10.6092/issn.2531-6133/9425
This paper examines the legal status and historical context of the city of Jerusalem, speciﬁcally addressing the prohibition on establishment or maintenance of diplomatic missions within the Holy City. This will be undertaken ﬁrstly by exploring Security Council resolution 478 of August 1980, and secondly through a discussion of State practice and opinio juris. This paper was inspired by the recent developments regarding the conduct of the United States of America, the Republics of Guatemala and Paraguay in relocating their embassies from Tel Aviv to Jerusalem in May 2018. Unlike the Republic of Paraguay, which subsequently restituted its embassy to Tel Aviv in September 2018, the United States of America and the Republic of Guatemala have hitherto maintained their embassies in Jerusalem. This paper adopts a comparative approach by drawing on the particularities of Southern Rhodesia (Zimbabwe), South West Africa (Namibia) and Kuwait. It gradually examines the crux of the matter regarding the merits of the case initiated by Palestine against the United States of America in September 2018: namely the customary international diplomatic law underpinning the prohibition on establishing embassies in Jerusalem under the Vienna Convention on Diplomatic Relations. It further explores equally important issues relating to questions of jurisdiction of the International Court of Justice and admissibility of the application.
application/pdf
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9425
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en
Basheer Alzoughbi
University of Bologna Law Review
Compulsory Settlement of Disputes
The Relocation of the U.S. Embassy from Tel Aviv to Jerusalem (Palestine v. United States of America): a Commentary on the Merits of the Case, Jurisdiction of the International Court of Justice and Admissibility of Palestine's Application
Text.Serial.Journal
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Articles & Essays
2019-05-09
2019-05-08
2019-02-14
2020-01-23
114-205
UBLR
Basheer Alzoughbi
2019/05/09
10.6092/issn.2531-6133/9425
114
Koç University
2531-6133
1
Compulsory Settlement of Disputes
en
205
The Relocation of the U.S. Embassy from Tel Aviv to Jerusalem (Palestine v. United States of America): a Commentary on the Merits of the Case, Jurisdiction of the International Court of Justice and Admissibility of Palestine's Application
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4
 ARTICLES & ESSAYS                                                       https://doi.org/10.6092/issn.2531-6133/9425




     The Relocation of the U.S. Embassy from Tel Aviv to Jerusalem
 (Palestine v. United States of America): a Commentary on the Merits
   of the Case, Jurisdiction of the International Court of Justice and
                 Admissibility of Palestine’s Application

                                           BASHEER ALZOUGHBI †

TABLE   OF CONTENTS: 1. Introduction; 2. Israel’s Measures post-June 1967; 3. The Prohibition on
Establishing or Maintaining Diplomatic Missions in Jerusalem; 3.1. State Practice and the Element of
Opinio Juris; 3.2. The Relocation of the U.S., Guatemala and Paraguay Embassies to Jerusalem; 3.3.
General Assembly Resolutions; 3.4. The Principle of Inadmissibility of Acquisition of Territory by
Force; 3.5. The Prohibition of Aid or Assistance to Israel’s Internationally Wrongful Acts; 3.6. The
Obligation to Render Aid or Assistance to the Palestinian People in Realization of Self-determination;
3.7. Responsibility of States for Internationally Wrongful Acts; 3.8. The United Nations Educational,
Scientiﬁc and Cultural Organization; 3.9. Status of Consulates in Jerusalem; 4. Comparative Analysis
of Southern Rhodesia (Zimbabwe), South West Africa (Namibia) and Kuwait; 4.1. Southern Rhodesia
(Zimbabwe); 4.2. South West Africa (Namibia); 4.3. Kuwait; 5. The Vienna Convention on Diplomatic
Relations - the Merits; 6. Optional Protocol to the Vienna Convention on Diplomatic Relations; 6.1.
Accession to Treaties; 6.2. Treaty Relationship; 6.3. Initiation of Legal Proceedings (Palestine v.
United States of America); 6.4. Withdrawal from Treaties; 6.5. The Principle of Good Faith; 7.
Questions of Jurisdiction and Admissibility; 7.1. The Monetary Gold Principle; 7.2. Assessing the
Applicability Criteria of the Monetary Gold Principle; 7.3. The Inapplicability of the Monetary Gold
Principle (Palestine v. United States of America); 7.3.1. A Sending State’s Practice; 7.3.2. A Matter
Relative to the Question of Palestine Vis-à-vis the Responsibility of the United Nations; 7.3.3. A
Dispositive Determination of Israel’s Obligations under Jus ad Bellum and Jus in Bello; 7.4. Technical
Analysis of Portugal v. Australia and Palestine v. United States of America; 8. Conclusion; Annexes:
Maps.

ABSTRACT: This paper examines the legal status and historical context of the city of Jerusalem,
speciﬁcally addressing the prohibition on establishment or maintenance of diplomatic missions
within the Holy City. This will be undertaken ﬁrstly by exploring Security Council resolution 478 of
August 1980, and secondly through a discussion of State practice and opinio juris. This paper was
inspired by the recent developments regarding the conduct of the United States of America, the
Republics of Guatemala and Paraguay in relocating their embassies from Tel Aviv to Jerusalem in May
2018. Unlike the Republic of Paraguay, which subsequently restituted its embassy to Tel Aviv in
September 2018, the United States of America and the Republic of Guatemala have hitherto
maintained their embassies in Jerusalem. This paper adopts a comparative approach by drawing on
the particularities of Southern Rhodesia (Zimbabwe), South West Africa (Namibia) and Kuwait. It
gradually examines the crux of the matter regarding the merits of the case initiated by Palestine
against the United States of America in September 2018: namely the customary international
diplomatic law underpinning the prohibition on establishing embassies in Jerusalem under the
Vienna Convention on Diplomatic Relations. It further explores equally important issues relating to
questions of jurisdiction of the International Court of Justice and admissibility of the application.


KEYWORDS: Diplomatic Missions-Jerusalem; Sui Generis; Customary International Diplomatic
Law; Monetary Gold Principle; Compulsory Settlement of Disputes


JEL CODES: K3, K33, K39, K30, K41

                                     UNIVERSITY OF BOLOGNA LAW REVIEW

                                                  ISSN 2531-6133

                                                   [VOL.4:1 2019]

              This text is released under the terms of Creative Commons Attribution 4.0 International License



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          1. INTRODUCTION

Owing to its historical and religious uniqueness, Jerusalem has received
special treatment known as Corpus Separatum to be administered by the
United Nations across the whole part of Mandatory Palestine, as
envisaged in the partition plan of General Assembly resolution 181 of
1947. General Assembly resolution 181 was substantial in its deﬁnition of
the boundaries of the city of Jerusalem as it did not only include its
traditional municipal borders but was greatly extended to include certain
surrounding areas located in the district of Jerusalem. These are: Abu Dis
to the east, Bethlehem to the south, Ein Karim to the west, and Shu’fat to
the north.1         Jerusalem’s Corpus Separatum was not meant to be
permanent. To the contrary, it was designed as a temporary measure
whereby the status of the city would be determined by its citizens after ten
years: “The residents of the City shall be then free to express by means of
a referendum their wishes as to possible modiﬁcations of the regime of
the City”.2 Neither the United Nations General Assembly special regime
on Jerusalem nor the envisaged boundaries of the two Arab and Jewish
States have come into fruition. The inhabitants of Jerusalem’s Corpus
Separatum who were supposed to determine the status of the regime of
the City after the ten year period of its potential implementation found
themselves torn between a division of their city and district in 1948:
Eastern and Western sectors.
          A succinct historical overview of Jerusalem has to be presented
here following the partition plan of 1947 and particularly in the aftermath
of the Arab - Israeli war in 1948 in which the western part of city fell
under the control of the Israeli troops while Jordanian forces controlled
†
    PhD Candidate in Public Law, Koç University (Turkey), LLM in European Union Law
    (University of Reading-United Kingdom), Master in Human Rights (University of Malta-
    Malta), Master in International Relations Management (Catholic University of the
    Sacred Heart-Italy), Postgraduate Certiﬁcate in the Master Programme in Peace Studies
    (University of Innsbruck-Austria).
1
  See B. Boundaries of the City, G.A. Res. 181(II), U.N. Doc. A/RES/181(II) (Nov. 29, 1947).
  See also G.A. Res. 181(II), U.N. Doc. A/RES/181(II), map No. 104(b) (Nov. 29, 1947).
2
  D. Duration of the Special Regime, G.A. Res. 181(II), U.N. Doc. A/RES/181(II) (Nov. 29,
  1947).


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the eastern part of the city, which encompassed the historical and
magniﬁcent old town. On the 30th of November 1948, the Israeli and
Jordanian parties reached a cease-ﬁre Agreement and on the 3rd of April
1949 both parties concluded an Armistice Agreement. Several small and
narrow strips of territories in two distinct areas in the Latrun and
Jerusalem regions known as “no man’s land” were located between the
Israeli and Jordanian front lines and were neither controlled by the
Jordanian nor the Israeli forces until the latter’s occupation in June 1967.
The third paragraph of Article IV of the Jordan-Israel General Armistice
Agreement of 1949 provides that “Rules and regulations of the armed
forces of the Parties, which prohibit civilians from crossing the ﬁghting
lines or entering the area between the lines, shall remain in effect after
the signing of this Agreement with application to the Armistice
Demarcation Lines”.3 Accordingly, the West Bank of the Jordan River
(including East Jerusalem as well as the narrow strips of territories known
as the “no man’s land” in the Latrun and Jerusalem regions) were among
the territories which fell under the occupation of Israel.
        Through its occupation in 1967 of the West Bank (including East
Jerusalem as well as the narrow strips of territories known as the “no
man’s land” in the Latrun and Jerusalem regions), Israel has marked its
boundaries under customary international law to exclude the territories
located beyond the Armistice Line of 1949 (hereinafter Green Line).4 The
Israeli occupation of 1967 has met with strong opposition by the
international community as a whole, as reﬂected in - amongst others -
the Security Council and General Assembly resolutions, which resulted in
the emergence of customary international law on the status of the
occupied territory of Palestine. The suggestion of the Corpus Separatum
by the General Assembly has gradually become ineffective and not
3
  General Armistice Agreement, HKJ-Isr., art. IV (3), Apr. 3, 1949. See Annex I: Map
  Delineating Armistice Demarcation Lines Palestine (North & South sheets), Jerusalem,
  Latrun. Document Sources: Hashemite Jordan Kingdom - Israel: General Armistice
  Agreement.
4
  This without prejudice to the other parts of the territory of Palestine which Israel occupied
  in 1967 i.e. Gaza Strip.



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feasible. Accordingly, it acquired no legal validity, as the West Bank -
which includes East Jerusalem - became an integral part of the occupied
territory of Palestine.
        In the Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory advisory opinion, the International Court of Justice
(hereinafter I.C.J.) affirmed that “The territories situated between the
Green Line . . . . and the former eastern boundary of Palestine under the
Mandate were occupied by Israel in 1967 .                .   .   .   Under customary
international law, these were therefore occupied territories in which
Israel had the status of occupying Power”.5                       The interim Peace
Agreements between Israel and the Palestine Liberation Organization
(representing the State of Palestine) which started in 1993 - best known
as the “Oslo Accords” - neither changed the status of the occupied
territory of Palestine, nor Israel’s status as the occupying power.6 This
has been affirmed in the I.C.J. advisory opinion on the Legal Consequences
of the Construction of a Wall in the Occupied Palestinian Territory by
declaring that “Subsequent events in these territories . . . . have done
nothing to alter this situation.           All these territories (including East
Jerusalem) remain occupied territories and Israel has continued to have
the status of occupying power.”7
        Not only does Jerusalem have a unique cultural importance, but its
centrality also possesses a geographical signiﬁcance.                            Jerusalem
geographical centrality was not only pivotal to the whole territory of
Mandatory Palestine but also to the geographical territory of what became
to be known as the West Bank. In regards to the geography of the West
Bank, Jerusalem is the connecting hub of the southern West Bank cities
(such as Bethlehem and Hebron) to the central and Northern cities (such
5
  Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,
  Advisory Opinion, 2004 I.C.J. 167, ¶ 78 (July 9).
6
  For more information on the peace process, see generally AlZoughbi, Basheer “The
  Operation of the Oslo Treaties and the Paciﬁc Mechanisms of Conﬂict Resolution under
  Public International Law”. Peace Research 45, no. 2 (2013): pp. 35-40.
7
  Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,
  Advisory Opinion, 2004 I.C.J. 167, ¶ 78 (July 9).




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as Jericho, Nablus and Ramallah) and vice versa. The ordinary route from
the southern West Bank cities to the central and Northern Palestinian
cities and vice versa passes through Jerusalem city.                         Throughout its
occupation, annexation and other measures such as the establishment of
military checkpoints, Israel has cut-off East Jerusalem from the rest parts
of the West Bank. Palestinian nationals (who do not have Israeli identity
cards) wishing to enter the Holy City are required to obtain a
pre-approval visa “permit” issued by the Israeli Civil Administration. The
Israeli Civil Administration has the discretion to approve or reject the
permit application requests made by the Palestinian nationals.                                 The
United Nations Economic and Social Council asserted in several of its
resolutions that it “[s]tresses the need to preserve the territorial integrity
of all of the occupied Palestinian territory and to guarantee the freedom of
movement of persons and goods in the territory, including the removal of
restrictions on going into and from East Jerusalem”.8
           East Jerusalem is a term of convenience adopted by the
international community and the United Nations which is understood to
be that part of the occupied territory which Israel annexed (this means
the old city of Jerusalem, the “no man’s areas” of Jerusalem, various
villages and towns from the governorate of Jerusalem and other areas
administratively located within the boundaries of other governorates of
the West Bank e.g. Bethlehem). If for example, Israel implements the
so-called E-1 plan by annexing Ma’ale Adumim settlement and its
neighboring settlements (Qedar, Mishor Adumim and its industrial area,
Kfar Adumim and Almon), it would then constitute an integral part of the
occupied and annexed East Jerusalem. The locution “East Jerusalem and
its expanded municipal boundaries” could be a better explanatory term to
8
    ECOSOC Res. 2007/22, Economic and social repercussions of the Israeli occupation
    on the living conditions of the Palestinian people in the occupied Palestinian territory,
    including Jerusalem, and the Arab population in the occupied Syrian Golan, ¶ 1, U. N. Doc.
    E/RES/2001/19 (Jul. 25, 2001). See also ECOSOC Res. 2002/31, ¶ 1, U.N. Doc E/RES/2002/31
    (Jul. 25, 2002) & ECOSOC Res. 2012/23, ¶ 2, U.N. Doc E/RES/2012/23 (Jul. 26, 2012). See
    also for example, G.A. Res. 56/62, ¶ 5 , U.N. GAOR, 56th sess., U.N. Doc. E/RES/56/62 (Dec.
    10, 2001).




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convey a meaning to that part of territory which was occupied in 1967 and
was subsequently annexed and unilaterally declared by Israel to be within
the boundaries of Jerusalem city.




         2. ISRAEL’S MEASURES POST-JUNE 1967

Since June 1967 the legislative and executive organs of the State of Israel
have      been     racing     against      time     to    change        the     geographical,
demographical, administrative and economic character of the city of
Jerusalem through a series of practices and laws which aim to annex parts
of the occupied territory. The 1971 Report of the Special Committee to
Investigate Israeli Practices Affecting the Human Rights of the Population
of the Occupied Territories affirmed that Eastern Jerusalem is an example
of the policy of annexation.9 During World War II, Nazi Germany annexed
several occupied territories.            For example, the United States Military
Tribunal noted in the Justice Case (The United States of America v. Josef
Altstoetter, et al.)      that on 27 October 1939, the Polish Ambassador at
Washington, D.C. informed the U.S. Secretary of State that the German
Reich had decreed the annexation of part of the territory of the Polish
republic.10 The United States Military Tribunal further asserted that “the
purported annexation of territory in the East . . . . was invalid and that in
point of law such territory never became a part of the Reich, but merely
remained in German military control under belligerent occupancy”.11
Article 47 of the Fourth Geneva Convention affirms that a change
introduced as a result of the occupying power’s annexation of the whole
9
   U.N. Special Committee, Report of the Special Committee to Investigate Israeli Practices
   Affecting the Human Rights of the Population of the Occupied Territories, ¶ 34, 44, U.N. Doc.
   A/8389 (Oct. 5, 1971).
10
   The Justice Case (The United States of America v. Josef Altstoetter, et al.), Trials of War
   Criminals before the Nuernberg Military Tribunals Under Control Council Law No.
   10. October 1946-April 1949, Volume III, United States Government Printing Office:
   Washington, 1951, p. 1027.
11
   Id.



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 or part of the occupied territory does not deprive protected persons in an
 occupied territory of the beneﬁts conferred by the present Convention.12
 The Commentary on Article 47 of the Fourth Geneva Convention provides
 that “the reference to annexation in this Article cannot be considered as
 implying recognition of this manner of acquiring sovereignty.                                 The
 preliminary work on the subject conﬁrms this”.13
         Since its occupation in 1967, Israeli measures were directed at
 Jerusalem in particular and the other cities, villages and localities in the
 occupied territories in general. For example, Israel dissolved the duly
 elected Arab Municipality Council in Jerusalem and dismissed the Mayor
 Rawhi Al- Khatib (who was subsequently deported to Jordan in 1968) and
 further abolished the Jordanian Dinar, which was the legal tender in the
 West Bank before the six-day war.14 Similar to the German Reich which
 had decreed the annexation of parts of the territory of Poland, Israel
 decreed laws to annex parts of the occupied territory of Palestine,
 including East Jerusalem. On 27 June 1967, the Israeli legislative organ
 known in Hebrew as the “Knesset” adopted amendments to two existing
 laws based upon a proposal of the Israeli government, which aimed at
 annexing Jerusalem and expanding its boundaries. Under the Law and
 Administration Ordinance, 5708-1948 (Isr.), a new provision was
 introduced which extends the law, jurisdiction and administration of the
 Israeli State to any area which the Israeli Government considers to be part
 of the State of Israel.15 The Municipalities Ordinance Law, 5727-1967 (as
 amended with amendment n. 6) (Isr.), gave the Israeli Minister of Interior
 the power to issue a proclamation to enlarge the area of a certain
12
   Geneva Convention Relative to the Treatment of Civilian Persons in Time of War art. 47,
   Aug. 12, 1949, 75 U.N.T.S. 287.
13
   OSCAR M. UHLER ET AL., INT’L COMM. OF THE RED CROSS, IV GENEVA CONVENTION RELATIVE TO
   THE PROTECTION OF CIVILIAN PERSONS IN TIME OF WAR 276 (Jean S. Pictet ed., 1958).
14
   See U.N. S.C., Rep. of the Security Council, Sept. 12, 1967, ¶ 1, 8 annex I, U.N. Doc. S/8146
   (Sept. 12, 1967), relating to U.N. G.A., note by Secretary-General, Sept. 12, 1967,U.N. Doc.
   S/8153 (Sept. 12, 1967). See also U.N. Rep. of the Special Committee to Investigate Israeli
   Practices Affecting the Human Rights of the Population of the Occupied Territories, ¶ 77,
   U.N. Doc. A/RES/2727 (Dec. 1, 1970).
15
   Law and Administration Ordinance, 5727-1967, art. 11(b) (as amended with amendment
   n. 11).



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 municipality by the inclusion of a designated area under the new amended
 provision of the Law 5708-1948.16
         On 28 June 1967, the Israeli Minister of Interior issued a
 proclamation under the Municipalities Ordinance Law, 5727-1967, Article
 8(a), extending the boundaries of the municipality of Jerusalem so as to
 include the entire Arab sector of Jerusalem and several neighboring
 villages.17   Israel expanded the geographical boundaries of the city of
 Jerusalem municipality into the surrounding villages of Jerusalem
 governorate itself and other areas administratively located in other West
 Bank governorates i.e.          Bethlehem while it gradually excluded other
 villages or neighborhoods located within Jerusalem governorate such as
 Bethany (AlEizariya) and Abu Deis. By expanding its traditional municipal
 boundaries, the occupying power sought to alter the geographical
 character of Jerusalem in order to increase the Jewish settler population
 and exclude as much as possible the Arab Palestinian population from the
 unilaterally declared municipal boundaries.
         The 1973 Report of the Special Committee to Investigate Israeli
 Practices Affecting the Human Rights of the Population of the Occupied
 Territories provided that “the Government of Israel is continuing with its
 policy of the unilateral annexation of the occupied part of Jerusalem and
 the enlargement of the municipal boundaries of the city by the
 incorporation of considerable areas of land forming part of the occupied
 West Bank”.18 The tipping point came when the legislative organ of the
 Israeli State enacted a Basic Law on the 30th of July 1980 entitled
 “Jerusalem, Capital of Israel”. The 1980 Law provides that “Jerusalem,
 complete and united, is the capital of Israel. Jerusalem is the seat of the
16
   Municipalities Ordinance Law, 5727-1967, art. 8(a), (as amended with amendment n. 6).
17
   See B. Reply received from the Government of Jordan, U.N. Special Committee, Report of
   the Special Committee to Investigate Israeli Practices Affecting the Human Rights of the
   Population of the Occupied Territories, U.N. Doc. A/8089 (Oct. 5, 1970).
18
   U.N. Special Committee, Report of the Special Committee to Investigate Israeli Practices
   Affecting the Human Rights of the Population of the Occupied Territories, ¶ 43, U.N. Doc.
   A/9148 (Oct. 25, 1973).




