Shivesh Saini
On 28 September 2018, Palestine submitted an application wherein it sought to litigate the United States in ICJ over relocating its embassy in the disputed territory of Jerusalem. Basically, this move demonstrates the unequivocal acknowledgement of Israel’s claim on Jerusalem. Palestine argued that it is a breach of the Vienna Convention on Diplomatic Relations. In response, the US demonstrated the uncertainty on the locus standi of Palestine in repudiating the jurisdiction of ICJ. Moreover, the US declared that it does not even share the treaty obligation with Palestine and thus, decided to opt-out from the optional protocol. This case garnered a lot of magnetism from the international community of lawyers and legal experts which advances numerous questions in the domain of international law. The first question is whether Palestine deserves the status of statehood? The second question is related to the admissibility of the case and jurisdiction. The article further endeavours to appraise the traditional and contemporary approach of the international community in yielding statehood to a particular territory which could potentially set a new precedent in the international community.
Permissibility of the case and jurisdiction of ICJ –
The US and Palestine squabble is not just constructed on the issue of an embassy. Actually, the US decided to change its stance and is eager to recognize Jerusalem as part of Israel. This stand will not only encroach upon the premises of UNGA resolution 181 – which divided the territory between Arab and Jewish states with Jerusalem as corpus separatum, but it also disrupts security council resolutions 242, 476,478 and even the most topical resolution 2334 – all condemning Israeli occupation on Jerusalem. It is quite palpable that being the permanent member of SC, the US must have voted in favour of these resolutions. Consequently, this action goes in contradiction to their previous stance and squandered the previous efforts of their former president Ronald Reagan who was resolute enough in resolving the delinquency of Jerusalem. In response, Palestine sued the US in ICJ based on defilement of a convention. However, Palestine could face two imperative hurdles in representing itself before ICJ. These hurdles are – (a) Ambiguity over Palestine’s statehood and (b) Can it still bring its claim in court though it’s not a signatory of ICJ statute. As regards the first question, it is quite intricate and hence, is dealt with in the next part of the article. However, the second hurdle can be resolved through the ICJ statute itself. Although it is a mandatory prerequisite to have, statehood is not the only criterion. Palestine still can rely upon the UNSC resolution 9 which enlarged the ICJ jurisdiction and the only obligatory condition is that the party should be willing to accept the jurisdiction of the court. In line with this, the Palestine declaration embraces its pledge to abide by the UN charter. Henceforth, it could be concluded that the American claim of lack of jurisdiction of ICJ is coining doubts on the sanctity of the UNSC resolution itself of which even the US was part. As far as ICJ is concerned, the court could only ask states to submit material for the advisory jurisdiction under Article 66. Despite that, the court in the construction of the wall case, 2013 allowed Palestine along with other states to submit material to a court for the fulfilment of advisory jurisdiction. Therefore, ICJ provided its implicit acceptance to Palestine claim, which is accepted by over 100 states and various UN organisations. So, the accomplishment of these prerequisites indicates the silent approval of the rights of Palestine as an autonomous state by the world community as UNGA and other UN forums such as UNESCO recognized its statehood through various of its resolutions. Even the UNSC, as was discussed above, criticized the unlawful intervention of Israel in the corpus spectrum territory of Palestine. However, if in any case, ICJ can snub to deal with the question of statehood as it can still analyse the merits of the case and can pronounce its judgement. This can be possible by resorting to Article 81 of the Vienna Convention on law of treaties (1966) which states that a treaty is open to any member of the United Nations or any specialized agency. Being a member of UNESCO, it can claim that all the procedural thresholds are being satisfied and therefore, it is entitled to file its contention before ICJ. The backing of this argument can be found in the verdict of ICC to allow the accession of Palestine to the Rome Statute on 2 January 2015. Even though Article 34(1) of the Rome statute asserts that only the state can be a party to the statute, the court decides to rely upon Article 12(3) of the statute that allows the state to submit its complaint after accepting its jurisdiction. Thus, it can be concluded that ICC adopts the liberal approach to inspect the war crimes committed in occupied Palestine territory. Therefore, this liberal outlook could be adopted by other fora and organisations as well so that the people of Palestine could exercise their right to self-determination which would eventually lead to the permanent resolution of long-standing disputes.
