Palestine as a UN Observer State: Does this Make Palestine a State?

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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.

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    Comments

    Mihai Martoiu Ticu says

    December 3, 2012

    Francis Boyle suggested also other legal choices for the Palestinians:

    “Palestine can join the Law of the Sea Convention and get its fair share of the enormous gas fields lying off the coast of Gaza, thus becoming economically self-sufficient;
    “Palestine can become a High Contracting Party to the Four Geneva Conventions [this deals with the laws of war];
    "Palestine can join the International Civil Aviation Organization and gain sovereign, legal control over its own airspace;
    “Palestine can join the International Telecommunications Union and gain sovereign legal control over its own airwaves, phone lines, bandwidths.”

    Calin Stefan says

    December 3, 2012

    Unfortunately, logic demands for things to function the other way around.

    Thus, one state enters a convention because it agrees to take a certain attitude regarding some aspect of the exercise of its attributes (i.e. sovereignity). Thus, it is nonsence to pretend that an entity may gain sovereignity by entering an agreement with other states. We may live in an haegemonical world but we're not at that moment (maybe not quite yet).

    For example, that 1982 UN Law of the Sea Convention that you mentioned is an agreement between states and not an entity whith sovereignity over something. Even if, let's say, that would be right (which is absurd), Israel is not a signing country and even if it were it could simply withdraw from the convention and thus not be bound by it.

    Unfortunately, these problems presently have no legal solution. As the author of this article said, there has to be political will from both countries to be able to invest an entity such as the ICJ to judge a dispute and even then, the enforcement of such a decision could be problematic at best.

    Henry Kite says

    December 3, 2012

    I deeply resent the fact that the journal hasn't commented on the recent judgement about the Territorial and Maritime Dispute between Nicargua and Colombia.

    Hope to read anything soon...

    Jacques Hartmann says

    December 3, 2012

    Dear Dapo,

    Thanks for an excellent post. I had a quick look at the statements made in connection with the above-mentioned vote and noted that several States distinguished their vote on non-member observer State status from official recognition.

    Switzerland said: “Bilateral recognition, however, depended on future negotiations.”

    Belgium said: “The resolution was not recognition of a State in full terms”

    Denmark noted that: “Denmark’s vote today was not formal bilateral recognition of a sovereign Palestinian State.”

    New Zealand said that: “the question of recognition of a Palestinian State was a separate issue.”

    Finland stressed that: “the Assembly’s vote did not entail a formal recognition of a Palestinian State.”

    These statements might seem like a self-contradiction, as they voted “to accord to Palestine non-member observer State status”. Nonetheless, these States clearly do not recognize Palestine. They are, moreover, all parties to the ICC Statute and they might therefore have something to say about Palestine’s ratification of the ICC Statute. As the Permanent Court said, “it is an established principle that the right of giving an authoritative interpretation of a legal rule belongs solely to the person or body who has power to modify or suppress it…” (Jaworzina Advisory Opinion, p. 32)

    Jacques Hartmann says

    December 3, 2012

    You can find the statements here:

    www.un.org/News/Press/docs//2012/ga11317.doc.htm

    Hostage says

    December 4, 2012

    The Vienna Convention on the Law of Treaties isn't just a formula that the Secretary General alone is bound to respect.

    The State Parties to that multilateral agreement have accepted an obligation to treat members of UN specialized agencies as States capable of concluding treaties. The Convention provides that a) members of UN agencies belong to one of the four categories of states that are invited to become parties to the Convention (Articles 81 and 83); b) that every State possesses capacity to conclude treaties (Article 6); and c) The terms of the Convention on the Law of Treaties applies to any treaty which is the constituent instrument of an international organization (e.g. the Rome Statute of the International Criminal Court) and to any treaty adopted within an international organization without prejudice to any relevant rules of the organization (Article 5).

    The State Parties have agreed to accepted similar unambiguous obligations towards members of the same categories of states by inviting them to file accessions to the Vienna Convention on Consular Relations (Articles 74 and 76) and the Vienna Convention on Diplomatic Relations (Articles 48 and 50). Once the Secretary notifies the other parties about an accession to those multilateral agreements by the new state party, their international obligations towards Palestine would be engaged - regardless of their preference for declaratory or constitutive recognition.

    The Rome Statute is open for accession by all states and the State Parties have agreed to permit non-member states the right to accept the jurisdiction of the Court by filing a declaration in accordance with Article 12(3).

    In any event, Article 98 of the Rome Statute has always obliged the Court to respect international agreements between its members and third states. That would include Palestine, unless of course, the Court agrees to accept its Article 12(3) declaration. At one time the Registrar had advised the Palestinians that their declaration had triggered the responsibilities of a state party to cooperate with the Court under Part 9 of the Statute, pending a decision by the Judges.

