To Be or not to be a Party …
It took two lengthy sessions of the Administrative Council of the Permanent Court of Arbitration (‘PCA’ ) before it decided, on March 14, 2016, to confirm that the ‘State of Palestine’ is a contracting party to the 1907 Hague Convention for the Pacific Settlement of International Disputes (‘1907 Convention’) and hence also a member of the PCA. The decision was made by vote, for the first time in the long history of the PCA, with 54 states voting in favor and 25 abstentions. Notably, the parallel accession of Kosovo is still ‘under review’. This development raises a whole set of legal issues ranging from the role of the depositary in situations of contested statehood, to issues of treaty interpretation, as well as finally the legal consequences of Palestine now having become a member of the PCA.
In order to understand the legal implications of the decision, it is necessary to recall some of the most important steps that led to its adoption. Both Palestine and Kosovo, had within a short space of time (namely on 30 October 2015 (Palestine) and on 6 November 2015 (Kosovo)), submitted their accessions to the 1907 Convention. These accessions were acknowledged by the depositary, the Dutch government, on 17 November 2015 on its depositary website. The website also indicated that the said Convention would enter into force for Palestine on 29 December 2015 and for Kosovo on 5 January 2016, a move that was (somewhat prematurely, as we will see) welcomed by the Kosovo Ministry of Foreign Affairs. Upon the request of Serbia, the Administrative Council of the PCA then met on January 4, 2016, i.e. just one day before the Kosovar accession was supposed to become effective, and decided to keep the situations of Kosovo and Palestine ‘under review’, which in turn led the Depositary to ‘strike out’ the accessions of Palestine and Kosovo, with both of them then listed in the following manner:
“Parties (5 January 2016):
Party Ratification Entry into force
Kosovo 06-11-2015 (T) 05-01-2016
Palestine 30-10-2015 (T) 29-12-2015 ”
This in turn then led to a request by a group of Arab States for yet another urgent meeting of the Administrative Council of the PCA. This meeting was supposed to deal with the status of Palestine vis-à-vis the 1907 Convention, given that by the time the above-mentioned decision of January 4, 2016 had been made to keep the situations of Kosovo and Palestine ‘under review’, Palestine had already become a contracting party of the Convention with effect from December 29, 2015. Hence, the action by the depositary had amounted, as far as Palestine was concerned, to a de facto suspension of a pre-existing treaty membership.
After an inconclusive meeting of the Administrative Council of the PCA was held on January 9, 2016, the Council, at a renewed meeting on January 14, 2016, “[took] note that the State of Palestine is a Contracting Party to the 1907 (…) Convention (…) and a Member of the Permanent Court of Arbitration”. That decision was reached with the above-mentioned majority of 54: 0: 25 votes, with inter alia Canada and Israel abstaining, while the United States had withdrawn from the meeting prior to the vote. It is also worth noting that in this decision, the PCA’s Administrative Council inter alia considered “(…) that Palestine is an observer State recognized by the United Nations (…) and is a member of many treaties and international organizations”. Since then, the website of the depositary lists Palestine as follows:
“Parties (14 March 2016)
Party Ratification Entry into force
Palestine 30-10-2015 (T) 29-12-2015”
However, the purported accession by Kosovo to the 1907 Convention continues to be ‘under review’ pending a possible further decision by the PCA’s Administrative Council on the matter. In other words, ‘Kosovo’ continues to be stricken out the list of contracting parties.
Role of the Depositary
Art. 77 para. 2 of the Vienna Convention on the Law of Treaties (which has codified customary law on the matter) provides that: “In the event of any difference appearing between a State and the depositary as to the performance of the latter’s functions, the depositary shall bring the question to the attention of the signatory States and the contracting States or, where appropriate, of the competent organ of the international organization concerned.” In the case at hand, it is submitted that the PCA, set up under the two 1899 and 1907 Hague Conventions, constitutes such an organ. Accordingly, once it had become obvious that several contracting parties considered either Palestine or Kosovo not to be eligible for treaty membership, the Dutch government as depositary, and as simultaneously holding the presidency of the PCA’s Administrative Council, should have propio motu raised the matter within the framework of that PCA’s Council, instead of simply notifying the other contracting parties of the respective accessions by Palestine and Kosovo and their alleged coming into effect, or by merely publishing objections raised against those accessions by a number of States parties. Raising the matter within the framework of the PCA’s Administrative Council would have also enabled the contracting parties of the 1899/1907 Conventions to decide on the matter right from the beginning, as they have now done with regard to Palestine, be it only ex post facto.
Preconditions for Accession to the 1907 Convention
Unlike more recent treaties, the 1907 Convention does not contain the well-known ‘Vienna Formula’, nor the ‘all States’ accession formula (on these formulas and their application to Palestine see ). Rather, Art. 94 of the 1907 Convention provides that “[t]he conditions on which the Powers which have not been invited to the Second Peace Conference may adhere to the present Convention shall form the subject of a subsequent Agreement between the Contracting Powers.” It is first worth noting that the (only) authoritative French text of the 1907 Convention refers to the necessity “d’une entente ultérieure entre les Puissances contractantes” rather than to ‘a subsequent agreement‘ (and even less an Agreement with a capital ‘A’), since otherwise the French text ought to have also referred to “un accord ultérieur” as, for example, Art. 31(3)(a) VCLT does.
