who can become a party to international treaties? a case …€¦ · · 2015-04-27international...

Bríd Ní Ghráinne 1

Who Can Become a Party to International Treaties? A Case Study of Palestine’s Accession to the

International Covenant on Civil and Political Rights

Dr Bríd Ní Ghráinne, University of Sheffield

Working Paper submitted to European Society of International Law Research Forum*

European University Institute, Florence, Italy

May 2015

1. Introduction

On 2 April 2014, the ‘State of Palestine’ deposited instruments of accession relating to 20

international treaties.1 Traditionally, only states can become a party to treaties and whether or

not Palestine qualifies as a state is a question of international law that has not yet been

definitively answered. This ‘state-like’ act followed the passing of Resolution 67/19 on 29

November 2012 which upgraded Palestine’s status within the UN to that of ‘non-member

observer state’.2

In light of these developments, this draft paper will focus on the relationship between status

within the UN and ability to become a party to treaties. Did Palestine’s upgraded status affect

its ability under international law to become a party to treaties? What do these developments

tell us about who or what can become a party to international treaties? The latter question will

be discussed with reference to the International Covenant on Civil and Political Rights

(ICCPR),3 as a discussion of all 20 treaties to which Palestine has recently acceded is outside

the scope of this paper.

The analysis before us stems from an inherent difficulty. Much like a student who has come

to an answer, but has failed to show his workings, we have the conclusion that Palestine is a

state party to the ICCPR but not much evidence as to why this is the case. This paper will

work backwards from this conclusion to establish what Palestine’s membership of the ICCPR

tells us about who or what can become a party to treaties. The second part of this paper will

take a forward-looking approach, looking at the practical consequences of Palestine’s

membership of the ICCPR.

The structure of this working paper will be as follows. First, this paper will set out its starting

point – that Palestine’s statehood or lack thereof is by no means well-established under

international law. Second, this paper will examine whether treaty participation is the

exclusive domain of states, or whether non-state actors or entities whose statehood is unclear

can become a party to treaties. Third, this paper will discuss Palestine’s history of

participation within the UN, focusing in particular on the passing of Resolution 67/19 and

what impact, if any, this had on Palestine’s claim to statehood and/or its ability to participate

in treaties. It will be argued that status in the UN has a direct relevance on participation in

* Note to reader: This paper represents the very early stages of research. Please do not cite or circulate. 1 UN News Centre, UN confirms receipt of Palestinian applications to join global conventions, 2 April 2014.

Available at http://www.un.org/apps/news/story.asp?NewsID=47490#.VFJlBBYwlGw. 2 UN General Assembly, Resolution 67/19, ‘Status of Palestine in the United Nations’, UN Doc A/RES/67/19, 4

December 2012. 3 1966 International Covenant on Civil and Political Rights, 999 UNTS 171.

http://www.un.org/apps/news/story.asp?NewsID=47490#.VFJlBBYwlGw


treaties. Importantly, because status in the UN is not determinative of statehood this could

mean that entities that are not states could be a party to treaties. Finally, this paper will set out

the practical implications membership of the ICCPR will have for Palestine, and how

Palestine’s participation in treaties may set a precedent for other entities to do the same, such

as Taiwan, Kosovo, Macau, and Hong Kong.

2. Palestine’s claim to statehood

There is extensive literature on Palestine’s claim to statehood and it is not the purpose of this

paper to set out these arguments in detail.4 Put simply, the position under international law is

that an entity is a state if it possesses the four criteria of the 1933 Montevideo Convention on

the Rights and Duties of States: (a) a permanent population; (b) a defined territory; (c)

government; and (d) capacity to enter into relations with the other states.5 Criteria (b) and (c)

have proven to be the most controversial aspects in relation to Palestine.

