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Palestine Brings a Case Against the United States in the International Court of Justice at a Fraught Time for U.S.-Palestinian Relations

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While Palestine considers itself a state, the United States does not currently recognize it as such. The relationship between the two has continued to deteriorate following the December 2017 announcement that the United States would recognize Jerusalem as Israel's capital and move its embassy there. Alleging that the embassy relocation violates international law, Palestine brought a case against the United States in the International Court of Justice (ICJ) in September of 2018. The United States reacted by announcing its withdrawal from the Optional Protocol to the Vienna Convention on Diplomatic Relations Concerning the Compulsory Settlement of Disputes (Optional Protocol). Also in the fall of 2018, the Trump administration closed the Palestine Liberation Organization (PLO) office in Washington, curtailed its own Palestinian-focused mission in Jerusalem, and sharply cut U.S. funding focused on Palestinian interests.

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1 For discussion of the Trump administration's decision and responses by the international community, see Jean Galbraith, Contemporary Practice of the United States, 112 AJIL 306 (2018).

2 Id. at 308–10.

3 U.S. Dep't of State Press Release, On the Opening of U.S. Embassy Jerusalem (May 14, 2018), at https://www.state.gov/secretary/remarks/2018/05/282066.htm [https://perma.cc/GCP7-FPZG].

4 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 (reproducing this “note verbale” in which Palestine also requested “to be informed as soon as possible about the steps the United States is considering to ensure its actions are in line with the” VCDR).

5 Id. at 39 (reproducing this second “note verbale”).

6 Relocation of the United States Embassy to Jerusalem (Palestine v. U.S.), Application Instituting Proceedings, 2018 ICJ (Sept. 28), available at https://www.icj-cij.org/files/case-related/176/176-20180928-APP-01-00-EN.pdf [hereinafter ICJ Application].

7 Id. at 3–5 (citing Security Council Resolutions 252, 267, 298, 476, and 478). The two most recent of these—Resolutions 476 and 478—respectively “reconfirm[ed] that all legislative and administrative measures and actions taken by Israel, the occupying power, which purport to alter the character and status of the Holy City of Jerusalem have no legal validity” and “call[ed] upon … [t]hose States that have established diplomatic missions at Jerusalem to withdraw such missions from the Holy City.” SC Res. 476 (1980); SC Res. 478 (1980).

8 ICJ Application, supra note 6, at 9–11. The VCDR uses the term “receiving state” frequently but does not have a provision that explicitly and specifically requires a diplomatic mission to be located on the premises of the receiving state. See generally Vienna Convention on Diplomatic Relations, Apr. 18, 1961, 23 UST 3227, 500 UNTS 95. The receiving state does have an obligation to “either facilitate the acquisition on its territory, in accordance with its laws, by the sending State of premises necessary for its mission or assist the latter in obtaining accommodation in some other way.” Id. Art. 21(1).

9 ICJ Application, supra note 6, at 11 (quoting VCDR Art. 41(3)).

10 Id. at 12.

11 Palestine did contribute a written statement to an ICJ advisory proceeding in 2004. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Written Statement Submitted by Palestine, 2004 ICJ (Jan. 30), available at https://www.icj-cij.org/files/case-related/131/1555.pdf.

12 GA Res. 67/19, Status of Palestine in the United Nations (Dec. 4, 2012), at https://unispal.un.org/DPA/DPR/unispal.nsf/0/19862D03C564FA2C85257ACB004EE69B.

13 Id.

14 Office of the UN Secretary General, Note to Correspondents – Accession of Palestine to Multilateral Treaties (Jan. 7, 2015), at https://www.un.org/sg/en/content/sg/note-correspondents/2015-01-07/note-correspondents-accession-palestine-multilateral (noting that “it is for States to make their own determination with respect to any legal issues raised by instruments circulated by the Secretary-General”); see also John Cerone, The ICC and Palestinian Consent, ASIL Insight (Mar. 20, 3015), at https://www.asil.org/insights/volume/19/issue/6/icc-and-palestinian-consent (observing that in 2014 Switzerland and the Netherlands also accepted Palestinian accession to treaties for which they serve as depositories).

15 UN Secretary-General, Vienna Convention on Diplomatic Relations: State of Palestine: Accession (Apr. 9, 2014), available at https://treaties.un.org/doc/Publication/CN/2014/CN.176.2014-Eng.pdf.