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 President of the State, the Knesset, the Government and the Supreme
 Court”.19
         Simultaneously, Israel has extensively transferred parts of its
 civilian population on the one hand, to the annexed East Jerusalem, and
 on the other, to the rest of the West Bank areas, which belongs to the de
 jure State of Palestine, so as to introduce demographical changes.
 Estimates of the Israeli settler population of the West Bank in 2012 vary
 between 500,000 and 650,000 settlers, including nearly 200,000 Israeli
 settlers living in settlements located in East Jerusalem.20 Around 320,000
 Palestinians currently reside in East Jerusalem.21                  Not only has Israel
 systematically and extensively seized immovable property, it has also
 systematically and extensively destroyed Palestinian property without
 military necessity in the occupied territory of Palestine including East
 Jerusalem. By way of example, the International Committee of the Red
 Cross (hereinafter I.C.R.C.) provided in its annual report of 1971 that:
 “[I]n view of the continued destruction of houses in the occupied
 territories, the President of the ICRC made a renewed appeal to the Israeli
 Prime Minister at the end of April that her Government should abandon a
 method to counter subversive activities”.22 The United Nations Office for
 the Coordination of Humanitarian Affairs (hereinafter O.C.H.A.) provided
 that during 2016, Israel demolished or seized 1089 Palestinian–owned
 structures in the West Bank including East Jerusalem.23
         The construction of the wall and its associated regime in the
 occupied territory of Palestine since 2002 has ampliﬁed the extensive
19
   Para 1 & 2, Basic Law: Jerusalem, Capital of Israel (30th July, 1980).
20
   U.N. Secretary-General, Report of the Special Committee to Investigate Israeli Practices
   Affecting the Human Rights of the Palestinian People and Other Arabs of the Occupied
   Territories, Israeli settlements in the Occupied Palestinian Territory, including East
   Jerusalem, and the occupied Syrian Golan, Rep. of the Secretary-General, ¶ 7, U.N. Doc.
   A/67/375 (Sept. 18, 2012).
21
   UNITED NATIONS O.C.H.A. OCCUPIED PALESTINIAN TERRITORY, WEST BANK | EAST JERUSALEM:
   KEY HUMANITARIAN CONCERNS, (DEC. 21, 2017).
22
   I.C.R.C. Annual Report 1971, (Geneva, 1972), pp. 49-50. Quoted in U.N. Rep. of the Special
   Committee to Investigate Israeli Practices Affecting the Human Rights of the Population
   of the Occupied Territories, ¶ 47, U.N. Doc. A/8828 (Oct. 9, 1972).
23
   See RECORD NUMBER OF DEMOLITIONS IN 2016; CASUALTY TOLL DECLINES, THE UNITED NATIONS
   O.C.H.A. (Dec. 29, 2016).



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 appropriation and destruction of property which is not demanded by
 military necessity. The construction of the wall and its associated regime
 is directly linked to the annexation of East Jerusalem as well as
 annexation of several settlements located near the Green line (to the East
 of the Green line). The I.C.J. provided that “[t]he route chosen for the wall
 gives expression in loco to the illegal measures taken by Israel with regard
 to Jerusalem and the settlements”.24 The I.C.J. further provided that “it
 appears that the construction of the wall has led to the destruction or
 requisition of properties under conditions which contravene the
 requirements of Articles 46 and 52 of the Hague Regulations of 1907 and
 of Article 53 of the Fourth Geneva Convention.”25 The I.C.J. ruled that:
 “Israel is under an obligation to terminate its breaches of international
 law; it is under an obligation to cease forthwith the works of construction
 of the wall being built in the Occupied Palestinian Territory, including in
 and around East Jerusalem, to dismantle forthwith the structure therein
 situated”.26 The I.C.J. did not shy away from affirming that the Israeli
 settlements in the Occupied Palestinian Territory including East
 Jerusalem are in breach of international law while further asserting on the
 applicability of the Fourth Geneva Convention.27




         3.   THE PROHIBITION ON ESTABLISHING OR MAINTAINING DIPLOMATIC
     MISSIONS IN JERUSALEM

 The prohibition on establishing or maintaining embassies in Jerusalem
 was based on the Security Council in its resolution 478 of 20 August 1980
 where it called upon “Those States that have established diplomatic
24
   Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,
   Advisory Opinion, 2004 I.C.J. ,¶ 184 (Dec. 8).
25
   Id. para 132, p. 189.
26
   Id. para 163, 3(B), p. 201.
27
   See Para 120 and para 101, Id. pp. 184 & 177.




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 missions at Jerusalem to withdraw such missions from the Holy City.”28
 Security Council resolution 478 was issued as a result of the Israeli Knesset
 enactment of the 1980 Basic Law entitled “Jerusalem, Capital of Israel”.
 In relation to the Sending States’ diplomatic missions to Israel, four legal
 obligations, stemming explicitly or implicitly from the Security Council
 resolution 478, are imposed on States.                   Firstly, States which are
 diplomatically represented in Israel and which have already established
 diplomatic missions in Jerusalem are under the legal obligation to
 withdraw their embassies from Jerusalem and as a corollary withdraw
 their diplomatic agents.           Secondly, States which are diplomatically
 represented in Israel and which have already established their embassies
 in Tel Aviv are under the legal obligation not to relocate their embassies to
 Jerusalem.      Thirdly, States which are about to establish diplomatic
 representations with Israel, must not locate their embassies in Jerusalem.
 Fourthly, the establishment of diplomatic missions in Tel Aviv should
 neither be interpreted as a recognition of Israel’s sovereignty over
 Jerusalem nor recognize its null and void actions and practices.29
         In addition to its call upon those States which have established
 diplomatic missions in Jerusalem to withdraw them, Security Council
 resolution 478 of 20 August 1980 affirmed that the enactment of the
 Israeli “Basic Law” of 1980 is a violation of international law and does not
 affect the continuity of application of the Four Geneva Conventions in the
 1967    occupied      Palestinian      territory    including       East      Jerusalem.30
 Furthermore, Security Council resolution 478 determined that all
 legislative and administrative measures and actions taken by Israel are
 null and void31 and “Decided not to recognize the “Basic Law” and such
 other actions by Israel that, as a result of this law, seek to alter the
28
   S.C. Res. 478, para 5(b), U.N. Doc. S/RES/478 (Aug. 20, 1980).
29
   See BASHEER AL ZOUGHBI, Trump’s Plan to Move the US Embassy to Jerusalem: A discussion of
   International Humanitarian Law and International Diplomatic Law, AL JAZEERA CENTRE FOR
   STUDIES (Mar. 30, 2017), http://studies.aljazeera.net/en/reports/2017/03/trumps-plan-
   move-embassy-jerusalem-discussion-international-humanitarian-law-interna-
   170330092849045.html.
30
   See S.C. Res. 478, supra note 28, para 2.
31
   See id. para 3.



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 character and status of Jerusalem”32 Much like the usage of the legislative
 organ of Nazi Germany for the purpose of enhancing its occupation
 and/or annexation, the legislative organ of the Israeli State enhanced the
 occupation and annexation of East Jerusalem and the expanded
 boundaries of the city of the occupied territory of Palestine. In the Case of
 the S.S. Lotus (France v.         Turkey) of 1927, the Permanent Court of
 International Justice (hereinafter P.C.I.J.) provided that “the principle of
 freedom, in virtue of which each State may regulate its legislation at its
 discretion, provided that in so doing it does not come in conﬂict with a
 restriction imposed by international law”.33
           In the deliberations of the Security Council on the 20th of August
 1980, the Representative of the Palestine Liberation Organization
 expressed his gratitude to the Governments of Venezuela, Ecuador,
 Colombia and Uruguay for having decided not to locate their diplomatic
 missions in Jerusalem.34             Before the adoption of Security Council
 resolution 478 (1980), Chile, Ecuador and Venezuela had announced their
 decisions to withdraw their diplomatic missions from Jerusalem.35 At the
 time of the adoption of resolution 478 (1980), there were only ten States
 which maintained diplomatic missions in Jerusalem.36 In the course of
 August-September 1980, ten Governments (El Salvador, Costa Rica,
 Panama,       Colombia,     Haiti,    Bolivia,    the Netherlands,            Guatemala,
 Dominican Republic and Uruguay) informed the Secretary-General that
 they had decided to withdraw their diplomatic missions from the Holy
 City.37
           Yet Costa Rica and El Salvador, whom were among the States,
 which had withdrawn their embassies in 1980, moved their embassies
 back to Jerusalem respectively in 1982 and 1984. The letter dated 17 May
32
   Id. para 5.
33
   S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J. ¶ 51, (ser. A) No. 10 (Sept. 7).
34
   Security Council Official Records - Thirty-ﬁfth Year, 2245th Meeting: Held in New York
   on Wednesday, 20 August 1980, at 4 p.m., SIPV.2245, p.19.
35
   See REPORT OF THE SECRETARY-GENERAL UNDER SECURITY COUNCIL RESOLUTION 478 (1980),
   DISTR. GENERAL S/14248, 11 NOVEMBER 1980, ORIGINAL: ENGLISH, (Nov. 11, 1980).
36
   See Id.
37
   See Id.



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 1982 from the charge d’affaires A.I. of Costa Rica to the United Nations
 addressed to the Secretary-General informed of the Costa Rican
 Government decision of 9 May 1982 to establish its diplomatic mission in
 the Western Sector of Jerusalem.38 The Letter dated 19 April 1984 from
 the Acting Chairman of the Committee on the Exercise of the Inalienable
 Rights of the Palestinian People to the Secretary-General referred to a
 news item in the New York Times of 14 April 1984 in which it was reported
 that the Government of El Salvador has officially relocated its embassy in
 Israel from Tel Aviv to Jerusalem.39
        It was only in August 2006 when El Salvador and Costa Rica decided
 to restitute their embassies from Jerusalem to Tel Aviv.                        The then
 President of the Republic of Costa Rica Oscar Arias decided on the 16th of
 August 2006 to move the Costa Rican embassy from Jerusalem to Tel
 Aviv.40 On 25 August 2006 the Deputy Permanent Representative of El
 Salvador to the United Nations transmitted a copy of the letter from the
 Minister for Foreign Affairs of the Republic of El Salvador addressed to the
 Secretary-General entailing information on that the Government of the
 Republic of El Salvador has decided to transfer the embassy of El Salvador
 in Israel from Jerusalem to the Tel Aviv.41 This decision of El Salvador
 Government was pursuant to the various resolutions on the status of
 Jerusalem, in particular Security Council resolution 478.42
        Between September 1980 (upon the withdrawal of all States which
 had their diplomatic missions in Jerusalem) through to 1982, Jerusalem
 remained a city with no diplomatic missions. It was only in 1982 and 1984
38
   DISTR. GENERAL S/15109, 24 MAY 1982, ENGLISH, ORIGINAL: SPANISH, LETTER DATED 17 MAY
   1982 FROM THE CHARGESD’ AFFAIRS A.I. OF COSTA RICA TO THE UNITED NATIONS ADDRESSED TO
   THE SECRETARY-GENERAL, (MAY 24, 1982).
39
   GENERAL ASSEMBLY, THIRTY-NINTH SESSION, ITEM 33 OF THE PRELIMINARY LIST(A/39/50)-
   QUESTION OF PALESTINE, LETTER DATED 19 APRIL 1984 FROM THE ACTING CHAIRMAN OF THE
   COMMITTEE ON THE EXERCISE OF THE INALIENABLE RIGHTS OF THE PALESTINIAN PEOPLE TO THE
   SECRETARY-GENERAL, (APR. 19, 1984).
40
   Memoria Institucional del Ministerio de Relaciones Exteriores y Culto [Institutional
   Memory of the Ministry of Foreign Affairs and Worship] 2009-2010, San José, (May 8,
   2010), 320.
41
   ANNEX TO THE LETTER DATED 25 AUGUST 2006 FROM THE DEPUTY PERMANENT REPRESENTATIVE
   OF EL SALVADOR TO THE UNITED NATIONS ADDRESSED TO THE SECRETARY-GENERAL, (AUG. 25,
   2006).
42
   Id.


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 when two Central American States i.e.                   Costa Rica and El Salvador
 relocated their diplomatic missions again to Jerusalem up until their
 decisions in August 2006 to restitute their acts. From 2006 (upon the
 withdrawal of Costa Rica and El Salvador Embassies) to April 2018,
 Jerusalem remained with no embassies until the United States of America,
 Guatemala and Paraguay relocated their embassies to Jerusalem in May
 2018. Paraguay has, however, restituted its act and moved its embassy
 back to Tel Aviv within a short period of time in the same year i.e.
 September 2018.
         The prohibition on establishing or maintaining embassies in
 Jerusalem established by Security Council resolution 478 must also be
 read in conjunction with other Security Council resolutions relevant to the
 issue of Jerusalem, both former and subsequent to resolution 478. For
 example, Security Council resolution 252 of 1968 “Consider[ed] that all
 legislative and administrative measures and actions taken by Israel,
 including expropriation of land and properties thereon, which tend to
 change the legal status of Jerusalem are invalid and cannot change that
 status”;43 Security Council resolution 465 of 1 March 1980 “[d]etermined
 that all measures taken by Israel to change the physical character,
 demographic composition, institutional structure or status of the
 Palestinian and other Arab territories occupied since 1967, including
 Jerusalem, or any part thereof, have no legal validity”.44 Security Council
 resolution 476 of 30 June 1980 “[r]econﬁrm[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 constitute a ﬂagrant violation of the
 Geneva Convention.”45
         Security Council resolution 2334 of December 2016 “[u]nderlines
 that it will not recognize any changes to the 4 June 1967 lines, including
 with regard to Jerusalem, other than those agreed by the parties through
43
   S.C. Res. 252, ¶ 2, U.N. Doc. S/RES/252 (May 21,1968).
44
   S.C. Res. 465, ¶ 5, U.N. Doc. S/RES/465 (Mar. 1,1980).
45
   S.C. Res. 476, ¶ 3, U.N. Doc. S/RES/476 (Jun. 30,1980).


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 negotiations”;46 it further “[c]all[ed] upon all States, bearing in mind
 paragraph 1 of this resolution, to distinguish, in their relevant dealings,
 between the territory of the State of Israel and the territories occupied
 since 1967”;47 Paragraph 1 of Security Council resolution 2334 reaffirmed
 the illegality of the Israeli settlements under international law in the
 Palestinian territory occupied since 1967, including East Jerusalem.48 By
 locating their embassies in Jerusalem in the unilaterally declared
 boundaries of Jerusalem, the United States of America and Guatemala are
 not differentiating in their treatment of the territory of the State of Israel
 and the territories occupied since 1967. The United States of America and
 Guatemala are affirming the annexation of East Jerusalem and treating
 the boundaries of the municipality of Jerusalem as deﬁned by Israel as
 single entity.
         It is also worth pointing out that several States opted to cut off
 their diplomatic relations with Israel particularly in 1973, which explains
 the relatively small number of embassies in Jerusalem or Tel Aviv by 1980.
 The 4th Summit Conference of Heads of State or Government of the
 Non-Aligned Movement adopted a resolution on 9 September 1973 where
 it provided that it “welcomes the decision of certain member countries to
 break off relations with Israel, and requests the other member countries
 to take steps to boycott Israel diplomatically, economically, militarily and
 culturally”.49 Between 21 September and 14 October 1973, seven African
 States cut off diplomatic ties with Israel (Togo, Zaire, Benin, Rwanda,
 Upper Volta “in 1984 renamed Burkina Faso”, Cameroon, Equatorial
 Guinea).50 Twenty-seven African States decided to sever diplomatic ties
 with Israel in less than one year and twenty-one of them during a period
 of forty days.51       The African States which have resumed or otherwise
46
   S.C. Res. 2334, ¶ 3, U.N. Doc. S/RES/2334 (Dec. 23,2016).
47
   Id. para 5.
48
   Id. para 1.
49
   NAM (Government of the Non-Aligned Movement), Resolution on the Middle-East situation
   and the Palestine Issue (Sept. 5–9,1973).
50
   See Zach Levey, Israel’s Exit from Africa, 1973: The Road to Diplomatic Isolation, 35 BRIT. J.
   MIDDLE E. STUD. 205, 217-8 (2008).
51
   See Id. p. 224.


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 established diplomatic relations with Israel refrained from locating their
 embassies in Jerusalem.



     3.1. STATE PRACTICE AND THE ELEMENT OF OPINIO JURIS

 The obligation on all States, which are diplomatically represented in
 Israel not to relocate their embassies to Jerusalem, or otherwise establish
 embassies in Jerusalem, is not a courtesy or a comity but a binding custom
 that is not in paucity of the element of opinio juris sive necessitatis.52 The
 I.C.J. stated in the North Sea Continental Shelf (Federal Republic of
 Germany/Netherlands) that:

          The frequency, or even habitual character of the acts is not in

          itself enough. There are many international acts, e.g., in the

          ﬁeld of ceremonial and protocol, which are performed almost

          invariably, but which are motivated only by considerations of

          courtesy, convenience or tradition, and not by any sense of

          legal duty.53

 The notion of the opinio juris sive necessitatis is what distinguishes a
 binding custom on all States from a mere courtesy, comity, convenience
 or tradition.      In the North Sea Continental Shelf (Federal Republic of
 Germany/Netherlands), the I.C.J. held that:

          Not only must the acts concerned amount to a settled practice,

          but they must also be such, or be carried out in such a way, as to

          be evidence of a belief that this practice is rendered obligatory

          by the existence of a rule of law requiring it. The need for such a

          belief, i.e., the existence of a subjective element, is implicit in

          the very notion of the opinio juris sive necessitatis. The States

          concerned must therefore feel that they are conforming to what

          amounts to a legal obligation.54
52
   See Al Zoughbi, supra note 29.
53
   North Sea Continental Shelf Case (Ger/Den; Ger/Neth.), Judgment, 1969 I.C.J. 44, ¶ 77
   (Feb. 20).
54
   Id.


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 There has been a widespread and consistent practice of sovereign States
 represented in Israel in not locating their embassies in Jerusalem, the
 declared de facto capital of Israel. States felt legally obliged not to locate
 or maintain their embassies in Jerusalem for several reasons: Israel’s de
 facto declaration of Jerusalem as its capital and enactment of a law in
 1980 as such, and its illegal annexation of an occupied territory acquired
 by the use of force.55           Other Israeli measures that were directed at
 changing the status of Jerusalem included extensive transfer of Israeli
 civilians thereto and systematic and extensive appropriation and
 destruction of property without military necessity. In Fisheries (United
 Kingdom v. Norway), the I.C.J. found that the method of straight lines
 which was established in the Norwegian system “had been consolidated
 by a constant and sufficiently long practice, in the face of which the
 attitude of governments bears witness to the fact that they did not
 consider it to be contrary to international law”.56                           Similarly, the
 prohibition on establishing or maintaining embassies in Jerusalem is
 consolidated by a constant and sufficiently long practice.
           If a State decided to relocate its embassy to West Jerusalem, (which
 was not seized in 1967, and which international law does not consider as
 an occupied territory), it would still be considered to have committed a
 breach of customary international law.57                    By its annexation of the
 occupied section of Jerusalem, Israel aimed at the de facto uniﬁcation of
 the whole city and thus moving an embassy to any part of the city would
 explicitly and/or implicitly approve or recognize the de facto illegal
 uniﬁcation, annexation and other measures taken by Israel which have
 been described by the Security Council and General Assembly as null and
 void.58
           A Security Council draft resolution (S/2017/1060) of 18 December
 2017 has not been adopted, owing to a negative vote of a permanent
55
   See Al Zoughbi, supra note 29.
56
   Fisheries Case (UK v. Nor.), Judgment, 1951 I.C.J. 139 (Dec. 18).
57
   See Al Zoughbi, supra note 29.
58
   See Id.



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 member (the United States of America) while the fourteen other votes
 were in favour of the draft resolution (Bolivia, China, Egypt, Ethiopia,
 France, Italy, Japan, Kazakhstan, Russian Federation, Senegal, Sweden,
 Ukraine, United Kingdom of Great Britain and Northern Ireland, and
 Uruguay).59 The draft resolution calls upon all States not to establish
 diplomatic missions in the Holy City of Jerusalem, in compliance with
 resolution 478 (1980) and “affirms that decisions and actions which
 purport to have altered, the character, status or demographic composition
 of the Holy City of Jerusalem have no legal effect, are null and void and
 must be rescinded”.60 The fact that the draft Security Council resolution
 (S/2017/1060) has been vetoed by the United States of America and as a
 result was not adopted does not undermine the provisions of customary
 international law as enshrined in this draft resolution.
         In its explanation of the veto, the United States of America stated
 that its exercise was in defense of American sovereignty.61 The United
 States of America further invoked the statement of then Secretary of State
 Ed Muskie on resolution 478, and speciﬁcally on the provision on
 diplomatic missions in Jerusalem, where he considered as nonbinding
 and without force.62 Had the United States of America considered Security
 Council resolution 478 as non-binding, why it has refrained in all these
 past years from locating its embassy to Jerusalem? The United States of
 America claim that Security Council resolution 478 is not binding , thus
 subverting the Security Council, General Assembly resolutions and the
 existence of customary international diplomatic law relevant to the issue
 of the prohibition of establishing diplomatic missions in Jerusalem. In the
 Legal Consequences for States of the Continued Presence of South Africa in
 Namibia (South West Africa) notwithstanding Security Council Resolution 276
 (1970) advisory opinion asserted:
59
   8139th meeting Monday, 18 December 2017, 12.25 p.m, New York S/PV.8139, The
   situation in the Middle East, including the Palestinian question, p. 3, (Dec. 18, 2017)
   http://www.un.org/en/ga/search/view_doc.asp?symbol=S/PV.8139.
60
   S.C. Res. 1060, ¶ 1, U.N. Doc. S/RES/1060 (Dec. 18, 2017).
61
   See S.C. Prov. 8139, ¶ 4, U.N. Doc. S/PV.8139 (Dec. 18,2017).
62
   See S.C. Prov. 2245, ¶ 111, U.N. Doc. S/PV.2245 (Dec. 18,2017).



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          Thus when the Security Council adopts a decision under Article

          25 in accordance with the Charter, it is for member States to

          comply with that decision, including those members of the

          Security Council which voted against it and those Members of

          the United Nations who are not members of the Council. To

          hold otherwise would be to deprive this principal organ of its

          essential functions and powers under the Charter.63

 In 1976, the U.S. Ambassador Scranton reiterated the U.S. position on
 Jerusalem quoting Ambassador Yost’s words of 1969 in relation to
 Jerusalem: “The part of Jerusalem that came under the control of Israel in
 the June 1967 war, like other areas occupied by Israel, is occupied territory
 and hence subject to the provisions of international law governing the
 rights and obligations of an occupying Power”.64 Ambassador Scranton
 further quoted Ambassador Goldberg statement of 1968 that “The United
 States does not accept or recognize unilateral actions by any States in the
 area as altering the status of Jerusalem.”65 In its statement following the
 voting (S/2017/1060), Sweden agreed with the call on all States to refrain
 from the establishment of diplomatic missions in Jerusalem, in line with
 resolution 478 (1980) and stated clearly that the vote (S/2017/1060) does
 not impact the former resolutions adopted by the Security Council.66
 Sweden affirmed that the status of Jerusalem remains unchanged under
 international law.67
         In its statement following the voting, the United Kingdom
 regarded East Jerusalem as part of the occupied Palestinian territories and
 disagreed with the United States decision to unilaterally recognize
 Jerusalem as the capital of Israel and the move of its embassy thereto.68
63
   Legal Consequences for States of the Continued Presence of South Africa in Namibia
   (South West Africa) notwithstanding Security Council Resolution 276, Advisory opinion,
   1971 I.C.J 57, ¶ 116 (21 June).
64
   Para 97, 1483rd meeting. Quoted in para 66, PROVISIONAL AGENDA (S/AGENDA/1896),
   S/PV.1896 23 MARCH 1976, (MAR. 23, 1976).
65
   S.C. Prov. 1424, ¶ 45, U.N. Doc. S/PV.1424 (May 9,1968).
66
   See S.C. Prov. 8139, ¶ 10, U.N. Doc. S/PV.8139 (Dec. 18,2017).
67
   See Id. p. 10.
68
   See Id. p. 5.