Such ‘entente ulterieure’ was reached in December 1959 when the contracting parties of the PCA considered the situation of States, members of the United Nations, which were not yet participating in the PCA’s activities and decided unanimously “(. . .) to request the Government of the Netherlands (…) to approach the High Contracting Parties in order to seek their approval for the issuing of an invitation to the Governments of States Members of the United Nations which do not yet participate in the Court (…)” (cf. Rapport du Conseil administratif de la Cour pour 1960, p. 5). Indeed, the United Nations has taken the position that this decision of the Administrative Council of the PCA of 1959 has the legal force of a ‘subsequent agreement’ provided for in Art. 94 of the 1907 Convention so as to enable States which had not been represented at, or invited to, the Peace Conference to deposit their instruments of accession, and thereby become Parties to the 1899/1907 Conventions (cf. United Nations, Codification Division of the Office of Legal Affairs of the United Nations Secretariat, The Succession of States to multilateral treaties – Studies prepared by the Secretariat, UN Doc. A/CN.4/200 & Corr.1 and Add.1 & 2, para. 121, p. 30- 31.)
It stands to reason, however, that the mere membership in a specialized agency (i.e. in the case at hand that of Palestine in UNESCO) is not to be considered sufficient, especially since a proposal to introduce the system underlying the ‘Vienna Formula’ into the practice under the 1907 Convention, submitted by the United States during a meeting of the PCA’s Administrative Council of 27 April 1961, was withdrawn after it had not gathered sufficient support.
On the other hand, it seems to be at least arguable, that the PCA’s Administrative Council, as it has now done in its decision regarding Palestinian accession to the 1907 Convention, may take into account an acceding entity having been accepted as an observer State by the United Nations General Assembly. Indeed, it seems that the overall object and purpose of the 1960 ‘entente ultéirieure’ of the contracting parties of the 1907 Convention had been to accept additional contracting parties provided they were perceived by the international community at large as States. This perception is also evident in the grant of observer States status within the system of the United Nations. At the same time, requiring formal membership within the United Nations would subject the accession of additional States to the 1907 Convention (via the requirement of admission to the United Nations as such) to the veto of the five permanent members of the Security Council, which is hardly reconcilable with the content and purpose of the 1960 decision mentioned above.
Accordingly, even where an entity (such as Kosovo) is a member of one or more of the specialized agencies (such as in the case of Kosovo the IMF and the World Bank), but not an observer State within the United Nations, there continues to be a necessity for an ad hoc agreement among all member States of the PCA for their admission to the 1899/ 1907 Conventions.
In any event, the decision by the PCA’s Administrative Council is somewhat more of a technical nature in that is refers, for one, to the fact that by the time the accessions by both Palestine and Kosovo were put ‘under review’ (i.e. on January 4, 2016), the accession by Palestine (unlike the one by Kosovo) had already become effective on 29 December 2015. What is more is that, as the decision also mentions, the said meeting’s agenda had only provided for Serbia’s proposal to suspend Kosovo’s accession to the Convention, while the agenda did not deal with the status of Palestine vis-à-vis the 1907 Convention. Accordingly, under Art. V of the PCA’s Administrative Council Rules of Procedure, which provides that no decision may be taken outside the Council’s agenda, the decision of January 4, 2016 to also keep the accession by Palestine under review was beyond the Council’s agenda, and hence ultra vires.
Palestine, the 1907 Convention and beyond
The fact that the legal status of Palestine vis-à-vis the 1907 Convention has now been settled does not give rise to major implications, given that, as is well-known, the 1907 Convention does not provide for any kind of compulsory jurisdiction for the ‘Permanent Court of Arbitration’ set up under its auspices. The accession constitutes, however, a building block towards recognition of Palestinian statehood by the international community with ensuing rights, such as, inter alia, the right to constitute a National Group under Art. 44 of the 1907 Convention. Besides, the accession ought to be taken as a general sign of willingness by Palestine, to submit disputes that may arise in the future (or, to state the obvious, that currently exist as far as Palestine is concerned) to the methods for the peaceful settlement of disputes provided for in the 1907 Convention.
Finally, it would seem that the next logical step for Palestine, having thus by now entered the Small Hall of Justice of the Peace Palace, would be to secure entrance to its Great Hall of Justice. Given the formal requirements of becoming a full member of the ICJ Statute (i.e. the necessity of a recommendation by the Security Council subject to the veto of its permanent members under either Art. 4 para. 2, or under 93 para. 2 UN Charter), the only option would be to submit a declaration under Security Council resolution 9 (1946) of 15 October 1946, while by the same token accepting the Court’s jurisdiction under those treaties which Palestine has so far become a contracting party of – or will in the future – which contain a compromissory clause referring to the ICJ.
Post amended to reflect that Kosovo is a member of 2 UN Specialised Agencies.