The Case of Palestine Against the Usa at the Icj: a Non-starter or Precedent-setter?

• Jurisdiction: United States,Federal
• Citation: Vol. 48 No. 1
• Publication year: 2019

The Case of Palestine Against the USA at the ICJ: A Non-Starter or Precedent-Setter?

Md. Rizwanul Islam^*

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Table of Contents

I. Introduction....................................................................................2

II. Procedural Developments............................................................4

III. The Effect of Potential Non-Appearance of the USA.............5

IV. Is Palestine a State Or Can It Be a Party Before the ICJ?......8

V. Settling the Case Without Dealing with the Question of Palestine's Statehood Substantively......................................13

VI. The Shifting of the U.S. Embassy and VCDR............................16

VII. The Right of Third Party (Israel)..............................................21

VIII. The Justiciability of Political Questions................................25

IX. Conclusion......................................................................................26

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I. Introduction

On September 28, 2018, Palestine lodged a complaint at the International Court of Justice (ICJ) against the United States, arguing that the latter's shifting of its Israeli embassy to Jerusalem violates the Vienna Convention on Diplomatic Relations (VCDR)¹ and it should be shifted.² This article seeks to address the legal issues that may arise before the ICJ in this case. This article, not being an amicus curiae brief or advocacy piece, seeks to engage in academic discourse on the issues and not argue for or against the case of the disputing parties. While this is an issue where realpolitik may well be intrinsically connected with the law, the former is by no means the focus of the article and is only looked into when otherwise inevitable.

President Trump's decision to move the embassy aligns him with the position taken by U.S. Congress with the passing of Jerusalem Embassy Act in 1995 (EA).³ However, although the EA required the U.S. executive branch to shift the embassy to Jerusalem, it provided the President with an option to seek a waiver, which presidents preceding President Trump persistently availed.⁴ The prior presidents also argued the power of recognition is a purely executive matter, an argument that the U.S. Supreme Court accepted in Zivotofsky v. Kerry (Zivotofsky).⁵ President Trump, however, opted to deviate from the position of his predecessors and finally moved the U.S. embassy to Jerusalem on May 14, 2018.⁶

This relocation is critical for Palestine because if other states follow the U.S.'s decision to relocate, it could gradually lead to an international

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recognition that undivided Jerusalem falls within Israel's territories.⁷ This may undermine Palestine's effort to establish a state in the West Bank and the Gaza Strip, with East Jerusalem as its capital, which Palestine has sought to do consistently for quite some time.⁸ This prospect holds despite a disclaimer in the declaration by President Trump in December 2017, stating that the "United States continues to take no position on any final status issues. The specific boundaries of Israeli sovereignty in Jerusalem are subject to final status negotiations between the parties. The United States is not taking a position on boundaries or borders."⁹ This move by President Trump is also a clear reversal from the former position of the United States, as evident from the U.S. Secretary of State's position quoted in the D.C. Circuit's judgment in Zivotofsky that:

Any unilateral action by the United States that would signal, symbolically or concretely, that it recognizes that Jerusalem is a city that is located within the sovereign territory of Israel would critically compromise the ability of the United States to work with Israelis, Palestinians and others in the region to further the peace process.¹⁰

As I noted last year, President Trump's "decision to relocate the U.S. embassy from Tel Aviv to Jerusalem is an unequivocal recognition of Israel's claim to the united city of Jerusalem."¹¹ In addition, I noted that "to imply that by doing this, the U[.]S[.] has not taken any decision on boundaries or borders" seems unpersuasive.¹² The discussion that follows first chronicles the procedural developments in the case so far. It then surmises the legal effect of potential non-appearance of the United States in this case, the locus standi of Palestine for filing this case, the compliance of United States' action with the VCDR, the issue of the case of affecting the rights of a third party (Israel), and the justiciability of political questions by the ICJ. The article concludes by arguing that while Palestine's case is likely to face some substantial hurdles

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at a procedural level, the case seems to be a persuasive one at a substantive level.

