The Power of Depositary, ICC and Palestine’s Quest for Statehood

The Power of Depositary, ICC and Palestine’s Quest for Statehood

[Saba Pipia is an Associate Professor at the Georgian-American University (Tbilisi, Georgia) and visiting Fulbright researcher at Michigan State University. He holds a Ph.D. degree from Tbilisi State University.]

Photo credit: Saba Pipia

On February 5, Pre-Trial Chamber (PTC) of the International Criminal Court (ICC) announced its ruling confirming the Court’s jurisdiction to proceed with the investigation of alleged international crimes that occurred in Palestinian territories (Gaza and West Bank including East Jerusalem), and subsequently, the Prosecutor (OTP) opened a formal investigation. This move was heavily criticized by some states, including Israel, Austria, the USA, and Germany, given that none of them recognize Palestinian statehood and thus denying the Court’s jurisdiction.

Discussing Germany’s public objection to the ICC’s ruling, Stefan Talmon thinks that it comes too late because the original sin in terms of international law was to let an entity which does not meet the criteria of statehood accede to a treaty which is open for accession only by “States”. Indeed, the problem is rooted back in 2014, when Palestine acceded to the Rome Statute along with other international treaties and it raises important legal questions on the power of depositary to the international treaty and various legal or institutional regimes, which can determine the statehood of an entity in question.

Power of Depositary to Determine Eligibility of an Entity to Become Party to the Treaty

The Vienna Convention on the Law of Treaties (VCLT) is silent on the issue of whether depositary can determine an entity’s status to join a particular treaty or not; it merely lists receiving any signatures to the treaty, as one of the functions of depositaries (art.77.1-C) and further provides that the depositary is under an obligation to act impartially (art.76.2). Both Commentaries to the VCLT (Oxford:1711 and Springer:1311) underline the purely administrative and non-political nature of the depositary’s functions, which limits its discretionary powers. Particularly in the context of its duty to examine signatures, instruments, notifications, and communications, the depositary can only take preliminary decisions and must leave the final decision to the States concerned.

In examining whether an entity willing to join the treaty is in fact state or not, depositary should refrain from judgment and inform the other states concerned about the intention of an entity with questionable status to become party to the treaty; it is then up to the other States concerned to take a final decision (Springer:1317). Given the impartiality obligation of the depositary, its mission is limited to the interpretation of the formal validity of acts and documents submitted to it (Oxford:1736). Despite this ‘eminently passive and purely technical role’ (ibid) of the depositary, one exception applies only if none of the contracting states has recognized the entity in question as a state or if the entity is manifestly lacking the constitutive elements of statehood. In this circumstance, the depositary might decide on its own that the entity is not qualified to become a party (Springer:1317-18, Oxford:1737). However, a closer examination of the role to validate accession of an entity shows that sometimes it is complicated to draw a distinct line between technical and substantial issues of statehood. In such situations, the practice of the UN Secretary-General shows that s/he follows the General Assembly’s (GA) determination on the matter of statehood of entity in question. Neither the VCLT, nor Commentaries provide further elaboration of what happens next if the issue is communicated to all state parties to the multilateral treaty; and this issue remains open.

Palestine’s Accession to International Treaties and Subsequent Reactions

In 2014 Palestine started the unilateral process of accession to international treaties, which, inter alia, included various UN Conventions, 1949 Geneva Conventions, and the Rome Statute. Palestine’s applications were accepted by the respective depositaries (UN Secretary-General, Switzerland) without any complications and consequently were communicated with all state parties.

Although the status of an entity in question (Palestine) was disputed, it was evident that none of the depositaries deemed it necessary to challenge Palestinian statehood and refer the issue to all contracting states, thus leaving opposing states without any formal avenue to prevent Palestine’s accession. Israel, the US, and Canada decided to publicly object to this move by sending notifications to the depositaries informing them that they do not  recognize Palestine as a state and thus denounce its eligibility to join international treaties (detailed analysis here). Among other arguments, Israel also outlined the depositary’s administrative functions claiming that admitting Palestine to those treaties was a political decision, which went beyond the mandate of a depositary under the VCLT. However, objection by this trio remained unnoticed by depositaries and other contracting states, making Palestine party to those international treaties. Most importantly, it is not also clear whether these three states remain bound by the treaty obligations vis-à-vis Palestine.

