18/19, E. Krude, ‘Palestine’s Ability to Litigate in the ICJ’

Author: Emil Krude

 

A. Introduction

As a reaction to the movement of the U.S. embassy to Jerusalem, Palestine instituted proceedings against the United States of America before the International Court of Justice (ICJ), stating that the United States violated the Vienna Convention on Diplomatic Relations.[1] Concerning this claim it should be noted that in accordance with Art. 34 (1) ICJ-Statute (ICJ-St.), only states may be parties in front of the ICJ and the question of Palestine’s statehood has not been acknowledged yet by the ICJ.[2] For this reason, the ICJ has primarily to examine whether it can entertain Palestine’s application at all before attending to the disputed issue of the case. This essay will hence consider the question of Palestine’s ability to litigate in the ICJ and will not turn towards the merits of the case.

 

Regarding the admissibility of Palestine’s claim, it is necessary to examine how “states” in Art. 34 (1) ICJ-St. should be ascertained. An appropriate definition of statehood can be found in Art. 1 of the Montevideo-Convention,[3] outlining that a state should meet following qualification: 1) a permanent population, 2) a defined territory, 3) a government and 4) the capacity to enter into relations with other states. Although only Members of the Organisation of American States were parties to the Convention, this qualification of statehood has become a globally accepted customary rule.[4] Even when the requirements are criticised in particular,[5] it is thus most likely that the text of Art. 34 (1) ICJ-St. refers to this Montevideo-interpretation of statehood.[6] For this reason the essay will discuss, in detail, the four requirements and will determine whether Palestine meets them. According to Art. 31 (1) of the Vienna Convention,[7] the essay will likewise refer to the purpose and objective of the ICJ as an important actor to fulfil the legal duty of Art. 33 (1) UN Charter to solve disputes peacefully.

 

Furthermore, it should be noted that the Court will not answer the question of Palestine’s statehood in general, but only in the context and the purpose of Art. 34 (1) ICJ-St. Therefore, it is most likely that the Court will take up a formal de-facto perspective, which is likewise enshrined in the declarative approach of the Montevideo Convention,[8] and might follow J. Crawford’s approach[9] of disregarding the claim of self-determination and focusing on the actual achievement of statehood.

 

B. How are the four requirements of statehood interpreted in particular and does Palestine meet them?

 

1. Permanent population

In regard to the first requirement, the U. S. Court of Appeals for the Second Circuit denied in Klinghoffer v. Achille Lauro the existence of a permanent population in Palestine for the reason that the PLO (Palestine Liberation Organisation) were not able to demonstrate that it possesses a defined territory.[10] However, following the application of the Montevideo Convention it should be noted, that the different requirements of statehood have to be examined separately.[11]In light of this, the requirement of a permanent population is circumscribed as an aggregate of individuals who together perform a community,[12] without regard to the nationality or territory of the people.[13] Applying this definition to the current case, the way in which the PLO can demonstrate the possession of a territory is not significant, [14] but rather, what is crucial, is the way in which people are performing a community which can be regarded as the people of Palestine. Considering the region of the West Bank and the Gaza Strip, it cannot be doubted that the 5, 1 million people[15] who have been inhabiting this area for centuries[16] are constituting a Palestinian community.[17] A further evidence for the existence of a united community is the adoption of common national symbols, for example the Palestinian flag,[18] and the election of collective representatives.[19]

 

2. Defined territory

Moving to the criterion of a defined territory, it may be noted that, even if Israel or any other country does not entirely claim the West Bank or the Gaza Strip, the Palestinian boundaries are highly controversial. For this reason, the existence of a Palestinian territory has been disputed.[20] In this context, a teleological interpretation with regard to the purpose of Art. 34 (1) ICJ-St. should be applied. Having in mind the important role of the ICJ to solve disputes peacefully and hence to secure the court’s jurisdiction especially in boundary disputes, which are often violent, a distinction seems natural between borders and core territory. Thus, it is reasonable to deviate from a strictly textual interpretation of the Montevideo criteria of a defined[21] territory. Consequently, the ICJ stated in North Sea Continental Shelf that it shall not be necessary that the territory is “fully delimited and defined”.[22] Therefore, the existence of a core-territory should be regarded as sufficient to fulfil the requirements of statehood under Art. 34 (1) ICJ-St. Having regard to these circumstances, it can be declared that the land of the West Bank and the Gaza strip can be seen as the territory of the Palestinian people, even if the boundaries are disputed.

