Letter to the Editor: Howse on Palestine and the ICC

The letter below replies to “Palestine and the ICC: Law and Rhetoric” by Robert Howse, published January 7.

In discussing who decides whether Palestine is a ‘State’ for purposes of accession to the ICC statute, Robert Howse submits in his post that it is NOT the UN Secretary-General. He then goes on to propose that the answer may be found in the Statute’s dispute mechanism. In fact, if the UN Secretary-General is of the opinion that the status of an entity as a State is clear with respect to treaties (such as Rome) which follow the ‘all states’ formula, he will accept the accession. On the other hand, the UN Office of Legal Affairs has published a 1999 memo entitled Summary of Practice of the Secretary-General as Depository of Multilateral Treaties where it states that the Secretary-General considers the determination of ‘statehood’ for the purpose of accession under the ‘all states’ formula to be outside of his competence if the status of the entity in question ‘is not clear.’ In such cases the Secretary-General would defer to the General Assembly. Furthermore, such practice has been accepted by the General Assembly, where it stipulates that the Secretary-General will follow the practice of the Assembly, and ‘whenever advisable, will request the opinion of the Assembly before receiving a signature or an instrument of ratification or accession.’

As the Secretary-General in this instance did not consult the General Assembly, one can infer that in following the practice of the Assembly, he did not consider the question of Palestinian statehood to be unclear, and therefore did not consider it advisable to request the opinion of the General Assembly.

– Jonathan Somer

Jonathan Somer is the founder of Persona Grata Consulting, advising on international law and policy in fragile states. Until recently he was Legal Adviser for Geneva Call and has previously worked with the Organisation for Security and Cooperation in Europe. 

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