A Single Comment — Permalink
© ICCforum.com, 2010–2023. All rights reserved. Policies | Guidelines
- Harlan: The parties to the Statute have agreed to give third states the right to accept the jurisdiction of the Court. The recent decision of the Prosecutor to reject the Article 12(3) Declaration of the State of Palestine was ultra vires in accordance with the rules governing the rights and obligations of third states under treaties contained in Articles 35-37 of the Vienna Convention on the Law of Treaties. English [PDF] The Prosecutor can't revoke or modify an obligation under the Statute after it... (more)
- Harlan: Hi Souheir, The rules by which States are granted permission to deposit treaty instruments after joining one of the UN specialized agencies, like UNESCO, are contained in The Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties under the heading The "Vienna formula"; the,"all States formula"; the practice of the General Assembly. As a member of UNESCO, Palestine unambiguously satisfies the criteria to accede to multilateral treaties opened under the most strict "... (more)
- Souheir: Hi everyone, I understand this debate is still open for contribution despite the fact it has become dormant. Given Palestine's recent admission to UNESCO, I thought it was important to say something about this and also to pick up on some of the comments that have already been made. Palestine’s admission to UNESCO reflects an emerging state practice favouring recognition of Palestinian state The admission of Palestine to UNESCO as a Member State (subject to its signing and ratifying the UNESCO... (more)
- Rosette Bar Haim: A Reply to Mr. Harlan’s Position1 It is necessary to relocate the debate in order to clearly perceive the legal questions at stake in the matter of the PNA Acceptance of Jurisdiction. I firmly believe that this action by the PNA is inherently intermingled with public law, and while public law and politics can coexist, criminal justice and politics cannot. The Statute is the result of a political legal compromise aimed at individual criminal liability,... (more)
- Harlan: Danterzian, I thought that all of Ms. Herzberg's arguments were unconvincing. *The “principles of international law recognized in the Charter of the Nürnberg Tribunal established that certain acts result in international criminal liability when they are "directed against any civilian population." - even stateless Jewish and Roma peoples. Many of the comments here reintroduce the dangerous concept that a State enjoys the freedom to commit criminal acts against an... (more)
- danterzian: I find part of Herzberg's argument troubling. She essentially argues that because (1) the Rome Statute must not allow grave crimes to go unpunished and (2) the PNA and Arab League frequently commit grave crimes, therefore (3) the ICC should not exercise jurisdiction over the grievous crimes committed in Palestine. Although I agree that there are other reasons for the Court to not exercise jurisdiction, I don't believe the above argument is one of them. The Rome Statute's preamble states that... (more)
- Herzberg: The PNA declaration should be rejected for several reasons, particularly because it is part of a soft power political war—also known as the “weaponization” of human rights—that has exploited international legal frameworks in order to avoid a negotiated solution to the Arab-Israeli conflict.1 However, the most compelling reason for its rejection is that the PNA and its supporters have “unclean... (more)
- Harlan: danterzian, I believe that Professor Quigley is correct. In 2004 the General Assembly adopted a resolution, A/RES/58/292, on the status of the Occupied Palestinian territory which noted that Palestine was an observer pending its attainment of full membership in the United Nations. That same year, the non-member Permanent Observer.State of the Holy See launched a bid to apply for full membership in the United Nations. When its efforts were unsuccessful, it asked to be granted upgraded observer... (more)
- Harlan: The United States is not a State party to the Rome Statute. I was just illustrating some points made by Professor Quigley - that the United States had recognized the State of Palestine in accordance with the provisions of conventional international law & that it customarily treats States as continuing to exist if their territory is under foreign occupation. The Baltic States provide an example of an undertaking that lasted for many decades. In cases like Kletter, those routine... (more)
- Harlan: Ti-Chiang Chen's classic "The International Law of Recognition:With Special Reference to Practice In Great Britain and United States has a chapter on the Laws of Recognition of Belligerency and Insurgency which discusses the customary rules and the internal inconsistency of the logic of some scholars on the very point you've raised here. How can an entity have the duties and responsibilities of a State under international law, yet still not possess the necessary legal personality of a State?... (more)
Comment on the Gaza Question: “Does the Prosecutor of the ICC have the authority to open an investigation into alleged crimes committed in the 2008-2009 Gaza conflict?”
I believe that Professor Quigley is correct. In 2004 the General Assembly adopted a resolution, A/RES/58/292, on the status of the Occupied Palestinian territory which noted that Palestine was an observer pending its attainment of full membership in the United Nations. That same year, the non-member Permanent Observer.State of the Holy See launched a bid to apply for full membership in the United Nations. When its efforts were unsuccessful, it asked to be granted upgraded observer privileges equal to those already held by Palestine. See for example "The Holy See backs off from its claim for full membership of the UN, settling for the rights already held by Palestine", by Serra Sippel, at See Change
The "Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties" has been prepared by the Treaty Section of the Office of Legal Affairs. It explains the role of the General Assembly in the practice of the Secretary when acting as depositary of a convention with an 'all States' clause. The Secretary follows the practice of the Assembly found in unequivocal indications from the Assembly that it considers a particular entity to be a State even though it does not fall within the "Vienna formula".
The 1998 resolution that granted Palestine its current observer privileges, UN document A/RES/52/250, recalled that the Assembly acknowledged the 1988 proclamation of the State of Palestine and that Palestine is a full member in the Group of Asian States; the Economic and Social Commission for Western Asia; the League of Arab States, the Movement of Non-Aligned Countries; the Organization of the Islamic Conference; and the Group of 77 and China. The members of the G-77 have increased to 130 countries since its founding. The resolution also noted that elections had been held and that the Palestinian Authority had been established on a part of the Palestinian territory.
The rules of the ESCWA stipulate that Palestine is a member State. The Secretary acting as depositary has accepted several instruments of ratification or accession to treaties from Palestine that are open to the ESCWA and other States for signature. See for example
Reference: C.N.1275.2006.TREATIES-3 (Depositary Notification);
Reference: C.N.624.2005.TREATIES-10 (Depositary Notification)
Reference: C.N.624.2005.TREATIES-10 (Depositary Notification)
Reference: C.N.285.2003.TREATIES-5 (Depositary Notification)
The UN Treaty Organization Historical Information Note 1 explains:
Agreements adopted under the auspices of the Economic and Social Commission for Western Asia (ESCWA) are open for signature by the members of ESCWA. Palestine was admitted to membership in ESCWA pursuant to ECOSOC resolution 2089 (LXIII) dated 22 July 1977, which amended paragraph 2 of the terms of reference of the Commission. Full powers for the signature of the Agreements were issued by the Chairman of the Executive Council of the Palestine Liberation Organization and the President of the Palestinian National Authority.
The General Assembly affirmed that Palestinian statehood is a matter of self-determination that is not subject to the peace process or to any veto. See operative paragraphs 1 & 2 of A/RES/55/87, 21 February 2001
The State of Palestine maintains embassies in dozens of countries and participates as a full member State in a half dozen international organizations. See for example The Embassy of the State of Palestine in the Russian Federation.Palestine obviously claims to be a State and the UN has been tacitly treating it as one for quite awhile now.