Relevant Depositary Practice of the Secretary-General and its Bearing on Palestinian Accession to the Rome Statute

Earlier this week, I posted a blog entry discussing possible accession by Palestine to the Rome Statute. Were Palestine to attempt accession, by depositing a document with the Secretary-General of the United Nations (who is depositary of the Rome Statute), the question of the Secretary-General’s reaction arises. I had dinner with Prof. Andrew Clapham in Geneva yesterday evening, who helpfully pointed me to the Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties.

The Summary of Practice discusses multilateral treaties open to ratification or accession by ‘all States’. This is the case for the Rome Statute of the International Criminal Court. Here is the relevant paragraph (references omitted).

2. The "all States formula"

81. Nevertheless, a number of treaties adopted by the General Assembly were open to participation by "all States" without further specifications (see, for example, the Convention on the Suppression and Punishment of the Crime of Apartheid and the Convention on the Prevention and Punishment of Crimes against Diplomatic Agents and Other Internationally Protected Persons). In reply to questions raised in connection with the interpretation to be given to the 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.

3. The practice of the General Assembly.

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. 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".

Thus, should the General Assembly recognize Palestine as a State in the coming weeks, the Secretary-General would be satisfied and would accept an accession by Palestine to the Rome Statute. The so-called ‘Vienna formula’ is derived from the Vienna Convention on the Law of Treaties, and allows participation by ‘all States Members of the United Nations or of any of the specialized agencies or of the International Atomic Energy Agency or Parties to the Statute of the International Court of Justice, and by any other State invited by the General Assembly of the United Nations to become a party to the Convention’. But this is not what the Rome Statute provides, so the Vienna formula is not relevant here.

It seems that even without General Assembly endorsement, the recognition of Palestine as a State by UNESCO would be sufficient. Here are the relevant paragraphs:

 C. Applications of the practice of the General Assembly 1. Colonial countries upon independence 

84. Further decisions of the General Assembly, taken within the context of its deliberations on the implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples (see para. 264 below), noted with satisfaction the accession of various countries to independence. Such was the case, for example, with the decision concerning Brunei taken within the context of agenda item 18 at the thirty-eighth session. These decisions have been considered by the Secretary-General as allowing for the inclusion of those newly independent countries in the "all States" formula. 

2. Cook Islands 

85. The question of whether the Cook Islands was an "independent" entity,
i.e. a State, was also raised. For a period of time it was considered that, in view of the fact that the Cook islands, though self-governing, had entered into a special relationship with New Zealand, which discharged the responsibility for the external affairs and defence of the Cook Islands, it followed that the status of the Cook Islands was not one of sovereign independence in the juridical sense. Moreover, the General Assembly, in its resolution 2064 (XX) of 16 December 1965 on the question of the Cook Islands, had reaffirmed the responsibility of the United Nations "to assist the people of the Cook Islands in the eventual achievement of full independence, if they so wish, at a future date". That resolution, which was adopted in view of a change in the status of the Cook Islands, further indicated that the latter had not yet attained full independence within the meaning of the term in United Nations usage. It followed that, unless specifically invited to participate in a treaty, the Cook Islands could not invoke the "all States" clause.86. However, in 1984, an application by the Cook Islands for membership in the World Health Organization was approved by the World Health Assembly in accordance with its article 6, and the Cook Islands, in accordance with
 article 79, became a member upon deposit of an instrument of acceptance with the Secretary-General.... In the circumstances, the Secretary-General felt that the question of the status, as a State, of the Cook Islands, had been duly decided in the affirmative by the World Health Assembly, whose membership was fully representative of the international community. The guidance the Secretary- General might have obtained from the General Assembly, had he requested it, would evidently have been substantially identical to the decision of the World Health Assembly. The same solution was adopted by the Secretary-General when Niue, in 1994, applied for membership in the World Health Organization. Moreover, on the basis of the Cook Islands' membership in the World Health Organization, and of its subsequent admittance to other specialized agencies (Food and Agriculture Organization of the United Nations, United Nations Educational, Scientific and Cultural Organization and International Civil Aviation Organization) as a full member without any specifications or limitations, the Secretary-General considered that the Cook Islands could henceforth be included in the "all States" formula, were it to wish to participate in treaties deposited with the Secretary-General.

I think the previous paragraph makes it clear that admission to UNESCO would be satisfactory as far as the Secretary-General is concerned. Its membership is ‘fully representative of the international community’ and any guidance from the General Assembly would be ‘substantially identical’ to the position taken by UNESCO earlier this week.

Thus, nothing stands in the way of Palestine acceding to the Rome Statute except Palestine itself.
The Prosecutor of the International Criminal Court might also take some guidance from the practice of the Secretary-General. If UNESCO membership is good enough for the Secretary-General in terms of accession to an 'all States' clause, then it should be good enough for the Prosecutor in terms of the application of article 12(3) of the Rome Statute. He should now move on to an assessment of the substance of the allegations that crimes under the Statute have been committed in Palestine since 1 July 2002.