Palestine has been admitted as a member of UNESCO. In yesterday’s vote, the General Conference of the United Nations Educational, Cultural and Scientific Organisation agreed by by 107 votes in favour, with 14 against and 52 abstentions, to admit Palestine. Ireland was among those states that voted in favour, along with France, Austria. Brazil, Russia, China, India and South Africa. This sits within the campaign for admission to full membership in the United Nations itself.
Article II(2) of the UNESCO Constitution provides that a state which is not a member of the United Nations may be admitted by a two-thirds vote of the General Conference. This is what happened yesterday.
The hurdle at the United Nations itself is the requirement in the Charter of the United Nations that membership be agreed by the Security Council. Israel’s big friend in the Security Council is very likely to veto this.
But in its campaign for recognition as a state, Palestine should consider another forum: the International Criminal Court. Article 125(3) of the Rome Statute states: ‘This Statute shall be open to accession by all States.’ Palestine would accede to the Statute rather than ratify it, because ratification is available to States that have previously signed the Statute. The deadline for signature was 31 December 2000. No significant consequence is attached to the distinction between ratification and accession.
In contrast with both UNESCO and the United Nations, there is no requirement of a decision or vote in the case of membership of a state which is not a member of the United Nations. The only obstacle in the case of the Rome Statute lies with the Secretary-General of the United Nations, who is the depository of the treaty. He could decide to refuse to accept accession by a body deemed not to constitute ‘a state’. Presumably this is what the Secretary-General would do if an instrument of accession was submitted by Taiwan or by the Turkish Republic of Northern Cyprus. But how could the Secretary-General refuse the accession by ‘a state’ that has already been recognized as ‘a state’ pursuant to the Constitution of UNESCO?
Palestine has already engaged with the International Criminal Court by filing a declaration in accordance with article 12(3) of the Rome Statute. This enables ‘a state’ to grant jurisdiction to the Court without actually ratifying or acceding to the Statute. Such a declaration does not go through the Secretary-General of the United Nations. Initially, it is for the Prosecutor to consider whether the declaration is valid. He has been reflecting on the legality of the declaration for more than two and a half years. I recently asked someone from the Office of the Prosecutor what was going on and was told: ‘We are waiting for the outcome in the United Nations.’ The result in the Security Council is probably can be anticipated. But the UNESCO vote may have short-circuited that issue as far as the Court is concerned.
There may be reasons why Palestine would not want to join the International Criminal Court. This would have the consequence of subjecting all conduct on its territory to the jurisdiction of the Court. But accession can only be a positive development in terms of the protection of human rights within Palestine. I hope Palestine (as well as Israel) will take such a step. It will contribute not only to its own campaign for recognition as a state but also to lasting peace in the Middle East.
An accession by Palestine would also contribute to resolving the issue of the validity of the declaration under article 12(3). In one sense, the declaration would no longer be necessary, at least from the point of accession. It is not entirely clear, however, whether accession by Palestine would mean that the article 12(3) declaration could apply to the past, to a period when Palestine may not have been ‘a state’ within the meaning of the Rome Statute. But this is really a detail.
The Security Council will consider Palestine’s application for membership in the United Nations in a couple of weeks. If Palestine wants to build the momentum that it achieved by yesterday’s UNESCO vote, it should submit its accession to the Rome Statute immediately.
It is not entirely clear, however, whether accession by Palestine would mean that the article 12(3) declaration could apply to the past, to a period when Palestine may not have been ‘a state’ within the meaning of the Rome Statute.
Palestine's application to the Security Council and UNESCO were based upon the 1988 Algiers UDI. According to many authorities (e.g. Ti-chiang Chen) recognition of statehood is ordinarily retroactive in effect and validates all the actions and conduct of the government so recognized from the commencement of its existence. See for example Oetjen V. Central Leather Co. , 246 U.S. 297 (1918) and Ti-chiang Chen, "The international law of recognition, with special reference to practice in Great Britain and the United States", Nabu Press, 2010.
Palestinian Authority Ministers with full powers emanating from the President of the State and the Chairman of the PLO Executive, had signed the "The Arab Convention for the Suppression of Terrorism, adopted by the Council of Arab Ministers of the Interior and the Council of Arab Ministers of Justice, Cairo, April 1998 and "The Convention of the Organization of the Islamic Conference on Combating International Terrorism, adopted at Ouagadougou on 1 July 1999. Palestine is also a signatory to the Arab League and OIC agreements on diplomatic immunity of officials on mission to those organizations.
Some of those international agreements on immunity or extradition for acts of terror that fall within the jurisdiction of the Court were listed in official submissions made to the ICC by the League of Arab States, i.e. page 8, "Position of the State of Palestine From Signature and Ratification or Membership to Group Treaties and Agreements Concluded within the Council of the League of Arab States"
The effective dates of those agreements pre-date the entry into effect of the Rome Statute. So, Palestine has been a "third State" from the outset for the purposes of Article 98(1) insofar as ICC member states, like Jordan, Comoros Island, Djibouti, and Tunisia are concerned.
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