The issue is further complicated with regards to the relevance of recognition of the state of

Palestine. At the time of writing, over 130 states of the near-193 states in the world recognise

the state of Palestine.6 Those that do not recognise Palestine include Canada, USA, and

Mexico. Article 3 of the Montevideo Convention provides that ‘the political existence of the

state is independent of recognition by the other states’ and this position is widely-supported

in academia.7 Thus the declaratory theory of recognition is generally preferred to its rival, the

constitutive theory which posits that recognition of a state by other states is an essential

component of statehood. However, there exists literature that argues that collective

recognition or non-recognition by an overwhelming majority of states, such as within the

framework of the UN, may influence the question of the existence of a state by influencing

the application and appreciation of the Montevideo criteria.8 According to this argument,

collective recognition could perfect an otherwise imperfect fulfilment of the criteria, and,

alternatively, collective non-recognition could effectively prevent the fulfilment of criteria.

The relevance of this argument will be discussed further below, in relation to Palestine’s

position within the UN.

The personal opinion of this author, for reasons that will not be explored in depth here, is that

Palestine qualifies a state, and ipso facto, has the ability to become party to international

treaties. However, this author is fully aware that there are many states and academics who do

4 For further reading on Palestine’s status, see John Quigley, ‘The Palestine Declaration to the International

Criminal Court: The Statehood Issue’ 35 Rutgers Law Record; Robert Weston Ash, ‘Is Palestine a 'State'? A

Response to Professor John Quigley's Article 'The Palestine Declaration to the International Criminal Court: The

Statehood Issue'’ (2009) 36 Rutgers L Rec 186. 5 1933 Montevideo Convention on the Rights and Duties of States 165 LNTS 19.

6 ‘All the countries – including Sweden – that now recognize Palestinian statehood’, available at

http://qz.com/276164/all-the-countries-including-sweden-that-now-recognize-palestinian-statehood/, last

accessed 18 April 2015. 7 David Harris, Cases and Materials on International Law (7th edn., Sweet & Maxwell 2010), 131.

8 John Cerone, ‘Legal Implications of the UN General Assembly Vote to Accord Palestine the Status of

Observer State’ ASIL Insights, December 7 2012 ; Charles F Whitman, ‘Palestine's Statehood and Ability to

Litigate in the International Court of Justice’ (2013-2014) 44 Cal W Int'l Law; James Crawford, The Creation of

States in International Law (2nd

edn, Oxford University Press 2006) 501; Marc Weller, ‘Modesty Can Be a

Virtue: Judicial Economy in the ICJ Kosovo Opinion?’ 24 Leiden Journal of International Law 127, 129–30.

http://qz.com/276164/all-the-countries-including-sweden-that-now-recognize-palestinian-statehood/


not agree with this stance and thus the starting point of this article is that, at best, Palestine’s

statehood is contested and is by no means firmly established in international law.

3. What is a treaty?

According to the 1969 Vienna Convention on the Law of Treaties, a treaty is an international

agreement concluded between states in written form and governed by international law,

whether embodied in a single instrument or in two or more related instruments and whatever

its particular designation.9

This definition would appear to exclude from the meaning of treaties agreements made

between states and non-state entities. However, the meaning of a treaty under customary

international law is broader than that adopted by the VCLT. Under customary international

law, the meaning of treaty is not limited to agreements between states but would include

agreements governed by international law involving international organisations. Indeed, the

travaux preparatoires of the VCLT indicate that the drafters were aware that there could

indeed be agreements that would qualify as treaties but that would not fall within the

definition of the VCLT. Draft article 3 stated:

‘The fact that the present Convention does not apply to international

agreements concluded between states and other subjects of international law

or between such other subjects of international law, or to international

agreements not in written form, shall not affect:

(a) the legal force of such agreements

(b) the application to them of any of the rules set forth in the present

Convention to which they would be subject, in accordance with

international law, independently of the Convention […]’10

One state - Cuba - seems to have denied that dependent entities could have treaty-making

capacity, stating that only states which enjoyed full internal and external sovereignty could

possess a capacity to conclude treaties.11

However, Cuba’s position seemed to be the

exception rather than the rule, with various states such as the United Kingdom, Ceylon, and

the United States accepting that non-state entities had the capacity under international law to

enter into treaties.12

Treaties can therefore be concluded by entities other than states. For example, territorial

entities which are legally dependent upon or associated with other such entities and which,

therefore, are not regarded as independent states have entered into treaties in the past. India,

while under British rule, became party to numerous treaties and the Philippines exercised a

limited treaty-making capacity before independence. Ukraine and Byelorussia, then-members

of the federal Union of Soviet Socialist Republics, were parties to the Charter of the UN and

many multilateral treaties prior to independence.