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 France’s statement affirmed that it neither recognized the annexation of
 East Jerusalem,         which is part of the occupied territories under
 international law, nor Israel’s unilateral acts concerning Jerusalem both
 before and after Israel’s Basic Law of 1980.69                   China affirmed that it
 supports the establishment of a fully sovereign and independent State of
 Palestine based on its 1967 borders with East Jerusalem as its capital and
 further urged the international community to respect the relevant
 Security Council resolutions.70 The Russian Federation affirmed that it is
 committed to an independent State of Palestine, with East Jerusalem as
 its capital.71   Italy reaffirmed the well-established principles that are
 already enshrined in several relevant resolutions.72 Ukraine affirmed that
 the issue of Jerusalem should be resolved in strict compliance with the
 relevant Security Council resolutions, including resolutions 476 (1980),
 478 (1980) and 2334 (2016).73 Ukraine further affirmed that the draft
 resolution (S/2017/1060) also reaffirms the inadmissibility of the
 acquisition of territory by force.     74


         In her statement on violence in Gaza and the latest developments
 as of 14 May 2018, the High Representative of the Union for Foreign
 Affairs and Security Policy/ Vice-President of the Commission, Federica
 Mogherini affirmed that “[t]he European Union has a clear, consolidated
 position on Jerusalem, which was reaffirmed in numerous Foreign Affairs
 Council conclusions. The EU will continue to respect the international
 consensus on Jerusalem embodied in, inter alia, U.N. Security Council
 Resolution       478,     including         on    the       location        of     diplomatic
 representations”.75
69
   See Id. p. 6.
70
   See Id. p. 11.
71
   See Id. p. 9.
72
   See Id. p. 10.
73
   See Id.
74
   See Id.
75
   Strategic Communications Division, Gaza: EU calls for restraint on both sides following
   deaths of dozens of Palestinian protesters, EUROPEAN UNION EXTERNAL ACTION (May 14,
   2018, 06:20 PM), https://eeas.europa.eu/diplomatic-network/middle-east-peace-
   process/44527/gaza-eu-calls-restraint-both-sides-following-deaths-dozens-
   palestinian-protesters_en.



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     3.2. THE RELOCATION OF THE U.S., GUATEMALA AND PARAGUAY EMBASSIES TO JERUSALEM

 Security Council draft resolution (S/2017/1060) of 18 December 2017 was
 drafted following Donald J. Trump Presidential Proclamation of the 6th of
 December 2017 where he recognized Jerusalem as the Capital of Israel and
 instructed the relocation of the United States embassy to Israel from Tel
 Aviv to Jerusalem in pursuance of Jerusalem Embassy Act enacted by the
 U.S. Congress in October 1995.               The Jerusalem Embassy Act, 1995,
 recognizes Jerusalem as the capital of Israel and dictates that the U.S.
 embassy should be established in Jerusalem no later than 31 May 1999.76
 In Case concerning certain German interests in Polish Upper Silesia (The
 Merits), the P.C.I.J. provided that “[t]he Court is certainly not called upon
 to interpret the Polish law as such; but there is nothing to prevent the
 Court’s giving judgment on the question whether or not, in applying that
 law, Poland is acting in conformity with its obligations towards Germany
 under the Geneva Convention”.77 The Jerusalem Embassy Act contained a
 waiver provision, which empowered the U.S. President to suspend it every
 six months if deemed necessary to protect the national security interests
 of the United States.78 Presidents Bill Clinton, George W. Bush and Barack
 Obama had invoked this waiver clause repeatedly, whereas even Donald J.
 Trump himself did so – when he signed a six-month waiver in June 2017.
 Yet, In May 2018, the United States of America relocated its embassy from
 Tel Aviv to Jerusalem in pursuance to the 6th of December 2017
 proclamation. The United States of America relocated its embassy to an
 interim building, which houses consular operations of its Consulate
 General of Jerusalem.79
76
   Jerusalem     Embassy    Act,   Public    Law   104–45,       1995,   §    2    and     3,
   www.congress.gov/104/plaws/publ45/PLAW-104publ45.pdf.
77
   German Interests in Polish Upper Silesia (Germ. v. Pol.), Judgment, 1926 P.C.I.J. (ser. A)
   No. 7, ¶ 52 (May 25).
78
   Jerusalem Embassy Act, Public Law 104–45, 1995, § 1(a) and (2).
79
   Press    Statement,    Heather    Nauert,     Dep’t     Spokesperson,     Opening       of
   U.S. Embassy Jerusalem, U.S. DEPARTMENT OF STATE (Feb.                      23, 2018),
   https://www.state.gov/r/pa/prs/ps/2018/02/278825.htm.




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 Following the United States of America footsteps, Guatemala and Paraguay
 relocated their embassies from Tel Aviv to Jerusalem in the same month.
 However, in September 2018 Paraguay decided to revoke its decision and
 restitute its act by moving its embassy back to Tel Aviv. The Paraguayan
 Ministry for External Relations Statement on the relocation of Paraguay’s
 embassy to the State of Israel on the 5th of September 2018 elucidated that
 in line with Article 143 of the Paraguayan Constitution in which it adheres
 to international law in its foreign policy, the Government of the Republic of
 Paraguay considers it appropriate to re-establish the embassy to the State
 of Israel to the location previous to the statement dated in May 9, 2018.80
 The act of Paraguay to relocate its embassy back to Tel Aviv is considered an
 act of restitution in line with one of the forms of the principle of reparation
 for the internationally wrongful act of the Republic of Paraguay.
         The Sending States, which are diplomatically represented in Israel,
 cannot rely on their own domestic or foreign policies to justify their
 conduct of transferring their embassies to Jerusalem as they are violating
 their obligations under international law. In the Military and Paramilitary
 Activities in and against Nicaragua (Nicaragua v. United States of America,
 the I.C.J. held that “[a] State’s domestic policy falls within its exclusive
 jurisdiction, provided of course that it does not violate any obligation of
 international law. Every State possesses a fundamental right to choose
 and implement its own political, economic and social systems”.81



     3.3. GENERAL ASSEMBLY RESOLUTIONS

 The General Assembly issued several resolutions in several instances
 when States have violated Security Council resolution 478 by locating
80
   Comunicado sobre la ubicación de la Embajada de la República del Paraguay ante el Estado
   de Israel [Statement on the location of the Embassy of the Republic of Paraguay to the
   State of Israel], MINISTERIO DE RELACIONES EXTERIORES [MINISTRY OF FOREIGN AFFAIRS]
   (Sept. 9, 2018), http://www2.mre.gov.py/index.php/noticias/comunicado-sobre-la-
   ubicacion-de-la-embajada-de-la-republica-del-paraguay-ante-el-estado-de-israel.
81
   Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J.
   131, ¶ 258 (June 27).




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 their embassies in Jerusalem or otherwise when deciding to relocate their
 embassies to Jerusalem.             It accordingly deplored States’ conduct of
 establishing or maintaining their embassies in Jerusalem or otherwise
 called upon States to refrain from such conduct. For example, General
 Assembly resolution 37/123 of 1982 “[d]eplore[d] the transfer by some
 States of their diplomatic missions to Jerusalem in violation of Security
 Council resolution 478 (1980)”;82 General Assembly resolution 40/168 of
 1985 “[d]eplore[d] the transfer by some States of their diplomatic
 missions to Jerusalem in violation of Security Council resolution 478
 (1980) and their refusal to comply with the provisions of that
 resolution”.83 This act of deploring was at a time when El Salvador and
 Costa Rica had already relocated their embassies to Jerusalem. By way of
 another example, as a result of the United States of America decision on
 the 6th of December 2017 to relocate its embassy to Tel Aviv, General
 Assembly resolution A/ES-10/L.22 of 19 December 2017 called upon all
 States to refrain from establishing diplomatic missions in Jerusalem in
 line with Security Council resolution 478 (1980).84
         In its numerous resolutions, the General Assembly have taken the
 same position as the Security Council which also enhance the existence of
 a rule and the emergence of an opinio juris that States diplomatically
 represented in Israel must refrain from locating their embassies in
 Jerusalem as established by Security Council resolution 478 of 20 August
 1980.      For example, General Assembly resolution 36/120 of 1981
 reaffirmed its decision not to recognize the Israeli Basic Law of 1980 and
 called upon all States to comply with the present resolution and other
82
   G.A. Res. 37/123, ¶1, U.N. Doc. A/RES/37/123 (Dec. 16, 1982).
83
   G.A. Res. 40/168 (C), ¶2, U.N. Doc. A/RES/40/168 (Dec. 16, 1985). For the matter of
   deploring the transfer by some States of their diplomatic missions to Jerusalemsee e.g.
   other General Assembly resolutions: G.A. Res. 38/180, ¶2, U.N. Doc. A/RES/38/180 (Dec.
   19, 1983), G.A. Res. 48/59 (A) , ¶2, U.N. Doc. A/RES/48/59 (Dec. 14, 1993), G.A. Res. 50/22
   (A), ¶2, U.N. Doc. A/RES/50/22 (Dec. 4, 1995), G.A. Res. 54/37, ¶2, U.N. Doc. A/RES/54/37
   (Dec. 1, 1999), G.A. Res. 56/31, ¶2, U.N. Doc. A/RES/56/31 (Dec. 18, 2001), G.A. Res. 57/111,
   ¶2, U.N. Doc. A/RES/57/111 (Dec. 3, 2002), G.A. Res. 59/32, ¶2, U.N. Doc. A/RES/59/32
   (Dec. 1, 2004), G.A. Res. 60/41, ¶2, U.N. Doc. A/RES/60/41 (Dec. 1, 2005).
84
   G.A. Res. 10/L.22, ¶1, U.N. Doc. (A/ES-10/L.22 (Dec. 19, 2017).




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 relevant resolutions.85          General Assembly Resolution 36/120 further
 demanded Israel to comply with United Nations resolutions relevant to
 Jerusalem particularly Security Council resolutions 476 and 478 of
 1980.86      General Assembly resolution A/73/L.29 of November 2018
 recalled among others Security Council resolution 478 and affirmed that
 the imposition of the occupying power of its laws, jurisdiction and
 administration on the Holy City of Jerusalem are illegal.87
         In the Military and Paramilitary Activities in and against Nicaragua
 (Nicaragua v. United States of America), the I.C.J. provided that it must “be
 satisﬁed that there exists in customary international law an opinio juris . . .
 . This opinio juris may, though with all due caution, be deduced from, inter
 alia, the attitude of the Parties and the attitude of States towards certain
 General Assembly resolutions, and particularly resolution 2625”.88 The
 customary international diplomatic law underpinning the prohibition on
 establishing embassies in Jerusalem was also fundamental - as in the
 absence of it, Ambassadors of the sending States which are diplomatically
 represented in Israel are (or would be) accredited under these
 circumstances to the president of Israel.89 In its advisory opinion on the
 Legality of the Threat or Use of Nuclear Weapons, the I.C.J. pointed out that:

           General Assembly resolutions, even if they are not binding,

           may sometimes have normative value.             They can, in certain

           circumstances, provide evidence important for establishing the

           existence of a rule or the emergence of an opinio juris.                 To

           establish whether this is true of a given General Assembly

           resolution, it is necessary to look at its content and the

           conditions of its adoption; it is also necessary to see whether an

           opinio juris exists as to its normative character. Or a series of
85
   G.A. Res. 36/120 (E), ¶ 3, U.N. Doc. A/RES/36/120 (Dec. 10, 1981).
86
   Id., para 4.
87
   G.A. Res. 73/22, Preamble and ¶ 1, U.N. Doc. A/RES/73/22 (Nov. 30, 2018).
88
   Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J.
   131, ¶ 188 (June 27).
89
   See generally for accreditation of ambassadors, envoys and charges d’affaires Vienna
   Convention on Diplomatic Relations art. 14, Apr. 18, 1961, 500 U.N.T.S. 95.



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           resolutions may show the gradual evolution of the opinio juris

           required for the establishment of a new rule.90




     3.4. THE PRINCIPLE OF INADMISSIBILITY OF ACQUISITION OF TERRITORY BY FORCE

 By not establishing embassies in Jerusalem, States are also affirming the
 principle of the illegality and inadmissibility of acquisition of territory by
 force.    The Security Council and General Assembly have affirmed in
 several instances this principle. For example, the preamble of Security
 Council resolution 242 affirmed on the inadmissibility of the acquisition
 of territory by war.91            General Assembly resolution 2799 of 1971
 “[r]eaffirm[ed] that the acquisition of territories by force is inadmissible
 and that, consequently, territories thus occupied must be restored”92 .
 The illegality and inadmissibility of acquisition of territory was affirmed
 by several governments and intergovernmental organizations.                                  For
 example, the Declaration of the nine Foreign Ministers of the European
 Economic Community of 6 November 1973 in Brussels, on the Situation in
 the Middle East provided that the nine member States consider that a
 peace agreement should be based on, among others, “the inadmissibility
 of the acquisition of territory by force; the need for Israel to end the
 territorial occupation which it has maintained since the conﬂict of
 1967”.93 On the Jerusalem issue the Irish Minister for Foreign Affairs
 made it clear in 1979 that the then nine Member States of the European
 Economic Community did not support any unilateral moves concerning
 this city.94    The European Council Venice Declaration of June 13, 1980
90
   Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 254 ¶ 70
   (Jul. 8).
91
   S.C. Res. 242, Preamble, U.N. Doc. S/RES/242 (Nov. 22, 1967). See also for example, S.C.
   Res. 298, U.N. Doc. S/RES/298 (Sept. 25, 1971).
92
   G.A. Res. A/RES/2799 (XXVI), ¶ 1, U.N. Doc. (Nov. 30, 2018). See also for example, G.A. Res.
   A/RES/36/120 (D) and (E), Preamble, U.N. Doc. (Dec. 10, 1981).
93
   para 3 (I) and (II), Declaration of the Nine Foreign Ministers of 6
   November 1973,        in Brussels,      on the Situation in the Middle East,
   https://www.cvce.eu/content/publication/1999/1/1/a08b36bc-6d29-475c-aadb-
   0f71c59dbc3e/publishable_en.pdf.
94
   Michael O’Kennedy, Irish Foreign Minister, Speech at the 34th Session of the U.N. General
   Assembly in New York (Sept. 25, 1979), (A/34/PV.8).


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 affirmed on that “[t]he nine stress that they will not accept any unilateral
 initiative designed to change the status of Jerusalem . . . . The nine stress
 the need for Israel to put an end to the territorial occupation which it has
 maintained since the conﬂict of 1967 . . . . the Israeli settlements . . . . are
 illegal under international law.”95



     3.5. THE PROHIBITION ON AID OR ASSISTANCE TO ISRAEL’S INTERNATIONALLY WRONGFUL
     ACTS

 By relocating their embassies from Tel Aviv to Jerusalem, the United
 States of America and Guatemala are also aiding and assisting the
 internationally wrongful acts of transferring Israeli civilians into Israeli
 settlements in the occupied territory of Palestine, including its occupied
 section of Jerusalem, as well as Israel’s annexation and colonization
 policies. For example, Security Council resolution 465 of 1980 “calls upon
 all States not to provide Israel with any assistance to be used speciﬁcally
 in connexion with settlements in the occupied territories”.96                          General
 Assembly resolution 31/106 of 1976

            [r]eiterates its call upon all States, international organizations

            and specialized agencies not to recognize any changes carried

            out by Israel in the occupied territories and to avoid actions,

            including those in the ﬁeld of aid, which might be used by Israel

            in its pursuit of the policies of annexation and colonization.97
95
   European Community (1980) “Venice Declaration”.                          European Union,
   http://eeas.europa.eu/mepp/docs/venice_declaration_1980_en.pdf,                   retrieved
   29/01/1980.
96
   S.C. Res. 465, supra note 44, ¶ 7. See also S.C. Res. 471, ¶ 5, U.N. Doc. S/RES/471 (Jun. 5,
   1980).
97
   G.A. Res. 31/106, ¶ 8, U.N. Doc. A/RES/31/106 (Dec. 16, 1976). See also G.A. Res. 3092
   (XXVIII) (B), ¶ 8, U.N. Doc. A/RES/3092 (XXVIII) (Dec. 7, 1973); G.A. Res. 3240 (XXIX) (A),
   ¶ 8, U.N. Doc. A/RES/3240 (XXIX) (Nov. 29, 1974); G.A. Res. 3525 (XXX) (A), ¶ 10, U.N. Doc.
   A/RES/3525 (XXX) (Dec. 15, 1975); G.A. Res. 32/91 (C), ¶ 8, U.N. Doc. A/RES/32/91 (Dec.
   13, 1977); G.A. Res. 33/113 (A), ¶ 8, U.N. Doc. A/RES/33/113 (A) (Dec. 18, 1978); G.A. Res.
   34/90 (A), ¶ 8, U.N. Doc. A/RES/34/90 (A) (Dec. 12, 1979); G.A. Res. 35/122 (C), ¶ 8, U.N.
   Doc. A/RES/35/122 (C) (Dec. 11, 1980); G.A. Res. 36/147 (C), ¶ 11, U.N. Doc. A/RES/36/147
   (C) (Dec. 16, 1981); G.A. Res. 37/88 (C), ¶ 11, U.N. Doc. A/RES/37/88 (C) (Dec. 9, 1982);
   G.A. Res. 38/79 (D), ¶ 13, U.N. Doc. A/RES/38/79 (D) (Dec. 15, 1983); G.A. Res. 39/95 (D),
   ¶ 13, U.N. Doc. A/RES/39/95 (D) (Dec. 14, 1984); G.A. Res. 40/161 (D), ¶ 15, U.N. Doc.



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 General Assembly resolution ES-7/4 of 1982 urged Governments “[to]
 renounce the policy of providing Israel with military, economic and
 political assistance,        thus discouraging Israel from continuing its
 aggression, occupation”.98
         By recognizing Jerusalem as the capital of Israel and/or locating
 embassies in Jerusalem, States are violating Security Council resolution
 2334 which required them to distinguish in their dealings between the
 territory of the State of Israel and the occupied territories of 1967. In
 addition, the conduct of any State that relocated its embassy to Jerusalem
 or otherwise maintained its embassy in Jerusalem after the initiation of
 the construction of the wall and its associated regime (which is also built
 in   and     around     Jerusalem)      is   aiding     or    assisting       this     speciﬁc
 internationally wrongful act. The I.C.J. ruled in the Legal Consequences of
 the Construction of a Wall in the Occupied Palestinian Territory advisory
 opinion of 2004:

            All States are under an obligation not to recognize the illegal

            situation resulting from the construction of the wall and not to

            render aid or assistance in maintaining the situation created by

            such construction; all States parties to the Fourth Geneva

            Convention relative to the Protection of Civilian Persons in

            Time of War of 12 August 1949 have in addition the obligation,

            while respecting the United Nations Charter and international

            law,   to ensure compliance by Israel with international

            humanitarian law as embodied in that Convention.99

 The Security Council and the General Assembly have in other situations
 issued several resolutions in which they called upon all States to refrain
   A/RES/40/161 (D)(Dec. 16, 1985); G.A. Res. 41/63 (D), ¶ 16, U.N. Doc. A/RES/41/63 (D)
   (Dec. 3, 1986); G.A. Res. 42/160 (D), ¶ 16, U.N. Doc. A/RES/42/160 (D) (Dec. 8, 1987); G.A.
   Res. 43/58 (A), ¶ 18, U.N. Doc. A/RES/43/58 (A) (Dec. 6, 1988); G.A. Res. 44/48 (A), ¶ 19,
   U.N. Doc. A/RES/44/48 (A) (Dec. 8, 1989); G.A. Res. 45/74 (A), ¶ 19, U.N. Doc. A/RES/45/74
   (A) (Dec. 11, 1990); G.A. Res. 46/47 (A), ¶ 19, U.N. Doc. A/RES/46/47 (A) (Dec. 9, 1991);
   G.A. Res. 47/70 (A), ¶ 15, U.N. Doc. A/RES/47/70 (A) (Dec. 14, 1992).
98
   G.A. Res. ES-7/4, ¶ 9 (b), U.N. Doc. A/RES/ES-7/4 (Apr 28, 1982).
99
   Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,
   Advisory Opinion, 2004 I.C.J. 131 ¶ 163 (3) (July, 9).



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  from providing any assistance to the colonial powers, occupying powers
  and/or racist illegal regimes.      Security Council resolution 218 of 1965
  “[r]equests all States to refrain forthwith from offering the Portuguese
  Government any assistance which would enable it to continue its
  repression of the people of the Territories under its administration”.100
  General Assembly resolution 2507(XXIV) of 1969 “urges all States . . . . to
  withhold or desist from giving further military and other assistance to
  Portugal which enables it to pursue the colonial war in the Territories
  under its domination.”101 Security Council resolution 216 of 12 November
  1965 called upon all States not to render aid or assistance to the racist
  minority regime in Southern Rhodesia.102 Security Council resolution 277
  of 1970 noted that “[t]he Governments of the Republic of South Africa and
  Portugal have continued to give assistance to the illegal regime of
  Southern Rhodesia, thus diminishing the effects of the measures decided
  upon by the Security Council.”103
         In the Legal Consequences for States of the Continued Presence of
  South Africa in Namibia (South West Africa) notwithstanding Security Council
  Resolution 276 (1970) advisory opinion, the I.C.J. ruled “that States
  Members of the United Nations are under obligation . . . . to refrain from
  any acts and in particular any dealings with the Government of South
  Africa implying recognition of the legality of, or lending support or
  assistance to, such presence and administration”;104 Security Council
  resolution 301 of 1971 agreed with the I.C.J. as expressed in paragraph 133
  of its advisory opinion and called upon Member States not to lend support
  or assistance to the illegal presence and administration of South Africa in
  Namibia.105
100
    S.C. Res. 218, ¶ 6, U.N. Doc. S/RES/218 (Nov. 23, 1965).
101
    G.A. Res. 2507 (XXIV), ¶ 13, U.N. Doc. A/RES/2507 (XXIV)(Nov. 21, 1969).
102
    S.C. Res. 216, ¶ 2, U.N. Doc. S/RES/216 (Nov. 12, 1965).
103
    S.C. Res. 277, Preamble, U.N. Doc. S/RES/277 (Mar. 18, 1970).
104
    Legal Consequences for States of the Continued Presence of South Africa in Namibia
    (South West Africa) Notwithstanding Security Council Resolution (1970), Advisory
    Opinion, 1971 I.C.J. 58 ¶ 133 (2) (Jun. 21).
105
    S.C. Res. 301, ¶ 6 and ¶ 7, U.N. Doc. S/RES/301 (Oct. 20, 1971).




