International Courts Reporter Series: Palestine v. United States of America

Introducing the FBA International Courts Legal Reporter Blog Series. This series will report on jurisdictional elements, developments in active cases, legal community initiatives, and other relevant topics in the wide range of international courts and tribunals that operate at the Hague, including the International Court of Justice, the International Criminal Court, and multiple ad hoc tribunals. For more information, contact Emma Tsankov, emma.g.tsankov@gmail.com.

Palestine v. United States of America: The International Court of Justice Considers the Relocation of the U.S. Embassy to Jerusalem

By Jade Davis^[1]
FBA International Courts Legal Reporter

The precarious relationship between the United States and the people living in Israel, Gaza, and the West Bank continues to be a political and legal struggle following former President Trump’s unilateral recognition of Jerusalem as the capital of Israel and decision to relocate the U.S. Embassy in Israel from Tel Aviv to Jerusalem.^[2] In the Palestinian people’s first case filing in the International Court of Justice (ICJ), it requests that the Court resolve its dispute with the U.S. and find that the relocation breached the Vienna Convention on Diplomatic Relations (VCDR).^[3]

The Palestinian people instituted proceedings on September 28, 2018 claiming that the U.S. transfer of its Embassy to Jerusalem seeks to fulfill the Jerusalem Embassy Act of 1995, and breaks a long-standing U.S. practice of not recognizing Israeli sovereignty over Jerusalem dating back to 1999.^[4] The Clinton-era Act recognized Jerusalem as the capital of Israel and called for embassy establishment in Jerusalem by May 31, 1999, a deadline that was extended in six-month increments until on May 14, 2018 when the U.S. inaugurated its embassy in Jerusalem.^[5]

The U.S. Embassy relocation decision faced significant international resistance, and the United Nations (UN) Security Council even considered re-adopting a resolution against such a maneuver in 2017 declaring any actions which purport to alter the character of Jerusalem void and calling upon states to avoid establishment of diplomatic missions in Jerusalem.^[6]  However, this resolution failed to pass following a U.S. veto^[7] which it premised on sovereignty grounds.^[8]

While the situation of the Palestinian people remains unclear, in 2012, they were granted non-member observer State status^,[9] and acceded to the VCDR in 2014 and its Optional Protocol in 2018,^[10] over U.S. opposition.^[11]  The U.S. has stated that it does not recognize responsibilities under the VCDR vis-a-vis the Palestinian people.^[12] In response to the ICJ suit, the U.S. announced its withdrawal from the Optional Protocol in 2018.^[13] Yet, it is unclear whether the withdrawal will have any effect on the case as it occurred after the Palestinian people initiated proceedings at the ICJ.^[14]

At this time, the Court is undertaking jurisdictional and admissibility inquiries into the case which go to the heart of the dispute.^[15] At least one legal scholar has observed that the Court may seek to address case admissibility under the Monetary Gold^[16] principle, which provides that the ICJ may not exercise jurisdiction over the legal interests of a state absent their consent.^[17]

Although the Biden administration has mentioned plans to reopen the U.S. Consulate General for Palestinian people in Jerusalem after its closure, it has also signaled it may leave the U.S. Embassy in Israel in Jerusalem.^[18] The future remains unclear as to how the Court will address the jurisdictional and admissibility components of the case, as well as to how the new U.S. administration will advance its relationship with the Palestinian people.

Endnotes

^[1] Jade Davis is a second-year student at Tulane University Law School.
^[2] Jim Zanotti, U.S. Cong. Rsch. Serv. IN10838, Jerusalem: U.S. Recognition as Israel’s Capital and Planned Embassy Move (December 8 2017) available at https://crsreports.congress.gov/product/pdf/IN/IN10838.
^[3] Relocation of the United States Embassy to Jerusalem (Palestine v. U.S.), Application Instituting Proceedings, Annexes 2018 ICJ, at 38 (Sept. 28), available at https://www.icj-cij.org/files/case-related/176/176-20180928-APP-01-01-EN.pdf.
^[4] See, supra, note 2.
^[5] Basheer Alzoughbi, The Relocation of the U.S. Embassy from Tel Aviv to Jerusalem (Palestine v. United States of America): A Commentary on the Merits of the Case, Jurisdiction of the International Court of Justice and Admissibility of Palestine’s Application, 4:1, Univ. Of Bologna L. Rev. , 114, 134 (2019) available athttps://bolognalawreview.unibo.it/article/view/9425.
^[6] Alzoughbi, supra note 5 at 131; Palestine v. U.S., 2018 I.C.J. at ¶ 22-23; Egypt: Draft Resolution, U.N. Doc. S/27/1060 (December 18, 2017) available at https://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/s_2017_1060.pdf.
^[7] Rep. of the S.C., at 3, U.N. Doc. S/PV.8139 (Dec. 18, 2017) available at https://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/s_pv_8139.pdf.
^[8] Id. at 9.
^[9] “General Assembly grants Palestine non-member observer State status at UN,” UN News (November 29, 2012) available at https://news.un.org/en/story/2012/11/427052-general-assembly-grants-palestine-non-member-observer-state-status-un.
^[10] State of Palestine: Accession (April 9, 2014) available at https://treaties.un.org/doc/Publication/CN/2014/CN.176.2014-Eng.pdf.
^[11] United States of America: Communication (May 1, 2018) available at https://treaties.un.org/doc/Publication/CN/2018/CN.228.2018-Eng.pdf.
^[12] Id.
^[13] “Palestine Brings a Case Against the United States in the International Court of Justice at a Fraught Time for U.S.-Palestinian Relations,” American Journal of International Law, Vol 133:1 (2019), 143-149: 145.
^[14] Loureen Sayej, State of Palestine takes United States to International Court of Justice over Jerusalem Embassy, Oxford Human Rights Hub (Nov. 8, 2018) available at https://ohrh.law.ox.ac.uk/state-of-palestine-takes-united-states-to-international-court-of-justice-over-jerusalem-embassy/.
^[15] Relocation of the United States Embassy to Jerusalem (Palestine v. United States of America), Order of 15 November 2018, I.C.J. Reports 2018, p. 708.
^[16] Monetary Gold Removed from Rome in 1943 (Italy v France, UK and US) (Preliminary Question) [1954] ICJ Rep 19, 32.
^[17] Alzoughbi, supra note 5v at 181-185.
^[18] Deirdre Shesgreen, “Biden administration will reopen US consulate in Jerusalem in a bid to repair ties with Palestinians,” USA Today (May 25, 2021) available at https://www.usatoday.com/story/news/politics/2021/05/25/jerusalems-us-consulate-reopen-reversing-trump-era-closure/7426894002/.

About the Author

Jade Davis is a second-year student at Tulane University Law School.

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