In his letter Mr. Somer rightfully pointed to the United Nations Legal Memo on the Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties, to explain how the Secretary-General makes his determination if an entity is a State.
In his reply to Mr. Somer’s letter, Mr. Howse quoted the Vienna Convention on the Law of Treaties, specifically 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.”
Indeed, Mr. Howse should have read the Legal Memo on the Summary of Practice, specifically page 23 paragraph 82 which states “At its 2202nd plenary meeting on 14 December 1973, the General Assembly, upon recommendation from the Sixth Committee (legal), decided, without objection that: It is the understanding of the General Assembly that the Secretary-General, in discharging his functions as a depositary of a convention with an ‘all States’ clause, will follow the practice of the General Assembly in implementing such a clause and, whenever advisable, will request the opinion of the General Assembly before receiving a signature or an instrument of ratification or accession.”
Therefore, the Secretary-General, in full compliance with article 77 of the Vienna Convention, did bring the question to the attention of the competent organ of the international organization concerned, the General Assembly, as the largest and universal body. It was in November 2012 when the General Assembly adopted resolution 67/19 which accorded to Palestine, non-Member observer State status, thus establishing General Assembly, and therefore Secretary-General, practice that Palestine shall be treated as a State.
The Secretary-General has already accepted over 30 instruments of accession from the State of Palestine, including to the Rome Statute of the International Criminal Court.
There can be no arguing against this practice of the Secretary-General, as Depositary, as it is a mandate given to him by the International Community as a whole.
– Yousef N. Zeidan
Yousef N. Zeidan has served as Legal Adviser at the State of Palestine’s Mission to the United Nations in New York from May 2007 until September 2014. Yousef provided the necessary legal counsel to the Government of the State of Palestine on the establishment of diplomatic relations with over 30 other States, submission of Palestine’s UN Membership application, treaty law and practice, including accession to treaties, participation in intergovernmental conferences and meetings, ensuring the State status of Palestine in the international arena. Yousef can be reached at firstname.lastname@example.org.