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      3.6. THE OBLIGATION TO RENDER AID OR ASSISTANCE TO THE PALESTINIAN PEOPLE IN
      REALIZATION OF SELF-DETERMINATION

  With the prohibition on rendering aid or assistance to Israel’s policies of
  annexation and colonization in mind, the General Assembly issued
  several resolutions calling for provision of assistance and/or support for
  the Palestinian people in realization of their right to self-determination.
  For example, General Assembly resolution 2649 of 1970 provides that it
  “[r]ecognizes the right of peoples under colonial and alien domination in
  the legitimate exercise of their right to self-determination to seek and
  receive all kinds of moral and material assistance, in accordance with the
  resolutions of the United Nations and the spirit of the Charter of the
  United     Nations”;106       General      Assembly        resolution       2649       further
  “[c]ondemns         those      Governments          that     deny        the      right       to
  self-determination of peoples recognized as being entitled to it,
  especially of the peoples of southern Africa and Palestine”107 ; General
  Assembly resolution 3236 (XXIX) of 1974 “[r]eaffirm[ed] the inalienable
  rights of the Palestinian people in Palestine, including: (a) The right to
  self-determination without external interference;                     (b) The right to
  national independence and sovereignty”;108 General Assembly resolution
  72/160 of 2017 “[u]rge[d] all States and the specialized agencies and
  organizations of the United Nations system to continue to support and
  assist the Palestinian people in the early realization of their right to
  self-determination”.109
          The relocation of the United States of America and the Republic of
  Guatemala of their embassies from Tel Aviv to Jerusalem are
  internationally wrongful acts in breach of their legal interests and
  obligations to protect the erga omnes right of self-determination of the
  Palestinian people.         One of the purposes of the United Nations as
106
    G.A. Res. 2649, ¶ 2, U.N. Doc. A/RES/2649 (Nov. 30, 1970).
107
    Id. para 5.
108
    G.A. Res. 3236, ¶ 1, U.N. Doc. A/RES/3236 (Nov. 22, 1974).
109
    G.A. Res. 72/160, ¶ 2, U.N. Doc. A/RES/72/160 (Dec. 19, 2017).




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  prescribed in its Charter of 1945 is “[t]o develop friendly relations among
  nations based on respect for the principle of equal rights and
  self-determination of peoples, and to take other appropriate measures to
  strengthen universal peace”;110 in East Timor (Portugal v. Australia), the
  I.C.J. provided that “[i]n the Court’s view, Portugal’s assertion that the
  right of peoples to self-determination, as it evolved from the Charter and
  from United Nations practice,              has an erga omnes character,                      is
  irreproachable”.111      In Barcelona Traction, Light and Power Company,
  Limited, the I.C.J. provided that “[i]n view of the importance of the rights
  involved, all States can be held to have a legal interest in their protection;
  they are obligations erga omnes”.112
          The transfer of Israeli civilians into the occupied territory of
  Palestine, the annexation of parts of the occupied territory of Palestine
  and the construction of the wall and its associated regime are but few
  measures which impede the Palestinian exercise to their right to
  self-determination and sovereignty over their occupied State. In the Legal
  Consequences of the Construction of a Wall in the Occupied Palestinian
  Territory advisory opinion, the I.C.J. provided “[t]hat construction, along
  with measures taken previously, thus severely impedes the exercise by
  the Palestinian people of its right to self-determination, and is therefore
  a breach of Israel’s obligation to respect that right.”113



      3.7. RESPONSIBILITY OF STATES FOR INTERNATIONALLY WRONGFUL ACTS

  The execution of the Jerusalem Embassy Act by the U.S. President
  proclamation in December 2017 combined with his conduct of relocating
  the U.S. embassy from Tel Aviv to Jerusalem in May 2018 entails the
  responsibility of the United States of America for its internationally
110
    U.N. Charter, art. 1, para 2, Jun. 26, 1945.
111
    East Timor (Port. v. Austl.), 1995 I.C.J. ¶ 29 (June 27).
112
    Barcelona Traction, Light and Power Company, Limited (Belg. v. Spain), 1970 I.C.J. ¶ 33
    (Feb. 5).
113
    Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,
    Advisory Opinion, 2004 I.C.J. 184 ¶ 122 (Jul. 9).



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  wrongful    act   under     the    customary      international         law     on     State
  responsibility. Similarly, the decision of Jimmy Morales, President of
  Guatemala to relocate the Guatemalan embassy from Tel Aviv to
  Jerusalem in March 2018 combined with the implementation of his
  decision in May 2018, incurs the responsibility of the Republic of
  Guatemala for the internationally wrongful act under the customary
  international law on State responsibility. Article 2 of the Draft Articles on
  the Responsibility of States for Internationally Wrongful Acts mentions
  the elements of an internationally wrongful act of a State: “There is an
  internationally wrongful act of a State when conduct consisting of an
  action or omission: (a) is attributable to the State under international law;
  and (b) constitutes a breach of an international obligation”.114 Article 4 of
  the Draft Articles on the Responsibility of States for Internationally
  Wrongful Acts provides that

          [t]he conduct of any State organ shall be considered an act of

          that State under international law, whether the organ exercises

          legislative, executive, judicial or any other functions, whatever

          position it holds in the organization of the State, and whatever

          its character as an organ of the central Government or of a

          territorial unit of the State. 2. An organ includes any person or

          entity which has that status in accordance with the internal law

          of the State.115

  The conduct of the USA and Guatemala in relocating their embassies from
  Tel Aviv to Jerusalem in May 2018 (which have hitherto maintained their
  embassies in Jerusalem) is a violation of their obligations under
  international diplomatic law. This is also true of other States who have
  formerly done so, i.e., Costa Rica in 1982 and El Salvador and 1984 and
  Paraguay in May 2018.             The infraction of the rule of customary
  international     diplomatic      law   which    prohibits       States       which      are
114
    Report of the International Law Commission to the General Assembly, 53rd Sess., 2001,
    art. 2, U.N. Doc. A/56/10. reprinted in [2007] 2 Y.B. Int’l L. Comm’n, U.N. Doc.
    A/CN.4/SER.A/2001/Add.1 (Part 2).
115
    Id. article 4.


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  diplomatically represented in Israel, from establishing or maintaining
  their embassies in Jerusalem incurs State responsibility under the
  customary international law of State responsibility. In the Military and
  Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
  America), the I.C.J. “deems it sufficient that the conduct of States should
  in general be consistent with such a rule; and that instances of State
  conduct inconsistent with a given rule should generally have been treated
  as breaches of that rule, not as indications of the recognition of a new
  rule”.116
         The United States of America and Guatemala are also under a legal
  obligation to make adequate reparation in the forms of restitution i.e,
  reestablishing their embassies to Tel Aviv and give satisfaction to the
  State of Palestine. This without prejudice to Israel’s obligation to provide
  full reparation for its internationally wrongful acts under international
  law. The P.C.I.J. furnished in the Case Concerning the Factory at Chorzów
  (Merits) that: “[I]t is a principle of international law, and even a general
  conception of law, that any breach of an engagement involves an
  obligation to make reparation”.117
         By relocating their embassies to Jerusalem, the United States of
  America and the Republic of Guatemala are internationally responsible
  for rendering aid or assistance to Israel’s policies of annexation and
  colonization      under     the     customary       international         law     on      State
  responsibility.118 In the Military and Paramilitary Activities in and against
  Nicaragua (Nicaragua v. United States of America), the I.C.J. ruled that “the
  United States of America, by training, arming, equipping, ﬁnancing and
  supplying the contra forces or otherwise encouraging, supporting and
  aiding military and paramilitary activities in and against Nicaragua, has
  acted, against the Republic of Nicaragua, in breach of its obligation under
116
    Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J.
    131, ¶ 186 (June 27).
117
    Factory at Chorzow (Germ. v. Pol.), 1928 P.C.I.J. (ser. A) No. 17, ¶ 73 (Sept. 13).
118
    On aid or assistance see for example, Report of the International Law Commission to the
    General Assembly, 53rd Sess., 2001, supra note 114, art. 16 and art. 41 at 65-67, 113-116.




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  customary international law”.119 In addition, the act of the relocation of
  the United States of America and the Republic of Guatemala’s embassies
  to Jerusalem is a breach of their obligation to protect the Palestinian
  people erga omnes right to self-determination and incurs responsibility
  of both States for their internationally wrongful acts. Both States have
  also violated their obligations under international law in that they have
  not rendered assistance to the Palestinian people so as to realize their
  right to self-determination.



      3.8. THE UNITED NATIONS EDUCATIONAL, SCIENTIFIC AND CULTURAL ORGANIZATION

  The United Nations Educational, Scientiﬁc and Cultural Organization
  (hereinafter UNESCO) adopted several resolutions where it affirmed the
  occupying power illegal measures in the Holy City of Jerusalem including
  its archaeological excavations. For example, the 1968 UNESCO’s General
  Conference resolution 15C/3.343 called upon Israel “(a) to preserve
  scrupulously all the sites, buildings, and other cultural properties,
  especially in the old city of Jerusalem;                     (b) to desist from any
  archaeological excavations, transfer of such properties and changing of
  their features on their cultural and historical character”.120                       The 1974
  UNESCO‘s General Conference resolution 3.427 condemned Israel for its
  persistent conduct of altering the historical features of Jerusalem and its
  excavations following its illegal occupation which are regarded contrary
  to the aims of the UNESCO.121 The 1978 UNESCO‘s General Conference
  resolution     4/7.6/13      condemned        the    Israeli     occupying         authorities
  infringement of both UNESCO and United Nations resolutions and its
119
    Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J.
    131, ¶ 292(3) (June 27).
120
    UNESCO General Conference Fifteenth Session Paris, Fr., October 15-November 20, 1968,
    Sciences, Human Sciences and Culture, Preservation and Presentation of the Cultural
    Heritage, ¶ 1, U.N. Doc., 15C/RES/3.343 (Nov. 20, 1968).
121
    UNESCO General Conference Eighteenth Session Paris, Fr., October 17-November 23,
    1974, Social Sciences, Humanities and Culture, Cultural Heritage, Implementation of the
    Resolutions of the General Conference and Decisions of the Executive Board Concerning
    the Protection of Cultural Property in Jerusalem, ¶ 2, U.N. Doc., Res. 3.427 (Nov. 21, 1974).




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  measures to change and Judaize the historic and cultural conﬁguration of
  Jerusalem.122 By affirming the illegality of the Israeli occupation per se, as
  well as its illegal measures in Jerusalem, the UNESCO as one of the
  specialized agencies of the United Nations, is complying with its
  obligations under international law of not rendering aid or assistance to
  Israel’s colonization and annexation policies.                  By its resolutions on
  Jerusalem, the UNESCO is also affirming applicable principles of
  international law on the illegality of the Israeli occupation and its illegal
  measures. It is worth pointing out that the Old City of Jerusalem and its
  Walls has been on the UNESCO’s In-Danger List since 1982.123



      3.9. STATUS OF CONSULATES IN JERUSALEM

  Few States have their consulates established in Jerusalem such as the
  French consulate-general, the Turkish consulate-general, the British
  consulate-general and Belgium consulate-general.                            These States’
  consulates in Jerusalem maintain their embassies in Tel Aviv. The consuls
  in Jerusalem do not receive accreditation from the President of Israel.124
  Consuls, who were already resident in the city during Mandatory
  Palestine, did not recognize Israeli or Jordanian rule of the city.125 The
  existence of consulates in Jerusalem does not appear to be inconsistent
  with customary consular international law, as long as the heads of the
  consular posts exequaturs are not granted by Israel, the occupying power,
  and as long as the heads of the consular posts do not explicitly or
  implicitly recognize Israel’s occupation, annexation and other illegal
  measures in Jerusalem including the 1980 Basic law.                           If/when any
122
    UNESCO General Conference Twentieth Session January 1, 1978, Jerusalem/Cultural
    Heritage, ¶ 3, U.N. Doc., Res. 4/7.6/13 (Jan. 1, 1978).
123
    ICOMOS World Heritage in Danger, Compendium II- A compendium of key decisions on
    the conservation of cultural heritage properties on the UNESCO List of World Heritage in
    Danger, 5 ( April 2009), https://whc.unesco.org/document/106357.
124
    United Nations, Prepared for, and under the guidance of, the Committee of the Exercise of
    the Inalienable Rights of the Palestinian People, The Status of Jerusalem (New York: United
    Nations, 1997), p. 9.
125
    Meron Benvenisti, Jerusalem the Torn City (Minneapolis USA: the University of Minnesota
    Press, 1976), p.15.


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  consul-general in Jerusalem exequatur is granted by Israel, it would be a
  violation of State practice and the element of opinio juris. It would then
  constitute a violation of customary international consular law as codiﬁed
  in the preambular paragraph six of the Vienna Convention on Consular
  Relations of 1963. Previously the United States of America consulate had
  its premises in Jerusalem and the embassy in Tel Aviv. However, on 18
  October 2018, in the aftermath of the relocation of the U.S. embassy from
  Tel Aviv to Jerusalem, the U.S. Secretary of State announced the merging
  of both the U.S. embassy in Jerusalem and U.S. consulate-general in
  Jerusalem into a single diplomatic mission and requested the U.S.
  Ambassador to guide the merger.126                    That’s one less consulate in
  Jerusalem on the 4th of March 2019.




            4. COMPARATIVE ANALYSIS OF SOUTHERN RHODESIA (ZIMBABWE), SOUTH WEST
         AFRICA (NAMIBIA) AND KUWAIT

  The legal obligation on States to withdraw existing diplomatic and/or
  consular missions, or otherwise not to establish diplomatic and/or
  consular missions in certain territories, has a precedent in Southern
  Rhodesia (Zimbabwe) and South West Africa (Namibia). The following
  section will explore Southern Rhodesia (Zimbabwe) and South West
  Africa (Namibia) case studies and further discuss the status of diplomatic
  and/or consular missions in Kuwait in the aftermath of the First Gulf War
  that resulted in the Iraqi occupation and annexation of the territory of
  Kuwait. The aim of the inclusion of the above-mentioned three speciﬁc
  case studies is to analyze the particularity of each situation and assist in
  determining the merits of the pending case (Palestine v. United States of
  America).
126
      Press Statement, Michael R. Pompeo, Sec’y of State of Washington, D.C., On the Merging of
      U.S. Embassy Jerusalem and U.S. Consulate General Jerusalem, U.S. DEPARTMENT OF STATE
      (Oct. 18, 2018), https://www.state.gov/secretary/remarks/2018/10/286731.htm.


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      4.1. SOUTHERN RHODESIA (ZIMBABWE)

  As a result of the white minority regime’s proclamation of the
  independence of Southern Rhodesia on the 11th of November 1965,
  Security Council issued resolution 216 on the 12th of November 1965 in
  which it condemned the unilateral declaration of independence and
  further called upon all States not to recognize this racist minority
  regime.127 Security Council resolution 217 of 20 November 1965 called
  upon all States not to entertain diplomatic or other relations with the
  authorities of this illegal regime.128 Security Council resolution 253 of 29
  May 1968 laid an emphasis on States’ obligations to withdraw all consular
  and trade representation in Southern Rhodesia in addition to the
  obligation provided under Paragraph 6 of Security Council resolution 217
  on not entertaining diplomatic or other relations.129                    Security Council
  resolution 253 further established a committee to, among other things,
  examine reports on the implementation of this resolution.130
            Prior to the illegal declaration of independence by the minority
  regime, about twenty States maintained some form of consular relations
  with Southern Rhodesia: while some closed their consulates, others did
  not.131     In compliance with the Committee’s request contained in
  paragraph 9 of its ﬁrst report (S/8954), a note verbale dated on 7 January
  1969 was sent by the United Nations Secretary-General to the
  Governments of Belgium, Denmark, Federal Republic of Germany,
  France, Greece, Italy, the Netherlands, Norway, Portugal, South Africa,
  Switzerland and the United States of America as they have maintained a
  consulate      or   accredited      diplomatic       representative          in     Southern
  Rhodesia.132        The Secretary-General drew attention to operative
127
     S.C. Res. 216, supra note 102, ¶ 1 and ¶ 2, .
128
     S.C. Res. 217, paras 1, 2, U.N. Doc. S/RES/217 (Nov. 12, 1965).
129
     S.C. Res. 253, para 6, U.N. Doc. S/RES/253 (May 29, 1968).
130
     Id. para 20.
 131
     C. Rep. No. 4, para 71, Established in Pursuance of S/RES/253 (May 29,1968), Twenty-
     Sixth Year Special Supplement No. 2, S/10229 and Add. 1 and 2, United Nations New York,
     p. 17.
132
     C. Rep. No. 2, Established in Pursuance of S/RES/253 (May 29, 1968): Annex VIII, Consular
     and Trade Representation in Southern Rhodesia, S/9252/Add.1 (13 June, 1969), p.1.


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  paragraph 10 of resolution 253 (1968) and operative paragraph 6 of
  resolution 217 (1965) where he sought the comments of these
  Governments in light of the provision under resolution 253 (1968).                     133   As
  of 6 June 1969, all States except South Africa had given responses on this
  matter.134
         An analysis of the 11 notes verbales that were sent to the
  Secretary-General in response to his note verbale reveals that all States
  demonstrated that the presence of their consular posts was essential to
  render assistance to their respective nationals residing in the territory of
  Southern Rhodesia.135 All the notes verbales of the States affirmed either
  explicitly or implicitly that they had no intention to close their consulates
  in Southern Rhodesia.136 In addition, States either explicitly or implicitly
  claimed that the wording of paragraph 10 of resolution 253 (1968) is seen
  as a form of recommendation and not binding in nature.137                                 The
  overwhelming majority of the responses of the States affirmed that the
  presence of their consulates should in no way be interpreted as
  recognizing the illegal minority regime of Southern Rhodesia.138                          The
  overwhelming majority of the responses further affirmed that the
  consuls-general exequaturs were granted by the British sovereign and
  were not granted by the minority regime.139
         By way of example, in its note verbale of 1969, Norway stated that
  it maintained an honorary consulate in Salisbury (in 1982 renamed
  Harare) where the honorary consul exequatur was granted by the British
  Sovereign and further stated that since the unilateral declaration of
  independence in 1965, the honorary consul refrained from any relations
  or contacts with the illegal regime in Southern Rhodesia.140 In its note
133
    Id.
134
    Id.
135
    The texts of the Note verbale are found under Annex VIII, supra note 132, Second Report
    of the Committee Established in Pursuance of S.C. Res. 253 (1968), pp. 2-9.
136
    Id.
137
    Id.
138
    Id.
139
    Id.
140
    Note verbale from the Permanent Representative of Norway (26 March, 1969), Annex VIII,
    supra note 132, p.5.


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  verbale of 1969, Switzerland invoked its neutrality to evade subscribing to
  the compulsory United Nations sanctions and affirmed that a Swiss
  Consulate was maintained at Salisbury.141 In its note verbale of 1969, the
  United States of America decided not to remove its consular staff in
  Salisbury and affirmed that all staff exequaturs were granted by the
  British Crown and had no official connexion with the minority regime.142
  Portugal’s response was severe as it stated clearly in its note verbale that
  it did not recognize the invoked United Nations Security Council
  resolutions as valid where it also complained that it had not received any
  replies concerning its several requests for clariﬁcations on the invoked
  Security Council resolutions.143           Portugal affirmed that it maintains a
  consulate-general in Salisbury headed by a consul-general.144 In addition
  to the diplomatic representation of South Africa, Portugal drew attention
  to the other existing and functioning consular representations in
  Southern Rhodesia (which the Secretary-General has already referred to
  in his note verbale) and further indicated that there exists a German
  consulate in Bulawayo, Austrian consulate in Salisbury and an official
  representation of the United Kingdom in Salisbury.145
          The turning point in Southern Rhodesia was on the 2nd of March
  1970 when the minority illegal regime granted it a republican status. The
  Security Council condemned the proclamation of republican status in its
  resolution 277 of 18 March 1970,146 and further decided in accordance
  with Article 41 of the United Nations Charter that Member States shall
  “[i]mmediately sever all diplomatic, consular, trade, military and other
  relations that they may have with the illegal régime in Southern Rhodesia,
  and terminate any representation that they may maintain in the
  Territory”.147 In its Fourth Report of 1971, the Committee Established in
141
    Note verbale from the Permanent Observer of Switzerland (21 January, 1969), p.7
142
     Note verbale from the Representative of the United States of America (Feb. 14, 1969), p.
    8.
143
    Letter from the Minister for Foreign Affairs of Portugal (Feb. 18, 1969) (S/9026), Id. p.6.
144
    Id.
145
    Id . pp. 6 & 7.
146
    S.C. Res. 277, supra note 103, para 3, U.N. Doc., S/RES/277 (18 March, 1970).
147
     Id. ¶ 9(a).


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  Pursuance of Security Council Resolution 253 (1968) provided that all
  States with the exception of South Africa and Portugal have closed their
  consular offices in Southern Rhodesia.148 On 10 March 1970, the Minister
  for Foreign Affairs of South Africa announced that the South African
  representation would not be withdrawn and that the representative of
  South Africa was accredited to the Rhodesian Minister for Foreign Affairs
  and not to the Head of State.149
         On 30 April 1970, Portugal announced that its consul-general in
  Salisbury would be withdrawn: he in fact departed on 9 May 1970,
  however the Portuguese consulate was operating with an acting
  consul-general who was assuming consular functions.150 The fact that
  Portugal withdrew its consul-general but kept its consulate operating
  with an acting consul was a violation of the relevant Security Council
  resolutions, State practice and opinio juris, which prohibits maintaining
  or otherwise establishing diplomatic missions or consulates in Southern
  Rhodesia.     In its eighth report of 1976, the committee noted that it
  received information that in August 1975, the Portuguese consulates in
  Umtali and Bulawayo had been closed.151 The Committee has received no
  further information indicating that any other country than South Africa
  maintains consular offices in Southern Rhodesia.152
         After Portugal’s closure of its consulates, South Africa remained
  the only diplomatically represented State in Southern Rhodesia. South
  Africa among other countries rendered aid and assistance to the illegal
  and racist regime of Southern Rhodesia including in the diplomatic ﬁeld.
  The fall of the Southern Rhodesia regime with which South Africa shared
148
     Fourth Report of the Committee Established in Pursuance of S.C. Res. 253 (1968), ¶ 72,
     Twenty-Sixth Year Special Supplement No. 1, S/10229 and Add.1 and 2, United Nations:
     New York (1971), p.17.
149
     Id.
150
     Id. ¶ 73.
 151
     Eighth Report of the Committee Established in Pursuance of S.C. Res. 253 (1968), ¶ 75,
     Thirty-First Year Supplement No. 2, S/11927/Rev.1 (Vol. II), United Nations: New York
     (1976), p.18.
152
     Tenth Report of the Committee Established in Pursuance of S.C. Res. 253 (1968), ¶114,
     Thirty-Third Year Special Supplement No. 2, Volume I, S/12529/Rev.1, United Nations:
     New York (1987), p. 36.



