Palestine Sues the United States in the ICJ re Jerusalem Embassy

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.

First, it could dispute the statehood of Palestine (on which the less is said, the better). Second, it could dispute the basic legal premise of the VCDR argument – that the fact that a diplomatic mission performs functions in the receiving state must also mean that it is physically located/established in the territory of the receiving state. It’s perfectly standard practice, for example, for (say) the ambassador of state X to Italy to at the same time be X’s ambassador to the Vatican, without having a physical presence in the Vatican. Third, it could dispute Palestine’s legal interest to bring the claim – remember that jurisdiction in this case stems from the VCDR and encompasses only violations of the VCDR, rather than those of any other rules of international law (such as UNSC resolutions or sovereignty or whatever). Even if Palestine’s interpretation of the VCDR’s requirements is correct, it does not seem obvious to me that any state other than the receiving state (i.e. in this case Israel) would have standing to bring a claim on this basis.

Finally, and most importantly, Palestine’s claim runs headlong into the ICJ’s longstanding Monetary Gold jurisprudence – that it will not adjudicate on claims that involve the legal interests of third parties without the consent of these parties. When Palestine claims that Jerusalem is not Israel’s territory, this clearly involves the existence (or not) of the rights of Israel vis-a-vis that territory, and Israel will obviously not consent to the ICJ’s determination of these rights. Whether the Monetary Gold principle is interpreted more narrowly or more broadly, a case such as this one – which implicitly requires the determination of a dispute about territorial sovereignty – is precisely the type of case that must be captured by that principle. And there just doesn’t seem to be any way around it, even if Palestine argues that (say) other UN institutions such as the General Assembly and the Security Council made authoritative determinations re the status of Jerusalem. Note in that regard that Palestine’s application doesn’t even mention Monetary Gold – I assume because there was nothing helpful to say in that regard.

So, this case – whatever its merits – will just not go anywhere. The only question is how quickly the Court shoots it down, and what exactly it says in doing so. It could choose, if it wants to, to address some of the other legal issues raised by US objections before it invokes Monetary Gold. But to my mind it seems extremely improbable that the Court would (for instance) decide the enormously controversial question of Palestinian statehood and then say, oh, you know, Monetary Gold precludes us from going further. That’s just not how the Court generally operates.

The case should thus be seen simply as one more example of Palestinian strategic litigation which pursues all possible legal avenues to exert pressure on Israel (and on the US as its patron), while drawing an appealing big picture of Palestine as a law-abiding state willing to rely on international law against powerful adversaries, who are unwilling to submit themselves to binding dispute resolution. The case is, in other words, an exercise in constructing and furthering a particular narrative. And seen in that light the case will probably achieve its purpose (for whatever that’s exactly worth) even if it gets thrown out by the Court (which it will be).