In December 2023, South Africa instituted proceedings towards Israel on the Worldwide Court docket of Justice (ICJ) beneath the Conference on the Prevention and Punishment of the Crime of Genocide (Genocide Conference). So far, ten third-party interventions have been submitted within the case. Eight states—Bolivia, Chile, Turkey, Spain, Mexico, Libya, Colombia, and the Maldives—have filed declarations of intervention beneath Article 63 of the ICJ Statute as state events to the Genocide Conference. Nicaragua has requested permission to intervene beneath Article 62, asserting a authorized curiosity which can be affected by the ICJ’s resolution. Palestine, having acceded to the Genocide Conference in April 2014, has sought to intervene beneath each articles. As each Articles 62 and 63 present for interventions by ‘states’, Palestine’s requests (significantly beneath Article 62), might increase the query of whether or not it qualifies as a ‘state’ for the needs of the ICJ Statute—as an antecendent dedication for the acceptance of its intervention requests.
This publish first remembers some historic examples of worldwide courts and tribunals confronted with questions of statehood as a preliminary difficulty, earlier than contemplating doable approaches in direction of addressing the standing of Palestine beneath the ICJ Statute within the context of its intervention request in South Africa v Israel. It additionally considers their wider authorized and normative implications, significantly within the gentle of current developments relating to the Chagos Archipelago.
Statehood as a preliminary query of authorized standing earlier than worldwide courts and tribunals: a procedural method
Palestine’s intervention request is in no way the primary time a global court docket or tribunal has confronted questions of statehood or authorized standing as a preliminary matter. In 1931, a consultant of the ‘Confederacy of Six Nations of the Grand River’ (Confederacy) inquired beneath what circumstances the Confederacy may undergo the Everlasting Court docket of Worldwide Justice (PCIJ) ‘sure variations with america of America and Nice Britain arising (inter alia) beneath the Boundary Waters Treaty of 1909’. The PCIJ Registrar referred the matter to the Court docket, which finally rejected a ‘versatile development’ of the time period ‘state’ in Articles 34 and 35 of the ICJ Statute, thereby denying the Confederacy entry to the Court docket (PCIJ, Sequence E, no 8, 158).
Exterior the PCIJ/ICJ realm, the problem of statehood arose within the context of the Larsen v Hawaiian Kingdom arbitration. In 1999, Lance Paul Larsen (a Hawaiian resident) and the Hawaiian Kingdom agreed to submit a dispute to arbitration in accordance with the Everlasting Court docket of Arbitration Non-compulsory Guidelines for Arbitrating Disputes between Two Events of which one solely is a State (PCA Non-compulsory Guidelines). The tribunal (consisting of James Crawford, Christopher Greenwood and Gavan Griffith) ultimately declined jurisdiction primarily based on the Financial Gold doctrine, discovering that the dispute primarily involved america’ position within the occupation of Hawaii. What’s attention-grabbing for our functions, nevertheless, was the preliminary query of whether or not the PCA Non-compulsory Guidelines had been obtainable to the events, given the uncertainty over whether or not the Hawaiian Kingdom certified as a ‘state’ thereunder. The PCA Worldwide Bureau, ‘having regard to the evident chance that the persevering with standing of the Hawaiian Kingdom after 1898 would or is perhaps a problem’, declined to permit the arbitration to be carried out beneath its auspices except it was carried out beneath the UNCITRAL Guidelines. The events agreed to that change and thus the tribunal noticed no want to look at the potential scope of utility of the PCA Non-compulsory Guidelines (para 8.8).
In referring to these examples, there is no such thing as a intention to check the energy or validity of Palestine’s statehood declare with that of the Confederacy or the Hawaiian Kingdom. Quite, the purpose is for example how the PCIJ/ICJ Registrar (and the PCA’s Worldwide Bureau in Larsen v Hawaii) addressed the requirement of an entity being a ‘state’ as a preliminary procedural difficulty.
