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 Constitution) may help shed further light on what appears to be an emerging state practice, recognising it as a state despite the traditional western criterion of statehood under the Montevideo Convention (some academics such as Professor Mendes have contested the Montevideo Convention’s customary status and applicability to situations of belligerent occupation). While of itself UNESCO membership may not indicate a new state practice favouring recognition of a Palestinian state is emerging, the contrary is true when existing acts of recognition as well as the UNESCO membership are taken together. These have been highlighted by Professor Quigley as well as Dr. Kearney by reference to, amongst other things, the Mandate of Palestine, the 1947 UN Partition Plan, Article 80 of the UN Charter and the subsequent 1988 Declaration of Independence as affirmed by the General Assembly Resolution 43/177. All of these in some way or another uphold Palestine’s pre-existing status as a state.

In relation to UNESCO membership, over 100 states (a two-third majority) voted in favour of Palestine’s admission as a full member with voting rights. Under UNESCO’s Constitution, only states can be admitted as member states. The other category of membership, namely, associate member, applies to territories or groups of territories (which are considered to lack responsibility for the conduct of their international relations). No voting rights are attached to this type of membership. It is, therefore, of some significance that Palestine has been accepted as a Member State to which only state’s can be admitted. As a Member State, it enjoys the same rights, but also the same obligations as states and does so equally with those states. More importantly, it has been granted full voting rights within UNESCO, meaning it can exercise the same privilege as states. It is fairly safe to say that a non-state would not be able to enjoy such privileged membership. It would seem that Palestinian statehood has been implicitly recognised (as demonstrated by a two-third majority vote in Palestine’s favour). Arguably, this lends support to the proposition that a new state practice favouring recognition of Palestinian statehood is emerging.

It is interesting that UNESCO has referred to the Member State as “Palestine” i.e. the name under which Palestine enjoyed sovereignty according to British Mandate as a Class A type mandate (as pointed out in Professor Quigley’s historical analysis). This is the name used in the written announcement delivered by UNESCO of Palestine’s admission under the Constitution.

Emergence of a new modern state practice based on a constitutive theory of statehood

There has been a lot of discussion in this debate about the application of the Montevideo Convention, however, it would seem modern state practice is moving beyond the traditional criteria of statehood found in the Montevideo Convention towards a modern constitutive theory of statehood reflecting contemporary situations (such as secessionist movements around the world and legitimate claims of self-determination). The cases of Bosnia, Kosovo, Congo and East Timor serve as examples where the question of statehood did not seem to follow the Montevideo criteria, requiring a substantially independent government that functioned independently in a variety of government spheres to qualify as a state. In contrast, the constitutive theory relies on recognition alone by other states to found statehood.

In relation to Palestine, application of the Montevideo Convention appears dubious in light of the fact it fails to account for the actual context and particular facts of belligerent occupation under which the question of statehood arises. On this basis, it is questionable whether the Montevideo Convention applies to belligerent occupation given its application to more traditional settings and contexts.
The restrictive approach adopted by Professors Fletcher and Ronen seems unduly rigid and narrow since it fails to account in any way the particular facts of belligerent occupation and the extent to which the military occupation has impacted the question of Palestinian statehood. For example, in respect of the Montevideo criteria of ‘defined territory’, the mechanical approach squarely fails to recognize and altogether ignores the fragmentation arising from the expansion of Jewish settlements and construction of the separation wall, contrary to international law, within the occupied territory. The application of the Montevideo Convention would therefore seem highly dubious. More significantly, this approach may actually prove an obstacle to fighting impunity, and actually facilitate an ‘impunity zone’. Thus, it leaves open the question of whether a different criterion and approach is required for situations of belligerent occupation in a way that allows for a contextual approach rather than an exceedingly narrow one.

To this end the strict approach to the Montevideo Convention seems wholly inconsistent with the interpretive principle laid down in Article 21(3) of the Rome Statute which requires that the application and interpretation of law be consistent with internationally recognized human rights and the principle of non-discrimination. The logical conclusion is that the interpretation of what is a ‘state’ should be favourable to human rights. This is achieved by admitting the Palestinian Declaration on the basis of pre-existing statehood under the constitutive theory, which would lead to the investigation and possible punishment of those responsible for serious breaches against the basic values of the whole international community. To not admit it would be tantamount to allowing a zone of impunity, contrary to the object and purpose of the Rome Statute.

Inconsistency between application of the Montevideo Convention and the object & purpose of the Rome Statute

A restrictive or mechanical approach is inconsistent with the object and purpose of the Rome Statute, which calls for an end to impunity and prevention of atrocities. If the ICC Prosecutor were to reject Palestine’s Declaration for want of statehood, this would mean that potential crimes amounting to atrocities would go unpunished, but also potentially facilitate a zone of impunity, a position that is clearly contrary to the object and purpose of the Rome Statute. Rather, the application of the constitutive theory to belligerent occupation as opposed to the traditional criteria of statehood under the Montevideo Convention would result in atrocities being investigated and perpetrators to be brought to account before an independent court. Accepting Palestine’s Declaration would ensure justice is not only done, but is seen to be done by the entire world, but especially the victims. In my mind, this would only enhance the credibility of the court since inaction and selectivity of cases in the face of grave breaches of the Geneva Convention and international crimes within the ICC’s jurisdiction could well cast doubt on the ICC’s credibility as a world court charged with the responsibility of ending impunity and preventing atrocities.

Protection of human rights as a modern thrust of the international community

Moreover, this approach is backed by the current thrust within the international community to broaden as much as possible the protection of human rights and, by the same token, make those who engage in heinous breaches of such rights criminally accountable (Professor Cassese). The very logic of this trend shatters the idea that the Palestinian Declaration is inadmissible for want of statehood based on the Montevideo Convention or interpretations of it. The better view and the one more consistent with the object and purpose of the Rome Statute is that the interpretive principle in Article 21(3) favours a wider interpretation of the meaning of ‘state’ under the Rome Statute in a manner that allows the court to end impunity and punish the most serious crimes of concern to the international community as a whole, that is, by admitting the Palestinian Declaration. This is consistent with the object, purpose and contextual rule of the Rome Statute as well as the interpretive principle in Article 21(3).