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Home Posts tagged "Monetary Gold"

Palestine v United States: Why the ICJ does not need to decide whether Palestine is a state

Published on November 22, 2018        Author: 
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Palestine’s institution of proceedings against the United States before the International Court of Justice (ICJ) has already drawn much attention on this blog (see here and here) and elsewhere. A great deal has already been said on Monetary Gold and admissibility. My post will focus on the Article 34(1) ICJ Statute requirement that ‘[o]nly states may be parties in cases before the Court’. Contrary to some arguments that have been made on this blog and elsewhere, I will argue that for the purposes of Article 34(1) the ICJ does not need to decide whether Palestine is a state, let alone weigh the Montevideo criteria. An entity may be a ‘state’ for the functional purposes of certain treaties and procedures created by those treaties, but such procedures have no implications for the substantive legal status of the entity under general international law. I will also argue that Palestine’s access to these procedural treaty mechanisms is UNESCO membership and not the status of a non-member observer state in the UN.

When a treaty uses the word ‘state’

The ICJ proceedings are only open to states. But this does not mean that the legal status of an entity can be determined as a side-effect of the ICJ’s procedural rules. The logic of such an argument would go as follows: the ICJ can only hear cases between states, so if the ICJ exercises its jurisdiction, the parties in the proceedings must be states. This would be an implicit reading of the requirement contained in an international treaty that an entity be a state. Such implicit readings are not uncommon in international legal scholarship.  We indeed often read in leading textbooks that since UN membership is only open to states, this is the ultimate confirmation that a UN member indeed is a state. Read the rest of this entry…

 

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

Published on October 8, 2018        Author: 
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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. Read the rest of this entry…

 

Palestine Sues the United States in the ICJ re Jerusalem Embassy

Published on September 30, 2018        Author: 
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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.

Read the rest of this entry…