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  strategic interests and similar practices, would have threatened its own
  regime, as well as apartheid practices in both South Africa and South West
  Africa. The fall of the Southern Rhodesia regime led by Ian Smith in 1979
  meant that sooner or later there would be a subsequent falling of the
  South African regime and its occupation of South West Africa (Namibia).
  The prohibition on establishing or maintaining diplomatic or consular
  missions in Southern Rhodesia (Zimbabwe) was one of the measures
  which the Security Council established as a result of the white minority
  regime’s taking of power and its conduct of racial discrimination and
  segregation against the African people who constituted the majority and
  whom were for years deprived of their right to self-determination.



      4.2. SOUTH WEST AFRICA (NAMIBIA)

  After the termination of South Africa Mandate over South West Africa
  (Namibia) by the General Assembly in its resolution 2145 (XXI) on the
  27th of October 1966,153 South Africa did not withdraw its forces from the
  territory of South West Africa (Namibia). On the contrary, South Africa
  kept its military and police presence in South West Africa and practiced
  apartheid on its territory. The General Assembly and Security Council
  issued several resolutions addressing the South African occupation of
  South West Africa. For example, General Assembly resolution 2325 (XXII)
  declared that the continued presence of South African Authorities in
  South West Africa is a violation of its territorial integrity and called upon
  the former to withdraw from the latter’s territory unconditionally and
  without delay.154 General Assembly 2325 (XXII) further called upon all
  Member States to take effective economic and other measures to ensure
  withdrawal of the South African administration from South West
  Africa.155
153
    Gen. Ass. Res. No. 2145 (XXI), ¶ 4 (27 October, 1966).
154
    Gen. Ass. Res. No. 2325 (XXII), ¶ 4 and 5, 1635th Plenary Meeting (16 December, 1967).
155
    Id. 6.




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  Paragraph 2 of Security Council resolution 276 of 1970 “declare[d] that
  the continued presence of the South African authorities in Namibia is
  illegal and that consequently all acts Mandate are illegal and invalid”.156
  Security Council resolution 276 further “[c]all[ed] upon all States,
  particularly those which have economic and other interests in Namibia, to
  refrain from any dealings with the Government of South Africa which are
  inconsistent with paragraph 2 of the present resolution”.157                              With
  resolution 284 adopted on 29 July 1970, the Security Council requested an
  advisory opinion from the I.C.J. on the following question: “What are the
  legal consequences for States of the continued presence of South Africa in
  Namibia, notwithstanding Security Council resolution 276 (1970)?”158 In
  the Legal Consequences for States of the Continued Presence of South Africa in
  Namibia (South West Africa) notwithstanding Security Council Resolution 276
  (1970) advisory opinion of 1971, the I.C.J. provided that

           Member       States,     in   compliance      with      the     duty      of

           non-recognition imposed by paragraphs 2 and 5 of resolution

           276 (1970), are under obligation to abstain from sending

           diplomatic or special missions to South Africa including in their

           jurisdiction the Territory of Namibia, to abstain from sending

           consular agents to Namibia, and to withdraw any such agents

           already there.     They should also make it clear to the South

           African authorities that the maintenance of diplomatic or

           consular relations with South Africa does not imply any
                                                                         159
           recognition of its authority with regard to Namibia.

  The aforementioned paragraph adduces three obligations:                                 ﬁrstly,
  abstaining from sending diplomatic or special missions to South Africa
  including in their jurisdiction the Territory of Namibia.                          Secondly,
  abstaining from sending consular agents to Namibia and withdrawing
156
    S.C. Res. 276, ¶ 2, U.N. Doc., S/RES/273 (Jan. 30, 1970).
157
    Id. 5.
158
    S.C. Res. 284, ¶ 1, U.N. Doc, S/RES/284 (July 29, 1970).
159
    Legal Consequences for States of the Continued Presence of South Africa in Namibia
    (South West Africa) notwithstanding S.C. Res. (1970), Advisory Opinion, 1971 I.C.J. ¶ 123.



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  any such agents already present there. Thirdly, the affirmation that any
  maintenance of diplomatic or consular relations with South Africa
  excludes any recognition of the latter’s authority over Namibia.



      4.3. KUWAIT

  On the 2nd of August 1990, Iraqi military forces occupied Kuwait and
  annexed it on the 8th of August 1990. The Emir of Kuwait and members of
  his cabinet ﬂed to neighboring Saudi Arabia where they acted as a
  Government in exile. Security Council Resolution 660 of 2 August 1990
  condemned the Iraqi invasion and demanded Iraq to withdraw its troops
  unconditionally and immediately160 while Security Council resolution 662
  of 9 August 1990 decided that the annexation of Kuwait has no legal
  validity and is null and void.161 Security Council resolution 662 further
  “[c]alls upon all States, international organizations and specialized
  agencies not to recognize that annexation, and to refrain from any action
  or dealing that might be interpreted as an indirect recognition of the
  annexation”.162 On 9 August Iraq ordered the diplomatic and consular
  missions in Kuwait to close down by 24th August 1990.163 Security Council
  resolution 664 of 18 August 1990 “demand[ed] that the Government of
  Iraq rescind its orders for the closure of diplomatic and consular missions
  in Kuwait and the withdrawal of the immunity of their personnel”.164
          The Security Council did not call upon States to withdraw their
  diplomatic and consular missions from Kuwait in the aftermath of the
  Iraqi occupation and annexation. On the contrary, it was Iraq, whose acts
  of intimidation against diplomatic agents and the heads of consular posts
  as well as its forcible measures against the premises of the diplomatic and
160
    S.C. Res. 660, ¶ 1, 2, U.N. Doc, S/RES/660 (Aug. 2, 1990).
161
    S.C. Res. 662, ¶ 1, U.N. Doc., S/RES/662 (Aug. 9, 1990).
162
    Id. 2.
163
    Interim Report to the Secretary-General by the United Nations Mission Led by Mr.
    Aedulrahim a. Farah, Former Under-Secretary-General, Assessing the Losses of Life
    Incurred During the Iraqi Occupation of Kuwait, as well as Iraqi Practices Against the
    Civilian Population in Kuwait, 40, S/22536 (April 29, 1991).
164
    S.C. Res. 664, ¶ 3, U.N. Doc., S/RES/664 (Aug. 18, 1990).


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  consular missions that made States withdraw their diplomatic agents and
  heads of consular posts. The expulsion of the diplomatic agents and heads
  of consular posts who were associated with the Kuwaiti Government
  purported to cease the legal personality of the State of Kuwait. Security
  Council resolution 667 of 16 September 1990 demanded Iraq to comply
  with its obligations under relevant Security Council resolutions, the
  Vienna Convention on Diplomatic Relations of 18 April 1961, the Vienna
  Convention on Consular Relations of 24 April 1963 and international
  law.165
             Iraq,   the occupying power,              acted in contravention of the
  long-standing rules of inviolability and immunity as enshrined under the
  Vienna Convention on Diplomatic Relations, the Vienna Convention on
  Consular Relations of 24 April 1963 and customary international law.
  Security Council resolution 674 of 29 October of 1990 demanded Iraq to
  ensure access to food, water and basic services to, among others, the
  personnel of diplomatic and consular missions in Kuwait.166 In addition,
  Iraq, neither acquired any legal authorization to cut-off diplomatic
  relations with States diplomatically represented in Kuwait nor acquired
  any legal authorization to declare diplomatic agents or heads of consular
  posts as persona non grata.                  By its forcible measures against the
  diplomatic agents, heads of consular posts and their premises (which
  included restrictions on access of food, water and basic services), Iraq
  succeeded in expelling diplomatic and consular agents which led to the
  forcible closure of these premises.
             Unlike Kuwait which had an institutionalized Government but ﬂed
  to neighboring Saudi Arabia, the situations in South West Africa and
  Southern Rhodesia were examples of liberation movements resisting
  racist regimes and/or occupying powers. Palestine has been an example
  of liberation movement represented by the Palestine Liberation
  Organization.           However, the Palestine Liberation Organization has
165
      S.C. Res. 667, ¶ 3, U.N. Doc., S/RES/667 (Sept. 16, 1990).
166
      S.C. Res. 674, ¶ 5, U.N. Doc., S/RES/674 (Oct. 29, 1990).



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  gradually revived the international legal personality of its de jure
  statehood even though it still does not have sovereignty over its territory,
  borders, territorial waters, internal waters or aquifer water, or airspace
  due to the Israeli colonial occupation.167 In the Military and Paramilitary
  Activities in and against Nicaragua (Nicaragua v. United States of America,
  the I.C.J. provided that “[t]he basic legal concept of State sovereignty in
  customary international law, expressed in, inter alia, Article 2. Paragraph
  1, of the United Nations Charter, extends to the internal waters and
  territorial sea of every State and to the air space above its territory”.168




          5. THE VIENNA CONVENTION ON DIPLOMATIC RELATIONS-THE MERITS

  Preambular paragraph ﬁve of the Vienna Convention on Diplomatic
  Relations affirmed on the applicability of the rules of customary
  international law on questions not expressly regulated by the present
  convention: “Affirming that the rules of customary international law
  should continue to govern questions not expressly regulated by the
  provisions of the present Convention”.169 The Drafting history of this
  paragraph illustrates that Switzerland proposed its inclusion in the
  preamble.170       Preambular paragraph six of the Vienna Convention on
  Consular Relations of 1963 is identical to preambular paragraph ﬁve of
  the Vienna Convention on Diplomatic Relations which asserts the
  applicability of the rules of customary international law on questions not
167
    In 2005, Israel had withdrawn its military forces along with its withdrawal and/or
    relocation of its civilian settlers population from the Gaza Strip. Although Israel does not
    hold control over the Rafah crossing between Gaza Strip and Egypt in the aftermath of its
    withdrawal, the Israeli army of occupation (through its Air Force) has still the effective
    control over its airspace.
168
    Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), ¶ 212 Merits,
    Judgment, 1986 I.C.J. 111 (June 27).
169
    Vienna Convention on Diplomatic Relations, supra note 89, Preamble.
170
    U.N Conference on Diplomatic Intercourse and Immunities, Consideration and Voting
    Upon the Draft Articles and the Amendments and Proposals Relating Thereto (italic), ¶
    22, U.N Doc. A/CONF.20/L.2 (Vol. II) (Apr. 21, 1961).



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  explicitly regulated by the present convention.171 The second paragraph of
  Article 31 of the Vienna Convention on the Law of Treaties provides that
  the context for the purpose of the interpretation of a treaty includes the
  text, including its preamble and annexes.172               The fourth paragraph of
  Article 31 of the Vienna Convention on the Law of Treaties mentions that
  “[a] special meaning shall be given to a term if it is established that the
  parties so intended”.173 Article 32 of the Vienna Convention on the Law of
  Treaties provides that

           supplementary       means     of   interpretation,      including      the

           preparatory work of the treaty and the circumstances of its

           conclusion, in order to conﬁrm the meaning resulting from the

           application of article .31, or to determine the meaning when the

           interpretation according to article 31: (a) Leaves the meaning

           ambiguous or obscure; or (b) Leads to a result which is

           manifestly absurd or unreasonable.174

  In the Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal), the I.C.J.
  provided that the principles reﬂected in Articles 31 and 32 of the Vienna
  Convention on the Law of Treaties are a codiﬁcation of existing
  customary international law.175             In the Polish Postal Service in Danzig
  Advisory Opinion, the P.C.I.J. provided in 1925 that “[i]t is a cardinal
  principle of interpretation that words must be interpreted in the sense
  which they would normally have in their context,                             unless such
  interpretation would lead to something unreasonable or absurd”.176 In
  the Competence of the General Assembly for the Admission of a State to the
  United Nations advisory opinion of 1950,                    the I.C.J. provided on
  interpretation and application of the provisions of a treaty that “[i]f . . . .
  the words in their natural and ordinary meaning are ambiguous or lead to
171
    Vienna Convention on Consular Relations, Preamble, Apr. 22, 1963, 596 U.N.T.S. 261.
172
    Vienna Convention on the Law of Treaties, Art.1,¶ 2, May 23, 1969, 1155 U.N.T.S. 331.
173
    Id. Art. 31(4).
174
     Id. Art. 32.
175
    Arbitral Award of 31 July 1989 (Guinea- Bissau v. Seneg.), Judgment, 1991 I.C.J. 70, ¶ 48
    (November 12).
176
    Polish Postal Service in Danzig (Poland v. Free City of Danzig), Advisory Opinion, 1925
    P.C.I.J. ¶ 113 (ser. B) No. 11 (May 16).


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  an unreasonable result, then, and then only, must the Court, by resort to
  other methods of interpretation, seek to ascertain what the parties really
  did mean when they used these words”.177
           The Vienna Convention on Diplomatic Relations and the Vienna
  Convention on Consular Relations regulate the diplomatic and consular
  relations between the sending State and the receiving State. Article 2 of
  the Vienna Convention on Diplomatic Relations provides that “The
  establishment of diplomatic relations between States, and of permanent
  diplomatic missions, takes place by mutual consent”.178                       The Draft
  Articles on Diplomatic Intercourse and Immunities with commentaries
  1958 provides that

            [t]he most efficient way of maintaining diplomatic relations

            between two States is for each to establish a permanent

            diplomatic mission (i.e., an embassy or a legation) in the

            territory of the other; but there is nothing to prevent two States

            from agreeing on other methods of conducting their diplomatic

            relations, for example, through their missions in a third

            State.179

  The Vienna Convention on Diplomatic Relations and the Vienna
  Convention on Consular Relations do not explicitly regulate situations
  such as the conduct of the sending States in an occupied and/or in sui
  generis territories.      If they are present, should the sending States
  withdraw or not withdraw their diplomatic missions and/or consular
  posts?    This will be governed by the rules of customary international
  diplomatic or consular law (if existing), which the preambles of both
  conventions have asserted on and must be examined on a case-by-case
  basis. In the occupied territory of Kuwait, there was no rule of customary
  international law that dictated the sending States to withdraw from
177
    Competence of Assembly regarding Admission to the United Nations, Advisory Opinion,
    1950 I.C.J. 8 (March 3).
178
    Vienna Convention on Diplomatic Relations, supra note 89, Art. 2.
179
    Draft Articles on Diplomatic Intercourse and Immunities with commentaries, 1958
    Yearbook of the International Law Commission, vol. II 90.



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  Kuwait during its occupation. In the absence of customary international
  law and/or Security Council resolutions and/or General Assembly
  resolutions (that function as customary law), the sending States have the
  discretion to voluntarily withdraw or not withdraw their diplomatic or
  consular missions. It was Iraq in its capacity as the occupying power that
  violated the sending States’ discretion where it forcibly made them
  withdraw their diplomatic and/or consular missions from an occupied
  territory. One can also draw attention to diplomatic missions or consular
  missions of the sending States which were already located in a territory
  before its occupation or were established in the aftermath.
             The Vienna Convention on Diplomatic Relations and the Vienna
  Convention on Consular Relations are examples of a treaty law that are
  reﬂecting customary international law. In the Case concerning the Arrest
  Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium), the
  I.C.J. pronounced on the customary international law nature of the Vienna
  Convention on Diplomatic Relations and Vienna Convention on Consular
  Relations “[o]n these points, the Vienna Convention on Diplomatic
  Relations . . . . reﬂects customary international law. The same applies to
  the corresponding provisions of the Vienna Convention on Consular
  Relations”.180 In addition, this treaty law is also governed by customary
  international law in areas that are not explicitly regulated by these
  conventions.
             In the Arrest Warrant of 11 April 2000 (Democratic Republic of the
  Congo v. Belgium), the I.C.J. provided that the New York Convention on
  Special Missions of 8 December 1969 and the Vienna Convention on
  Diplomatic Relations of 18 April 1961 “provide useful guidance on certain
  aspects . . . . of immunities. They do not, however, contain any provision
  speciﬁcally deﬁning the immunities enjoyed by Ministers for Foreign
  Affairs. It is consequently on the basis of customary international law that
180
      Arrest Warrant of 11 April (Dem. Rep. of Congo v. Belg.), Judgment, 2002 I.C.J. 3, ¶ 52 (Feb.
      14).




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  the Court must decide the questions relating to the immunities”.181 In the
  Application of the Convention on the Prevention and Punishment of the Crime
  of Genocide (Croatia v. Serbia), the I.C.J. provided that Croatia

              must show that its dispute with Serbia regarding these events is

              a dispute relating to the interpretation, application or fulﬁlment

              of the Genocide Convention. It is not enough that these events

              may have involved violations of the customary international law

              regarding genocide; the dispute must concern obligations under

              the Convention itself.182

  Similarly, the Palestine dispute with the United States of America involves
  violations of customary international diplomatic law (the legal obligation
  imposed on the Sending State represented in Israel not to establish an
  embassy in Jerusalem),              which relates to the interpretation and
  application of the Vienna Convention on Diplomatic Relations. The I.C.J.
  will determine breaches of the Vienna Convention on Diplomatic
  Relations based on customary international diplomatic law, the Vienna
  Convention on Diplomatic Relations, customary international law on
  State responsibility for the internationally wrongful acts and the
  customary provisions of the Vienna Convention on the Law of Treaties. In
  the Application of the Convention on the Prevention and Punishment of the
  Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro, the
  I.C.J. provided that

              [i]n order to determine whether the Respondent breached its

              obligation under the Convention, as claimed by the Applicant,

              and, if a breach was committed, to determine its legal

              consequences, the Court will have recourse not only to the

              Convention itself, but also to the rules of general international
181
      Id.
182
      Application of the Convention on the Prevention and Punishment of the Crime of Genocide
      (H.R. v. R.S.), Judgment, 2015 I.C.J. 48, ¶ 89 (Feb. 3).




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           law on treaty interpretation and on responsibility of States for

           internationally wrongful acts.183

  If there exists State practice evidenced by the element of opinio juris sive
  necessitatis and/or Security Council resolutions and/or General Assembly
  resolutions that functions as evidence for establishing the existence of a
  rule or the emergence of an opinio juris that dictates States to withdraw
  embassies from or otherwise not to establish embassies in a certain
  territory (occupied and/or sui generis), the sending States become
  restricted in their diplomatic action in this fundamental branch of public
  international law as seen in the examples of Palestine, Southern Rhodesia
  and South West Africa. Jerusalem is a situation of sui generis territory as
  the city as it is now, has been unilaterally declared as the capital of Israel
  which consists of East Jerusalem which international law considers it an
  occupied and annexed territory, and West Jerusalem which international
  law does not consider it as an occupied territory. Customary international
  diplomatic law puts the unilaterally declared boundaries of Jerusalem
  within the range of prohibition on establishing diplomatic missions by
  the sending States which are diplomatically represented in Israel.
         Article 21 of the Vienna Convention on Diplomatic Relations
  provides that “[t]he receiving State shall 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”.184 The 1958 commentary on the
  Draft Articles on Diplomatic Intercourse and Immunities (Draft Artice19)
  provides that

           [t]he laws and regulations of a given country may make it

           impossible for a mission to acquire the premises necessary to it.

           For that reason the Commission has inserted in the draft an

           article which makes it obligatory for the receiving State to
183
    Application of the Convention on the Prevention and Punishment of the Crime of Genocide
    (Bosn. & Herz. v. Serb & Montenegro), Judgment, 2007 I.C.J. 105, ¶ 149.
184
    Vienna Convention on Diplomatic Relations, supra note 89, Art. 21.



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          ensure the provision of accommodation for the mission if the

          latter is not permitted to acquire it.185

  The operative words are the “receiving State territory” which implicitly
  indicates that locating a diplomatic mission by the sending State in a
  territory that does not belong to the receiving State (for example in an
  annexed and occupied territory) is not permissible, particularly if the
  ambassadors or nuncio are accredited to the occupying power’s executive
  organ. This, however, should be investigated on a case-by-case basis. In
  Kuwait, in the aftermath of its occupation and annexation by Iraq,
  customary international diplomatic or consular law did not dictate the
  sending States to withdraw their diplomatic or consular missions. The
  diplomatic agents were accredited to the legitimate Government of
  Kuwait. In Southern Rhodesia, even though the overwhelming majority of
  States affirmed that the British Crown and not the rebellious minority
  régime granted their staff exequaturs, there was a prohibition under
  customary international diplomatic and consular law on establishing or
  maintaining diplomatic or consular missions in that territory.
         Article 13 of the Vienna Convention on Diplomatic Relations
  provides that

          [t]he head of the mission is considered as having taken up his

          functions in the receiving State either when he has presented his

          credentials or when he has notiﬁed his arrival and a true copy of

          his credentials has been presented to the Ministry for Foreign

          Affairs of the receiving State, or such other ministry.186

  Article 14 of the Vienna Convention on Diplomatic Relations mentions
  inter alia that ambassadors or nuncios are accredited to Heads of State
  and chargés d’affaires are accredited to Ministers for Foreign Affairs.187
  The 1958 commentary on the Draft Articles on Diplomatic Intercourse and
  Immunities provides that
185
    Draft Articles on Diplomatic Intercourse and Immunities with commentaries, supra note
    179, vol. II 95.
186
    Vienna Convention on Diplomatic Relations, supra note 89, Art. 13.
187
    Id. Art. 14.


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          [s]o far as concerns the time at which the head of the mission

          may take up his functions, the only time of interest from the

          standpoint of international law is the moment at which he can

          do so in relation to the receiving State — which must be the

          time when his status is established. On practical grounds, the

          Commission proposes that it be deemed sufficient that he has

          arrived and that a true copy of his credentials has been remitted

          to the Ministry for Foreign Affairs of the receiving State, there

          being no need to await the presentation of the letters of

          credence to the head of State.188

  Given that the US has moved its embassy from Tel Aviv to Jerusalem, the
  accreditation of the current American Ambassador to the president of
  Israel violates customary international diplomatic law concerning
  Jerusalem.     The prohibition on establishing diplomatic missions in
  Jerusalem is also equated with the prohibition on accreditation to the
  Israeli executive organ. A new Ambassador of Guatemala took his post a
  few months after the transfer of Guatemala’s embassy to Jerusalem,
  where he presented his credentials to the president of Israel. Ambassador
  Mario Bucaro Flores presented his Credentials on the 25th of October
  2018.189 Customary international diplomatic law obliges all States not to
  relocate their embassies to Jerusalem or otherwise establish embassies in
  Jerusalem.
188
    Draft Articles on Diplomatic Intercourse and Immunities with commentaries, supra note
    179, vol. II 93.
189
    ISRAEL MINISTRY OF FOREIGN AFFAIRS,            Presentation of Credentials of the
    Ambassador Mario Búcaro Flores (Guatemala), ISRAEL MFA (Oct.             25, 2018),
    https://mfa.gov.il/MFA/AboutTheMinistry/Foreign%20representatives/Pages/Guatemal
    a-.aspx.