    The League of Arab States provided the former Prosecutor an exhibit which listed relevant treaties in force between Palestine and its members, including Jordan, Comoros, Tunisia, and Djibouti on a variety of subjects. http://uclalawforum.com/media/background/gaza/2009-10-14_League_of_Arab_States-Documents_(English).pdf

    Several of those agreements might be relevant to surrender and extradition of persons suspected of committing the acts of terror described in the Goldstone report, e.g. Arab Anti-Terrorism Agreement, 22/04/1998 signed by the Councils of the Arab Justice and Interior Ministers. There are other treaties that deal with the subject of diplomatic privileges and immunity. There are similar agreements with the OIC states and Palestine.

    Those treaties were in full force and effect before the ICC came into existence. It seems obvious that any "third state" for the purposes of Article 98 of the Rome Statute must necessarily be treated as a "state" for the purposes of Article 12(3).

    Dapo Akande says

    December 4, 2012

    Jacques,

    Many thanks for your comment. You are right to point that out that some of the States that voted for the UN Gen. Assembly resolution also noted that their vote did not amount to full recognition or bilateral recognition of Palestine. As you say, this seems to be a contradiction of their vote.

    However, it is important to remember that "recognition" (of Statehood) means a number of different things. It might mean the acceptance by one State of the Statehood of another entity. However, as Ian Brownlie reminded us in his article ‘Recognition in Theory and Practice’ (1982) 53 British Yb Int. L 197 we need to distinguish the public political act of recognition from the acceptance by a State of Statehood of another entity. The former refers to a public proclamation of Statehood usually coupled with a willingness to enter into diplomatic relations and to accord the privileges of Statehood in diplomatic practice and domestic law. However, failure to accord this recognition does not mean that the entity is not accepted as a State in legal terms.

    As I see it, all that the States you refer to were saying was their votes did not mean that they were going to give that public political act of recognition and did not mean they would be entering into bilateral diplomatic relations with Palestine. However, the vote cannot be regarded as anything other than an acceptance of the Statehood of Palestine since the vote indicates that they accept Palestine is to be regarded as an Observer State. So, the apparent contradiction is apparent only and does not exist in reality.

    You say that the states you refer to might well have something to say about Palestinian ratification of the ICC Statute. Alas their say won't be decisive. In the first place, it is the UN Sec Gen that will make that decision and in the final analysis the judges of the ICC. In any event, these States were all well aware that their vote to grant observer State status to Palestine was provided further ammunition to any argument that Palestine could ratify the ICC Statute. Afterall, these arguments were not hidden and some States like the UK abstained precisely because of this issue.

    Despite what I have said in the post, it is not clear to me that Palestine would ratify the ICC Statute soon. They have refrained from doing so thus far and I suspect that they will continue to refrain from doing so for the time being.

    Dapo Akande says

    December 4, 2012

    Hostage,

    I should have noted that the "Vienna formula", I refer to comes from Articles 81 and 82 of the Vienna Convention on the Law of Treaties. I suppose your argument is that the VCLT provides that all States within the Vienna formula are entitled to become party to the VCLT, and also states that all States have the capacity to become parties to treaties (Art. 6), therefore the definition of "States" that are entitled to become parties to treaties must include those States provided for in the Vienna formula.

    Hostage says

    December 4, 2012

    Dapo,

    The point that I was making is related to your comment to Jacques. The State Parties to VCLT have agreed to treat members of UNESCO as States that can conclude a number of treaties, although they may not opt to establish full diplomatic relations. In the case of the Conventions on Consular and Diplomatic Relations, if Palestine filed an accession, the international obligations of the other State Parties would be engaged, but it still might result in situations like Avena and Other Mexican Nationals
    (Mexico v. United States of America).

    The State Parties to the Rome Statute have also agreed that the Court which they created is obliged to respect their individual treaties with third states, like the Arab League and OIC treaties with Palestine. It follows that they have also granted those third states the right to accept the jurisdiction of the Court, although a third state might not opt to become a state party and pay dues for the privilege of having their situation neglected by the Prosecutor.

    I believe that the rules of the VCLT apply to the constituent document of the ICC and that it contains no other procedures or criteria that would automatically debar the Court from acting on Palestine's Article 12(3) declaration. The UN Charter for example, does not allow parties to the VCLT to automatically become members without a recommendation from the Security Council and the approval of the General Assembly. Countries are not required to explain their votes on membership, and could conceivably act to deny membership to an entity they considered to be a State on the grounds that it might not fulfill its Charter obligations or because it was not considered "peace loving" enough.

