In its consistent diplomatic and legal attempts to salvage the two-State solution based on international law, the State of Palestine instituted a case against the United States of America before the International Court of Justice (ICJ). Followed by the Convention on the Elimination of All Forms of Racial Discrimination inter-state complaint and the International Criminal Court referral, the ICJ case introduced on September 28 2018, concerns a dispute over interpretation of the Vienna Convention of Diplomatic Relations (VCDR) and claims that the United States violated the VCDR by moving its embassy from Tel-Aviv to Jerusalem in May of this year.
The 14-page-long application summarizes the corpus seperatum status of Jerusalem, dating back to the 1947 United Nations General Assembly Resolution 181 (II), and its unique historical, spiritual, religious, and legal dimensions. In a previous blog , I explored the legality of President Trump’s decision to recognize Jerusalem as the capital of Israel.
In accordance with Security Council Resolution 9 and Article 35(2) of the ICJ Statute, the State of Palestine submitted a declaration recognizing the competence of the ICJ over any dispute that may arise as covered by the Optional Protocol to the VCDR. While Palestine acceded to the VCDR and the Optional Protocol in 2014 and 2018 respectively, the United States has been a party to these instruments since 1972. The VCDR forms the core of international diplomatic law and codifies customary law on bilateral diplomatic relations between States, including “representing the sending State in the receiving State” and “protecting in the receiving State the interests of sending State…within limits permitted by international law,” as reiterated by Articles 3 and 21. The ICJ, in another judgement, described the VCDR as the “edifice of law carefully constructed” and that the maintenance of provisions of VCDR is “vital for the security and well-being of the complex international community of the present day. ”
The VCDR prescribes that the diplomatic missions of the sending State must be established on the territory of the receiving State. The location of the American embassy in Jerusalem is on an occupied territory as recognized by the deluge of UN resolutions, treaty bodies, the ICJ in its 2004 Advisory Opinion, Special Procedures, and the rest of the international community. Accordingly, the State of Palestine argues that, taking into considerations the special legal status of Jerusalem under international law, the location of the United States embassy is not on the territory of “the receiving State”. In addition, the State of Palestine has asked the ICJ to decide on whether the opening of the embassy in Jerusalem is compatible with “the maintenance of international peace and security and the promotion of friendly relations among nations”. The State of Palestine also requests that the ICJ order the United States to withdraw its embassy from Jerusalem, comply with its international law obligations, and refrain from taking any future measures that violate its obligations of non-repetition.
The main point of contention in this case is Palestine’s recognition as a state and thus the merits of the case. While recognized by 139 states as a non-member observer State in United Nations General Assembly resolution 67/19, treaty bodies, and the ICC prosecutor who stated that the 67/19 UNGA resolution is “determinative of Palestine’s ability to accede to the [Rome] Statute,” the United States has challenged Palestine’s statehood. Since the State of Palestine’s accession to the Optional Protocol of VCDR in 2018 and in a communication to the Depository, the United States affirmed that it “does not believe the ‘State of Palestine’ qualifies as a sovereign State and does not recognize it as such” and that “it will not consider itself to be in a treaty relationship with the ‘State of Palestine’ under the Optional Protocol.” In a response to this communication, the State of Palestine conveyed that it is “a State recognized by the United Nations General Assembly on behalf of the international community.” Taking another unilateralist approach to international law, the United States recently withdrew from the Optional Protocol of the VCDR denoting its stance on the statehood of Palestine; albeit, its withdrawal from the Optional Protocol is irrelevant to the case as the proceedings were instituted prior to the withdrawal.
Unlike the Advisory Opinion of 2004, the judgment of the ICJ would be legally binding for both parties as stated in Article 94 of the UN Charter. As a result, the ICJ judgment will give guidance on disputes on statehood and erga omnes obligations like the right of the Palestinian people to self-determination. This makes Palestine’s case before the ICJ important to follow.