Statehood of Palestine –
Malcolm Shaw, in Rosenne’s Law and Practice of the International Court, once endeavours to find the elucidation of statehood in terms of ICJ. According to him, the case of statehood could be sturdier if the UN has provided its acknowledgement and recognition of such status or when features of a unit are identical to other such entities which are conferred with the status of statehood. As far as the first condition is concerned, UNGA resolution 43/177 recognized the proclamation of an autonomous state by Palestine and held that the description ‘Palestine’ should be used as a substitute for ‘Palestine Liberation Organisation’. Though the resolution was opposed by the US and Israel alone, it succeeded in the congregation of overwhelming support for its declaration. Later in 2012, by the virtue of UNGA resolution 67/19, it conferred the status of non-observer state to Palestine, reiterating its right to self-determination. Nevertheless, it is factual and indeed argued by the scholars that merely a non-observer state is not abundant for the status of statehood. On this assertion, it could be argued that a core policy-making organ consisting of all adherents of the UN has identified Palestine as a state which indeed pleases the constitutive theory of Recognition. Shaw’s assertion that statehood can be inferred by UN behaviour with that entity can be well comprehended through the Vienna Convention of Law of treaties (VCLT) which could be an additional mode of defining statehood. Article 81 of VCLT permits the designation of state to an entity that is part of the UN organisations. Scholars such as Jure Vidmar even recognize the role of VCLT criteria in international law. As per the VCLT canons of statehood, Palestine could be conferred such status of the autonomous state being the part of UNESCO– A specialised unit of the UN. Therefore, it could be argued that Palestine satisfies the minimum threshold of statehood and is well entitled to bring its claim before ICJ.
However, ICJ may probably decide to measure the statehood of Palestine on the lines of the more traditionalist and longstanding approach that is the Montevideo Convention of 1933. It is usually viewed as a representative of Customary international law for conceding Statehood. The convention was signed in 1933 between the US and 19 other Latin American countries that were opposing US armed intervention in their states. Article 1 of the convention lays down the following standards for statehood- (a) Population (b) Definite Territory (c) Established Government and (d) Capacity to enter into diplomatic relations. The delinquency with this treaty is that it does not recognise the contemporary claims of those states that are struggling to cease the long colonial and belligerent ties. The convention is principally endorsed by the western scholars which are not even pertinent in the recognition of Kosovo, Bosnia and East Timur by the international community. It is currently not able to cope up with the contemporary secessionist movement of states like Palestine. Some authors, particularly western-oriented scholars, tend to base their arguments on the Montevideo Convention. They argue that Palestine did not satisfy its standards despite the presence of bilateral treaties and UN resolutions which dampen their assertions. Even as a matter of astonishment, Article 6 of the Montevideo convention acknowledged the declaratory principle and termed it as irrevocable which generally is not highlighted to conceal their narrative.
As far as the first condition of population is concerned, there should be little argument pertaining to it. Even the Security Council resolution 1860 referred to the Palestinian Civilian Population. Moreover, the ICJ itself in the case of Construction of wall case 2003, observed the presence of such a population. Though it is accurate that the Government cannot work out its effective control over such a population, going by that rationale, even Afghanistan and Iraq were not states under US invasion and neither was France under German invasion during WWII. Therefore, it can be concluded that presently, the Arab inhabitants of the West Bank and Gaza are Part of Palestine population. (Disregarding Jerusalem due to its controversial status).
As regarding the second obligatory principle of territory, it is nowhere cited that it has to be definite and static in nature. The Palestine declaration of independence in 1988 indicates that the West Bank, Gaza and East Jerusalem are undisputed parts of Palestine territory. It is argued that the territory claimed by Palestine is occupied but this does not mean that it will divest Palestine of its territory. The UNGA resolution 181 of 1947 divided the territories provisionally and recognized the West Bank and Gaza strip as Arab territory. Moreover, in the Oslo pact of 1993, the PLO was recognized as a representative of its people and hence, was allowed to administer the West Bank and Gaza strip. Furthermore, UNSCR 242 called for the removal of Israeli forces from occupied territories. It implicitly meant that some regions are certain to be part of Palestine while other regions are disputed. If someone put forward the disagreement that the territory is not decided and therefore, Palestine did not accomplish this principle, then by this justification Israel too should not be liable to be conferred with the title of state and neither those states which have their territorial disputes.
