When speaking of nations who claim of being de facto states but lack the legal backing to their claim, i.e., de jure recognition by states, Palestine is the first name that strikes one’s head.
Palestine has been in the headlines for its battle of statehood for quite a while now. This battle was at its peak when US decided to move its Israeli embassy from Tel Haviv to Jerusalem, territory allegedly belonging to Palestine. This move of the US president was criticized universally and was dubbed to be a spark which would re-ignite use of arms in the Israeli-Palestinian region. Although the pentagon had approved this shift for a very long time, no president went on to actually implement it before Donald Trump.
The greatest and the most interesting turn of events recently took place when Palestine decided of moving to the international court of justice regarding the shift of embassy. This motion was filed on 28th September 2018 and the primary argument presented by Palestine was that the United States of America has violated Vienna Convention on Diplomatic Relations (which is a part of Customary International Law) through shifting the embassy as the said convention states,
“diplomatic mission of a sending state must be established on the territory of the receiving state”.
Although Palestine I not a Member of the United Nations and under article 93(2) the membership of ICJ is allotted by the virtue of ratifying the UN Charter. Palestine can still proceed with this motion by invoking article 35(2) of the Statue of ICJ which lays down special provisions for states which are not a party to the Statute of ICJ to proceed with motions in the court.
The paramount argument here would be, if Palestine qualifies as a State under the Vienna Convention on Diplomatic Relations.
The Montevideo Convention on Rights and Duties of a State, another integral document in the International Law regime, in its article 1 lays down 4 principle criteria which need to be fulfilled to gain statehood. These are:
- Permanent population
- Defined territory
- Government, and
- Capacity to enter into relations with other states.
Palestine arguably meets criteria a through c but whether Palestine has the capacity to enter into an agreement with other states is still ambiguous. Palestine has not even been recognized to be a state by other states. Even though article 3 of the same convention states that statehood is independent of recognition, it becomes imperative to gain recognition in order to fulfill the last criteria, which has been dubbed to be the most important criteria of the four. Now where US is biting its nails, Palestine has its fingers crossed.
At this point of time, if the motion of Palestine proceeds in the ICJ, the question of Palestinian statehood would be answered once and for all. The decision of the court would demarcate whether Palestine is, de jure, a state or not through its decision. Another pertinent question is whether the ICJ should entertain this matter or not? The Court’s mandate is only to answer questions of law and since the present matter has political overtones the Court, arguably, ought not to answer it. This will lead to another concern that whether the ICJ can usurp the power of de-jure recognition of new states, a power which traditionally rested only with the sovereign states.