The query of whether or not the ICJ must make such a previous dedication within the case of Palestine was vividly mentioned following Palestine’s utility to institute proceedings towards america on the Relocation of the US Embassy to Jerusalem in September 2018 (see indicatively on this weblog right here, right here and right here). The case has been added to the ICJ Normal Listing and is presently pending. Some argue that the ICJ may recognise Palestine as a ‘state’ for the restricted goal of authorized standing beneath Articles 34 and 35 of the ICJ Statute, drawing on Palestine’s non-member observer state standing on the United Nations (UN). Such an method would enable the Court docket to keep away from partaking with the broader, politically delicate query of Palestine’s statehood beneath common worldwide legislation—a technique just like that employed by the Worldwide Legal Court docket (ICC), as mentioned beneath.
Palestine’s standing beneath the Rome Statute: a practical method
In 2009, Palestine first tried to just accept the ICC’s jurisdiction beneath Article 12(3) of the Rome Statute. Nevertheless, then ICC Prosecutor Luis Moreno Ocampo declined to just accept the declaration, citing Palestine’s unsure standing as a state. Following Palestine’s recognition as a non-member observer state by the UN Normal Meeting (GA) in 2012, a second declaration was lodged, this time accepted by ICC Prosecutor Fatou Bensouda. This paved the way in which for the ICC to open a preliminary examination into alleged crimes dedicated within the Occupied Palestinian Territory since 2014.
On 5 February 2021, the ICC Pre-Trial Chamber I (by 2:1 majority of Judges de Brichambaut and Alapini-Gansou; Choose Kovács dissenting) decided that Palestine is a state social gathering to the Rome Statute and located that the ICC’s territorial jurisdiction extends to the West Financial institution, together with East Jerusalem, and to Gaza beneath article 12(2)(a) of the Statute. The Chamber emphasised, nevertheless, that the ICC will not be competent to find out issues of statehood that might bind the worldwide group and its ruling was for the only real goal of defining its territorial jurisdiction.
That practical method can also recall the therapy of Kosovo by the Court docket of Justice of the European Union (EU) in 2023 as a ‘third nation’ for the needs of concluding worldwide agreements with the EU, with out prejudice to the place of particular person member states as to Kosovo’s statehood (see on this weblog). Such approaches are removed from unprecedented; nationwide courts have lengthy relied on equally practical approaches, independently of their recognition of the involved entities as states beneath worldwide legislation. As an illustration, in 1981, the English Court docket of Attraction held that Taiwan certified as a ‘nation’ for the aim of membership to the Worldwide Beginner Athletic Federation, refusing to equate the time period with the idea of ‘sovereign states within the worldwide sense’.
Palestine’s standing beneath the ICJ Statute: doable approaches and authorized implications
The ICJ has beforehand skirted the problem of Palestinian statehood—in keeping with the sample of resistance typically exhibited by worldwide courts and tribunals in eschewing dedication of politically delicate questions, except immediately requested to take action by all events concerned. In its 2024 Advisory Opinion on the Authorized Penalties arising from the Insurance policies and Practices of Israel within the Occupied Palestinian Territory, together with East Jerusalem, the Court docket was arguably ‘very cautious to keep away from saying something immediately on the statehood of Palestine’ (though it did check with Israel’s obligation as occupying energy ‘to not impede the Palestinian individuals from exercising its proper to self-determination, together with its proper to an impartial and sovereign State’ (para 237)). In his separate opinion, Choose Gómez Robledo lamented the Court docket’s reticence in that regard and argued in favour of Palestinian statehood beneath worldwide legislation. He cited current developments together with UN GA Decision ES-10/23 of Might 2024, which prolonged Palestine’s rights as an observer state and harassed the GA’s conviction that Palestine is totally certified for UN membership. He additionally hooked up persuasive weight to the above-mentioned method of the ICC Pre-Trial Chamber, concluding that:
‘Whereas it’s true that the ICC was cautious to notice that its mandate didn’t allow it to pronounce on the statehood of Palestine, this resolution nonetheless confirms that Palestine can’t be handled in any other case than as a State beneath worldwide legislation.’ (para 11)
That stated, the ICJ will most definitely proceed to sidestep the broader statehood difficulty. Within the context of South Africa v Israel, it could achieve this by accepting Palestine’s comparatively easy intervention declaration beneath Article 63 of the ICJ Statute, on condition that Palestine is a celebration to the Genocide Conference and was accordingly notified by the Registrar pursuant to Article 63(1) of the ICJ Statute—with out substantively partaking with the query of its statehood beneath common worldwide legislation.