 

3. Government

The third requirement is interpreted as the existence of an effective government that controls the population within the territory.[23] Albeit the international law sets no specific requirements to the type of the government, a degree of maintenance of the law and order and the establishment of basic institutions is the minimum demand.[24]

 

Concerning the situation in Palestine, it can be determined that different governmental bodies are ensuring the enforcement of law within parts of the territory. The self-governmental Palestinian National Authority (PNA) has been established by the Oslo I Accord in 1993,[25] which is composed of a legislative council (PLC), an executive president and a Prime Minister leading the Cabinet.[26] It also provides administrative control and police authorities enforcing the law and preventing crimes.[27] Concentrating on the effect of the Oslo I and II Accords and the de-jure competences of the PNA, Whitman[28] and Quigley[29] conclude that the PNA should be regarded as an effective government.

 

However, effectiveness also requires that the government demonstrates unrivalled possession throughout the territory,[30] and for this reason a certain degree of independence is necessary.[31] As the Commission of Jurists stated in the Åland island case, statehood requires that a state is strong enough to assert itself throughout the territory.[32] It therefore should have the actual opportunity to govern a certain territory.[33]

 

Regarding the situation in Palestine, Crawford has negated the achievement of statehood by focusing on Israel’s remaining governmental power.[34] Indeed, it should be noted that the PNA only enjoys exclusive governmental power in the Gaza Strip and within the territory of the so-called Area A,[35] which were both defined in the Oslo-II Accord.[36] The territory of Area A increased after several additional Agreements[37], but today it still constitutes only 18 % of the West Bank.[38] Furthermore, the PNA administrates solely civil control and joint managed Israeli-Palestinian security control in Area B, which forms 22 % of the West Bank.[39] The other 60 % of the territory of the West Bank is under the exclusive government of the Israeli Administration.[40] Additionally, Israel still remains competent for border control and external security throughout Palestine’s territory.[41]

 

On the contrary, over 90 % of Palestinians are living in the Area A or B and are thus at least partly governed by the PNA.[42] Moreover, states can even be accepted independently, if certain functions of the government are executed by foreign bodies, as the ICJ stated in the Kosovo case.[43]

 

Considering the varying facts and conclusions regarding the presence of an effective government, it should be taken into consideration that a solution has to be found in compliance with the purpose and objective of Art. 34 (1) ICJ-St. In accordance with the telos of a wide access to the court, in order that it can fulfil its dispute-settlement role effectively, a lowered threshold for the criterion of effective government is appropriate. Therefore, a lack of political authority throughout the entire territory could be compensated by the fact that the vast majority of the Palestinian people are under the control of the government. Under these circumstances, it can be determined that the PNA meets the requirement of an effective government under the adjusted threshold of Art. 34 (1) ICJ-St.

 

4. Capacity to enter into relations with other states

Even when the capacity to enter into relations with other states is questioned as a valid criterion for statehood,[44] it seems like Palestine would meet this demand, because many states have shown their readiness to develop (quasi-)diplomatic relations with Palestine.[45] Nonetheless, Art. IX 5a of the Oslo-II Accord[46] determines that the competences for foreign relations, including the establishment of embassies, remain with Israel.

 

However, regarding the scope of Art. 34 ICJ-St., the possibility to enter into relations should be determined on a scale of international law, which requires the examination on an objective evidential approach. Following this reasoning, it cannot be up to Israel to define whether Palestine possesses the capacity to enter in relations with other states, but rather up to the international community.[47] In fact, Palestine enjoys a widespread recognition by 137 states and participates as a member or observer in more than 25 international organisations among the United Nations.[48] That mere fact alone induced some authors to affirm the question of statehood.[49] In the context of Art. 34 (1) ICJ-St. though, it should be noted that the Montevideo-Convention follows the declarative theory,[50] which does not award any legal impact to the act of recognition.[51] Thus, Palestine’s role within the UN cannot be seen as an evidence of statehood under Art. 34 (1) ICJ-St, but nevertheless it can be seen as a strong demonstration of its capacity to enter into relations with other states.

 

C. Conclusion

 

Having examined how states in Art. 34 (1) ICJ-St. should be interpreted, it can be determined that Palestine meets the requirements of statehood by possessing a permanent population, a territory, an effective government and the capacity to enter in relations with the other states. For this reason, Palestine should be considered as a state within and solely within the meaning of Art. 34 (1) ICJ-St. Finally, it should be noted that Art. 34 ICJ-St. does not demand that Palestine is either a member state of the United Nation nor of the ICJ-Statute. Considering the legal context of Art. 34 ICJ-St., it follows that Art. 93 (2) UN-Charta and Art. 35 (2) ICJ-St. confirm the current case, that a non-member state wants to litigate in front of the ICJ. Therefore, Palestine should have the ability to litigate in the ICJ and the Court should turn its attention to the merits of the case by fulfilling its responsibility as a peace-making mediator.

[1] https://www.ejiltalk.org/palestine-sues-the-united-states-in-the-icj-re-jerusalem-embassy/, attended 10.02.2019

[2] unacknowledged in Israeli Wall Advisory Opinion, I.C.J. Reports 2004, 136; note also that Palestine is not yet a Member of the United Nations.