The third principle, i.e. Established Government, might be forbidding and the most contentious element of the convention to be proved. Israel and western philosophers could contend that Palestine did not relish the third element of established government. However, what they failed to analyse is that this element does not by itself need to be satisfied in belligerent occupation. However, the US chose to adopt the contrary standards in order to fulfil their political motivations instead of resolving the dispute. The current US regime, chooses to contempt the efforts of previous regimes and is more concerned with pleasing Israel to assert its dominance in the region. It not only harmed the US role as an intermediary, but it also condenses the chances of peaceful resolution of the dispute by a two-state solution. The American abstinence regarding Palestine can be identified by its recent measure to cease the contributions to the UN’s Palestine refugee agency while increasing its military aid to Israel. Despite their continuing efforts, what the western lobby needs to remember is that the international community, formerly designated Bosnia as a state amidst a bloody civil war, which meant that it lacked a fully stable and established government at that time. Equally, Kosovo too was declared independent from Serbia amidst NATO intervention. Besides, PNA played an important role and represented Palestine’s interests in negotiations with Israel in the Oslo Accord of 1993. As per this Accord, limited powers were assigned to PNA under Basic law which satisfies the criteria of Government. It is well recognized that bilateral treaties generate a compulsion in international customary law as recognized in Eastern Greenland Case. As per the previous treaty obligations between both countries, Israel has to acknowledge PNA as the government of Palestine.
The Monetary Gold Principle-
The next contention is related to the monetary gold doctrine laid down by ICJ to shelter the rights of an absent third party in the dispute. The doctrine was laid down in the Corfu channel case as the court decided to refrain from hearing the dispute as it incorporated the question of Yugoslavia’s obligations for the mines while Yugoslavia was not the party to the case. Therefore, the new doctrine arises for reverence of the interest of a third party. On the same lines, various scholars of international law contended that the pronouncement of the case may hamper the said doctrine as the court has to decide the territorial extent of Israel in its absenteeism, which goes contradictory to the principle. However, what should be realized is that it does not, in any case, prevent the ICJ from affecting the legal interest of the state. Indeed, Palestine framed its concern in such a manner that the court could decide upon the issue without even deliberating on the rights and commitments of Israel in this case. Therefore, the monetary gold principle is not applicable here as the quarrel is with the US and not Israel. Moreover, the rudimentary argument rests upon the corpus spectrum status of Jerusalem which halts the territorial extent of parties until a new agreement has been made. This special status has the sanction of UN resolutions and even the US itself has not challenged the special status even once. This resolution necessitates the withdrawal of diplomatic missions from the holy city of Jerusalem and refrains states to set up their missions in the city. Hence, it can be concluded that the question is more related to the application of the VCDR treaty and defilement of the US from its international obligations which can be deliberated in the court without even determining the rights and territorial extent of Israel. This view was even expressed by ICJ itself in the Nauru case wherein, it was held that the court could not cease to hear the case merely because it affects the legal obligations of the third state even though it does not form the essential matter of the case. Lastly, it should be appreciated by scholars that this principle should not be used to dodge matters of high importance. This principle is currently being used to disregard the rights of a certain section of the population even though it is politically significant to address the issue. This position was even espoused by ITLOS in the Norstar case. Therefore, it is sufficiently established that this principle is not even pertinent in this case and even if it is so, it could easily be set aside by the court.
Conclusion –
While Palestine satisfies these prerequisites for statehood, the western lobby, particularly the US, is quite reluctant to recognize the rights of Palestine’s people because of their political and diplomatic motives. As proved, Palestine is effective in sustaining the constitutive theory of recognition and VCLT standards. The other standard of statehood is the principle of self – declaration which too was fulfilled by Palestine back in 1988 when it declared its independence and was recognized by an overwhelming majority of nations. This principle progressed with the decolonisation process, particularly after WWII. The UN’s acceptance of Congo and Rhodesia indicates that the criteria of self-determination should be more vital than the elements laid down by the Montevideo Convention which was generally utilized by western scholars to discard the Palestine claim. Therefore, it could be a prima facie case for the court to lay down the guidelines and theories of statehood that could break the shackles of previous old conventions and treaties that are not able to cope up with contemporary times.
The author is a Second Year law student at the University School of Law and Legal Studies, GGSIPU.
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