Palestine has, nevertheless, sought intervention beneath each Articles 62 and 63, cumulatively and alternatively, noting that these requests ‘increase partially totally different authorized points’. If the ICJ agrees, it can proceed to look at the admissibility of Palestine’s request beneath Article 62 as nicely. Assuming that different necessities of the article are met (for which robust arguments exist; see e.g. right here), the Court docket may recognise Palestine as a ‘state’ particularly for the needs of Article 62—seemingly clarifying that that doesn’t quantity to a recognition of Palestine’s statehood beneath common worldwide legislation (following, just like the ICC Pre-Trial Chamber did, a type of ‘practical statehood’ confined to particular functions). Observe that even earlier than the acceptance of Palestine’s observer state standing, the ICJ had recognised sure procedural rights to Palestine (e.g. the flexibility to submit written statements) within the context of the advisory opinion proceedings in Authorized Penalties of the Development of a Wall within the Occupied Palestinian Territory.
After all, the ICJ may select to take the chance (as Choose Gómez Robledo urged) to make clear Palestine’s authorized standing beneath worldwide legislation—both in assessing Palestine’s intervention in South Africa v Israel or its standing to institute proceedings in Palestine v USA. In that—admittedly unlikely—state of affairs, such a clarification may carry vital authorized implications. An incidental dedication of statehood made in an interlocutory judgment (order) on intervention in South Africa v Israel wouldn’t in itself be binding. Nevertheless, a dedication of statehood embedded throughout the Court docket’s judgment (e.g. in Palestine v USA) may ‘possess[] binding drive’ beneath Article 59 of the ICJ Statute whether it is deemed ‘a vital situation to the Court docket’s resolution’ (see Cheng, Normal Rules of Legislation as Utilized by Worldwide Court docket and Tribunals 351–353).
Concluding ideas: Chagos redux?
Past that, such determinations may exert a ‘softer’ but vital normative affect. The 2021 judgment of the Worldwide Tribunal for the Legislation of the Sea (ITLOS) Particular Chamber in Mauritius v Maldives could also be instructive right here. The Chamber thought of that the ICJ Advisory Opinion in Authorized Penalties of the Separation of the Chagos Archipelago from Mauritius in 1965, constituted a ‘prior authoritative dedication’ of Mauritius’ sovereignty over the Chagos Archipelago (para 244), although the opinion itself ‘c[ould ]not be thought of legally binding’ (paras 202–203). Accordingly, the Chamber discovered no ongoing sovereignty dispute between the UK and Mauritius, though the ICJ had framed its opinion as addressing the decolonization course of slightly than a particular bilateral sovereignty dispute (para 136). Within the newest instalment to the Chagos saga, on 3 October 2024, the governments of UK and Mauritius issued a joint assertion agreeing that ‘Mauritius is sovereign over the Chagos Archipelago’. Whereas the ITLOS judgment, and the current UK–Mauritius political settlement, have sparked broader debates on the authorized and normative impact of advisory opinions, and ‘worldwide lawfare’ normally (a dialogue past this publish’s scope), in addition they illustrate how the Court docket’s incidental or consequential findings might profoundly form future disputes each throughout the ICJ and past.
