The International Court of Justice (ICJ), through its press release, has informed that Palestine has lodged a complaint against the United States, arguing that the latter’s shifting of its embassy in Israel to Jerusalem violates the 1961 Vienna Convention on Diplomatic Relations.
The matter is critical for Palestine because if the US decision is followed by the other states, it may eventually lead to a recognition that all of Jerusalem falls within Israel’s territories. This may thus dampen Palestine’s effort to establish a state in the West Bank and the Gaza Strip, with east Jerusalem as its capital. This is despite the following disclaimer in the declaration by the US president 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”.
The reason is the interpretation of the state practice is not necessarily left entirely to the states involved in the practice but the international courts and tribunals. Indeed, the US decision to relocate its embassy from Tel Aviv to Jerusalem is an unequivocal recognition of Israel’s claim to the united city of Jerusalem. And to imply that by doing this, the US has not taken any decision on boundaries or borders is just delusional.
The practice of states has been that diplomatic missions would be established in the city (or sometimes towns) which is the seat of government of the receiving state and to follow that government’s seat when it moves either permanently or provisionally.
However, in some rare cases, this has not happened. For example, in Saudi Arabia, the Foreign Office of the receiving state was in Jeddah, and foreign missions were required to reside there, not in Riyadh, the seat of the government. In Israel, most diplomatic missions have remained in Tel Aviv because a shift to Jerusalem would indicate the acceptance of Israel’s establishment of its seat of government there which most governments would be reluctant to do.
Another notable exception is the Vatican City, which for obvious reasons of its small size cannot fit in the diplomatic missions of the various sending states and thus, those are located in Rome based on an agreement with the Government of Italy. However, these cases are distinct from that of the US locating its embassy in Jerusalem because of the disputed status of the city of Jerusalem making it arguably located beyond the territory of Israel.
Article 12 of the Vienna Convention on Diplomatic Relations, 1961, requires that “the sending State may not, without the prior express consent of the receiving State, establish offices forming part of the mission in localities other than those in which the mission itself is established”.
However, this Article would not seem to be directly applicable in the dispute because though obviously, the embassy of the USA in Jerusalem has been based on an agreement between the sending and receiving state — the US and Israel — the capacity of the latter to give this consent itself is undecided due to the disputed status of the city of Jerusalem.
In other words, Article 12 seems to apply to those situations when a sending state would want to establish its mission in a locality in which the receiving state does not want to allow such an establishment. But having said that, for sure, the US relocating its embassy to Jerusalem gives recognition to the Israeli claim and thus, stands in stark contrast to the widespread international recognition of Jerusalem as a disputed territory.
It can be said that whether or not the US declaration amounts to a violation of Article 41(2) of the International Law Commission’s Draft Articles on the Responsibility of States for Internationally Wrongful Acts, 2001 (Draft Articles) which requires that: “No State shall recognise as lawful a situation created by a serious breach ... nor render aid or assistance in maintaining that situation” could be an important issue before the ICJ.
As per Article 40 of the Draft Articles, the serious breach would be “obligation arising under a peremptory norm of general international law”. Depending on whether in 1967, Israel obtaining control over East Jerusalem and the following expansion of municipal boundaries over it is treated as annexation or not, the recognition may or may not amount to a serious breach of international law. If it is treated as an annexation, there is a cogent basis for treating the US action as inconsistent with Article 41(2) of the Draft Articles.
Another critical issue which may help Palestine’s case is the UN Security Council Resolution 478 of 1980. This resolution declared that Israel’s claim through a law passed by the Knesset in declaring Jerusalem, complete and united, as the capital of Israel violated international law. And this resolution fostered a process of the collective non-recognition of Jerusalem as the capital of Israel.
However, the substantive issues would only be addressed if the case passes through the procedural hurdles. This being a case not based on a compromis (a case filed by the mutual agreement of the disputing parties), the first hurdle that Palestine has to cross is that the ICJ finding that it has the jurisdiction over the matter which the US quite probably would seek to disprove for one reason or the other. It may simply object that though Palestine has observer status in the United Nations, it is not yet a state and hence, does not qualify as a party before the ICJ as per Article 34 of the Statute of the ICJ which states that "only states may be parties in cases before the Court".
As per Article 93(2) of the Charter of the United Nations, states which are not members of the United Nations may become parties to the Statute of the Court on conditions to be determined by the General Assembly upon the recommendation of the Security Council. In the past, states like Switzerland, Liechtenstein, and San Marino, etc used this category before joining the United Nations but their case is different from Palestine because of the politically contested nature of the statehood of Palestine.
This case has very pronounced political ramifications. However, most international legal disputes between states have such ramifications, and the record of cases of ICJ would indicate that a matter having political ramifications has not deterred the court from finding jurisdiction so long as it finds that it is a legal dispute in which it is competent to judge.
Like four other permanent members (out of five) of the United Nations (except the United Kingdom), the US does not currently accept the jurisdiction under the optional clause ie Article 36(2) of the Statute of ICJ. This makes the issue of jurisdiction even more important and makes Palestine’s case even more difficult to pass through the jurisdictional hurdle.
Md Rizwanul Islam, PhD, is an Associate Professor at Department of Law, North South University.