    R.Oribatz says

    December 5, 2012

    Dear Dapo, I thank you for an enlightening post. I have also read with great interest the comments made by Jacques Hartmann, and your response to it. While I agree with you that recognition in international law has several meanings, I am not quite sure that those statements quoted by Jacques refer only to recognition in the bilateral sense. It is arguably the case of Switzerland and Denmark, who explicitly refer to bilateral recognition. However, other statements referred to by Jacques could be interpreted both ways. In this context, I would also like to draw attention to other statements made by states explaining their vote that more clearly indicate States' reservations as to the actual meaning of the GA's resolution, and its lack of influence on the question of Palestinian statehood under international law:

    • France (voted "yes")- This vision of two States for two peoples remains to be translated into reality. The international recognition granted today by this Assembly for the project of a Palestinian state can become a reality only within the framework of a just and comprehensive peace, a peace settlement that fulfills the legitimate aspirations of Israel and Palestine.
    • Bulgaria (abstained)- It is our firm understanding that peace in the region and the establishment of a sovereign and democratic Palestinian state, co-existing in peace and security with Israel, is possible only through the resumption of direct negotiations between the two parties
    • Romania (abstained)- the adopted resolution is not facilitating the recognition of Palestine as a state nor its accession to international organisations and treaties.
    • Greece (voted "yes")- Greece believes that the inalienable and non negotiable right of the Palestinian people to statehood can be fulfilled through a result-oriented Peace Process and direct negotiations between the two parties on all final status issues.
    • Australia (abstained)- The resolution does not confer statehood – it grants non-member Observer State status to the Palestinian Authority in the United Nations… But our support for a future Palestinian state, achieved through negotiations remains steadfast, as does our support for Israel’s legitimacy and right to security.
    • UK (abstained)- Palestine will be a non-member Observer State in the United Nations from this date onwards. But this does not change the situation on the ground. The only way to give the Palestinian people the state that they need and deserve, and to give the Israeli people the security and peace that they are entitled to, is through a negotiated two-state solution.
    • New Zealand (voted "yes")- This Resolution is a political symbol of the United Nations' commitment to a two-state solution;
    • Germany (abstained)- Yet it must be clear to everybody: a Palestinian state can only be achieved through direct negotiations between Israelis and Palestinians.
    • US (opposed)- This resolution does not establish that Palestine is a state.

    These statements, spanning not only states opposing or abstaining, but also states supporting the resolution, clarify the legal meaning that should be attributed to the resolution, or in this case, the lack of legal meaning to be attributed.

    Hostage says

    December 5, 2012

    R. Oribatz,

    In the Introduction to "The international law of recognition, with special reference to practice in Great Britain and the United States", Ti-chiang Chen pointed out that the practice of states to regard recognition as retroactive can only be explained by the fact that the entity in question has always had existence prior to the recognition, and independently of it.

    The international community of states, represented by the members of the UN Nations, have adopted objective criteria in their treaties on various subjects of public international law which stipulate that they are willing to accept and treat members of UN specialized agencies as states with the same rights and responsibilities as themselves under international law.

    It's uncertain whether or not an entity can ever become a state through bi-lateral negotiations with Israel. Entities can become states by exercising their rights and through the resulting operation of laws contained in the Charters of the UN and its various agencies, the Vienna Conventions, the Geneva Conventions, and the Rome Statute.

    Yousef Zeidan says

    December 6, 2012

    Hi Dapo,

    Thank you very much for such a great and comprehensive article.

    There is one mistake where I think it's important for readers to know. Regarding the ICJ and the Resolution of the Security Council regarding non-State parties, please note that was adopted in Resolution 9 and not 6.

    Source: http://www.un.org/ga/search/view_doc.asp?symbol=S/RES/9(1946)

    Yousef Zeidan says

    December 6, 2012

    Sorry to post again, but I believe an important piece of information is missing. While I agree that States falling under the well known Vienna formula, also fall under the All States formula, there has been a change in the interpretation of 'All States' since 14 December 1974, in so far as the Secretary-General is concerned, in his capacity as depository of multilateral treaties.

    At its 2202nd plenary meeting on 14 December 1973, the General Assembly, upon recommendation from the Sixth Committee (legal), decided, without objection that:

    "It is the understanding of the General Assembly that the Secretary-General, in discharging his functions as a depository of a convention with an 'all States' clause, will follow the practice of the General Assembly in implementing such a clause and, whenever advisable, will request the opinion of the General Assembly before receiving a signature or an instrument of ratification or accession."

