It’s Time to Take Palestine v. United States of America Seriously

[Victor Kattan is Senior Research Fellow of the Middle East Institute at the National University of Singapore where he heads the Transsystemic Law Cluster. He is also an Associate Fellow of NUS Law and an associate (non-resident) member of Temple Garden Chambers in London.]

Palestine’s Application Instituting Proceedings against the United States of America (U.S.) at the International Court of Justice (ICJ) on 28 September has produced much commentary in a short space of time. This is hardly surprising given the David vs. Goliath nature of the case. Initial reactions were sceptical, verging on disbelief, with Nottingham University Law Professor Marko Milanovic expressing his view on EJIL: Talk!, just two days after Palestine had filed its Application, that the case would “just not go anywhere” because it ran headlong into the ICJ’s longstanding Monetary Gold jurisprudence.

On the other side of the Atlantic, John Bellinger III, a former Legal Adviser to the U.S. State Department in the Bush 43 administration, wrote on the U.S. blog Lawfare that he thought the U.S. decision to withdraw from the 1955 Treaty of Amity, Economic Relations, and Consular Rights with Iran was prudent, but thought it had been unnecessary to withdraw from the Optional Protocol to the Vienna Convention on Diplomatic Relations (VCDR). In his view, Palestine’s case was “frivolous” and the U.S. was “very likely to win.” He was joined in expressing his scepticism by Scott Anderson, a former Attorney-Adviser in the Office of the Legal Adviser at the State Department, who after referring to Milanovic’s EJIL: Talk! post, agreed with Bellinger that Palestine’s application was “highly unlikely” to prevail.

Bellinger did not elaborate on the “very strong” legal arguments the U.S. might make at the ICJ to defend itself in the case filed by Palestine. Nor did Anderson advance any new arguments beyond those that had already been expressed by Milanovic.

Like a bolt from the blue, I was also taken aback by Palestine’s Application. Initially, I was euphoric, then somewhat sceptical, until I gave the matter further thought in an article I wrote for the English language edition of Haaretz, an Israeli newspaper, which I shall summarise briefly, before expressing some new thoughts. (You can also read my Haaretz article here if you do not subscribe to the paper). Alina Miron, Professor of Public International Law at the University of Angers in France, has since joined the fray, writing a comprehensive rebuttal to Milanovic’s post on EJIL: Talk!, whose arguments I shall return to later in this post.

In Haaretz, I explained that Palestine could access the ICJ under the Article 35(2) declaration that it lodged with the Court’s Registrar on 4 July, which made specific reference to Security Council Resolution 9 (1946). I explained that according to paragraph 5 of Resolution 9: “All questions as to the validity or the effect of a declaration made under the terms of this resolution shall be decided by the Court.” A similar provision appears in Article 41 of the Rules of the Court.

This means the ICJ has to decide whether Palestine is a state for the purposes of its Statute before it addresses the other aspects of the case. I added that should the Court decide that Palestine is a state this could still be considered a great “victory” by Palestine even if the case does not proceed further.

In my Haaretz article, I made reference to the various Legality of Use of Force cases (among others) that the former Federal Republic of Yugoslavia brought against various NATO member states when, following the bombing of Belgrade in 1999, Yugoslavia alleged violations of the obligation not to use force against another state. Article 35(2) was considered by the ICJ in the case because of confusion over the status of Yugoslavia during its dissolution in the 1990s and whether it could still be considered a member of the United Nations.

Yugoslavia had invoked the Genocide Convention as a basis of jurisdiction, but the ICJ concluded that Article 35(2) only applied to treaties concluded before the Statute of the Court entered into force on 24 October 1945, and the Genocide Convention did not enter into force until after that date.

This led me to conclude that the ICJ could decide that Palestine is a state for the purposes of Article 35(2), but then also conclude that the provision does not provide an avenue for Palestine to have access to the Court because the phrase “treaties in force” in Article 35(2) only refers to pre-1945 treaties.

However, I did not make it clear in my Haaretz article that Yugoslavia did not make an Article 35(2) declaration, and significantly, that it did not reference Security Council Resolution 9; rather the ICJ had raised the issue of Article 35(2) proprio motu, and it was criticised by several judges for doing so.

Accordingly, that judgment is not relevant to Palestine’s Application.

This is because Palestine made an Article 35(2) declaration at the ICJ and referenced Security Council Resolution 9. This means that should the ICJ conclude that Palestine is a state for the purposes of its Statute, then Palestine would have access to the ICJ, and Palestine’s Application could be considered by the Court under Article I of the Optional Protocol to the VCDR to which Palestine and the U.S. are contracting parties even though that treaty entered into force after 1945, when the Statute of the Court entered into force.

In other words, Palestine’s access to the ICJ would be a more straightforward process than I had initially thought: if the Court concludes that Palestine is a state, Palestine will have access to the Court and the Optional Protocol to the VCDR would appear to provide a valid basis of jurisdiction for the dispute, despite U.S. National Security Adviser John Bolton’s announcement that the U.S. was withdrawing from that treaty, along with the treaty with Iran.

I also expressed my view in Haaretz that the ICJ’s Monetary Gold jurisprudence did not necessarily form a bar to the case, since it could be argued that Israel had consented to the jurisdiction of the ICJ when it accepted the 1947 UN Partition Plan that sought to establish a special international regime over Jerusalem. This is because that Plan contained a compromissory clause that made specific reference to the ICJ. (There are actually three compromissory clauses in the Plan, but arguably only one would be relevant to this case).