16 Diplomatic Note, United States Mission to the United Nations New York (May 13, 2014), available at https://treaties.un.org/doc/Publication/CN/2014/CN.256.2014-Eng.pdf.

17 UN Secretary-General, Optional Protocol to the Vienna Convention on Diplomatic Relations Concerning the Compulsory Settlement of Disputes: State of Palestine: Accession (Mar. 23, 2018), available at https://treaties.un.org/doc/Publication/CN/2018/CN.149.2018-Eng.pdf (noting that the action “was effected on 22 March”).

18 Diplomatic Note, United States Mission to the United Nations New York (May 1, 2018), available at https://treaties.un.org/doc/Publication/CN/2018/CN.228.2018-Eng.pdf.

19 For further discussion of this announced withdrawal and the legal questions surrounding its validity, see Galbraith, Jean, Contemporary Practice of the United States, 113 AJIL 133 (2019).

20 White House Press Briefing, Press Briefing by Press Secretary Sarah Sanders, Small Business Administrator Linda McMahon, and National Security Advisor (Oct. 3, 2018), at https://www.whitehouse.gov/briefings-statements/press-briefing-press-secretary-sarah-sanders-small-business-administrator-linda-mcmahon-national-security-advisor-100318 [https://perma.cc/B4RU-A34K] [hereinafter October 3 Press Briefing].

21 ICJ Press Release, Relocation of the United States Embassy to Jerusalem (Palestine v. U.S.) (Nov. 30, 2018), available at https://www.icj-cij.org/files/case-related/176/176-20181130-PRE-01-00-EN.pdf (quoting the letter, which in turn referenced the U.S. notifications made when Palestine joined the VCDR and the Optional Protocol).

22 Id.

23 See, e.g., Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Judgment, 1986 ICJ 14, para. 36 (June 27) (measuring jurisdiction based on the time the case was filed and stating that “‘[a]n extrinsic fact such as the subsequent lapse of the Declaration [or, as in the present case also, the Treaty containing a compromissory clause], by reason of the expiry of the period or by denunciation, cannot deprive the Court of the jurisdiction already established’”) (quoting Nottebohm Case (Liech. v. Guat.), Judgment, 1953 ICJ 111, 123 (Nov. 18)) (alteration in original).

24 Statute of the International Court of Justice, Art. 34, para. 1.

25 “It is disputed whether such declarations may qualify as reservations as stipulated in the Vienna Convention on the Law of Treaties.” Talmon, Stefan, The European Union – Turkey Controversy Over Cyprus or a Tale of Two Treaty Declarations, 5 Chinese J. Int'l L. 579, 587–89 (2006) (asserting that “[i]n practice, such declarations have … been treated like reservations” and that “[t]heir legal effect thus depends on the individual treaty and, in particular, on whether the statement excluding the application of the treaty in relation to the non-recognized entity is incompatible with the object and purpose of the treaty”); see also Gamble, John King Jr., Reservations to Multilateral Treaties: A Macroscopic View of State Practice, 74 AJIL 372, 388 (1980) (noting the frequency of such declarations by Arab nations with respect to Israel).

26 Compare Marko Milanović, Palestine Sues the United States in the ICJ re Jerusalem Embassy, EJIL: Talk! (Sept. 30, 2018), at https://www.ejiltalk.org/palestine-sues-the-united-states-in-the-icj-re-jerusalem-embassy/#more-16519 (suggesting that “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 those parties”—since the case “clearly involves the existence (or not) of the rights of Israel vis-à-vis that territory, and Israel will obviously not consent to the ICJ's determination of these rights”) with Alina Miron, Palestine's Application the ICJ, neither Groundless nor Hopeless. A Reply to Marko Milanović, EJIL: Talk! (Oct. 8, 2018), at https://www.ejiltalk.org/palestines-application-the-icj-neither-groundless-nor-hopeless-a-reply-to-marko-milanovic/#more-16541 (suggesting that the Monetary Gold principle might not be applicable).

27 U.S. Dep't of State Press Release, Closure of the PLO Office in Washington (Sept. 10, 2018), at https://www.state.gov/r/pa/prs/ps/2018/09/285812.htm [https://perma.cc/B2PP-SCKS].

28 Id.

29 U.S. Dep't of State Press Release, On the Merging of the U.S. Embassy Jerusalem and U.S. Consulate General Jerusalem (Oct. 18, 2018), at https://www.state.gov/secretary/remarks/2018/10/286731.htm [https://perma.cc/75CP-4M55] [hereinafter October 18 Press Release].

