While Palestine considers itself a state, the United States does not currently recognize it as such. The relationship between the two has continued to deteriorate following the December 2017 announcement that the United States would recognize Jerusalem as Israel's capital and move its embassy there. Alleging that the embassy relocation violates international law, Palestine brought a case against the United States in the International Court of Justice (ICJ) in September of 2018. The United States reacted by announcing its withdrawal from the Optional Protocol to the Vienna Convention on Diplomatic Relations Concerning the Compulsory Settlement of Disputes (Optional Protocol). Also in the fall of 2018, the Trump administration closed the Palestine Liberation Organization (PLO) office in Washington, curtailed its own Palestinian-focused mission in Jerusalem, and sharply cut U.S. funding focused on Palestinian interests.
On December 6, 2017, President Trump recognized Jerusalem as the capital of Israel and announced that the U.S. embassy in Israel would move from Tel Aviv to Jerusalem.Footnote 1 Despite objections from the Palestinians and widespread criticism from members of the UN Security Council and General Assembly,Footnote 2 on May 14, 2018, the United States officially opened its embassy in Jerusalem.Footnote 3 On that same day, Palestine informed the United States of its view that “any step taken by the United States to relocate its embassy to Jerusalem constitutes a violation of the” Vienna Convention on Diplomatic Relations (VCDR) “read in conjunction with relevant United Nations resolutions.”Footnote 4 On July 4, 2018, Palestine followed up to express its view that a dispute grounded in the VCDR and its Optional Protocol existed between the United States and Palestine.Footnote 5
On September 28, 2018, Palestine filed an application to institute proceedings against the United States in the ICJ.Footnote 6 Emphasizing the special character of Jerusalem, the application discusses the city's legal status and notes the existence of Security Council resolutions refusing to recognize Israel's efforts to change this status.Footnote 7 The application then turns to the VCDR and construes it to require that any diplomatic mission be based on the territory of the “receiving state.”Footnote 8 The application also notes that the VCDR prohibits a mission from being “‘used in any manner incompatible with the functions of the mission as laid down in the present Convention or by other rules of general international law.’”Footnote 9 Synthesizing these strands, the application argues that
[t]he relocation of the US Embassy in Israel to the Holy City of Jerusalem is in breach of the provisions of the Convention on Diplomatic Relations mentioned above as well as, more generally, of its object and purpose and of “other rules of general international law” to which the Convention refers.Footnote 10
This is the first suit brought by Palestine before the ICJ.Footnote 11 It constitutes a further step by Palestine signaling and seeking to strengthen its claim to statehood. Important to Palestine's ability to join the VCDR and its Optional Protocol—and therefore to develop its pathway to ICJ jurisdiction—was a resolution passed on November 29, 2012, by the UN General Assembly. This resolution granted Palestine non-member observer state status at the United Nations.Footnote 12 It also expressed support for a favorable decision by the UN Security Council with regards to granting Palestine full UN membership status,Footnote 13 though that has not since occurred. The lack of full UN membership notwithstanding, the UN secretary-general has since accepted Palestinian instruments of accession in his role as the depository for various multilateral agreements.Footnote 14
In 2014, Palestine deposited its instrument of accession for the VCDR.Footnote 15 At the time, the United States responded by stating 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. Accession to the Convention is limited to sovereign States. Therefore, the Government of the United States of America believes that the “State of Palestine” is not qualified to accede to the Convention and affirms that it will not consider itself to be in a treaty relationship with the “State of Palestine” under the Convention.Footnote 16
Palestine acceded to the Optional Protocol on March 22, 2018,Footnote 17 several months after Trump's decision to recognize Jerusalem as the capital of Israel. The United States once again issued a responsive notification citing its 2014 rejection, affirming its belief in Palestine's lack of statehood, and stating 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 of Palestine’ under the Optional Protocol.”Footnote 18
On October 3, 2018, the United States announced its withdrawal from the Optional Protocol, making clear that the case brought by Palestine was a motivating factor in this decision.Footnote 19 In a press conference making this announcement, National Security Advisor John Bolton reiterated the U.S. rejection of Palestinian statehood:
It's not a state now. It does not meet the customary international law test of statehood. It doesn't control defined boundaries. It doesn't fulfill the normal functions of government. There are a whole host of reasons why it's not a state. It could become a state, as the President said, but that requires diplomatic negotiations with Israel and others.Footnote 20
Bolton did not expressly discuss whether or how the United States would defend itself in the pending ICJ proceedings. On November 2, the Legal Adviser to the State Department, Jennifer Newstead, wrote to the ICJ expressing the view that the ICJ “‘manifest[ly]’” lacks jurisdiction over the case and stating that the United States would not participate in a meeting later that week at the ICJ regarding the case.Footnote 21 On November 15, the ICJ set a briefing schedule with respect to issues of jurisdiction and admissibility, calling for Palestine's submission by May 15, 2019, and the U.S. submission by November 15, 2019.Footnote 22
The U.S. withdrawal from the Optional Protocol itself would not deprive the ICJ of jurisdiction over the case, assuming such jurisdiction existed prior to withdrawal.Footnote 23 Whether such jurisdiction exists in the first place, however, depends on several difficult issues. One is whether Palestine is in fact a state, since the ICJ's founding statute provides that “only states may be parties in cases before the Court.”Footnote 24 Another is what effect, if any, to give to the U.S. declarations that it does not consider itself in a treaty relationship with Palestine for either the VCDR or its Optional Protocol.Footnote 25 Yet another is the applicability of the ICJ's Monetary Gold principle about not adjudicating the interests of third parties without their consent.Footnote 26 It remains to be seen to what extent the United States will appear in the ICJ to contest the case with respect to both jurisdiction and the underlying merits.