    Now it can be argued that the past understanding and practice of the Secretary-General that collective recognition, like membership in a Specialized Agency, allows for a parallel understanding regarding Palestine becoming a member of UNESCO since 31 October 2011.

    But the decision of the Assembly on 14 December 1973 states clearly to follow the practice of the Assembly. It was nearly one year after this decision was adopted that the Palestine Liberation Organization obtained non-State observer status in the UN on 22 November 1974. Although the designation of the PLO changed to Palestine and Palestine received additional rights and privileges, Palestine still remained a non-State observer, at least as far as the UN and especially the General Assembly were concerned.

    It was not under 29 November 2012 that the Assembly finally recognized the Statehood of Palestine, resolution 67/19 established the practice of the Assembly that Palestine is indeed a State, and now the Secretary-General is bound by the '73 decision and it is only now that Palestine can accede to treaties and conventions under the 'all States' formula, like the Rome Statute, Statute of the ICJ or even the UN Convention on the Law of the Sea.

    Yousef Zeidan

    Legal Adviser of the State of Palestine
    to the United Nations

    Dapo Akande says

    December 6, 2012

    R Oribatz,

    Thank you for your comments. Although there is some ambiguity I do not think that the statements which indicate that a Palestinian State can only be created through direct negotiations with Israel should be regarded as a lack of recognition of Palestine. I think that all that these statements are saying is that an effective and independent Palestinian State will only come about through the direct negotiations with Israel. In short, the facts on the ground will only change with negotiations. However, I do not think this can be taken to mean that these States do not recognise Palestinian statehood as a matter of law. Not only is the resolution clear in referring to Palestine as a State, many of these States had already recognised Palestine even prior to the resolution.

    Dapo Akande says

    December 7, 2012

    Dear Yousef,

    Many thanks for your comments above. Thank you especially for correcting the error I made with regard to the Security Council resolution setting out conditions foruse of the ICJ by non-parties to the ICJ Statute. It is indeed Res. 9 and not 6 which I accidentally put. I have now corrected it.

    In your second post you seem to be suggesting that the effect of the decision of the General Assembly of 14 December 1973 (which you refer to) is that the UN Sec Gen has to wait for a decision of the GA in all cases before accepting instruments of ratification/accession in cases where the all States formula is used. However, it seems to me that the GA decision did not intend to require that the SG has to seek approval in each specific case. Furthermore, the practice that is contained in the Summary of SG practice that I referred to seems to indicate that where States fall within the Vienna formula, the SG is of the view that he does not need approval from the GA. He only requires GA approval in cases falling outside the Vienna formula. The relevant quotes are as follows:

    "81. In reply to questions raised in connection with the interpretation to be given to all States formula, the Secretary-General has on a number of occasions, stated that there are certain areas in the world whose status is not clear. If he were to receive an instrument of accession from any such area, he would be in a position of considerable difficulty unless the Assembly gave him explicit directives on the areas coming within the "any State" or "all States" formula. He would not wish to determine, on his own initiative, the highly political and controversial question of whether or not the areas whose status was unclear were States. Such a determination, he believed, would fall outside his competence. He therefore stated that when the "any State" or "all States" formula was adopted, he would be able to implement it only if the General Assembly provided him with the complete list of the States coming within the formula, other than those falling within the "Vienna formula", i.e. States that are Members of the United Nations or members of the specialized agencies, or Parties to the Statute of the International Court of Justice.

    82. This practice of the Secretary-General became fully established and was clearly set out in the understanding adopted by the General Assembly without objection at its 2202nd plenary meeting, on 14 December 1973, whereby "the Secretary-General, in discharging his functions as a depositary of a convention with an 'all States' clause, will follow the practice of the Assembly in implementing such a clause and, whenever advisable, will request the opinion of the Assembly before receiving a signature or an instrument of ratification or accession".

    83. The "practice of the General Assembly", referred to in the above-mentioned understanding is to be found in unequivocal indications from the Assembly that it considers a particular entity to be a State even though it does not fall within the "Vienna formula". Such indications are to be found in General Assembly resolutions, for example in resolutions 3067 (XXVIII) of 16 November 1973, in which the Assembly invited to the Third United Nations Conference on the Law of the Sea, in addition to States at that time coming within the long-established "Vienna formula", the "Republic of Guinea-Bissau, and the "Democratic Republic of Viet Nam", which were expressly designated in that resolution as "States"."

    These quotes seem to indicate that it is only where a State falls outside the Vienna formula that specific guidance is needed.

    In any event, the point of my post is that the current GA resolutions conclusively establishes the matter of whether Palestince can accede to treaties open to all States and I think we are agreed on that point.