[3] Montevideo Convention on the Rights and Duties of States (1933).

[4] J. Klabbers, International Law (Cambridge 2017), 75.

[5] M. Evans, International Law, 5th edition (Oxford, 2018), 194

[6] M. Whitman, Palestines Statehood and Ability to Litigate in the ICJ, CWILJ 44 [2013], 77-78.

[7] Art. 31 (1) Vienna Convention on the Law of Treaties (1969).

[8] M. Evans, (fn. 5), 192.

[9] J. Crawford, The Creation of States in International Law (Oxford, 2006), 446; J. Crawford, The Creation of the State of Palestine, Too Much To Soon? (1990), 1 Eur. J. Int’l L. 307 (309).

[10] Klinghoffer v. Achille Lauro , 937 F.2d 44, 47-48 (2d Cir. 1991)

[11] J. Quigley, The Statehood of Palestine (Cambridge 2011), 211.

[12] L. Oppenheim, Oppenheim International Law, edit. by R Jennings/A. Watts 9th edition, (Harlow 1992), 121.

[13] J. Crawford, State, in MPEPIL January 2011, para 21.

[14] discussed below in 2.

[15] World Population Review, Palestine, http://worldpopulationreview.com/countries/palestine-population, accessed 10.02.2019

[16] P.M. Fraser, I.J. Bickerton, Palestine, in: Encyclopædia Britannica, https://www.britannica.com/place/Palestine, accessed on 10.02.2019

[17] J. Quigley, The Israel-PLO Interim Agreements: Are They Treaties? (1997), 30 CORNELL INT’L L.J. 717, 724; F.A. Boyle, The Creation of the State of Palestine (1990), 1 EJIL, 302.

[18] J. Efaw, Palestinian Psychological Operations: The First Intifada (2006), http://americandiplomacy.web.unc.edu/2006/01/palestinian-psychological-operations-the-first-intifada/, accessed 10.02.2019.

[19] Art. 48 (1) of the Amended Basic Law of Palestine 2003.

[20] Klinghoffer v. Achille Lauro, 937 F.2d 44, 47; Knox v. Palestine Liberation Organization, 306 F. Supp. 2d 424, 434 (S.D.N.Y. March 1, 2004).

[21] Art. 1 b) Montevideo Convention.

[22] North Sea Continental Shelf Case (1969) ICJ Rep 3.

[23] V. Lowe, International Law, (Oxford 2007), 156.

[24] J. Crawford, The Creation of States (fn. 9), 59.

[25] Art. I Oslo-I Accord.

[26] Art. 34, 47 and 63 of the Amended Basic Law of Palestine 2003.

[27] J. Quigley, (fn. 11), 215.

[28] M. Whitman, (fn. 6), 80.

[29] J. Quigley,(fn 11), 213-217.

[30] M. Ewans (fn. 3), 199.

[31] M. Shaw, International Law, 8th edition (Cambridge, 2017), 160.

[32] Åland Island case, LNOJ, Sp Supp 4 (1920), 8-9.

[33] J. Crawford, The Creation of States (fn. 9), 61.

[34] J. Crawford, The Creation of the State of Palestine (fn. 9), 309.

[35] M. Whitman (fn. 6), 80.

[36] Art. XI Nr. 3 a/b Oslo-II-Accord.

[37] M. Shaw (fn. 31), 187.

[38] B’Tselem, Israel’s Policy in Area C, the West Bank” (2013), 11.

[39]B’Tselem, Israel’s Policy in Area C, the West Bank” (2013), 11.

[40] Ibid., 6.

[41] J. Quigley (fn. 11), 214

[42] B’Tselem, Israel’s Policy in Area C, the West Bank” (2013), 77.

[43] Kosovo (Advisory Opinion), ICJ Reports, 2010, 403.

[44] J. Crawford The Creation of States (fn. 9), 61.

[45] corresponding verification can be found in J. Quingley (fn. 11), 211.

[46] for the legal status of the Accords as a binding Treaty see J. Quigley, The Israel-PLO Interim Agreements, 30 Cornell ILJ (1997), 717 (740).

[47] Ibid (fn 46), 726.

[48] United Nations General Assembly resolution 67/19.

[49] A. Miron, Palestine’s Application the ICJ, neither Groundless nor Hopeless, published on EJIl:Talk (https://www.ejiltalk.org/palestines-application-the-icj-neither-groundless-nor-hopeless-a-reply-to-marko-milanovic/) on the 10.02.2019; M. Whitman (fn. 6), 78.

[50] Art. 3 of the Montevideo Convention.

[51] J. O’Brien, International Law, (London, 2001), 172.

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