9 1969 Vienna Convention on the Law of Treaties 1155 U.N.T.S. 331, Article 2(1)(a).

10 Yearbook of International Law Commission, 1966, II, 177.

11 UN Doc A/CONF.39/5, Vol. 1, 10 February 1968, 96.

12 Oliver J. Lissitzyn, ‘Territorial Entities in the Law of Treaties’, 125 The Hague Academy of International

Law: Receuil des Cours (1968), 20.


It is very difficult to extract any sort of conclusions from the above practice regarding who

can be a party to international treaties. However, one thing that is for certain is that in order to

participate in treaties, the relevant entity must possess international legal personality (ILP).

The concept of ILP was discussed by the ICJ in the Reparations for Injuries Advisory

Opinion, where the Court stated that the extent of the UN’s functions and rights could only be

explained on the basis of possession of ILP.13

The Court was careful to point out that this

‘[was] not the same as saying that it is a State […] or that its legal personality and rights and

duties are the same as those of a State.’14

Rather the UN is ‘a subject of international law and

capable of possessing international rights and duties, and […] it has capacity to maintain its

rights by bringing international claims.’15

Thus in order to have general capacity to enter into treaties, Palestine need not be state, but

must, at the very minimum, possess ILP. The Reparations for Injuries Advisory Opinion

explicitly accepts that entities other than states can have ILP and accepts that because the UN

was exercising rights that could only be explained on the basis of ILP, the UN did indeed

possess ILP. Although this position seems somewhat circular, and has been the subject of

criticism, we can apply the same rationale to the case of Palestine – as a party to at least 20

treaties, this is a strong indication of Palestine’s possession of ILP.

This is further supported by Lissitzyn, who argues that the membership of a particular entity

of a certain treaty may have two radically different juridical explanations. First, it may be

regarded as an international person possessing its own treaty-making capacity, whether or not

it is a ‘state.’ Second, it may be regarded as having no distinct ILP or capacity of its own, but

merely the authority to act as an agent of organ of the dominant state, which alone has the

requisite capacity.16

As for the latter category, if there were to be a ‘dominant’ state in

relation to Palestine, that state would be Israel. It is certainly not the case that Palestine acts

on behalf of Israel when accessing to treaties. Therefore Palestine must fall into the former

category – an international person possessing its own treaty-making capacity but that does

not necessarily mean that it is a state.

4. Palestine and the UN

As aforementioned, status within the UN may affect capacity to become party to treaties, and

therefore it is necessary to establish the status of Palestine within the UN. UN Membership is

regulated by the UN Charter which sets out clear procedure for the admission of Member

States.17

The UN Charter is silent on other categories of participants in the UN system.

Nonetheless, the UN has developed a practice of bestowing observer status on states and

certain other entities and organisations. Observers have various rights of participation in UN

deliberations, but may not vote. In addition, observers cannot circulate documents as official

13

Reparation for injuries suffered in the service of the United Nations, Advisory Opinion: I.C. J. Reports 1949,

p. 174. 14


p. 174, 9. 15


p. 174, 9. 16

Oliver J. Lissitzyn, ‘Territorial Entities in the Law of Treaties’, 125 The Hague Academy of International

Law: Receuil des Cours (1968), 11. 17

1945 Charter of the United Nations 1 U.N.T.S. XVI, Article 4.


documents unless with special permission and if the observer has a proposal it may need a

full member to table the motion.