In her response to Marko’s EJIL: Talk! post, Professor Alina Miron went even further than I did when she expressed her view that the Monetary Gold principle might not be applicable at all. She explained that “the Monetary Gold principle is not about affecting the legal interest of third states, but about protecting its rights and obligations from international adjudication without its consent.” She observed that, “Palestine framed its claims in such a way as the Court could answer them without determining the extent of Israel’s territory.”

This argument can, of course, only be sustained if the Court accepts that no state has sovereignty over Jerusalem. This position was expressed most clearly by France in the UN Security Council debate on 18 December 2017 regarding the text of a draft resolution criticising Trump’s recognition of Jerusalem that the U.S. subsequently vetoed. In the debate, France made its position plain that: “in the absence of an agreement, and in accordance with the consensus that has prevailed for 70 years within the international community, France does not recognise any sovereignty over Jerusalem (my emphasis).”

Accordingly, if no state has sovereignty in Jerusalem then Israel can have no sovereign rights or obligations in the city. Nor can any other state have such rights or obligations. It is well known that all actions taken by Israel to annex the city since 1948 have not been recognised. Accordingly, the Monetary Gold principle, according to which the ICJ will not exercise jurisdiction over a state without its consent, would arguably not apply. Accordingly, the ICJ would not need Israel’s consent to consider the claim that Palestine has brought before it.

Whether Miron is correct that Monetary Gold does not apply, or whether my argument that Israel had given its consent to have disputes over the status of Jerusalem adjudicated at the ICJ when it accepted the UN Partition Plan in 1947 is correct, it would appear that Monetary Gold does not provide an insuperable barrier to Palestine’s case. There are other arguments.

In this connection, there is a further argument, which could be considered: Israel’s own acknowledgement that it does not have exclusive sovereignty in Jerusalem. Consider, in this regard, the special status accorded to the Consular Corp of the Corpus Separatum in Jerusalem by Israel since 1948. There are ten consulate-generals in Jerusalem representing the interests of the U.S., the United Kingdom, Belgium, France, Sweden, Italy, Greece, Turkey, Spain, and the Holy See. As Issa Kassissieh, Deputy Head of Palestine’s Negotiation Affairs Department, and Ambassador to the Holy See explained, the presence of the ten consulate-generals in Jerusalem “was based on customary and internationally approved rules of protocol that prevented the recognition of legal claims to Jerusalem by any party.”

The presence of the consulate-generals in Jerusalem created an anomalous situation as they are given no letters of credence to present to Israel (or Palestine) because their governments do not recognise any sovereign authority in the Jerusalem area. Instead, they are issued with orange Consular cards by Israel’s Ministry of Foreign Affairs. By acquiescing to this practice for the past 70 years, it would appear that Israel has recognised the special character of Jerusalem, and the status of Consular Corp of the Corpus Separatum, notwithstanding its legislative attempts to assert sovereignty over the city that have been condemned, universally and repeatedly, by both the UN Security Council and General Assembly.

When Abba Eban was questioned about the Government of Israel’s attitude towards the implementation of paragraph 8 of UN General Assembly Resolution 194 (III) concerning proposals for a permanent international regime for the Jerusalem area in 1949, before Israel was admitted to the UN, and specifically, whether Israel claimed sovereignty over Jerusalem and the surrounding territory, he said in response that sovereignty over the Jerusalem area “has not yet been finally settled.” He added: “It will not be for the Government of Israel alone to determine the issue of sovereignty (my emphasis).” (UN doc. A/AC.24/SR.47, p. 278).

This brings us to the crux of the case. If Israel does not have sovereignty over Jerusalem, how can the U.S. lawfully carry out the functions of a diplomatic mission there? Given that the U.S. acknowledged – until 6 December 2017 – that no state had sovereignty over Jerusalem, how could the U.S. suddenly and unilaterally decide that Israel had sovereignty over the city and open an embassy there absent a peace agreement between Israel and Palestine that would resolve the final status of the city? To whom did U.S. Ambassador David Friedman present his letter of credence when he moved into the new U.S. embassy on 14 May?

According to the VCDR a diplomatic mission may only be established on the territory of “the receiving state.” This implies that the receiving state has sovereignty. Instead the U.S. has put its embassy in disputed territory, the eastern half of which is also occupied territory.

In moving its embassy to Jerusalem, it appears the U.S. breached its obligations to Palestine, which is a contracting party to VCDR, and which has a special and recognised interest in the city that the U.S. had itself acknowledged by voting in favour of the UN Partition Plan and in favour of successive Security Council Resolutions on Jerusalem. The U.S. also bore witness to the Oslo agreements that made it clear that the final status of Jerusalem was a matter for Israel and Palestine to resolve, and that it would not move its embassy to Jerusalem until an agreement had been reached. While most (though not all) VCDR obligations are bilateral, the special regime that was established in Jerusalem imposed obligations on third states – as Miron astutely observed. This is why the UN Security Council and the General Assembly called on states to refrain from establishing diplomatic missions in Jerusalem.

It would appear from Bolton’s public statements that the U.S. plans to challenge Palestine’s statehood claim because: “It does not meet the customary international law test of statehood. It doesn’t control defined boundaries. It doesn’t fulfil the normal functions of government.” It will be interesting to see how the U.S. presents this argument to the ICJ, and how it squares this test with the other states that it has recognised but whose boundaries remain disputed.