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          6. OPTIONAL PROTOCOL TO THE VIENNA CONVENTION ON DIPLOMATIC
       RELATIONS

  On the 2nd of April 2014, the State of Palestine acceded to the Vienna
  Convention on Diplomatic Relations of 1961190 and on the 22nd of March
  2018, it acceded to the Optional Protocol to the Vienna Convention on
  Diplomatic      Relations,       concerning      the    Compulsory          Settlement         of
  Disputes.191 The United States of America is a State party to the Vienna
  Convention on Diplomatic Relations of 1961 and to its Optional Protocol,
  since 1972.192       Israel is a State party to the Vienna Convention on
  Diplomatic Relations but not a State party to its Optional Protocol as it has
  signed the latter on 18 April 1961 but has neither ratiﬁed it nor acceded to
  it.193 Similarly, Guatemala is a State party to the Vienna Convention on
  Diplomatic Relations but is not a State party to its Optional Protocol.194



      6.1. ACCESSION TO TREATIES

  On the ﬁrst of May 2018, the United States of America submitted a
  Depositary Notiﬁcation in which it stated that “[t]he Government of the
  United States of America does not believe the “State of Palestine”
  qualiﬁes as a sovereign State and does not recognize it as such”.195 The
  United States of America Depositary Notiﬁcation added that:                                “the
  Government of the United States of America believes that the “State of
  Palestine” is not qualiﬁed to accede to the Optional Protocol and affirms
  that it will not consider itself to be in a treaty relationship with the “State
190
    For     the     status     of    Ratiﬁcation,     Accession(a),     Succession(d)      see
    https://treaties.un.org/pages/viewdetails.aspx?src=treaty&mtdsg_no=iii-
    3&chapter=3&lang=en.
191
    For     the     status    of    Accession(a),    Succession(d),      Ratiﬁcation,      see
    https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=III-
    5&chapter=3&clang=_en.
192
    Supra note 190, supra note 191.
193
    For the status of Accession(a), Succession(d), Ratiﬁcation, see Supra note 190, supra note
    191.
194
     Id.
195
    United      States     of    America:       Communication        (March     23,     2018),
    https://treaties.un.org/doc/Publication/CN/2018/CN.228.2018-Eng.pdf.



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  of Palestine” under the Optional Protocol”.196                The State of Palestine
  Communication of 31 May 2018, regretted the United States of America
  position and recalled General Assembly resolution 67/19 of 29 November
  2012 which accorded Palestine the non-member observer State status in
  the United Nations.197 It must be noted that instruments of accession are
  deposited with the depository of the relevant Treaties, Conventions or
  Statutes or Protocols.             In this speciﬁc convention,                   it is the
  Secretary-General of the United Nations who has the authority to
  examine instruments of accession and as corollary to accept or reject or
  otherwise seek guidance from the General Assembly. This is not within
  the discretion of the United States of America.
          By its Statement on the 1st of May 2018, the United States of
  America interfered with the functions of the depository under customary
  international law.        Article 76 provides that “[t]he functions of the
  depositary of a treaty are international in character and the depositary is
  under an obligation to act impartially in their performance”.                       198    The
  fourth paragraph of Article 77 of the Vienna Convention on the Law of
  Treaties mentions that one of the functions of depositaries entails
  “[e]xamining whether the signature or any instrument, notiﬁcation or
  communication relating to the treaty is in due and proper form and, if
  need be, bringing the matter to the attention of the State in question”.199
  The fact that the United States of America - or any other State - does not
  recognize the State of Palestine does not mean that Palestine is not a State
  or does not qualify to accede to among others the Vienna Convention on
  Diplomatic Relations and its Optional Protocol. The Summary of practice
  of the Secretary-General as Depositary of Multilateral treaties provided
  that:
196
    Id.
197
    State of Palestine: Communication (May 31, 2018), https://treaties.un.org/doc/Publication
    /CN/2018/CN.272.2018-Eng.pdf.
198
    Vienna Convention on the Law of Treaties, supra note 172, Art. 76.
199
    Id. Art. 77(4).




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           The     question      of   whether    the    Cook    Islands      was     an

           “independent” entity, i.e. a State, was also raised. For a period

           of time. . . . it followed that the status of the Cook Islands was

           not one of sovereign independence in the juridical sense . . . .

           However, in 1984, an application by the Cook Islands for

           membership in the World Health Organization200 was approved

           by the World Health Assembly . . . . In the circumstances, the

           Secretary- General felt that the question of the status, as a

           State, of the Cook Islands, had been duly decided in the

           affirmative by the World Health Assembly, whose membership

           was fully representative of the international community. The

           guidance the Secretary-General might have obtained from the

           General Assembly, had he requested it, would evidently have

           been substantially identical to the decision of the World Health

           Assembly.201

  Likewise, the membership of the Cook Islands in one of the specialized
  agencies of the United Nations, Palestine membership in the UNESCO in
  2011 as one of the United Nations specialized agencies made it easier - and
  eligible - to accede to the overwhelming majority of treaties under
  international law.       202   Had Palestine not been a member in any of the
  specialized Agencies of the United Nations, it can still guarantee accession
  to the Vienna Convention on Diplomatic Relations and its Optional
  Protocol through the invitation of the General Assembly. Article 48 of the
  Vienna Convention on Diplomatic Relations provides that

           [t]he present Convention shall be open for signature by all

           States Members of the United Nations or of any of the

           specialized agencies Parties to the Statute of the International
200
    See Constitution of the World Health Organization, U.N.T. S. Vol. 15, 185. Quoted in U.N.
    Office of Legal Affairs, Summary of Practice of the Secretary-General as Depositary of
    Multilateral Treaties (New York, United Nations 1999), 24.
201
    U.N. Office of Legal Affairs, supra note 200.
202
    Basheer AlZoughbi, “The de jure State of Palestine under Belligerent Occupation: Application
    for Admission to the United Nations,” in Palestine Membership in the United Nations, ed.
    Mutaz Qaﬁsheh (Cambridge Scholars Publishing, 2013), p. 174.



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           Court of Justice, and by any other State invited by the General

           Assembly of the United Nations to become a Party to the

           Convention.203

  Article 50 of the Vienna Convention on Diplomatic Relations provides that
  “[t]he present Convention shall remain open for accession by any State
  belonging to any of the four categories mentioned in article 48.                           The
  instruments of accession shall be deposited with the Secretary-General of
  the    United    Nations”.204           The     Summary         of    Practice       of    the
  Secretary-General as Depositary of Multilateral Treaties asserted that:

           Since that difficulty did not arise with regard to membership in

           the specialized agencies, where there is no “veto” procedure, a

           number of those States became members of specialized

           agencies, and as such were in essence recognized as States by

           the international community.         Accordingly, and in order to

           allow for as wide a participation as possible, a number of

           conventions then provided that they were also open for

           participation to States members of specialized agencies. This

           type of entry-into-force clause was called the “Vienna

           formula”. Thus, whenever a treaty speciﬁed, under the Vienna

           formula or otherwise, which entities could become parties

           thereto, the Secretary-General had no difficulty in complying

           with the participation provision of the treaty concerned.205




      6.2. TREATY RELATIONSHIP

  The question that arises is whether the United States’ communication
  that establishes it, is not in a treaty relationship with the State of
  Palestine is legally valid under existing principles of international law or a
  violation of it. Article 78 of the Vienna Convention on the Law of Treaties
203
    Vienna Convention on Diplomatic Relations, supra note 89, Art. 48.
204
    Id. Art. 50.
205
    U.N. Office of Legal Affairs, supra note 201, at 22.




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  governs the notiﬁcations and communications process by State parties,
  while Article 77 of the Vienna Convention on the Law of Treaties provides
  with one of the functions of the depository to include examining
  notiﬁcations.206 The commentaries on the Draft Articles on the Law of
  Treaties of 1966 provides that, “unless the treaty otherwise states,
  “notiﬁcation” is not, as such, an integral part of the process of
  establishing the legal nexus between the depositing State and the other
  contracting States”.207 In the Case concerning right of passage over Indian
  territory (Preliminary Objections), the I.C.J. ruled that “[i]t is a rule of
  interpretation that a text emanating from a Government must, in
  principle, be interpreted as producing and as intended to produce effects
  in accordance with existing law and not in violation of it”.208
         Should a State have the right to deprive another State - which is
  equally a party to Compulsory Settlement of Disputes Treaty - of the right
  to initiate proceedings through a refusal of the former to acknowledge the
  multilateral treaty relationship with the latter, then it would be
  incompatible with the object and purpose of the Compulsory Settlement
  of Disputes mechanism. If the communication of the United States of
  America is legally valid then this would be one of the grounds to exclude
  the I.C.J. jurisdiction in the pending case (Palestine v.               United States of
  America). If, on the other hand, it is not legally valid then it is one of the
  grounds why the I.C.J. has jurisdiction over the pending case.                        In the
  Nottebohm case Preliminary Objection, the I.C.J. provided that “[i]t makes
  use, as do the declarations relating to it, of the words “compulsory” and
  “jurisdiction”, and the structure of the text is sufficient to show that of
  these two words the ﬁrst is the more important”.209 Commenting on the
  third condition of the Declaration of Portugal, the I.C.J. provided in the
206
    See Vienna Convention on the Law of Treaties, supra note 172, Art. 77, 78.
207
    Draft Articles on the Law of Treaties with commentaries, 1966 Yearbook of the
    International Law Commission, vol. II 271.
208
    Right of Passage over Indian territory (Portug. v. India), Preliminary Objections, 1957
    I.C.J. 142 (Nov. 26).
209
    Nottebohm case (Liech. v. Guat.), Preliminary Objections, 1953 I.C.J 122 (Nov. 18).




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  case concerning right of passage over Indian territory (Preliminary Objections)
  that

           [i]t is a rule of law generally accepted, as well as one acted upon

           in the in the past by Court, that, once the court has been validly

           seised of a dispute, unilateral action by the respondent State in

           terminating its Declaration, in whole or in part, cannot divest

           the Court of jurisdiction.210

  It is noteworthy to mention that several ratifying States made
  declarations or reservations under several conventions such as the Vienna
  Convention on Diplomatic Relations, stating that the mere ratiﬁcation of
  such convention does not imply a recognition of Israel nor does it amount
  to entering into relations with it.211



      6.3. INITIATION OF LEGAL PROCEEDINGS (PALESTINE V. UNITED STATES OF AMERICA)

  On the 28th of September 2018, the State of Palestine initiated legal
  proceedings against the United States of America before the I.C.J. in
  relation to violations of the Vienna Convention on Diplomatic Relations of
  18 April 1961. Article 1 of the Optional Protocol to the Vienna Convention
  on Diplomatic Relations, concerning the Compulsory Settlement of
  Disputes, provides that “[d]isputes arising out of the interpretation or
  application of the Convention shall lie within the compulsory jurisdiction
  of the International Court of Justice and may accordingly be brought
  before the Court by an application made by any party to the dispute being
  a Party to the present Protocol”.212                  In its application Instituting
  Proceedings in the International Court of Justice, the State of Palestine
  provided that
210
    Right of Passage over Indian territory (Portug. v. India), 1957 I.C.J 142 (Nov. 26).
211
    On this matter, see the reservations or declarations made by Bahrain,
    Kuwait,     Libya,     Qatar   Saudi    Arabia,     Sudan,      Syrian     Arab    Republic,
    United Arab Emirates,         Yemen,     Oman and formerly Egypt available at
    https://treaties.un.org/Pages/ViewDetails.aspx?src=Treaty&mtdsg_no=III-
    3&chapter=3&lang=en.
212
    Optional Protocol to the Vienna Convention on Diplomatic Relations, concerning the
    Compulsory Settlement of Disputes art. 1, Apr. 18, 1961, 241 U.N.T.S. 500.


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           [b]y the present Application, the State of Palestine requests the

           Court to settle the dispute it has with the United States of

           America over the relocation of the embassy of the United States

           of America in Israel to the Holy City of Jerusalem. In so doing, it

           places its faith in the Court to resolve the dispute in accordance

           with its Statute and jurisprudence, based on the Vienna

           Convention      on    Diplomatic     Relations     (V.C.D.R.)     read     in

           appropriate context.213

  The phrase “read in appropriate context” is redundant but not necessarily
  wrong. The sentence could be legally restructured to read as follows: “In
  so doing, it places its faith in the Court to resolve the dispute in
  accordance with its Statute and jurisprudence, based on the Vienna
  Convention on Diplomatic Relations . . . ”. in line with its applicable
  customary provisions of international diplomatic law. Earlier on the 14th
  of May 2018, the State of Palestine sent a note verbale, whereby it
  informed the State Department of the United States of America, of its
  position:    that any steps taken to relocate the embassy constitute a
  violation of the Vienna Convention on Diplomatic Relations, read in
  conjunction with the relevant Security Council resolutions.214 The 14 May
  2018 note verbale of the State of Palestine further requested that the
  United States of America inform it of “any steps the United States is
  considering to ensure that its actions are in line with the Vienna
  Convention on Diplomatic Relations” which the latter did not provide.215
  On 4 July 2018 the Palestinian Ministry of Foreign Affairs and Expatriates
  notiﬁed the State Department of the United States of America of the
  existence of a dispute between the two Parties, pursuant to Articles I and
  II of the Optional Protocol concerning the Compulsory Settlement of
213
    Application Instituting Proceedings in the International Court of Justice (Ps. v. U.S.), ¶ 2
    (Sep. 28, 2018).
214
    Annex III. Note Verbale of the Ministry of Foreign Affairs of the State of Palestine
    addressed to the Department of State of the United States of America, 14 May 2018, Ref.:
    MA-201805-MO002 available at https://www.icj-cij.org/ﬁles/case-related/176/176-
    20180928-APP-01-01-EN.pdf.
215
    Id.



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  Disputes, arising out of the interpretation or application of the Vienna
  Convention on Diplomatic Relations, read in conjunction with relevant
  Security Council resolutions on the alteration of the status of
  Jerusalem.216
          Article 2 of the Optional Protocol concerning the Compulsory
  Settlement of Disputes of the Vienna Convention on Diplomatic Relations
  provides that:

           [t]he parties may agree, within a period of two months after

           one party has notiﬁed its opinion to the other that a dispute

           exists, to resort not to the International Court of Justice but to

           an arbitral tribunal. After the expiry of the said period, either

           party may bring the dispute before the Court by an

           application.217

  The lack of a response from the Government of the United States of
  America had not allowed the parties to use the option of agreeing on
  resorting to other mechanisms of paciﬁc dispute settlement which are
  provided under the Optional Protocol to the Vienna Convention on
  Diplomatic Relations under article II (arbitral tribunal) or article III
  (resorting to conciliation procedure).



      6.4. WITHDRAWAL FROM TREATIES

  On 12 October 2018, the Secretary-General received from the US
  Government a communication notifying its withdrawal from the Optional
  Protocol. Earlier, on 7 March 2005, the Secretary-General received from
  the Government of the United States of America, a communication
  notifying its withdrawal from the Optional Protocol to the Vienna
  Convention on Consular Relations concerning the Compulsory Settlement
216
    Annex IV. Note Verbale of the Ministry of Foreign Affairs of the State of Palestine
    addressed to the Department of State of the United States of America, 4 July 2018, Ref.:
    MA-201807-M0006 available at https://www.icj-cij.org/ﬁles/case-related/176/176-
    20180928-APP-01-01-EN.pdf.
217
    Optional Protocol to the Vienna Convention on Diplomatic Relations, concerning the
    Compulsory Settlement of Disputes, supra note 212.


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  of Disputes.218 The communication of 12 October 2018 of the Government
  of the United States of America reads as follows:

           [T]he Government of the United States of America [refers] to

           the Optional Protocol to the Vienna Convention on Diplomatic

           Relations Concerning the Compulsory Settlement of Disputes,

           done at Vienna on April 18, 1961.             This letter constitutes

           notiﬁcation by the United States of America that it hereby

           withdraws from the aforesaid Protocol. As a consequence of

           this withdrawal, the United States will no longer recognize the

           jurisdiction of the International Court of Justice reﬂected in

           that Protocol.219

  The United States of America’s notiﬁcation of a purported withdrawal
  from the Optional Protocol to the Vienna Convention on Consular
  Relations Concerning the Compulsory Settlement of Disputes occurred in
  the aftermath of two litigations brought before the I.C.J. against it:
  LaGrand case (Germany v. United States of America) and the Case Concerning
  Avena and Other Mexican Nationals (Mexico v. United States of America). In
  both cases, the I.C.J. found the United States of America in breach of its
  obligations under the Vienna Convention on Consular Relations.220 The
  United States of America’s notiﬁcation of a purported withdrawal took
  place soon after the State of Palestineinitiated proceedings against the
  former, while pending a decision of the I.C.J. on its jurisdiction and
  admissibility of the case law.           The Vienna Convention on Diplomatic
  Relations and the Vienna Convention on Consular Relations and their
  optional protocols concerning the Compulsory Settlement of Disputes are
  silent as to the termination or withdrawal of these treaty instruments.
  Article 56 of the Vienna Convention on the Law of Treaties (1969)
  provides that
218
    The text of the U.S. Communication is available at https://treaties.un.org/pages/ViewDetai
    ls.aspx?src=TREATY&mtdsg_no=III-8&chapter=3&clang=_en#1.
219
    The text of the U.S. Communication is available at https://treaties.un.org/pages/ViewDetai
    ls.aspx?src=TREATY&mtdsg_no=III-5&chapter=3&clang=_en#10.
220
    See LaGrand (Ger. v. U.S.), Judgment, 2001 I.C.J. 514-516, ¶ 128 (June 21) & Avena and
    Other Mexican Nationals (Mex. v. U.S.), Judgment, 2004 I.C.J. 70-73 , ¶ 153 (Mar. 31).


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           1.     A treaty which contains no provision regarding its

           termination and which does not provide for denunciation or

           withdrawal is not subject to denunciation or withdrawal unless:

           (a) it is established that the parties intended to admit the

           possibility of denunciation or withdrawal; or (b) a right of

           denunciation or withdrawal may be implied by the nature of the

           treaty. 2. A party shall give not less than twelve months notice

           of its intention to denounce or withdraw from a treaty under

           paragraph 1.221

  The commentaries on the Draft Articles on the Law of Treaties mention
  that no clause of denunciation or withdrawal was inserted during the
  Vienna Conferences on Diplomatic and Consular Relations and that the
  omission of the clause from the conventions was accepted without
  discussion.222       In the Case Concerning the Gabčíkovo-Nagymaros Project
  Hungary/Slovakia, the I.C.J. ruled in 1997 that “[t]he 1977 Treaty does not
  contain any provision regarding its termination.                        Nor is there any
  indication that the parties intended to admit the possibility of
  denunciation or withdrawal . . . . the Treaty could be terminated only on
  the limited grounds enumerated in the Vienna Convention”.223
          On 25 August 1997, the Secretary-General received from the
  Government of the Democratic People’s Republic of Korea (hereinafter
  D.P.R.K.) a notiﬁcation of withdrawal (dated on the 23rd August 1997)
  from the International Covenant on Civil and Political Rights (hereinafter
  I.C.C.P.R.).   224   The I.C.C.P.R. does not contain a withdrawal provision. On
  23 September 1997 the Secretariat of the United Nations issued an
  aide-memoire asserting that the D.P.R.K. could only withdraw from the
  I.C.C.P.R. with the consent of all the parties as provided under Article 54 of
221
    Vienna Convention on the Law of Treaties, supra note 172, art. 56.
222
    See generally Draft Articles on the Law of Treaties with commentaries, supra note 207, vol.
    II 251.
223
    Gabčíkovo-Nagymaros Project (Hung. v. Slovak.), Judgment, 1997 I.C.J. 62-63 ¶ 100 (Sep.
    25).
224
    See Denunciation of the International Covenant on Civil and Political Rights by the
    D.P.R.K., C. N. 4 6 7 .1997. Treaties -10 (Sep. 23).



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  Vienna Convention on the Law of Treaties.             In its General Comment
  number 26, the Human Rights Committee stated clearly that: “The
  Committee is therefore ﬁrmly of the view that international law does not
  permit a State which has ratiﬁed or acceded or succeeded to the Covenant
  to denounce it or withdraw from it”.225             Article 54 of the Vienna
  Convention on the Law of Treaties provides that “[t]he termination of a
  treaty or the withdrawal of a party may take place: (a) In conformity with
  the provisions of the treaty; or (6) At any time by consent of all the parties
  after consultation with the other contracting States”.226
          Similarly, the Secretary-General received, on 9 June 1971, a
  communication from the Government of Senegal denouncing the
  Convention on the Territorial Sea and the Contiguous Zone as well as the
  Convention on the Living Resources of the High Seas, and specifying that
  the denunciation would take effect on the thirtieth day from its receipt.227
  Neither convention contained provisions on withdrawal or denunciation.
  A   communication        from    the   UK    Government       was      sent     to    the
  Secretary-General on the 2nd of January 1973,                      concerning the
  aforementioned notiﬁcation by the Senegalese Government.                        The UK
  Government did not consider those Conventions as susceptible to
  unilateral denunciation by a State party (Senegal).228



      6.5. THE PRINCIPLE OF GOOD FAITH

  The United States of America failed to act in good faith under
  international law in at least ﬁve different aspects. First, when it relocated
  its embassy from Tel Aviv to Jerusalem. Second, when it challenged the
225
    General Comments Adopted by the Human Rights Committee Under Article 40,
    Paragraph 4, of the International Covenant on Civil and Political Rights, ¶ 5,
    C.C.P.R./C/21/Rev.1/Add.8/Rev.1 (Dec. 8, 1997).
226
    Vienna Convention on the Law of Treaties, supra note 172, art. 54.
227
    See also The text of the communication of Senegal is available at:
    https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=XXI-
    1&chapter=21&clang=_en#8.
228
    See For a text of the communication of the United Kingdom see
    https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=XXI-
    1&chapter=21&clang=_en#8.


