JURIST Guest Columnist Solon Solomon, former member of the Knesset Legal Department, says that the procedures governing UN state admission must be duly adhered to when determining the issue of Palestinian statehood…

The recent decision by the International Criminal Court (ICC) Prosecutor Luis Moreno-Ocampo on the issue of Palestinian statehood, apart from its political facet, has also sparked an important legal debate on a number of issues.

However, before entering into any discussion on specific issues, the relevant legal framework has to be set. In other words, what has to be elucidated is the relationship between the Rome Statute, the treaty that governs the functions of the ICC, and the Vienna Convention on the Law of Treaties, the treaty that both dictates how other treaties are to be interpreted and how they will ultimately function in the international legal sphere.

Even before the Prosecutor’s recent decision, voices had been raised in international academia arguing that the Rome Statute, as an international treaty, should be read under the lens of the Vienna Convention. The latter stipulates in Article 31 that each treaty should be interpreted according to its “object and purpose.” The Rome Statute states in its Preamble that one of its purposes is to “guarantee lasting respect for and the enforcement of international justice.” Thus, it has been contended that the Palestinian entity should be recognized as a state in order for justice not to be denied in light of alleged Israeli war crimes.

However, resorting to an abstract concept, such as justice, in order to justify an expansionist reading of a criminal provision, such as Article 12(3) of the Rome Statute, which explicitly speaks of “states,” should not be condoned. The principle nullum crimen sine lege pervades international criminal law and imposes a strict, grammatical interpretation.

Also, the Vienna Convention should not be referred to as the guiding legal framework. True, the Rome Statute is a treaty, but international criminal law is a highly positivist field with certain interpretational peculiarities that cannot always abide by the spirit that the Vienna Convention provisions want to instill in international law. The Rome Statute should be seen as lex specialis, a sui generis legal instrument that is guided by the rules that govern international criminal law. These rules take precedence, in case of collision, over the more general Vienna Convention provisions.

The Vienna Convention can also not be invoked in order to a priori concede that Palestine is a state. According to such an approach, the UN Secretary-General does not need to seek the General Assembly’s directives on the issue because these are asked only for cases of entities that are outside the “Vienna formula.” The formula relates to states that have been recognized as such by the UN or its agencies. Since Palestine was recognized as a state by the UN Educational, Scientific and Cultural Organization (UNESCO) last autumn, some argue that the UN Secretary-General should deem it is a state and accept its UN state accession.

However, in international law, statehood is also a reality on the ground apart from a legal decision. If it is for international law to remain relevant in international developments, legal questions should also be posed on pragmatic terms. A state is not born only in the halls of decision-making bodies.

The Montevideo Convention on the Rights and Duties of States sets the parameters for a state to actually exist: a permanent population, a defined territory and sovereignty expressed in the capacity to forge foreign relations. It is doubtful that the Palestinians have such sovereignty. Even if the Israeli occupation comes to an end, the Palestinians cannot fulfill the sovereignty requirement in a unifying way in both the Palestinian Authority-controlled West Bank and the Hamas-controlled Gaza Strip. While the Palestinian Authority is indeed the legitimate representative of the Palestinian people, recently the Hamas Prime Minister paid state visits to Turkey, Egypt and Iran.

As such, the question of whether Palestine is a state has no easy answer. Thus, accordingly, the issue of Palestinian ICC membership cannot be compared with other cases, like that of the Cook Islands. This is because in the case of the Cook Islands, statehood was not under dispute. The UN Secretary-General, in his affirmative answer to their Rome Statute membership plea, used the fact that the Cook Islands had been admitted into the World Health Organization (WHO) as a supportive basis to an uncontested statehood claim. This is not the case with Palestine.

While the legal instrument upon which the aforementioned “Vienna formula” postulation is based utterly supports its application in cases of contested statehood, a systematic reading of a widely procedurally dispersed international law does not leave us with any other possibility than to conclude that in such cases, the formula can act as a presumption for statehood. Subject to rebuttal by states which deem otherwise. In all cases, it cannot substitute for the regular UN state acceptance route. If it did, this would mean that states would be able to circumvent the procedure for UN state admission in bad faith by first gaining acceptance into one of the various UN agencies and bringing the UN’s main organs — the Security Council and the General Assembly — before a fait accompli.

At the same time, it is also true that the question of statehood does not necessarily have to be connected with UN membership. A state exists irrespective of whether it is also a UN member. However, in the case of Palestine, such UN connection is inevitable due to the decision of the Palestinians to request from the UN to decide on the issue in the realms of their plea on UN state membership.

The ball is now in the UN’s court. Through a centralized procedure, the UN will either beget a new state or reject Palestinian statehood ambitions. Again, because the issue has become so centralized, its answer will be provided solely by the procedures governing UN state admission and not by admission to UN agencies and other bodies that the Palestinians may achieve.

Solon Solomon is a former member of the Knesset Legal Department, former member of the Knesset Legal Department in charge of international and constitutional issues. He is also the author of the book, The Justiciability of International Disputes: The Advisory Opinion on Israel’s Security Fence as a Case Study.

Suggested citation: Solon Solomon, Palestine Cannot Circumvent UN State Admission Procedures, JURIST – Hotline, May 13, 2012, http://jurist.org/hotline/2012/05/solon-solomon-palestine-statehood.php.