The bottom line for depositaries to accept Palestine’s accession was the UN GA resolution, which lifted the status of Palestine from ‘observer’ to ‘non-member observer state’ after the Security Council refused its full UN membership bid a year before.

Palestine’s Statehood at International Courts

Accession to the Rome Statute was not the first occasion in which Palestine sought to achieve recognition by the ICC. In 2009 Palestine lodged a declaration accepting the exercise of jurisdiction by the Court. However, Palestine’s request was rejected by the OTP, which held that it is for the relevant bodies at the UN or the Assembly of States Parties to make the legal determination whether Palestine qualifies as a State for the purpose of acceding to the Rome Statute (para.6).

Indeed, nothing has changed since, in terms of Palestine’s features concerning statehood, except for the GA resolution, which uplifted its status at the UN, while lacking any legal justification as to whether Palestine complies with statehood criteria under international law or not. This very decision of the GA became the basis for recognizing Palestinian statehood at the ICC when it joined the Rome Statute in 2014 and was accepted as a state by the OTP and PTC in 2021 (details here). It is also evident that the UN Secretary-General as a depositary of the Rome Statute was guided by the same GA resolution, while accepting instruments of accession without questioning Palestine’s statehood and without allowing other State parties to challenge Palestine’s quest to join the ICC. The same applies to other depositaries, which swiftly accepted Palestine’s accession to various international treaties. So, even assuming that some contracting states of these multilateral treaties would be willing to challenge Palestine’s move, they were left out of the process because of the acceptance of instruments of accession by respective depositaries.

Notably, Palestinian statehood could also be an issue in the Relocation of the United States Embassy to Jerusalem case at the ICJ (details here) which can be seen as another attempt by Palestine to achieve recognition by an international judicial body.

Fragmented Meaning of the ‘For the Purpose of…’

The Montevideo Convention (art.1) sets out following criteria for statehood: (a) permanent population; (b) defined territory; (c) government and (d) capacity to enter into relations with other states. This rule constitutes part of customary international law. In theory, the status of an entity as a State is, in principle, independent of recognition by other actors because international law and practice provides workable statehood criteria [PR11] [SP2] (Crawford:28) mentioned above; however, as Palestine’s quest for statehood demonstrates, in practice, there can be at least six different regimes/actors who can determine statehood of particular entity for their own ‘purpose’. First is the depositary of a treaty, which, despite its purely administrative functions, still possesses the power to determine whether eligibility of an entity willing to join the treaty, is challenged and thus needs to be referred to other contracting states or ‘for the purpose’ of the accession the status is indisputable and depositary can accept instruments of accession without taking any further steps. Second is the GA, which decides to grant special ‘non-member observer state’ status to an entity without full UN membership and thus diverting from the Security Council’s determination on that matter, which [Security Council] can also be considered as a third regime authorized to decide on statehood ‘for the purpose’ of UN membership. ICC through its organs might as well determine statehood ‘for the purpose’ of its procedures (here). Although in the situation in Palestine both the OTP and PTC avoided review of Palestinian statehood, practice shows that previously they did so in relation to South Ossetia (here: para.54 and here: para.6). Considering Palestine’s example, other contracting parties to the treaty may also provide their determinations on the statehood of respective entity ‘for the purpose’ of treaty accession and finally, ICJ can also assign such role.

Conclusion

The aim of this blog post was not to criticize any actors, which recognized or rejected recognition of Palestine’s statehood, but rather to demonstrate that albeit clearly established statehood criteria under international law, even neutral actors, such as depositaries, can become political players and sometimes even abuse their powers while making decision on the status of an entity willing to gain international recognition as a state through accession to different international treaties.

The Montevideo rule for statehood is uniform, but its interpretation can be fragmented for the purpose of different institutional and legal regimes. Application of the law to a particular entity can sometimes have a political implication, but this can not alter the status of this entity as a ‘state’. An entity meets or does not meet statehood elements under general international law, but whether an entity is treated as a ‘state’ by various actors can be subject to a fragmented understanding of statehood. Palestine’s journey to the recognition of its statehood is perhaps the clearest example of this process.