Below, Robert Howse replies to a letter to the editor from reader Jonathan Somer, referencing Howse’s post, Palestine and the ICC: Law and Rhetoric.
In his letter to the editor, Jonathan Somer challenges my view that it is NOT the UN Secretary-General who decides whether Palestine is a “State” for purposes of accession the ICC statute, referring to a practice that has developed in the UN bureaucracy whereby the Secretary General conducts an initial vetting of instruments of accession, in cases of uncertainty consulting the General Assembly on the issue of statehood. Yet this practice, however administratively convenient, cannot itself change the role of a depositary under the Vienna Convention on the Law of Treaties, nor take away the rights of the ICC States Parties to have any dispute about interpretation of the Statute decided under the lex specialis in Article 119. As is noted in the 2012 UN Treaty Handbook (2.2) the Secretary-General must be guided in the performance of the depositary function by “provisions of the relevant treaty” and by “international law”, inter alia. More specifically, the 2003 UN Handbook on Final Clauses of Multilateral Treaties states: “depositary functions are well established and codified in Article 77 of the Vienna Convention, 1969…The responsibility of the Secretary-General as depositary, should be limited to his established depositary functions….”
Now if we turn to Article 77 of the Vienna Convention, binding decision-making concerning whether a state meets the substantive criteria for joining a multilateral treaty regime is nowhere indicated as a function of a depositary. At most the depositary is to examine whether “the signature or any instrument, notification or communication relating to the treaty is in due and proper form, and if need be, bringing the matter to the attention of the State in question.” Only someone who has been on a desert island without an Internet connection for years could imagine that the question of whether Palestine is a state for purposes of Membership in the ICC, and indeed other international organizations, is a question of mere formal propriety. In any case, by defining the role of the depositary as that of conducting an examination, Article 77 rightly implies that the ultimate decision as to whether an entity is entitled to join a multilateral treaty regime is normally in the hands of the States Parties, subject to the constitutive instrument of the regime. This is also implied in the closing paragraph of Article 77, which states “In the event of any differences 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.” It is thus quite clear where the authority to decide the validity of accession instruments ultimately lies, and it is not with the Secretary-General, even on the advice of the General Assembly (which as Mr. Somer notes, was not even taken in this instance). There is thus no conflict between the functions of the depositary under the Vienna Convention on the Law of Treaties and Article 119 of the ICC Statute, which entitled the States Parties to a procedure for settling disputes about the interpretation of the Statute, which can entail the involvement of the Assembly of States Parties and perhaps ultimately the ICJ (and if there were a conflict, of course the lex specialis of the ICC Statute would prevail).