Saudi journalist Jamal Khashoggi’s murder has monopolised the international news space for the past week, so much so that we almost forgot about the Palestine-United States legal war.
The raging debate on Palestine has perhaps found its most articulate expression on the website of the European Journal of International Law.
Three weeks ago, Marko Milanovic demonstrated the futility of Palestine’s case before the International Court of Justice. His argument was based on three limbs: statehood, Israel’s exclusion and the Vienna Convention.
A few days later, Alina Miron posted a reply to Marko’s article. She disagreed with his views. Alina’s robust commentary section has led to greater in-depth legal reasoning of the three main issues advocated by the two.
The first, and perhaps the most important issue, is the question on Palestine's statehood. As I said in my previous piece, the court cannot possibly make a determination on the merits in this case without answering this question either directly or indirectly. In my opinion, this is the hope and wish of Palestine’s agenda.
Both sides of the debate agree that one of the most apparent preliminary objections by the US is Palestine’s standing before the International Court of Justice (ICJ). The United States does not recognise Palestine’s statehood. Considering that only states have standing before the ICJ, the question will most probably loom large.
Marko’s analysis did not delve into it, but Alina’s did. She makes the assertion that seeing as recognition is no longer constitutive, therefore the court could easily defer to the general recognition of Palestine as a state especially through its admission as a non-member observer-state by Resolution 67/19 of 4 Dec. 2012.
This point is strengthened, in Alina’s opinion, by the fact that Palestine has acceded to various treaties, including the Vienna Convention on Diplomatic Relations.
LEAVING ISRAEL OUT
The second question concerns the exclusion of Israel from the proceedings. Marko argues that the Monetary Gold principle will come into play, and the court will avoid making a pronouncement that affects the rights of Israel.
Tobias Thienel explains in the German Yearbook of International Law that the principle ''prevents the International Court of Justice from deciding a case between two parties where the legal interests of a third State take centre stage.'' This case derived its name and authority from the 1954 Monetary Gold case.
Some may find that Israel is an interested party and hence capable of invoking a legitimate ''legal interest''. Certainly, the matter involves the location of the US embassy in Israel. If the judges of the ICJ are convinced that the matter cannot be resolved without affecting Israel’s rights, then they will have to strike it out.
Alina Miron, on the other hand, finds that the court has displayed a more nuanced approach to the Monetary Gold principle. She quotes the East Timor case where the court found that it is not necessarily prevented from adjudicating where its judgement may affect the legal interests of a State which is not party to the case (the third-party state), but it is only prevented where the rights and obligations of a third-party state form the subject matter of such a judgement.
Palestine’s legal questions do not necessitate a determination of Israel’s territory and neither are they asking the court to pronounce itself on Israel’s breach of international law. The case, rather, puts forward the question of Jerusalem’s special status (corpus separatum), established as such under Resolution 181 (II) of 29 Nov 1947. This resolution operated to suspend the ownership of Jerusalem until a consensus is reached by both Israel and Palestine. The court itself gave a nod to this prevailing international regime in the Palestinian Wall case.
MOVING THE EMBASSY
The third question deals with the application of the Vienna Convention. It is founded on the "special status" of Jerusalem. Palestine asks the court whether the transfer of the US embassy to Jerusalem could be property said to be in the "receiving state" — Israel. The action of the US, Alina argues, can be decided upon without pronouncing on the rights and obligations of Israel.
Whatever happens, this case will be remembered as the case that dealt with the core Palestinian question: the judicial recognition or rejection of its statehood. This may be important for Palestine, but it will not resolve the conflict.
For too long, the Middle East has been entangled in a brutally never-ending conflict whose only solution seemed to be violence. The fact that Palestine has approached the court has switched the language. It has acted like a détente in the sour and complex Israeli-Arab relations.
Benjamin Netanyahu is already speaking of two exciting scenarios. One refers to a possible two-state solution, where Palestine will have its own autonomy, though "not the ability to harm us". The second entices the Arab world closer to Israel through technology.
For Netanyahu, technology transfer will ease rivalry and tensions. We sincerely hope so; this is a positive step.
Meanwhile, the world eagerly waits for the court’s decision.
Dr Franceschi is the dean of Strathmore Law School. [email protected]; Twitter: @lgfranceschi