II. Procedural Developments

On a procedural level, it is important to note that in a letter communicated to the Registry of the ICJ, the United States indicated a belief that it does not stand in a treaty relationship with Palestine with regard to either the VCDR or its Optional Protocol (OP).¹³ On October 3, 2018, the United States also withdrew from the OP.¹⁴ For these reasons, the United States requested the ICJ to take the case off its Registry.¹⁵ Palestine, on the other hand, asked that the Court decide the issues of jurisdiction and of merit together.¹⁶ The ICJ decided that it would first decide on the jurisdiction of the Court and the admissibility of the application.¹⁷ The jurisdiction of the ICJ is decided on the basis of the date when the Court is seised of the matter and events subsequent to that would have no effect on jurisdiction of the Court unless "events occurring subsequent to the filing of an application may render the application without object such that the Court is not called upon to give a decision . . . ."¹⁸ This would be so even if the matter arguably becomes factually moot as the Court decided in Congo v Belgium.¹⁹ In that case, Belgian parliament implemented law of universal jurisdiction and subsequently, Belgium issued an arrest warrant against Abdoulaye Yerodia Ndombasi, the Minister of Foreign Affairs of the Democratic Republic of the Congo for racially hateful speech.²⁰ Congo alleged that this was a violation of customary international law of immunities.²¹ When the case was decided, Yeorida held no ministerial position and thus, Belgium argued that the ICJ lacked jurisdiction because the matter had become moot.²² However, the ICJ rejected this claim, as the Court found that since Congo alleged the invalidity of the warrant of arrest and Belgium

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defended it, the object of the dispute subsisted, despite factual changes in the events.²³ Thus, it may be argued that had the ICJ possessed jurisdiction in the matter before the United States' withdrawal from the OP, it would continue to possess the jurisdiction notwithstanding the withdrawal.

The ICJ fixed May 15, 2019 as the deadline for Palestine to submit its memorial and November 15, 2019 as the deadline for the United States to submit its counter-memorial.²⁴ Given the United States' assertion denying the jurisdiction of the ICJ and non-appointment of an agent before the Court's order on November 15, 2018, it is unclear as to whether the United States would submit a counter-memorial and take part in further proceedings of the Court at all. Since the Palestinians exchanged a note verbale on July 4, 2018 with the U.S. Department of State about this matter,²⁵ it is a little curious why the United States did not withdraw from the OP before the filing of the Palestinian Case at the ICJ. A plausible explanation for this is that the U.S. government did not foresee Palestine bringing a case to the ICJ about this.

III. The Effect of Potential Non-Appearance of the USA

The consequence of non-appearance before the ICJ is addressed in Article 53(1) of the ICJ Statute.²⁶ This provides when a party to a dispute before it does not appear or defend its case, the other party may petition that the Court decides the case in its favor.²⁷ However, it is incumbent on the Court that before it does so, it is satisfied that there is ICJ jurisdiction over the matter and that the case is well-founded in fact and law.²⁸ Thus, Article 53 protects the non-appearing party from unfounded claims upheld against it, which differs from many municipal legal systems where the courts may pass default judgement relatively easily against a non-appearing party.²⁹

As a matter of law, even though the United States has not yet appeared before the ICJ, for jurisdiction purposes, the United States has become a party to the case and the ICJ may proceed to decide it. The support for this proposition may be found in the Fisheries Jurisdiction Case³⁰ observing:

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It is to be regretted that the Government of Iceland has failed to appear in order to plead its objections . . . . The Court however, as an international judicial organ, is deemed to take judicial notice of international law, and is therefore required in a case falling under Article 53 of the Statute, as in any other case, . . . to consider on its own initiative all rules of international law which may be relevant to the settlement of the dispute. It being the duty of the Court itself to ascertain and apply the relevant law in the given circumstances of the case, the burden of establishing or proving rules of international law cannot be imposed upon any of the parties, for the law lies within the judicial knowledge of the Court.³¹

In a similar vein, in the United States Diplomatic and Consular Staff in Tehran, when Iran did not appear at the ICJ to defend the case brought against it by the United States, the Court regretted the former's lack of presentation but felt that by dint of the settled jurisprudence, it had to apply Article 53 of the Statute and decide propiro motu the question of admissibility of the application and the question of jurisdiction on the basis of materials before it.³² In doing this, the Court, inter alia, assessed the letters...