Published : 2020-01-30

Palestine v. US before the International Court of Justice?

Władysław Czapliński



Section: Articles

Abstract

In December 2017, the administration of President D. Trump decided to move the US embassy in Israel from Tel Aviv to Jerusalem. On 28.09.2018, Palestine initiated proceedings against the US in connection with the said transfer. According to the ICJ Statute, only the parties of concern can take part in the case before the Court. However, it does open the way for non-member countries that had presented a declaration of submission to the Court’s jurisdiction, to observe. If there are any doubts as to the validity or effects of the declarations, they are decided by the ICJ. In the present case, doubts are connected, in particular, with the status of Palestine as a State, with the status of Jerusalem and with the participation in the proceedings of all interested parties. It is unclear whether Palestine meets the criteria of statehood under international law,
and the nation is far from being universally recognized. Nor may the GA Resolution 67/19 be viewed as sufficient collective recognition. Furthermore, we do have reasonable doubt as to whether this is sufficient collective recognition to be essentially constitutive of Palestine’s statehood. This situation is not changed by the acceptance by Palestine of the jurisdiction of the ICC nor accession to UNESCO and to a number of international treaties. On the other hand, the jurisdiction of Israel with respect to East Jerusalem is also disputed. Certain international bodies, including the UNSC, have expressed doubts equally regarding the incorporation of Jerusalem into Israel or that Palestine has claim to the city. The mere submission of a claim by Palestine does not prejudge the existence of a legal title to Jerusalem. The legitimation of Palestine to bring to international court a claim is thus disputable under the law on state responsibility. It is probable that the ICJ would avoid rendering a decision on merits of the dispute, doing so by referring to the principle of Monetary Gold that was formulated by the ICJ in a judgment on 15.06.1954 in a dispute between Italy, on the one hand, and Great Britain, France and the US, on the other. The subject of the dispute was the fate of gold owned by the National Bank of Albania, plundered by Germany in Rome in 1943.
In accordance with an arrangement concluded at the Paris Conference on German reparations (14.01.1946), all gold found in Germany that was known to have been plundered was to be returned in proportional shares to the States concerned. In the case of Albania, however, difficulties appeared in connection with two issues: claims by some States (in particular Italy) resulting from nationalisation of the National Bank of Albania, and compensation in favour of the UK due to the ICJ judgement in the Corfu Channel. It was disputable whether the gold belonging formerly to Albania could be redistributed among the unsatisfied claimants without the consent of the Albanian State. The Tribunal avoided the problem and decided that it lacked jurisdiction. It refused to render judgment in a situation in which Albania did not participate in the trial; on the  other hand, the ICJ has indicated on what terms Albania could join the proceedings. Albania did not meet the conditions, and the Court decided that it was unable to continue the proceeding.

Keywords

Vienna Convention on Diplomatic Relations ; diplomatic mission ; State of Palestine ; recognition


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