A top international law expert has warned Australia could face legal action in The Hague if it went ahead with moving its Israel embassy to Jerusalem, as Prime Minister Scott Morrison doubles down on the potential foreign policy shift.
The Palestinian Authority has already filed a suit with the International Court of Justice against the United States after President Donald Trump shifted his country’s embassy to Jerusalem, whose territorial status remains unresolved in the long-running Israeli-Palestinian conflict.
Don Rothwell, a professor of international law at the Australian National University, told Fairfax Media Australia could face a similar case as a signatory to the Vienna Convention on Diplomatic Relations, on which the Palestinian case against the US rests.
“Based on the precedent of its legal claim against the US, Palestine would also no doubt be considering commencing proceedings in the International Court of Justice if the Australian embassy in Israel was relocated to Jerusalem,” Professor Rothwell said.
Mr Morrison announced four days ahead of the Wentworth byelection he would consider following Mr Trump’s move by shifting Australia’s embassy to Jerusalem and would also review Australia’s support for the Obama-era Iran nuclear deal, from which the US has withdrawn.
Mr Morrison’s announcement was seen as targeting the Jewish community, which makes up 12.5 percent of Wentworth.
Former prime minister Malcolm Turnbull took a thinly veiled swipe at Mr Morrison’s announcement on Monday, saying it could prompt a “very negative reaction” in Indonesia. He said the “very careful and considered advice” he had received as prime minister was to keep Australia’s decades-old policy as it was.
Asked about those comments, Mr Morrison said Australia would “always make our decisions on our foreign policy based on our interests”.
“We’ll do that as a sovereign nation. We’ll consult and we’ll listen to others, but at the end of the day Australia will always make decisions about our foreign policy on our terms and in our interests,” he said.
He declined to explain how the review of Australia’s Jerusalem position would proceed. Last week, a Senate estimates hearing was told that no public servants were consulted before the decision was taken by senior ministers.
Professor Rothwell said that the Palestinian claim in the International Court of Justice was no sure bet because it relied on interpreting the language of the Vienna convention.
“I think the general view would be that the claim is ambitious,” he said. “You might want to describe it as a test case.”
The Palestinian claim against the US rests on the argument that the Vienna convention makes it clear a country can only place an embassy on the recognised territory of the host nation.
Because Jerusalem is not resolved under United Nations Security Council resolutions or international law, the US cannot place its embassy there, they argue.
The convention does not explicitly state as a standalone provision that an embassy must be on recognised territory of a host nation, but the Palestinians argue it makes repeated reference to “diplomatic missions” such as embassies and consulates being “in the receiving state” and being “on its territory”.
“They’re relying upon provisions which require some level of interpretation for their argument to be successful,” Professor Rothwell said.
Australia is also a signatory to an “optional protocol” to the Vienna convention that means disputes must be settled by the ICJ, which is the United Nations’ highest court.
“This is as high as it can get in terms of formal, legal dispute settlement in international law,” Professor Rothwell said.