The various types of observer status described in the Blue Book of the UN Protocol and

Liaison service include non-member states maintaining permanent observer missions at UN

Headquarters (eg. Holy See, Palestine); intergovernmental organisations (IGOs) maintaining

permanent offices at UN Headquarters (eg regional IGOs); and other entities maintaining

permanent offices at UN Headquarters (eg the sovereign military order of Malta and the

ICRC).18

Even within each category, different observers may have different rights of

participation. NGOs are eligible for a more limited status, known as ‘consultative status’

which is regulated by Resolution 1996/31 adopted by the Economic and Social Council.19

Palestine’s status within the UN has evolved considerably over the last 40 years. In 1974 the

Palestine Liberation Organisation (PLO) was granted ‘the capacity of observer,’20

entailing a

limited right of participation but without the right of vote and consequently the PLO in 1974

established a permanent observer mission at UN headquarters in New York and another one

in Geneva. In Resolution 43/177 of 15 December 1988, the General Assembly acknowledged

the proclamation of the State of Palestine by the Palestine National Council on 15 November

1988 and decided, inter alia, that the designation ‘Palestine’ should be used in place of the

designation ‘Palestine Liberation Organization’ in the United Nations system without

prejudice to the observer status and functions of the PLO.21

Ten years later, the General

Assembly extended privileges to Palestine that had previously been exclusive to Member

States, such as the right to raise points of order related to the proceedings on Palestinian and

Middle East issues and the right to co-sponsor draft resolutions and decisions on Palestinian

and Middle East issues.22

In September 2011, Palestine submitted an application to become a full member of the UN.23

Its application failed because the Committee on the Admission of New Members was unable

to make a unanimous recommendation to the Security Council that Palestine should be

admitted as a Member State. As an interim measure, it was suggested that the General

Assembly should adopt a resolution by which Palestine would be made an Observer State.24

Following its failed membership bid, United Nations Educational, Scientific and Cultural

Organization (UNESCO) accepted Palestine as its 195th Member State on 31 October 2011.

107 states voted in favour of membership, 14 against, and 52 abstained.25

UNESCO is a

18

Protocol and Liaison Service, Permanent Mission of the United Nations, UN Doc. ST/PLS/SER.A/304, March

2014, v-vii. 19

Economic and Social Council, Resolution 1996/31, 25 July 1996. 20

UNGA Resolution 3237, 22 November 1974. 21

UNGA Resolution 43/177, 15 December 1988. 22

UNGA Resolution 52/250, 13 July 1988. 23

Letter received on 23 September 2011 from the President of Palestine to the Secretary-General, UN Doc

A/66/371, 23 September 2011. 24

UN Security Council, Report of the Committee on the Admission of New Members concerning the

application of Palestine for admission to membership in the United Nations, UN Doc S/11/205, 11 November

2011. 25

UN News centre, UNESCO votes to admit Palestine as full member, available at

http://www.un.org/apps/news/story.asp?NewsID=40253#.VTJytPnF9k8, last accessed 18 April 2015.

http://www.un.org/apps/news/story.asp?NewsID=40253#.VTJytPnF9k8


specialised agency of the UN, and thus membership of UNESCO brings Palestine within the

‘Vienna formula’, which will be discussed in the next section.26

Just over a year later, on 29 November 2012, the General Assembly passed resolution 67/19.

Pursuant to operative paragraph 2 of that resolution, the General Assembly decided to

‘[A]ccord to Palestine non-member observer State status in the United

Nations, without prejudice to the acquired rights, privileges, and role of the

Palestine Liberation Organization in the United Nations as the

representative of the Palestinian people, in accordance with relevant

resolutions and practice.’27

This was not the first occasion that non-member state status was granted by the UN. Since

1948, seventeen non-member States maintained this status. Switzerland was the first and the

same process was followed in the case of other non-member States.28

At present, only two

non-member States maintain observer missions at UN headquarters, namely the State of

Palestine and the Holy See. All other observer States eventually became full members of the

UN.

The impact of this change in status is three-fold. First, for United Nations purposes, Palestine

may be referred to as a state or a country.29

Second, Palestine now has the right to place items

on the provisional agenda of the Security Council and the General Assembly, under Article

35(2) of the Charter. Under Articles 32 and 50 of the Charter, Palestine as a non-Member

State enjoys the right to participate without vote in discussions relating to a dispute under

consideration to which it is a party.30

However, Palestine had already been participating in

discussions on the Middle East in the Security Council based on its previous enhanced

observer status.