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  qualiﬁcation of the State of Palestine to accede to the Optional Protocol
  against the authority of the depository (the Secretary-General of the
  United Nations). Third, when it decided to withdraw from the Optional
  Protocol soon after the State of Palestine instituted legal proceedings
  before the I.C.J., at a time when a case was pending against it. Fourth,
  when it did not consider itself in a treaty relationship with the State of
  Palestine. Fifth, when it did not respond to the 14 May 2018 note verbale
  of the State of Palestine and as corollary violated the principle of peaceful
  settlement of international disputes. Article 26 of the V.C.LT. entitled
  “pacta sunt servanda” provides that “[e]very treaty in force is binding
  upon the parties to it and must be performed by them in good faith”.229
  Referring to “pacta sunt servanda”, which is the rule according to which
  treaties are binding on the parties and must be performed in good faith,
  the Commentaries on the Draft Articles on the Law of Treaties of 1966
  provided that is “the fundamental principle of the law of treaties”.230 In
  the Nuclear Tests Case (Australia v. France), the I.C.J. held that “[o]ne of the
  basic principles governing the creation and performance of legal
  obligations, whatever their source, is the principle of good faith”.231 The
  I.C.J. went on to say in the Nuclear Tests Case that “[j]ust as the very rule of
  pacta sunt servanda in the law of treaties is based on good faith, so also is
  the binding character of an international obligation assumed by unilateral
  declaration”.232
          Conversely, the State of Palestine is acting in good faith and in
  accordance with the paciﬁc mechanisms of international disputes, as
  codiﬁed under the conventions and declarations relative to paciﬁc
  mechanisms of international disputes in general and under Article 33 of
  the United Nations Charter in particular. The State of Palestine is seeking
  a judicial settlement as one of the means to a friendly settlement of its
  disagreement with the United States of America in relation to its act of
229
    Vienna Convention on the Law of Treaties, supra note 172, art. 26.
230
    Draft Articles on the Law of Treaties with commentaries, supra note 207, vol. II 251, p. 211.
231
    Nuclear Tests (Austl. v. Fr.), Judgment, 1974 I.C.J. 268 ¶ 46 (Dec. 20).
232
    Id.



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  relocating its embassy from Tel Aviv to Jerusalem. In the Mavrommatis
  Palestine Concessions case, the P.C.I.J. deﬁned a dispute as “a disagreement
  on a point of law or fact, a conﬂict of legal views or of interests between
  two persons”.233
          The State of Palestine asserts that the United States of America
  must not establish its embassy in Jerusalem under the applicable
  provisions of the Vienna Convention on Diplomatic Relations while the
  United States of America has relocated its embassy to Jerusalem and ipso
  facto opposes the State of Palestine argumentation. Palestine should lay
  emphasis on the provisions of customary international diplomatic law
  that are not explicitly governed under the Vienna Convention on
  Diplomatic Relations. In the Case of the Free Zones of Upper Savoy and the
  District of Gex (Order of Aug. 19), the P.C.I.J. stated, that “[w]hereas the
  judicial settlement of international disputes, with a view to which the
  Court has been established, is simply an alternative to the direct and
  friendly settlement of such disputes between the Parties”.234 In South
  West Africa Cases (Ethiopia V. South Africa;                    Liberia V. South Africa)
  Preliminary Objections, the I.C.J. ruled that:

            It must be shown that the claim of one party is positively

            opposed by the other. Tested by this criterion there can be no

            doubt about the existence of a dispute between the Parties

            before the Court, since it is clearly constituted by their

            opposing attitudes relating to the performance of the

            obligations of the Mandate”.235
233
    Mavrommatis Palestine Concessions (Greece v. U.K.), 1924 P.C.I.J. (ser. B) No. 3 (Aug. 30).
234
    Free Zones of Upper Savoy and the District of Gex (Fr. v. Switz.), 1929 P.C.I.J. (ser. A) No.
    22 (Order of Aug. 19).
235
    South West Africa (Eth. v. S.Afr. ; Liber. v. S. Afr.), Preliminary Objections, 1962 I.C.J. 328
    (Dec. 21).




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          7. QUESTIONS OF JURISDICTION AND ADMISSIBILITY

  The sixth paragraph of Article 36 of the I.C.J. Statute provides that “[i]n
  the event of a dispute as to whether the Court has jurisdiction, the matter
  shall be settled by the decision of the Court”.236 The distinction between
  the two kinds of objections, objection to jurisdiction and objection to
  admissibility, is well recognized in the practice of the I.C.J.237 In the
  Nottebohm case (Preliminary Objection), the I.C.J. provided that

           [s]ince the Alabama case, it has been generally recognized,

           following the earlier precedents, that, in the absence of any

           agreement to the contrary, an international tribunal has the

           right to decide as to its own jurisdiction and has the power to

           interpret for this purpose the instruments which govern that

           jurisdiction.238

  As a general rule, the international courts and tribunals decide on their
  own jurisdiction should any doubt arises, where they exclusively have the
  Kompetenz–Kompetenz.239 The ﬁrst paragraph of Article 79 of the Rules of
  the I.C.J. provides that “[a]ny objection by the respondent to the
  jurisdiction of the Court or to the admissibility of the application, or other
  objection the decision upon which is requested before any further
  proceedings on the merits, shall be made in writing as soon as
  possible”.240 The second paragraph of Article 79 of the Rules of the I.C.J.
  provides that “[n]otwithstanding paragraph 1 above, following the
  submission of the application and after the President has met and
236
    Statute of the International Court of Justice art. 36(6).
237
    See generally Application of the Convention on the Prevention and Punishment of the
    Crime of Genocide (Croat. v. Serb.), Preliminary Objections, 2008 I.C.J. 465, ¶ 120 (Nov.
    18).
238
    Nottebohm (Liech. v. Guat.), Preliminary Objection, 1953 I.C.J. Rep. 119 (Nov. 18).
239
    See Eds Andreas Zimmermann, Karin Oellers-Frahm, Christian Tomuschat, Christian J.
    Tams, Assistant eds Maral Kashgar, David Diehl, The Statute of the International Court of
    Justice (2nd Edition): A Commentary, Oxford: Oxford University Press 2012, p. 694.
240
    Para (1), Article 79, Rules of Court (1978) adopted on 14 April 1978 and entered into force
    on 1 July 1978.




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  consulted with the parties, the Court may decide that any questions of
  jurisdiction and admissibility shall be determined separately”.241
         In the Application of the Convention on the Prevention and Punishment
  of the Crime of Genocide (Croatia v. Serbia), Preliminary Objections, the I.C.J.
  provided that

           [i]f the objection is a jurisdictional objection, then since the

           jurisdiction of the Court derives from the consent of the parties,

           this will most usually be because it has been shown that no such

           consent has been given by the objecting State to the settlement

           by the Court of the particular dispute.242

  The consent of the United States of America and Palestine has been ipso
  jure given, as both States are parties to the Optional Protocol to the Vienna
  Convention on Diplomatic Relations.
         The United States of America may, however, argue that it is no
  longer a State party to the Optional Protocol to the Vienna Convention on
  Diplomatic Relations, concerning the Compulsory Settlement of Disputes.
  As this concerns the Compulsory Settlement of Disputes, the United
  States of America thus claims that the I.C.J. has no jurisdiction in the
  pending case (Palestine v. United States of America). It is the I.C.J. which
  will ultimately decide if it has jurisdiction and thus if the U.S. purported
  withdrawal is valid, or otherwise, when its withdrawal will be valid or how
  could its withdrawal be validated in line with the customary international
  law of treaties. Similarly, if a State party to the Optional Protocol to the
  Vienna Convention on Consular Relations Concerning the Compulsory
  Settlement of Disputes initiates proceedings against the United States of
  America for violations of provisions of the Vienna Convention on
  Consular Relations, the I.C.J. will decide on its jurisdiction and the matter
  of the United States of America withdrawal.         243

241
    Id. art. 79 para 2.
242
    Application of the Convention on the Prevention and Punishment of the Crime of Genocide
    (Croat. v. Serb.), Preliminary Objections, 2008 I.C.J. 465, ¶ 120 (Nov. 18).
243
    See John Quigley, The United States’ Withdrawal from International Court of Justice
    Jurisdiction in Consular Cases: Reasons and Consequences, 19 Duke Journal of
    Comparative & International Law, 2009, 290.


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  On admissibility, the I.C.J. mentioned in the Application of the Convention
  on the Prevention and Punishment of the Crime of Genocide (Croatia v.
  Serbia),     Preliminary Objections that “[a] preliminary objection to
  admissibility covers a more disparate range of possibilities” such as “a
  failure to comply with the rules as to nationality of claims; failure to
  exhaust local remedies; the agreement of the parties to use another
  method of paciﬁc settlement; or mootness of the claim”.244                             Other
  grounds of inadmissibility may include delay in bringing a claim, abuse of
  process and infringement of good faith, lack of power of representation,
  waiver of the right to have recourse to judicial settlement and the lack of
  locus standi.245 The United States of America’s allegation that Palestine is
  not qualiﬁed to accede to the Vienna Convention on Diplomatic Relations
  and its Optional Protocol implies that the United States of America is of
  the opinion that Palestine lacks a locus standi as a State and thus has no
  right or capacity to initiate legal proceedings. This allegation addresses
  issues of admissibility of the application of the State of Palestine before
  the I.C.J. and, if brought up, will be rebutted in one stroke. In the Case
  concerning the Northern Cameroons (Cameroon v.                       United Kingdom),
  Preliminary Objections, the I.C.J. did not

             ﬁnd it necessary to consider all the objections, nor to determine

             whether all of them are objections to jurisdiction or to

             admissibility or based on other grounds. During the course of

             the oral hearing little distinction if any was made by the Parties

             themselves between “jurisdiction” and “admissibility”.246

  On 15 November 2018 the I.C.J. issued an order in relation to the pending
  case of Relocation of The United States Embassy To Jerusalem (Palestine v.
  United States Of America) where it stated that

             [I]n view of the fact that, according to the United States, the

             Court manifestly lacks jurisdiction to entertain Palestine’s
244
    Application of the Convention on the Prevention and Punishment of the Crime of Genocide
    (Croat. v. Serb.), Preliminary Objections, 2008 I.C.J. 465, ¶ 120 (Nov. 18).
245
    See also Eds Zimmermann, Oellers-Frahm, Tomuschat & Tams, op.cit., pp. 703 to 705.
246
    Northern Cameroons (Cameroon v. U.K.), Preliminary Objections, 1963 I.C.J. 27 (Dec. 2).


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           Application, it is necessary to resolve ﬁrst of all the question of

           the Court’s jurisdiction and that of the admissibility of the

           Application, and that these matters should accordingly be

           separately determined before any proceedings on the merits.247

  The I.C.J. “[d]ecide[d] that the written pleadings shall ﬁrst be addressed to
  the question of the jurisdiction of the Court and that of the admissibility of
  the Application”.248 In addition, the I.C.J. in its order of 15 November 2018
  ﬁxed the following time-limits for the ﬁling of the pleadings: 15 May 2019
  for the Memorial of the State of Palestine and 15 November 2019 for the
  Counter-Memorial of the United States of America.249



      7.1. THE MONETARY GOLD PRINCIPLE

  Article 62 of the I.C.J. Statute provides that “(l) [s]hould a state consider
  that it has an interest of a legal nature which may be affected by the
  decision in the case, it may submit a request to the Court to be permitted
  to intervene. (2) It shall be for the Court to decide upon this request”.250
  In the case of Monetary Gold Removed from Rome in 1943 (Italy v. France,
  United Kingdom of Great Britain and Northern Ireland and United States of
  America), the I.C.J. ruled that “[t]o adjudicate upon the international
  responsibility of Albania without her consent would run counter to a
  well-established principle of international law embodied in the Court’s
  Statute, namely, that the Court can only exercise jurisdiction over a State
  with its consent”.251 The I.C.J. went on to say that

           Albania has not submitted a request to the Court to be permitted

           to intervene . . . . Albania’s legal interests would not only be

           affected by a decision, but would form the very subject-matter of
247
    I.C.J., 15 November General List No. 176 15 November 2018 Relocation Of The United States
    Embassy To Jerusalem (Palestine v. United States Of America) Order, p. 3, available at
    https://www.icj-cij.org/ﬁles/case-related/176/176-20181115-ORD-01-00-EN.pdf.
248
    Id.
249
    Id.
250
    Statute of the International Court of Justice art. 62.
251
    Monetary Gold Removed from Rome in 1943 (It. v. Fr., U.K. and U.S.), Preliminary
    Objection, 1954 I.C.J. 32 (June 15).


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           the decision. In such a case, the Statute cannot be regarded, by

           implication, as authorizing proceedings to be continued in the

           absence of Albania.252

  In the case of Monetary Gold Removed from Rome in 1943 (Italy v. France,
  United Kingdom of Great Britain and Northern Ireland and United States of
  America), the I.C.J. recalled the arbitrator’s opinion of 20th of February
  1953 that the gold belonged in 1943 to Albania.253 Since the expression of
  Monetary Gold principle, which relies on Article 62 of the I.C.J. Statute,
  several States have invoked it either to bar the I.C.J. from exercising
  jurisdiction or to request for an intervention in the proceedings. In the
  Military and Paramilitary Activities in and against Nicaragua (Nicaragua v.
  United States of America, the I.C.J. provided that

           [t]he circumstances of the Monetary Gold case probably

           represent the limit of the power of the Court to refuse to

           exercise its jurisdiction; and none of the States referred to can

           be regarded as in the same position as Albania in that case, so

           as to be truly indispensable to the pursuance of the

           proceedings.254

  In the Case concerning Certain Phosphate Lands in Nauru (Nauru v.
  Australia), preliminary objections of 26 June 1992, the I.C.J. considered that
  “the interests of New Zealand and the United Kingdom do not constitute
  the very subject-matter of the judgment to be rendered on the merits of
  Nauru’s Application and the situation”.255 The I.C.J. added that “[i]n the
  present case, the determination of the responsibility of New Zealand or
  the United Kingdom is not a prerequisite for the determination of the
  responsibility of Australia, the only object of Nauru’s claim”.256 The I.C.J.
  further stated that
252
    Id.
253
    Id. p. 26.
254
    Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1984 I.C.J.
    431, ¶ 88.
255
    Certain Phosphate Lands in Naru (Naru v. Au.), Preliminary Objections, 1992 I.C.J. 261, ¶
    55.
256
    Id.



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            a ﬁnding by the Court regarding the existence or the content of

            the responsibility attributed to Australia by Nauru might well

            have implications for the legal situation of the two other States

            concerned, but no ﬁnding in respect of that legal situation will

            be needed as a basis for the Court’s decision on Nauru’s claims

            against Australia.257

  In the Case concerning East Timor (Portugal v. Australia), Portugal advanced
  several arguments before the I.C.J. to exclude the applicability of the
  Monetary Gold principle. The ﬁrst argument was to make a separation of
  Australia’s behavior from that of Indonesia.258 However, the I.C.J. did not
  accept this argument in this speciﬁc case and provided that “the very
  subject-matter        of   the    Court’s     decision     would       necessarily        be    a
  determination whether, having regard to the circumstances in which
  Indonesia entered and remained in East Timor, it could or could not have
  acquired the power to enter into treaties on behalf of East Timor”.259
          Portugal’s second argument underlined the inapplicability of the
  Monetary Gold principle as it maintained that the rights which Australia
  allegedly breached were erga omnes.260 The I.C.J. expressly stated in the
  Case concerning East Timor (Portugal v. Australia) that “[w]hatever the
  nature of the obligations invoked, the Court could not rule on the
  lawfulness of the conduct of a State when its judgment would imply an
  evaluation of the lawfulness of the conduct of another State which is not a
  party to the case”.261 The I.C.J. further provided that “the erga omnes
  character of a norm and the rule of consent to jurisdiction are two
  different things”.262
          The third argument advanced by Portugal cores at that “the status
  of East Timor as a non-self-governing territory and its own capacity as
  the administering Power of the Territory, have already been decided by
257
    Id. pp. 261 & 262.
258
    East Timor (Portugal v. Australia), Judgment, 1995 I.C.J. 102, ¶ 28.
259
    Id.
260
    Id. para 29.
261
    Id.
262
    Id.


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  the General Assembly and the Security Council”.263 Portugal added that
  “the Court might well need to interpret those decisions but would not
  have to decide de novo on their content and must accordingly take them as
  “givens””.264 Portugal further added that: “the Court is not required in
  this case to pronounce on the question of the use of force by Indonesia in
  East Timor or upon the lawfulness of its presence in the Territory”.265
              The I.C.J. noted that the third argument advanced by Portugal:

               rests on the premise that the United Nations resolutions . . . . can

               be read as imposing an obligation on States not to recognize any

               authority on the part of Indonesia over the Territory and, where

               the latter is concerned, to deal only with Portugal. The Court is

               not persuaded, however, that the relevant resolutions went so

               far.266

              The I.C.J. ruled that:

               In this case, the effects of the judgment requested by Portugal

               would amount to a determination that Indonesia’s entry into

               and continued presence in East Timor are unlawful .              .   .   .

               Indonesia’s rights and obligations would thus constitute the

               very subject-matter of such a judgment made in the absence of
                                       267
               that State’s consent.

  The I.C.J. provided that “[w]ithout prejudice to the question whether the
  resolutions under discussion could be binding in nature, the Court
  considers as a result that they cannot be regarded as “givens” which
  constitute a sufficient basis for determining the dispute between the
  Parties”.268
263
    Id.   para 30, p. 103.
264
    Id.
265
    Id.
266
    Id.   para 31.
267
    Id.   para 34, p. 105.
268
    Id.   para 32, p. 104.




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  7.2. ASSESSING THE APPLICABILITY CRITERIA OF THE MONETARY GOLD PRINCIPLE

One can deduce from the jurisprudence of the I.C.J. case of Monetary Gold
Removed from Rome in 1943 (Italy v. France, United Kingdom of Great Britain
and Northern Ireland and United States of America) the application of two
major criteria for the determination of the applicability or inapplicability
of Monetary Gold principle in relation to the pending case Palestine v.
United States of America: does Israel have an interest of a legal nature
which may be affected by the decision of the I.C.J.? And would Israel be the
very subject-matter of the decision on the transfer of the United States of
America embassy from Tel-Aviv to Jerusalem?
       Following from the jurisprudence of the I.C.J., several sub questions
can also be raised so as to provide assistance on the determination of the
applicability or inapplicability of the Monetary Gold principle.                  Is the
determination of the responsibility of Israel a prerequisite to determine
U.S. responsibility? Does the existence or the content of responsibility
attributed to the United States of America by Palestine have or may have
implications for the legal situation of Israel, and if so, will this be used as
a basis for the I.C.J. decision on Palestine argument against the United
States of America? Would the I.C.J. need to rule on the lawfulness of the
conduct of the United States of America when its judgment would imply
an evaluation of the lawfulness of the conduct of Israel, which is not party
to the proceedings?     Has not the evaluation of the lawfulness of the
conducts of Israel in relation to jus ad bellum and jus in bello already been
determined by themain organs of the United Nations (General Assembly,
Security Council, the United Nations Economic and Social Council and the
I.C.J), the United Nations specialized agencies e.g. the U.N.E.S.C.O. and
additionally customary international law?
       Would the I.C.J. need not to decide de novo on the content of the
voluminous of the United Nations resolutions and accordingly take them
as “givens”? Have not the voluminous content of the United Nations
resolutions gone further than the relevant United Nations resolutions on


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  East Timor? The counter-argument that Palestine’s claim invokes the
  applicability of the Monetary Gold principle269 does not hold water as the
  I.C.J. will consider that it shall have jurisdiction to entertain Palestine’s
  Application based on at least one of the following arguments.



      7.3. THE INAPPLICABILITY OF THE MONETARY GOLD PRINCIPLE (PALESTINE V. UNITED STATES
      OF AMERICA)

      7.3.1. A SENDING STATE’S PRACTICE

  The ﬁrst argument that must be advanced on the inapplicability of the
  Monetary Gold principle underlines that the issue in question concerns
  only the sending State’s practice combined with the element of opinio
  juris without the need to look into the conduct of the de facto receiving
  State (Israel), albeit illegal under international law. In this respect, Israel
  would not be the very subject-matter of the decision of the I.C.J.
          Security Council resolution 478 of 1980 mainly distinguishes
  between on the one hand, those obligations imposed on Israel and, on the
  other, those imposed on other States. Security Council resolution 478
  called upon States other than Israel (obviously the Sending States) that
  have established diplomatic missions in Jerusalem to withdraw such
  missions from the Holy City.270 Security Council resolution 478 called
  upon Israel to rescind its legislative and administrative measures and
  actions which have altered or purport to alter the character and status of
  the Holy City of Jerusalem particularly the 1980 “Basic Law” on
  Jerusalem.    271   Security Council resolution 478 called on all Member States
  to accept this decision272 (which includes Israel).
269
    MARKO MILANOVIC, Palestine Sues the United States in the I.C.J. re Jerusalem Embassy,
    E.J.I.L.: TALK! BLOG OF THE EUROPEAN JOURNAL OF INTERNATIONAL LAW (Sept. 30, 2018),
    https://www.ejiltalk.org/palestine-sues-the-united-states-in-the-icj-re-jerusalem-
    embassy/.
270
    S.C. Res. 478, supra note 28, ¶ 5.
271
    Id. para 3.
272
    Id. para 5(a).




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  In the Legal Consequences of the Construction of a Wall in the Occupied
  Palestinian Territory, the I.C.J. invoked United Nations resolutions relative
  to the question of Palestine including Security Council resolution 478
  (1980). The I.C.J. recalled the second, third and ﬁfth provisions of the
  Security Council resolution 478 i.e. affirming that the enactment of the
  1980 “Basic Law” constitutes a violation of international law, that “all
  legislative and administrative measures and actions taken by Israel, the
  occupying Power, which have altered or purport to alter the character and
  status of the Holy City of Jerusalem . . . . are null and void” and deciding
  on “not to recognize the “Basic Law” and such other actions by Israel
  that, as a result of this law, seek to alter the character and status of
  Jerusalem”.273
         In the wider sense, a distinction could be drawn between at least
  ﬁve categorical obligations of States as a result of the United Nations
  resolutions and/or customary international law.                        Firstly, Israel’s
  obligations e.g. to rescind its legislative and administrative measures and
  actions which are illegal international law including the 1980 “Basic Law”
  on Jerusalem.      Secondly, obligations of the sending States, which are
  diplomatically represented in Israel, not to establish embassies in
  Jerusalem. Thirdly, all States’ (other than Israel) obligations e.g. not to
  recognize any changes carried out by Israel in the occupied territory of
  Palestine including East Jerusalem and not to render aid or assistance to
  the Israeli occupation, annexation and colonization policies. Fourthly,
  obligations of all Member States of the United Nations to accept and carry
  out the decisions of the Security Council in line with Article 25 of the
  United Nations Charter, which may also be extended to non-member
  States of the United Nations. For example, one of the conditions on which
  Switzerland could become a Party to the I.C.J. at a time when it was not a
  member of the United Nations was its “Acceptance of all the obligations
  of a Member of the United Nations under Article 94 of the Charter”.274
273
    Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,
    Advisory Opinion, 2004 I.C.J. 167, ¶ 75.
274
    G.A. Res. 91, U.N. Doc. A/RES/91 (Dec. 11, 1946).


