monetary Gold principle could easily be set aside (§§ 172-173). So ultimately it is about the reasoning which the Court would put forward in its decision on the merits.

On the overall, and contrary to Marko, I believe that in the present case, the Court has sufficient basis to entertain Palestine’s claim on the merits. One may reply that, as a matter of judicial policy, the ICJ generally takes a prudential stand when faced with issues highly important for the international community as a whole. The case brought by the Marshall Islands against the nuclear powers may come as an example. However, the present case is different on more than one account: Palestine is defending here erga omnesobligations, but also its own rights to see the special status of Jerusalem preserved. And unlike the Nuclear Disarmament case, where the practical effectiveness of the Court’s judgment looked uncertain, here the Court’s decision could have a considerable effect upon a paralyzed peace process. The issue submitted by Palestine to the Court is simply too important to be considered pointless.