30 David M. Halbfinger, U.S. Folding Jerusalem Consulate into Embassy, a Blow to Palestinians, N.Y. Times (Oct. 18, 2018), at https://www.nytimes.com/2018/10/18/world/middleeast/us-palestinians-consulate-jerusalem.html.

31 October 18 Press Release, supra note 29.

32 Id.

33 U.S. Dep't of State Press Release, On U.S. Assistance to UNRWA (Aug. 31, 2018), at https://www.state.gov/r/pa/prs/ps/2018/08/285648.htm [https://perma.cc/JNW3-DC78] [hereinafter August 31 Press Release].

34 See Galbraith, supra note 1, at 310.

35 August 31 Press Release, supra note 33.

36 UNRWA, See What We Do, at https://www.unrwa.org/what-we-do.

37 UNRWA, Palestine Refugees, at https://www.unrwa.org/palestine-refugees.

38 UNRWA, Where We Work, at https://www.unrwa.org/where-we-work.

39 UNRWA, 2017 Pledges to UNRWA’s Programmes (Cash and In-kind) – Overall Donor Ranking as [of] 31 December 2017, available at https://www.unrwa.org/sites/default/files/overalldonor_ranking.pdf. Since 2009 the United States has been the number one contributor to UNRWA, with U.S. contributions peaking in 2015 at $380,593,116. UNRWA, Pledges to UNRWA (Cash and In-kind) for 2015 – Overall Donor Ranking in USD as [of] 31 December 2015, available at https://www.unrwa.org/sites/default/files/2015_donors_ranking_overall.pdf. For more data on U.S. contributions since 2008, see UNRWA, Donor Charts, at https://www.unrwa.org/how-you-can-help/government-partners/funding-trends/donor-charts.

40 David Brunnstrom, Trump Cuts More Than $200 Million in U.S. Aid to Palestinians, Reuters (Aug. 24, 2018), at https://www.reuters.com/article/us-usa-palestinians/trump-cuts-more-than-200-million-in-u-s-aid-to-palestinians-idUSKCN1L923C.

41 Trump Cuts $25 Million in Aid for Palestinians in East Jerusalem Hospitals, Reuters (Sept. 8, 2018), at https://www.reuters.com/article/us-usa-palestinians-hospitals/trump-axes-25-million-in-aid-for-palestinians-in-east-jerusalem-hospitals-idUSKCN1LO0O0.

42 Edward Wong, U.S. Is Ending Final Source of Aid for Palestinian Civilians, N.Y. Times (Sept. 14, 2018), at https://www.nytimes.com/2018/09/14/world/middleeast/us-aid-palestinian-civilians.html.

43 Pub. L. 115-253, __ Stat. __ (2018) (providing among other things that as a condition of accepting U.S. funding, defendants to civil actions alleging injury based on international terrorism must accept personal jurisdiction in these actions). For a discussion of this act and its sizeable implications for the PLO, see Harry Graver & Scott R. Anderson, Shedding Light on the Anti-Terrorism Clarification Act of 2018, Lawfare (Oct. 25, 2018), at https://www.lawfareblog.com/shedding-light-anti-terrorism-clarification-act-2018; see also Robbie Gramer & Colum Lynch, U.S. Mulls End to Remaining Aid Programs for Palestinians, For. Pol'y (Nov. 30, 2018), at https://foreignpolicy.com/2018/11/30/new-law-could-end-u-s-aid-programs-to-the-palestinians-u-s-agency-for-international-development-terrorist-law-humanitarian-aid-united-nations-relief-works-agency-unrwa-west-bank-gaza-protests-trump-ku (noting that the Trump administration has developed concerns about the effects of this law and may seek to amend it).

44 Wong, supra note 42.

45 Wishing Away Palestinian Refugees: End of US’ UNRWA Aid Explained, Al Jazeera (Sept. 2, 2018), at https://www.aljazeera.com/news/2018/09/unrwa-funding-cut-deeply-regrettable-shocking-180901071620633.html (adding that “‘[t]his will fail’”). The number of refugees is relevant to ongoing negotiations regarding a potential right of return, and Israel has been critical of UNRWA for how it defines refugees. Id.

46 UNRWA Press Release, Open Letter from UNRWA Commissioner-General to Palestine Refugees and UNRWA Staff (Sept. 1, 2018), at https://www.unrwa.org/newsroom/official-statements/open-letter-unrwa-commissioner-general-palestine-refugees-and-unrwa.

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