The application to accede to multiple international treaties and international organizations made by President Mahmoud Abbas on April 1st (see full list) has proceeded with breathtaking speed. In this context, I offer some reflections on the substantive response by Nimrod Karin (here) to my post (here) on the legality of Palestinian accession to the Geneva Conventions and other treaties. These comments are not intended as a response per se but rather to extend the conversation in light of ongoing developments. The likely ‘hesitancy’ articulated by Mr. Karin has been little in evidence as the United Nations Secretary General accepted, apparently with little difficulty, the accession of the state of Palestine to fourteen international treaties on the 3rd and 7th of April. UN spokesman Stephane Dujarric said:
“The secretary general has ascertained that the instruments received were in due and proper form before accepting them for deposit”
The UNSG’s office has indicated that in keeping with procedure, all member states have been informed. This means that Palestine is now listed as official State party on the UN treaty database for 14 treaties (which include the Convention on the Rights of the Child (with Optional Protocol), the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Genocide Convention, the Vienna Convention on the law of treaties, and the Convention Against Torture. It is still open for states to make their own determination and to raise any issues of concern as regards to any legal issues raised by the accession.
These acceptances seem to confirm that the general rule on the accession to treaties as governed by Article 15 of the Vienna Convention on the Law of Treaties has been applied to Palestine. Accession to treaties generally follows the “Vienna formula” of Article 81 of the Vienna Convention on the Law of Treaties providing that each treaty:
“shall be open for signature by all States Members of the United Nations or of any of the specialized agencies 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.”
Had the State of Palestine failed to meet the “State Member” criteria of the “Vienna formula”, the treaties present further avenues for accession, including membership of the specialized agencies, accession by states that are parties to the ICJ, or treaty accession based on an invite from the General Assembly. None of those additional moves are now likely in this case.
With respect to the Hague and Geneva Conventions, the Netherlands and the Swiss Federal Council are appointed as depositaries by the terms of the Conventions. Accession to these Conventions are open to all States under Article 5 of the 1907 Hague Convention IV, Article 60 of Geneva Convention I, Article 59, Geneva Conventions II, Article 139 Geneva Conventions III, Article 155 Geneva Conventions IV. Article 94 of the Additional Protocol 1, allows accession by “any party.” The Netherlands and Swiss Federal Council thereby decide whether Palestine constitutes a “power” or a “party” for the purposes of accession. On 10 April 2014, the Swiss Federal Department of Foreign Affairs, confirmed that:
“Pursuant to Articles 62, respectively 61, 141 and 157 of the four Conventions, the accession of the State of Palestine to the four Conventions and to the Protocol I took effect on 2 April 2014.”
One telling precursor to these development was the procedural request on 12 December 2012, when the Permanent Observer Mission of Palestine sent a letter to the U.N. Secretariat that recalled resolution 67/19 and requested that in all U.N. documentation, including “the Blue Book,” Palestine’s designation be changed to “State of Palestine”. The letter also requested that that H.E. Mr. Mahmoud Abbas be designated as the President of the State of Palestine. On 17 December 2012, the Secretariat replied to the Mission and confirmed all the changed had been made and that Palestine was now listed under category II, after the Holy See, as a “Non-member State having received a standing invitation to participate as observer in the sessions and the work of the General Assembly and maintaining permanent observer mission at Headquarters.” Histories of engagement with international law making appear to have had little relevance to the acceptance of the “state” designation under the non-Member observer state recognition under UNGA Resolution 67/19.
My post (here) previously outlined that in 1989 the Swiss Federal Council rejected an attempt by the Palestine Liberation Organization to accede to the four Geneva Conventions and the two Additional Protocols citing its concerns “due to the uncertainty within the international community as to the existence or nonexistence of a State of Palestine”. It now appears that there is an emerging diplomatic consensus that we are not in the same territory following the passage of UNGA Resolution 67/19. Significantly, Switzerland voted in favor of the General Assembly Resolution to accord Palestine non-member observer status of the United Nations in 2012. The Netherlands abstained from this 2012 vote, arguing that the vote might potentially fracture the Israeli-Palestinian peace process. The Netherlands’ views on Palestinian treaty accession are pending. But, given the passage of the 2012 resolution, and the acceptance of deposit by Switzerland one could reasonably anticipate the Netherlands proceeding in similar order. In terms of entry into force, it is worth noting that on accession to the Hague, the four Geneva Conventions, and Additional Protocol 1, these Conventions take immediate effect, on the basis of the ongoing occupation. Practically, most of these provisions apply already on the basis of Customary International Law.
Mr. Karin’s comments very importantly report on the sustained intervention of the Vatican in the creation of international humanitarian law. These interventions lead to an implicit presumption, his post suggests, that such engagement should be viewed as part of the legitimacy of the non-member state to then accede to the Conventions. Whether there is a legitimate legal basis for this linkage is questionable, not least because at the time of the Geneva Conventions negotiations in the post-war period, few quasi-states other than the Vatican had the resources and the infrastructure to engage in highly technical treaty negotiations. Moreover, the Swiss acceptance of accession suggests this was not dispositive. But even here it is useful to note that of the parties engaged in the negotiation of the 1977 Protocols, and interestingly we find the presence of states, IGO’s and a number of non-state entities: including the Palestinian Liberation Organization (PLO), the South West African People’s Organization (SWAPO) and the Seychelles People’s United Party (SPUP).
As an historical inquiry it is also useful to record a broader history than that alluded to by Mr. Karin in recognizing those entities which have first attained non-member state status and then moved to full treaty accession and member status. Looking specifically at Geneva Conventions of 1949, there are several states that acceded after they had observer status. The states include Austria, Germany, Japan, Finland, Kuwait, South Korea, and Switzerland. Another interesting parallel is offered by The South West Africa People’s Organization (SWAPO) as a national liberation movement in Namibia which held observer status with the right to circulate communications without intermediary beginning in 1976. This terminated in 1990 when the Republic of Namibia attained independence and was granted full membership in the United Nations and the SWAPO was transformed into a political party. Namibia acceded to Geneva Conventions in August 1991.
This short-form history suggests that the Palestinian case is not as exceptional as might appear at first blush, and that as a matter of precedent there has been sufficient practice for the accession of non-member state entities, emergent states, and states in process of becoming.