    Yousef Zeidan says

    December 7, 2012

    Dapo,

    Yes, you are correct when the entity is only under the Vienna formula. But, in the case of Palestine, the GA always considered Palestine to be a non-State observer. Therefore, the SG could not consider Palestine a State, for the purposes of the all States formula. His guidance regarding the all States formula comes from the GA first, as per the 14 December 1973 decision by the GA.

    Had Palestine not been a non-State observer (decisions by the GA in resolutions 3210,3237, 43/177 and 52/250) when Palestine became a State Member of UNESCO, then indeed the SG would have followed the same decisions he made regarding the Cook Islands and Niue, respectively, accepting their participation in treaties or even conferences under the all States formula since they fell under the Vienna Formula.

    Palestine had a sui generis case. This is no more. This was one of the main reasons Palestine found it imperative to change its Status in the United Nations to avoid any and all arguments from the UN Office for Legal Affairs or the SG that they could not consider Palestine a State for the purpose of the all States formula.

    I would love to talk some more about future issues.

    Yousef

    R.Oribatz says

    December 9, 2012

    I agree with Yousef that the case of Palestine is a sui generis case. Looking at the Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties ('SG Practice'), however, it seems to me that the case of Palestine might remain a sui generis case even after the GA resolution of 29 November. None of the examples mentioned in the SG Practice involved a significant international controversy and serious doubts as to the entity's ability to fulfill the established conditions for statehood, as are inherent to the case of Palestine which has never controlled most of the territory that it claims (see e.g. the Report of the Committee of Security Council of November 2011).
    As mentioned in previous responses, numerous states have indicated their continuing reservations as to Palestinian statehood following the GA's resolution (although Dapo seems to disagree with my reading of some of these statements). Bearing in mind that the determination whether a certain entity qualifies as a 'State' for the purpose of joining treaties deposited with the SG is subject to a certain amount of discretion by the SG (as evident from the SG Practice), I wonder whether the SG would necessarily deem the resolution as providing "explicit directives on the areas coming within the 'any State' or 'all States' formula" or "unequivocal indication" from the GA that Palestine is a state capable of joining treaties (see SG Practice paras.81 and 83, respectively). The existence of binding agreements to which the PLO has committed itself, the UN role in supporting these agreements and the need for final status negotiations with Israel, the Security Council's doubts regarding the ability of the PLO to meet statehood criteria (see above), and the interests of peace may discourage the SG from viewing Palestine as an entity that qualifies for the 'all states' formula.

    Yousef Zeidan says

    December 10, 2012

    Dear R.Oribatz,

    I disagree that Palestine remains as a sui generis case.

    67/19 is an unequivocal indication from the GA that Palestine is a state, see operative paragraph 2, "Decides to accord to Palestine non-Member Observer State status in the UN..."

    67/19 answers any questions emanating from the 14 December 1973 decision by the GA: “It is the understanding of the General Assembly that the Secretary-General, in discharging his functions as a depository of a convention with an ‘all States’ clause, will follow the practice of the General Assembly in implementing such a clause and, whenever advisable, will request the opinion of the General Assembly before receiving a signature or an instrument of ratification or accession.”

    This is also in addition to the fact that Palestine is a State member of at least one specialized agency, UNESCO.

    The Secretary-General said this about the Holy See in 2004: "It should be noted that, as a State member of at least one specialized agency, the Holy See enjoys the same rights and privileges of participation as Member States in all meetings and conferences convened under the auspices of the United Nations which are open to all Member States of the United Nations and States members of the specialized agencies (“all States”)."

    On June 4 2012, Palestine participated as an Observer State in the 20th meeting of States Parties to the UN Convention on the Law of the Sea. Palestine's participation as an Observer State, since it was a member of at least one specilized agency, as stated, inter alia, in the rules of procedure:

    Rule 18:
    At the Meetings of States Parties, the following may participate as observers if they are not parties to the Convention:

    (a) States that have signed the Convention;
    (b) States Members of the United Nations or members of specialized agencies of the United Nations system or the International Atomic Energy Agency;
    (c) International organizations referred to in annex IX to the Convention;
    (d) Entities referred to in article 305, paragraph 1, subparagraphs (c), (d) and
    (e), of the Convention;
    (e) Observers at the Third United Nations Conference on the Law of the Sea who have signed the Final Act and who are not referred to in article 305, paragraph
    1 (c), (d), (e) or (f), of the Convention.

    It should be noted that this was prior to the adoption of 67/19 and the fact that the PLO signed the final act. In previous years, before Palestine became a State Member of UNESCO, it participated as an observer, seated at the end of observer States. In June 2012, it was seated between the observer States of Niger and Peru. Israel and the US are also observer States.