Last week, the UN General Assembly voted by 138 to 9 (with 41 abstaining) “to accord to Palestine non-member observer State status in the United Nations”. Thus, Palestine which has been an observer at the UN since 1974 has had its status within the UN upgraded to being an observer State. There has been much euphoria on one side as a result of this decision, and dismay on the other side. However, what are the implications, if any, of this decision. It is thought that one reason why Israel opposed the change, though it asserts that the decision achieves nothing, is that characterising the Palestinian as an observer State would give Palestine access to legal, particularly judicial, remedies that it otherwise would not have (see BBC Q & A report here). It was reported that the United Kingdom, which in the end abstained from voting, was prepared to vote in favour of the resolution, if Palestine had been prepared to pledge not to ratify the Rome Statute of the ICC or to seek to utilise the International Court of Justice. So though the granting of observer Status does not change “the facts on the ground”, it is thought that it would change the legal position of Palestine under international law. But does it? Are there new legal options open to Palestine as a result of the resolution and does the resolution constitute Palestine as a State?
Any student of international law will be familiar with the debate between the declaratory theory of recognition of States and the constitutive theory. Theory, practice and judicial decisions favour the declaratory theory and assert that recognition does not create Statehood. Although last week’s decision does not grant Palestine membership of the UN (which would require Security Council approval), the decision to grant observer State status to Palestine is an act of collective recognition of the statehood of Palestine. If that decision is capable of effecting the legal changes hoped for (by proponents) or feared (by those oppose the decision), this will provide strong support to the view that collective recognition is capable of creating Statehood.
Palestine and the ICC
Does the grant by the General Assembly of observer State status to Palestine mean that it is now possible for Palestine to ratify the ICC Statute? The short answer to this question is yes. However, the longer answer is that Palestine could have ratified the Statute prior to the General Assembly decision. As readers will recall, Palestine made a declaration in January 2009 recognising the jurisdiction of the ICC under Article 12(3) of the ICC Statute which applies to States not party to the Rome Statute. The ICC Prosecutor decided in April that it was not for him to decide on the validity of the Palestinian declaration but that it was up to the UN Secretary General to make the determination whether Palestine was a State that could make the Art. 12(3) declaration or that could ratify the Statute (see my previous post criticising the Prosecutor’s decision as well as Bill Schabas’ post on his blog). Past practice on whether an entity fails within the terms of a treaty provision that says that “all States” are entitled to ratify that treaty indicates that the Secretary General will consider an entity to be a State where it falls within the “Vienna formula” or where the General Assembly indicates to the SG that it considers the entity a State (see Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties, ST/LEG/7/Rev. 1, para 81, and the Opinion of the UN Legal Counsel of Feb. 1974) . The General Assembly decision that Palestine is an observer State will be sufficient indication to the SG that Palestine is a State and on that basis it is clear that Palestine can ratify the Rome Statute.
However, even prior to last week, Palestine fell within the Vienna formula and would have been regarded as entitled to ratify the Rome Statute. The Vienna formula indicates that an entity is to be regarded as a State entitled to ratify treaties open to all States, where that entity is a member of the UN or a UN specialised agency (or the International Atomic Energy Agency) or where it is a party to the Statute of the International Court of Justice. Palestine was already a member of one UN agency – UNESCO (see here) . In the past, the SG has been prepared to accept membership of a UN specialised agency as indicating that an entity is a State since the membership of such agencies is similar to membership of the UN General Assembly. Thus, acceptance of an entity as a State member of such an agency means that the entity is likely to be regarded as a State by the General Assembly and the SG need not look for actual General Assembly approval.
Palestine and the ICJ
As with the ICC, the recognition by the GA of observer State status to Palestine also makes it clear that Palestine can ratify the Statute of the International Court of Justice. However, as with the ICC, Palestine was able to ratify the ICJ Statute prior to this decision. Although the ICJ Statute is annexed to the UN Charter and membership of the UN automatically constitutes a State as a party to the ICJ Statute, a State can become a party to the Statute without becoming a party to the UN Charter. Many States became parties to the Statute before becoming members of the UN (eg, Switzerland, Nauru, Italy).