In addition to the conflict over the relocation of the embassy, U.S.-Palestinian relations worsened on several other fronts over the late summer and fall of 2018. The Trump administration closed the PLO office in Washington, downgraded its own Palestinian-focused mission in Jerusalem, and slashed U.S. funding focused on Palestinian interests.
On September 10, the State Department announced the closure of the office of the General Delegation of the PLO located in Washington, D.C.Footnote 27 The State Department's press release stated:
We have permitted the PLO office to conduct operations that support the objective of achieving a lasting, comprehensive peace between Israelis and Palestinians. … However, the PLO has not taken steps to advance the start of direct and meaningful negotiations with Israel. To the contrary, PLO leadership has condemned a U.S. peace plan they have not yet seen and refused to engage with the U.S. government with respect to peace efforts and otherwise. As such, and reflecting Congressional concerns, the Administration has decided that the PLO office in Washington will close at this point. This decision is also consistent with Administration and Congressional concerns with Palestinian attempts to prompt an investigation of Israel by the International Criminal Court.Footnote 28
On October 18, the State Department announced that it would be merging the U.S. Consulate General in Jerusalem into the U.S. Embassy in Jerusalem.Footnote 29 The U.S. Consulate General had historically been devoted to Palestinian affairs, acting as a “quasi-embassy.”Footnote 30 The State Department cited efficiency as its driving motivation for the merger.Footnote 31 It stated that the merger “does not signal a change of U.S. policy on Jerusalem, the West Bank, or the Gaza Strip” and that “[t]he Administration is strongly committed to achieving a lasting and comprehensive peace that offers a brighter future to Israel and the Palestinians.”Footnote 32
During the late summer and fall, the Trump administration reduced multiple streams of U.S. funding aimed at Palestinian interests. On August 31, 2018, the State Department announced that it would no longer provide funding for the UN Relief and Works Agency (UNRWA),Footnote 33 building on a decision in January to withhold $65 million in previously anticipated funding.Footnote 34 The Department explained:
The Administration has carefully reviewed the issue and determined that the United States will not make additional contributions to UNRWA. When we made a U.S. contribution of $60 million in January, we made it clear that the United States was no longer willing to shoulder the very disproportionate share of the burden of UNRWA’s costs that we had assumed for many years. …
Beyond the budget gap itself and failure to mobilize adequate and appropriate burden sharing, the fundamental business model and fiscal practices that have marked UNRWA for years—tied to UNRWA’s endlessly and exponentially expanding community of entitled beneficiaries—is simply unsustainable and has been in crisis mode for many years. The United States will no longer commit further funding to this irredeemably flawed operation.Footnote 35
UNRWA provides humanitarian relief for Palestinian refugees.Footnote 36 UNRWA’s definition for who classifies as a Palestinian refugee is relatively broad, covering “persons whose normal place of residence was Palestine during the period 1 June 1946 to 15 May 1948, and who lost both home and means of livelihood as a result of the 1948 conflict,” with services also available to descendants of male Palestinian refugees.Footnote 37 As the definition does not require that individuals live outside occupied Palestinian territory, UNRWA states that it provides services to registered refugees living in the West Bank and Gaza Strip, as well as to those living in Jordan, Lebanon, and Syria.Footnote 38 The United States had previously been the UNRWA’s largest donor, accounting for a third of the agency's roughly $1.1 billion donations received in 2017.Footnote 39
In addition to ceasing UNRWA contributions, the Trump administration has dramatically cut back on other Palestinian-related funding. On August 24, the administration signaled that it would be redirecting some $200 million that had originally been budgeted to support programs in the West Bank and Gaza.Footnote 40 On September 8, the administration redirected $25 million that was originally intended for East Jerusalem hospitals caring for Palestinians.Footnote 41 On September 14, the United States Agency for International Development indicated that it would no longer use a pre-budgeted $10 million for programs meant to bolster relationships between Palestinians and Israelis, and instead would focus only on programs supporting Israeli Jews and Arabs.Footnote 42 Finally, in October, Trump signed the Anti-Terrorism Clarification Act of 2018, which could have further substantial future impacts on U.S. funding in relation to Palestine.Footnote 43
Collectively, these cuts in funding are reported to reflect a Trump administration aim of “maximum negotiating leverage over the Palestinians.”Footnote 44 The UNRWA cuts in particular appear aimed at influencing the role that the potential right of return for refugees has played in peace talks between Israelis and Palestinians. Mustafa Barghouti, the current secretary-general of the Palestinian National Initiative, has observed that the United States “‘tried to liquidate the issue of Jerusalem by saying they were removing it from the negotiating table, now they want to kill UNRWA with the aim of killing the right of the Palestinian refugees to return to their homeland.’”Footnote 45 For its part, UNRWA expressed dismay at the U.S. decision and the perceived purpose underlying it. Its Commissioner-General, Pierre Krähenbühl, described the U.S. decision to cease funding as “an evident politicization of humanitarian aid” that “risks undermining the foundations of the international multi-lateral and humanitarian systems.”Footnote 46
