Monday, 25 January 2010

Spreading the jam

The paper on whether the Palestinian Authority can accept the jurisdiction of the International Criminal Court has stimulated a thoughtful and interesting reply from Dov Jacobs:


Harlan said...

A number of the members of the Assembly of State Parties to the Rome Statute have formally accepted the personality of Palestine "with all the rights and duties of statehood as determined by international law". The Montevideo Convention reflects the belief of states that, even before a State is recognized, it has the right to determine the jurisdiction and competence of its courts. Under international law, a state is an entity that engages in, or has the competence to engage in foreign relations. It does not cease to be a state because it voluntarily turns over to another entity, like the PLO, control of its foreign relations. See for example § 201 e., Restatement (Third) of the Foreign Relations Law of the United States.

A very similar situation occurred when Syria proposed that an advisory opinion be obtained from the ICJ regarding Israel's statehood. Abba Eban said "the theory that the Charter forbids acts of aggression only against States is utterly without foundation. Indeed, neither Chapter VI nor Chapter VII, in defining threats to the peace or acts of aggression, shows the slightest interest in the juridical status of the victim. The word "State" does not occur in either of those chapters. There is no provision whatever that the attacked party must be universally recognized as a State before an armed attack upon it can be determined as an act of aggression. ... ..."The act of determining whether a certain political unit is a State or not is known in international law as an act of recognition; and under the Charter, no Member State has surrendered to the United Nations or to any organ thereof its unlimited sovereignty to regard a political unit as a State. Article 2, paragraph 4, of the Charter forbids the use of force not only if it is directed against the integrity of a State but also if it is used "in any other manner inconsistent with the purpose of the United Nations". See the minutes of the 340th meeting of the UN Security Council, S/PV.340, 27 July 1948, page 12

Harlan said...

The practice of the Security Council in connection with Israel suggests that doubtful territorial situations should not effect the rights or status of the inhabitants of a territory "it is impossible to disregard a strange theory advanced here by the representative of Syria and supported, if I am not mistaken, by the representative of France. The substance of that theory is that inasmuch as the territory and frontiers of the State of Israel and its right of existence are contested by some of its neighbor States, the State of Israel does not exist as a sovereign State and cannot be recognized as such. That theory is not only strange but also dangerous. It is reminiscent of the "theories" which, as we all know, were once upon a time preached by the fascist aggressors who claimed world mastery. According to those theories, it was enough for Hitlerite Germany to cast doubt on the existence of one of its neighbor States for that State to cease to exist, and for its territory to be seized and absorbed into the territory of Hitlerite Germany. Such claims were made by the fascist aggressors in respect of Austria, Czechoslovakia and a number of other European countries, including France. In that connection, all kinds of expansionist theories were advanced concerning the inferiority of the people of certain countries, and were used as justification for seizing those countries. History has given the lie to all such wild theories and their authors have paid a cruel price for their aggressive plans."
-- Mr. Yakov A. Malik, the 386th meeting of the UN Security Council, S/PV.386, 17 December 1948, pages 12-13