It is also important to remember that it is not just parties to the Statute of the ICJ that are entitled to use the Court. Art. 35(2) of the ICJ Statute provides that Court is open to States not party to the Statute, but only on conditions laid down by the Security Council. So Palestine can use the Court if it fulfil conditions laid down by the Council. Rather than laying down conditions for use by non-parties on a case by case basis, the Council has in SC Res
6 9(1946) [typo corrected] laid down general conditions that must be met by the non-party. So Palestine would not need to get specific council authorization to use the ICJ. Under SC Res. 6, the ICJ is open to a State not party to the Statute, if it has:
“ . . . deposited with the Registrar of the Court a declaration by which it accepts the jurisdiction of the Court, in accordance with the Charter of the United Nations and with the terms and subject to the conditions of the Statute and Rules of the Court, and undertakes to comply in good faith with the decision or decisions of the Court and to accept all the obligations of a Member of the United Nations under Article 94 of the Charter.”
According to paragraph 2 of that resolution, a declaration by a non-State party accepting the jurisdiction of the ICJ may either be particular (dealing with particular disputes) or general (dealing with all disputes or classes of disputes). A general declaration may be made as under Art. 36(2) of the ICJ Statute (the optional clause providing for compulsory jurisdiction) but such a declaration may not be relied on vis-à-vis parties to the ICJ Statute.
In short Art. 35(2) of the ICJ Statute and the conditions laid down by the SC are analogous to the declaration Palestine has made under Art. 12(3) of the ICC Statute.
However, saying that Palestine can use the ICJ does not mean that it can use it with respect to (or against?) Israel. For there to be a case between Palestine and Israel at the ICJ, there would still need to be a specific basis for jurisdiction. Israel does not accept the compulsory jurisdiction of the ICJ so the only way in which Palestine could initiate a case against Israel would be were there was a special agreement between the two to go to the ICJ by special agreement (hardly likely at the moment) or where some other treaty to which both are party gives the ICJ jurisdiction. So in addition to ratifying the ICJ Statute or making the declaration called for under SC Res. 6, Palestine would need to ratify a treaty to which Israel was party which also gave the ICJ jurisdiction. It is not clear what treaties would fall within that category.
The UN and Collective Recognition
Thinking more broadly than the position of Palestine before the ICC and the ICJ, one question that is raised by the recent action of General Assembly is whether Palestine should now be regarded, under international law, as a State for all questions for which that is relevant. The declaratory theory of recognition posits that recognition is at best declaratory of an existing Statehood and is neither required for the creation of, nor does it constitute Statehood. Under this theory, what is required for Statehood is the fulfilment of objective criteria for Statehood, under the Montevideo Convention and perhaps also under additional legal criteria. The declaratory theory of recognition is generally to be preferred (and is generally preferred) to its rival, the constitutive theory. However, acceptance of the declaratory theory should not be taken to mean that recognition is never constitutive. A distinction should be drawn between individual recognition and collective recognition.
Collective recognition, particularly collective recognition adopted within the institutional framework of the UN can have a constitutive effect (as explained in this recent paper by my Oxford colleague Jure Vidmar). For one thing, as has already been examined above, such collective recognition can have important constitutive effects within international institutions such that an entity that is collectively recognised is then treated as a State within international institutions where questions of statehood are relevant. Indeed one may argue that collective recognition should be constitutive because it amounts to a waiver by the international community of defects which may otherwise exist in claims of Statehood. In addition, it is a mechanism by which the international community can give effect to important community values that may affect claims of Statehood. For example, collective recognition of an entity that possesses the right to self-determination but does not possess an effective government or whose independence is in doubt, may be seen as a way of giving effect to the importance of the self-determination claim over and above the claims of effectiveness.
So, there are good reasons for arguing that Palestine is indeed a State under international law because of collective recognition. However, again this is not to say that it is the GA action which necessarily brought this about – the UNESCO vote was also an act of collective recognition. Also, Palestine was already recognised by 132 states before the GA vote. For now, I am unsure about whether to regard collective recognition on the basis of an aggregate of individual recognitions as the same as a single concerted act of collective recognition. I have also left unclear precisely what we should regard as collective recognition. However, I would suggest that where only 9 States oppose the act of recognition, we have collective recognition even though over 40 abstained.