International courts and contested statehood: The ICJ and ICC in Palestine

Ambiguous and contested statehood under general international law can become a pretext for denying the reach and enforceability of specific treaty-based norms. This article explores how the ICJ and ICC have addressed this challenge through functional applications of their respective constitutive treaties. The first part highlights some of the difficulties posed by quasi-states, de facto states, and state-like entities for international law, and the ways the ICJ and ICC have dealt with such issues according to the parameters of their mandates. The second part investigates how these two international courts have asserted the object and purpose of their respective constitutive treaties in relation to Palestine. Proceeding on a basis of agnosticism as to whether Palestine is a state under general international law, this article argues that neither court is tasked to resolve complex questions of international law of statehood: this falls outside the boundaries of their respective mandates, and is evidenced in their jurisprudence to date. In Wall the ICJ discharged its advisory function as requested by the UNGA, which did not require a determination of statehood; no conclusions can yet be drawn in relation to ICJ jurisdiction in contentious proceedings (at the time of writing Palestine v USA is in its infancy). In Situation in Palestine the Pre-Trial Chamber confirmed the ICC’s territorial jurisdiction regardless of Palestine’s status under general international law, because Palestine’s accession to the Rome Statute had followed the correct and ordinary procedure. The implication of becoming a State Party, therefore, is that treaty provisions apply to Palestine in the same manner as any other State Party.