Third, Palestine has attained the additional right pursuant to resolution 67/17 to place items

on the provisional agenda of the General Assembly.31

Palestine continues to enjoy the rights

and privileges of participation acquired by it previous to the adoption of Resolution 67/19,

such as those granted under Resolutions 43/160 A (1988) and 52/250 (1998).32

Following the adoption of Resolution 67/19, Palestine also acceded to 20 treaties. Although

the timing of this action may imply that Resolution 67/19 granted Palestine the power to

participate in treaties, the resolution had no impact whatsoever on Palestine’s ability to

become a party to international treaties for the following reasons:

26

‘The UN in Brief: The Specialised Agencies,’ available at

http://www.un.org/Overview/uninbrief/institutions.shtml, last accessed 18 April 2015. 27

UNGA Resolution 67/19, 29 November 2012 [2]. 28

Larry D Johnson, ‘Palestine's Admission to UNESCO: Consequences within the United Nations?’ (2011-

2012) 40 Denver Journal of International Law and Policy 118. 29

Issues relating to General Assembly resolution 67/19 on the status of Palestine in the United Nations, 21

December 2012, [3]. 30


December 2012, [9]. 31


December 2012, [12]. 32


December 2012, [11].

http://www.un.org/Overview/uninbrief/institutions.shtml


(i) The Resolution did not declare Palestine to be a state

One of the difficulties facing the Secretary-General, as depository of multilateral treaties, is

that there are certain areas in the world whose status is not clear. In 1973, the General

Assembly adopted a resolution whereby the ‘Secretary-General, in discharging his functions

as depository of a convention with an “all states” clause, will follow the practice of the

General-Assembly in implementing such a clause […]’33

Thus if Resolution 67/19 explicitly

declared Palestine to be a state, this would bring Palestine within the ‘all states’ clause and

thus affect its ability to become a party to treaties.

This paper agrees with Ronen’s position that Resolution 67/19 did not explicitly declare

Palestine to be a state.34

This is because first, the term ‘state of Palestine’ is nowhere to be

seen in the resolution. Second, the perambulatory clauses also refer to the goal of achieving a

two-state solution, which implies that that goal has yet to be achieved. Third, the inclusion of

the word ‘status’ in the phrase ‘non-member observer state status’ implies that Palestine is

being granted a status equivalent to that of non-member observer state. Had the word ‘status’

been omitted, operative paragraph 2 would have declared Palestine as a non-member

observer state and the argument that Resolution 67/19 declares a state of Palestine would

have been more convincing.

Fourth, out of the some 54 states that explained their votes, only 12 seemed to consider the

Resolution as recognising or establishing a Palestinian state for all purposes. New Zealand

and Belgium in fact clarified that their affirmative votes did not constitute a recognition of a

Palestinian state.

As correctly put by Ronen, Resolution 67/19 was drafted in deliberately vague terms in order

to gain the widest support possible, including from states which, while supporting the

Palestinian cause, were not willing to support a resolution that expressly recognised

Palestinian statehood. Thus all we can extract from this resolution was that it accorded

Palestine non-member observer state status. This was neatly summarised by Cuba, which

congratulated ‘the Palestinian people and authorities on their victory [in] obtaining the new

status of a non-member observer State’.

(ii) Even if the Resolution had declared Palestine to be a state, this would not affect

the statehood or lack thereof of Palestine

As aforementioned, statehood is not a prerequisite for capacity to enter into treaties.

However, it is important to determine whether Palestine was a state as a result of the adoption

of Resolution 56/19, in order to determine in what capacity (i.e. whether as a state) Palestine

acceded to treaties in April 2014.

Notwithstanding the discussion in the above sub-section, many academics and states have

interpreted Resolution 67/19 as declaring the existence of the state of Palestine. Whether or

not the resolution does so is irrelevant vis a vis Palestine’s claim to statehood. This is because

33

Office of Legal Affairs, ‘Summary of Practice of the Secretary-General as Depositary of Multilateral

Treaties’, UN Doc. ST/LEG/7/Rev.l, June 1999 [82]. 34

Yael Ronen, Recognition of the State of Palestine: Still too Much too Soon? (Freya Baetens and Christine

Chinkin eds, Cambridge University Press 2014).