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  Fifthly, obligations of all States to abide by customary international law
  that emerged or existed as a result of General Assembly resolutions
  and/or Security Council resolutions. By a way of example on the second,
  third, fourth and ﬁfth categorical obligations, the Holy See is not a
  member in the United Nations however its apostolic nunciature is in Tel
  Aviv and not Jerusalem.
             Israel has of course committed internationally wrongful acts by
  among others its annexation of East Jerusalem and its legislative organ
  enactment of the 1980 Basic Law. However, the object of the litigation in
  the pending case is to adjudge and declare that the conduct of the United
  States of America (the sending State) in relocating its embassy from Tel
  Aviv to Jerusalem violated its international legal obligations as provided
  in preambular paragraph ﬁve of the Vienna Convention on Diplomatic
  Relations. Indeed, the purpose and objective of adjudication is to rule on
  the illegality of the conduct of the United States of America (the Sending
  State) and not on Israel’s acts and/or omissions of breaches of its
  international obligations (the de facto receiving State). Therefore, the
  judgment will be binding on the sending State and not on the de facto
  receiving State. The very subject-matter of the decision of the I.C.J. would
  be the United States of America and not Israel.
             The I.C.J. would be requested to rule on the illegality of the United
  States of America conduct of relocating its embassy from Tel Aviv to
  Jerusalem and to further request reparation from the United States of
  America in the form of restitution and satisfaction. For the purpose of this
  speciﬁc case, the I.C.J. would not need to request Israel to make restitution
  and give satisfaction for the internationally wrongful act of the United
  States conduct of relocating of its embassy. Article 59 of the I.C.J. statute
  provides that “[t]he decision of the Court has no binding force except
  between the parties and in respect of that particular case”.275                                In the
  Continental Shelf (Libyan Arab Jamahiriya/Malta), Application to Intervene,
  the I.C.J. provided that “[t]he future judgment will not merely be limited
275
      Statute of the International Court of Justice art. 59.


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  in its effects by Article 59 of the Statute: it will be expressed, upon its face,
  to be without prejudice to the rights and titles of third States”.276



      7.3.2. A MATTER RELATIVE TO THE QUESTION OF PALESTINE VIS-À-VIS THE RESPONSIBILITY
      OF THE UNITED NATIONS

  The second supplement or alternative argument that must be advanced
  on the inapplicability of the Monetary Gold principle in the present
  pending case rests on the premise that the issue in question is concerned
  with a matter relative to the question of Palestine vis-à-vis the
  responsibility of the United Nations and/or vis-à-vis the responsibility of
  merely third States. The very subject-matter of the decision of the I.C.J.
  would be the United States of America in its capacity as a third State. The
  I.C.J. as the principal judicial organ of the United Nations has the
  responsibility to invalidate the Monetary Gold principle in the present
  pending case in conformity with its statute, rules of procedure and the
  rules of consent to jurisdiction. Several General Assembly resolutions
  “[r]eaffirm[ed] the permanent responsibility of the United Nations with
  regard to the question of Palestine until the question is resolved in all its
  aspects in accordance with international law”.277 In its advisory opinion
  of 2004, the I.C.J. recalled the preamble of resolution 57/107 of 3
  December 2002 and further provided that

           [w]ithin the institutional framework of the Organization, this

           responsibility has been manifested by the adoption of many

           Security Council and General Assembly resolutions, and by the

           creation of several subsidiary bodies speciﬁcally established to

           assist in the realization of the inalienable rights of the

           Palestinian people.278
276
    Continental Shelf (Libyan Arab Jamahiriya v. Malta), 1984 I.C.J. 26-27, ¶ 43.
277
    G.A. Res. 49/62, Preamble (Dec 14, 1994). Other General Assembly resolutions used
    the term “international legitimacy” instead of international law for example, G.A. Res.
    57/107, Preamble (Dec. 3, 2002).
278
    Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,
    Advisory Opinion, 2004 I.C.J. 159, ¶49.



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       7.3.3. A DISPOSITIVE DETERMINATION OF ISRAEL’S OBLIGATIONS UNDER JUS AD BELLUM
       AND JUS IN BELLO

  The third alternative argument that must be advanced on the
  inapplicability of the Monetary Gold principle in the present pending case
  rests on the premise that Israel’s rights or rather title and obligations
  under jus ad bellum and jus in bello have been dispositively or
  authoritatively determined under international law. The content of the
  voluminous resolutions of the main organs of the United Nations (General
  Assembly, Security Council, the Economic and Social Council as well as
  the I.C.J. advisory opinion of 2004), the resolutions of the U.N.E.S.C.O. as
  one of the specialized agencies have authoritatively determined the scope
  of Israel’s obligations. These intermingled with the existence of several
  provisions of customary international law in relation to the question of
  Palestine. The occupying power conduct under jus in bello (to name but a
  few, annexation of East Jerusalem, construction of a wall and its
  associated regime and extensive transfer of parts of the occupant’s
  civilian population into settlements in the occupied territory of Palestine)
  and jus ad bellum (the Israeli occupying armed forces entry into and
  presence in the occupied territory of Palestine) have been determined as
  unlawful. In the Legal Consequences for States of the Continued Presence of
  South Africa in Namibia (South West Africa) notwithstanding Security Council
  Resolution 276 (1970) advisory opinion of 1971, the I.C.J. provided that “it
  would not be correct to assume that, because the General Assembly is in
  principle vested with recommendatory powers, it is debarred from
  adopting, in speciﬁc cases within the framework of its competence,
  resolutions which make determinations or have operative design”.279
            Several General Assembly and Security Council resolutions
  emphasized Israel’s own obligations in its capacity as the occupying
  power. For example General Assembly resolution 58/292 of 6 May 2004
279
      Legal Consequences for States of the Continued Presence of South Africa in Namibia
      notwithstanding Sec. Council Res. 276/1970, Advisory Opinion, 1971 I.C.J. 50, ¶105.




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  provided that “Israel, the occupying Power, has only the duties and
  obligations of an occupying Power under the Fourth Geneva Convention
  and the Regulations annexed to the Hague Convention Respecting the
  Laws and Customs of War of 1907”.280                    General Assembly resolution
  69/92 of 5 December 2014 “[c]alls upon Israel to . . . . comply with all of
  its obligations under international law and cease immediately all actions
  causing the alteration of the character,                     status and demographic
  composition of the Occupied Palestinian Territory, including East
  Jerusalem”.281 Security Council resolution 672 “[c]alls upon Israel, the
  occupying Power, to abide scrupulously by its legal obligations and
  responsibilities under the Fourth Geneva Convention, which is applicable
  to all the territories occupied by Israel since 1967”.282 Security Council
  resolution 2334 of 2016 “[r]eaffirm[ed] the obligation of Israel, the
  occupying Power, to abide scrupulously by its legal obligations and
  responsibilities under the Fourth Geneva Convention . . . . and recalling
  the advisory opinion rendered on 9 July 2004 by the International Court of
  Justice”.283
           The Security Council and General Assembly called upon Israel, the
  occupying power to withdraw from the occupied territory of Palestine and
  terminate its occupation. For example, Security Council resolution 242 of
  1967 called for the “(i) [w]ithdrawal of Israeli armed forces from
  territories occupied in the recent conﬂict”;284 Security Council resolution
  471 of 1980 “[r]eaffirm[ed] the overriding necessity to end the prolonged
  occupation of Arab territories occupied by Israel since 1967, including
  Jerusalem”;285 General Assembly resolution ES-7/2 of 29 July 1980 called
  upon Israel for complete and unconditional withdrawal from all Arab
  territories occupied since June 1967 including Jerusalem and urged that
280
    G.A. Res.   58/292, ¶1 (May 6, 2004).
281
    G.A. Res.   69/92, ¶2 (Dec. 5, 2014).
282
    U.N. Sec.   Council Res. 672, ¶3 (Oct. 12, 1990).
283
    U.N. Sec.   Council Res. 2334, Preamble (Dec. 23, 2016).
284
    U.N. Sec.   Council Res. 242, ¶1 (Nov. 22, 1967).
285
    U.N. Sec.   Council Res. 471, ¶6 (Jun. 5, 1980).




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  the withdrawal should start before 15 November 1980.286 The General
  Assembly has repetitively and explicitly labeled the Israeli occupation as
  illegal. General Assembly resolution 36/147 of 1981 recalled its previous
  resolutions in particular resolution 3414 (XXX), 31/61, 32/20, 33/28,
  33/29, 34/70 and 35/122 E, “in which it, inter alia, called upon Israel to put
  an end to its illegal occupation of the Arab territories and to withdraw
  from all those territories”,287 General Assembly resolution A/73/L.49 of
  2018 reiterated its call to end the Israeli occupation that began in 1967,
  including East Jerusalem.288 Labeling the Israeli occupation as illegal by
  the General Assembly is not a recommendation but is of a dispositive
  force and effect. The I.C.J. provided in certain expenses of the United Nations
  (Article 17, paragraph 2, of the Charter) advisory opinion that

           the functions and powers conferred by the Charter on the

           General      Assembly      are    not    conﬁned       to     discussion,

           consideration, the initiation of studies and the making of

           recommendations; they are not merely hortatory. Article 18

           deals with “decisions” of the General Assembly “on important

           questions”.      These “decisions” do indeed include certain

           recommendations, but others have dispositive force and

           effect.289

  The content of the relevant voluminous resolutions on the question of
  Palestine went much further than the ones in East Timor, have made
  authoritative determinations in relation to Israel’s obligations under jus
  ad bellum and jus in bello, have dispositive force and effect, have
  formulated a legal situation, apply a fortiori and in many instances
  established the existence of a rule or the emergence of an opinio juris.
  Commenting on the termination of South Africa’s mandate over South
  West Africa by the General Assembly, the I.C.J. provided in Legal
286
    G.A. Res. ES-7/2, U.N. Doc. A/RES/ES-7/2, ¶7 (Jul. 29, 1980).
287
    G.A. Res. 36/147/E, Preamble (Dec. 16, 1981).
288
    See U.N. Doc. A/73/L.49 (Dec. 6, 2018).
289
    Certain expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory
    Opinion, 1962 I.C.J. 163 (Jul. 20).



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  Consequences for States of the Continued Presence of South Africa in Namibia
  (South West Africa) notwithstanding Security Council Resolution 276 (1970),
  advisory opinion that “[t]his is not a ﬁnding on facts, but the formulation
  of a legal situation”.290



      7.4. TECHNICAL ANALYSIS OF PORTUGAL V. AUSTRALIA AND PALESTINE V. UNITED STATES OF
      AMERICA

  Two judges wrote dissenting opinions regarding the reasons why the I.C.J.
  should have exercised jurisdiction to entertain the case concerning East
  Timor (Portugal v. Australia).291 The I.C.J. found a grey area in the East
  Timor situation where in the absence of Indonesia, it could not exercise
  jurisdiction over the case initiated by Portugal.              Eventually, the I.C.J.,
  which formulated the Monetary Gold Principle, has the greater leeway in
  making decisions on which cases falls within this principle. The I.C.J.
  seemed to have evaded exercising jurisdiction in that particular case
  concerning East Timor where it was caught between a rock and a hard
  case.    The I.C.J. found itself in an undesirable situation of a complex
  formula. Firstly, there is an applicant State (Portugal) which the Security
  Council and General Assembly resolutions have called upon all States to
  refrain from rendering its Government any assistance that would enable
  it to repress the peoples of the Territories under its administration or
  would enable it to pursue the colonial war in the Territories under its
  domination.      Secondly, there is a respondent State (Australia) which
  concluded the Timor Gap Treaty with Indonesia (which was not party to
  the case) and the Security Council292 and General Assembly293 had
290
    Legal Consequences for States of the Continued Presence of South Africa in Namibia
    Notwithstanding Security Council Resolution 276/1970, Advisory Opinion, 1971 I.C.J. 50,
    ¶ 105.
291
    See Portugal v. Australia, (Weeramantry, J., dissenting) available at https://www.icj-
    cij.org/ﬁles/case-related/84/084-19950630-JUD-01-05-EN.pdf see also (Skubiszewski,
    J., dissenting) available at https://www.icj-cij.org/ﬁles/case-related/84/084-19950630-
    JUD-01-06-EN.pdf.
292
    See e.g. U.N. Sec. Council Res. 384, ¶2 (Dec. 2, 1975).
293
    See e.g. G.A. Res. 3485 (XXX), ¶5 (Dec. 12, 1975).




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  requested the Indonesian armed forces to withdraw from East Timor. In
  either case, in the event of a potential judgment of ruling in favour of one
  of the parties (Portugal or Australia), the I.C.J. would have contributed in
  one way or another to one of the two repressive States i.e. Indonesia or
  Portugal and it would have not contributed to the realization of the right
  of self-determination of the people of East Timor.                         General Assembly
  resolution 2507(XXIV) of 1969

              [c]all[ed] upon all States, the specialized agencies and all the

              international     organizations        concerned      to    increase,       in

              cooperation with the Organization of African Unity, their moral

              and material assistance to the peoples of the Territories under

              Portuguese domination who are struggling for their freedom

              and independence.294

  In Palestine v.         the United States of America, the I.C.J. is faced with a
  completely different formula.                     Firstly, there is an applicant State
  (Palestine) which is the injured State and is under military occupation and
  colonization where the General Assembly called upon all States,
  international organizations and specialized agencies to render assistance
  to its people to realize the right to self–determination.                            Secondly, a
  respondent State (the United States of America) where by its conduct of
  relocating its embassy from Tel Aviv to Jerusalem has not only violated
  existing customary international diplomatic law but also have rendered
  aid or assistance to Israel, the occupying power in pursuing of its policies
  of, inter alia, annexation and colonization, on the other.
             In the case of Monetary Gold Removed from Rome in 1943 (Italy v.
  France, United Kingdom of Great Britain and Northern Ireland and United
  States of America), the gold belonged to Albania which was not party to the
  case. In case concerning East Timor (Portugal v. Australia), East Timor was a
  non-self-governing territory torn between Portugal which had repressed
  the East Timorese people, and Indonesia, whose armed forces occupied it
294
      G.A. Res. 2507 (XXIV), supra note 101, ¶11.




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since December 1975. The people of East Timor territory were entitled to
the right to self-determination and independence, as has been affirmed
by the United Nations resolutions.            However, the exact mode of
self-determination was only decided with the 1999 referendum, with the
majority of the East Timorese people willing for a transition to
independence and for a refusal of a special autonomy within Indonesia.
The Palestinian people have the right of self-determination although the
mode of self-determination has been determined under customary
international law in a form of an independent State. The international
legal personality of the statehood of Palestine exists under international
law, albeit it has no sovereignty and is under military occupation and
colonization where parts of is territory has been annexed.




      8. CONCLUSION

The prohibitive rule on establishing or maintaining diplomatic missions
in Jerusalem established by the Security Council in its resolution 478 of
1980 was maintained by the General Assembly resolutions.                            This
prohibitive rule established by Security Council resolution 478 has been
intermingled with the emergence and existence of State practice with the
element of opinio juris. The fact that certain States (currently the United
States of America and Guatemala) and formerly Costa Rica, El Salvador
and Paraguay violated this customary international diplomatic law does
not by any means indicate an emergence of new rule. On the contrary, it is
a violation of this existing customary international diplomatic law which
incurred the responsibility of these States under international law and
requires adequate reparation in the form of restitution and satisfaction.
      The prohibitive rule on establishing or maintaining diplomatic
missions in Jerusalem was seen a necessary measure under customary
international   diplomatic   law   so    as    not     to     recognize        Israel’s

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internationally wrongful acts towards Jerusalem, by among others, its
occupation, annexation, acquisition of territory by force, and declaration
of the Holy City “complete and united” as the capital of its State under the
Basic Law of 1980. Jerusalem is a situation of sui generis territory as the
city has been unilaterally declared as the capital of Israel and is a
combination of an annexed occupied territory (East Jerusalem) and a
territory that international law does not consider it as occupied (West
Jerusalem). However, the prohibitive rule imposed on the sending States
to not establish embassies in Jerusalem include all the unilaterally
declared boundaries of the municipality of Jerusalem.
      The prohibition on establishing or maintaining diplomatic or
consular missions in Southern Rhodesia (Zimbabwe) was seen as one of
the necessary measures to denounce any legitimacy of the minority
regime’s rule in Southern Rhodesia, to avoid recognizing its practices of
racial discrimination and segregation and to support the Southern
Rhodesian people right to self-determination.               Similarly, the legal
obligations to not maintain consulates in South West Africa (Namibia)
and to abstain from sending diplomatic or special missions to South
Africa, including in the occupied territory of Namibia were seen as
necessary actions in order to refuse and not recognize South African
practices of occupation and apartheid and support the people’s right to
self-determination.      In Kuwait,     following Iraq’s occupation and
annexation in 1990, the Security Council did not deem it necessary to call
upon States to close diplomatic or consular missions or withdraw their
diplomatic or consular agents, who were accredited to the Government of
Kuwait (which went into exile). On the contrary, it was Iraq unilateral and
illegal measures which have done so which purported to dissolve the legal
personality of the State of Kuwait.
      The relocation of the United States of America and the Republic of
Guatemala of their embassies from Tel Aviv to Jerusalem is considered an
act of aid and/or assistance, which will be used by the occupant (Israel) in
its persisting colonial and annexation policies in the occupied territory of

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Palestine including East Jerusalem. The internationally wrongful acts of
the United States of America and the Republic of Guatemala runs contrary
to their legal interests and obligations to protect the erga omnes right of
self-determination of the Palestinian people.             In its resolutions, the
General Assembly did not only call upon all States but also international
organizations and specialized agencies to not render any aid or assistance
to Israeli annexation and colonization policies, on the one hand and assist
and support the Palestinian people right to self -determination, on the
other.
         It stands to reason that the merits of the pending case are not the
United Nations resolutions but the Vienna Convention on Diplomatic
Relations and the applicable provision of customary international
diplomatic law underpinning the prohibition on the sending States
represented in Israel to not establish embassies in Jerusalem.                         The
analysis of the violations of the Vienna Convention on the Diplomatic
Relations lies within its preambular paragraph ﬁve whereby the rules of
customary international law govern any questions that the present
convention does not explicitly regulate.           In addition to the Vienna
Convention on Diplomatic Relations and customary international
diplomatic     law   (the   prohibitive   rule   of   customary          international
diplomatic law on the sending States which are diplomatically
represented in Israel to not locate their embassies in Jerusalem), the I.C.J.
will have to recourse to the customary international law on State
responsibility and the customary international law of treaties to
determine the responsibility of the United States of America.
         The United States of America’s arguments relating to jurisdiction
of the I.C.J. and admissibility of the Palestine Application may be based on
inter alia four possible claims. Firstly, Palestine is a not a State under
international law and hence it is not qualiﬁed to accede to the Vienna
Convention on Diplomatic Relations and its Optional Protocol and
accordingly lacks a locus standi. Secondly, the United States of America is
not in a treaty relationship with Palestine. Thirdly, the United States of

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America has submitted a (purported) withdrawal from the Optional
Protocol of the Vienna Convention on Diplomatic Relations. Fourthly, the
invocation of the applicability of the Monetary Gold principle.                     The
aforementioned are not legally compelling arguments and neither hold
water nor stand their ground under international law in relation to the
pending case. The I.C.J. has jurisdiction to entertain the present pending
case under the Optional Protocol to the Vienna Convention on Diplomatic
Relations, concerning the Compulsory Settlement of Disputes and that
the Application ﬁled by Palestine is admissible. The State of Palestine
should advance at least three major arguments before the I.C.J. in order to
exclude the applicability of the Monetary Gold principle.
       The ﬁrst argument that must be presented is that Israel would not
be the very subject-matter of the decision of the I.C.J. as the issue in
question concerns only the sending State’s practice combined with the
element of opinio juris without the need to look into the de facto receiving
State conduct (Israel). The very subject -matter of the decision of the I.C.J.
would be the United States of America in its capacity as the sending State
and not Israel, the de facto receiving State. The second supplement or
alternative argument that must be advanced on the inapplicability of the
Monetary Gold principle in the present pending case rests on the premise
that the issue in question is concerned with a matter relevant to the
question of Palestine vis-à-vis the responsibility of the United Nations
and/or vis-à-vis the responsibility of merely third States.                The third
alternative argument that must be advanced on the inapplicability of the
Monetary Gold principle in the present pending case is that Israel’s
obligations under both jus ad bellum and jus in bello have been
dispositively or authoritatively determined under international law. The
content of the voluminous resolutions of the Security Council, the General
Assembly,    the United Nations Economic and Social Council,                        the
specialized agencies such as U.N.E.S.C.O. as well as the I.C.J. advisory
opinion of 2004 and customary international law, have determined Israel,
to be the occupying power, and to hold obligations under that title. The

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occupying power conduct under jus ad bellum and jus in bello have been
determined as unlawful. The aforesaid arguments attest, in whole or in
part, to the grist for the mill of the inapplicability of the Monetary Gold
principle.




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            ANNEXES: MAPS

Copyright Notice for Readers
All materials contained within the Annexes I, II, III and VI have been authorized by the U.N.
Geospatial Information Section, Cartographic Unit Operations Support Division. The United Nations
maps is reprinted as an official United Nations document, without modiﬁcations.

        Annex I




Figure 1: Map Delineating Armistice Demarcation Lines Palestine (North & South
sheets), Jerusalem, Latrun. Document Sources: Hashemite Jordan Kingdom -
Israel: General Armistice Agreement - Document sources: United Nations.



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      Annex II




Figure 2: Jerusalem – Principal Holy Sites – Armistice line – Map No. 229
November 1949 - Document sources: United Nations.




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       Annex III




Figure 3: Map No. 104 (b), City Of Jerusalem Boundaries Proposed: [Annex B to
resolution 181 (II) of the General Assembly, dated 29 November 1947] - Document
sources: United Nations.




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       Annex IV




Figure 4: East Jerusalem Access and Closure Oct. 2017 – Document sources: Office
for the Coordination of Humanitarian Affairs map.




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       Annex V




Figure 5: West Bank Access Restrictions Oct. 2017 – Document sources: Office for
the Coordination of Humanitarian Affairs map.




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       Annex VI




Figure 6: ‘Jerusalem occupied and expanded by Israel in June 1967, Map No. 3640,
Rev. 3, June 1997 - Document sources: United Nations, Department of Public
Information Cartographic Section 1997.




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