General Assembly resolutions are not, ipso facto, binding on member states. The General

Assembly has the power to take binding decisions vis a vis the UN, in areas concerning

admission of new members,35

the budget,36

and voting procedure.37

General Assembly

resolutions may also provide evidence of state practice and/or opinio juris for the creation of

customary international law.38

However, as a general rule, the General Assembly has no law-

making function. As stated by the ICJ in the South West Africa cases, although General

Assembly resolutions may be persuasive on a political level, they are not binding on states.39

Notwithstanding this, some authors have cautiously acknowledged that under some

circumstances, if recognition were universal or near-universal, statehood could be

established.40

Some of these academics have stated that General Assembly resolutions can

constitute collective recognition this regard. However, as discussed in section 2 of this

working paper, this position is not yet well-established in international law and additionally,

in the case of Palestine, recognition is not universal nor is it near-universal. Thus even if

Resolution 67/19 declared a state of Palestine, this would not determine Palestinian statehood

under international law.

Second, if membership of the UN cannot be determinative of statehood, then non-member

observer status cannot be either. Membership of the UN, although strong evidence of

statehood, does not necessarily mean that statehood has been attained. It is possible to be a

member of the UN without being a fully independent state, as India was prior to achieving

complete independence from the United Kingdom. Further, Belarus and Ukraine were

members of the UN although they were Soviet republics at the time and in the case of the

SFRY, it continued its membership of the UN almost a decade after its extinction despite the

fact that legally binding Security Council resolutions affirmed that this State no longer

existed. Conversely, there can exist states that are not members of the UN. After all, if one of

the criteria for UN membership if statehood,41

then logically this criterion will have to be

satisfied prior to admission and there will be a temporal gap between attainment of statehood

and membership in the UN. In fact, there are numerous examples of states who, at one stage

or another, were not members of the UN for a significant period of time, such as Japan,

Liechtenstein, San Marino, and Switzerland.42

Thus if the membership or non-membership of the UN – which is regulated by the UN

charter and is open to ‘states’ – is not determinative of statehood, then non-member observer

status - which has no basis in the UN charter and has been developed on an ad hoc basis by

General Assembly resolution – cannot be determinative of statehood either.

35

Competence of the General Assembly for the Admission of a State to the United Nations [1950] ICJ Rep 4, at

8 36

Certain expenses of the United Nations (Article 17, paragraph 2 of the Charter), Advisory Opinion of 20 July

1962, I.C. J. Reports 1962, p. 151 at 164. 37

South-West Africa-Voting Procedure, Advisory Opinion of June 7th, 1955: I.C. J. Reports 1955 p 67 at 76–77. 38

Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),

Merits, Judgment, I.C.J. Reports 1986, p. 14. [195]. 39

South West Africa, Second Phase, Judgment, I.C.J. Reports 1966, p. 6 [98]. 40

Cerone; Whitman; Crawford and Oxford University Press., 501; Weller, 129–30. 41

1945 Charter of the United Nations 1 U.N.T.S. XVI, Article 4. 42

Daniel Costello, ‘The Status of Palestine at the General Assembly’ .


(iii) The Resolution did not bring Palestine within the Vienna formula

As a general rule, accession to a treaty depends on the terms of the treaty itself.43

Where a

treaty is open to membership of ‘any state’ or ‘all states’, the practice of the Secretary-

General as treaty depository has been to accept instruments of accession or ratification from

those states falling within the ‘Vienna Formula’ of Article 81 of the VLCT, i.e. states that are

members of the UN or members of the specialized agencies, or parties to the Statute of the

ICJ. Thus status in the UN is of direct relevance to capacity to participate in treaties.

Resolution 69/17 did not change Palestine’s status regarding membership of the UN, its

specialised agencies, or the UN Statute. As stated by the Representative of Georgia:

‘The resolution confers on Palestine privileges and rights that are equivalent

to those of non-member States and only within the General Assembly.

Georgia does not consider that the decision endows Palestine with the

automatic right to join international institutions and treaties as a State.’44

(iv) Palestine already had the capacity to enter into treaties as a member of UNESCO

UNESCO accepted Palestine as its 195th Member State on 31 October 2011. As UNESCO is

a specialised agency of the UN, Palestine’s membership of UNESCO brought it within the

Vienna Formula. However, falling within the Vienna Formula is not determinative of

statehood. For example, pre-independent Namibia, represented by the UN Council for

Namibia, was admitted as a full member of some specialised agencies. In addition, Japan,

Liechtenstein, San Marino, Switzerland, and Nauru became parties to the ICJ statute before

becoming UN Member States. Some have suggested that even within UNESCO, Palestinian

statehood is not beyond debate. This is hinted in the executive committee’s resolution in the

lead up to admission which noted that ‘the status of Palestine is the subject of ongoing

deliberations in the UN’, and by the fact that membership was accorded to ‘Palestine’ rather

than the ‘state of Palestine.’ This is notwithstanding the fact that Palestine’s membership of

UNESCO was pursuant to Article II(2) of the UNESCO Constitution, which refers to

membership of ‘states not members of the UN’ (emphasis added). However, similar to the

adoption of Resolution 67/19, the action of an organ or agency of the UN cannot be

determinative of statehood, even if that organ or agency views the particular entity as a state.

At best, it is a state for the purposes of participation in or with that organ/ agency.

Thus the key point of this discussion is that membership of UNESCO does not determine that

Palestine is a state. However it does bring Palestine within the Vienna formula and thus gives

it the capacity to become party to many treaties. What does that tell us about who or what can

become a party to treaties? The discussion of all the treaties to which Palestine is a party is

beyond the scope of this paper and therefore the focus will be on one treaty in particular – the

ICCPR.

43

1969 Vienna Convention on the Law of Treaties 1155 U.N.T.S. 331, Article 15. 44

UN Doc A/67/PV.44.


5. Case study: Palestine’s Membership of the ICCPR

On 1 April 2014, Palestine deposited an instrument of accession to the ICCPR with the

Secretary General. Pursuant to Article 49 of the treaty, the ICCPR entered into force for

Palestine on 1 July 2014. Thus Palestine is a member of the ICCPR. Is this conclusion readily

gleaned or necessarily compatible with the text of the membership provisions of the treaty?

The ICCPR sets out in Article 48(1):

The present Covenant is open for signature by any State Member of the

United Nations or member of any of its specialized agencies, by any State

Party to the Statute of the International Court of Justice, and by any other

State which has been invited by the General Assembly of the United

Nations to become a Party to the present Covenant.

As a member of UNESCO, Palestine can and indeed did join the ICCPR. However, as

aforementioned, membership of UNESCO is not determinative of statehood. The language of

Article 48(1) of the ICCPR lends support to this. It uses the term ‘State’ when referring to

membership of the ICJ and UN, but uses the term ‘member of any of [the UN’s] specialised

agencies’, omitting the term ‘state’ in regards to membership. It is thus unclear whether

Article 48(1) purposively opened the door to non-state members of the treaty.

Article 31 of the Vienna Convention on the Law of Treaties provides that:

A treaty shall be interpreted in good faith in accordance with the ordinary

meaning to be given to the terms of the treaty in their context and in the

light of its object and purpose.

The ICCPR and the vast majority (if not all) of the treaties to which Palestine has acceded

were drafted at a time when states were the only actors in the international sphere. Is it

therefore correct as a matter of law to allow entities whose statehood is contested to become

parties to these treaties?

Where the meaning of a term or terms are unclear we may look at the drafting history of a

treaty.45

The drafting history of Article 48(1) indicates a very state-centric debate, as the main

point of contention was whether the ICCPR should be open for membership to ‘all states’

including non-UN members or non-members of its specialised agencies.46

Only states were

members of the specialised agencies at that time and thus a strong argument could be made

that it was the drafters’ intention that only states could be a party to the ICCPR. Declarations

made by 13 states to the ICCPR indicated that they viewed Article 48(1) as discriminatory,

and were of the belief that the ICCPR should be open for participation by all states, including

those outside the UN ‘family’.47

No mention whatsoever was made of the possibility of

entities whose status was contested becoming members of the ICCPR.

Further, the term ‘State’ in Article 48(1) may not refer solely to the term ‘member of the

United Nations.’ The use of the term ‘State’ in ‘The present Covenant is open for signature

by any State Member of the United Nations or member of any of its specialized agencies’

45

1969 Vienna Convention on the Law of Treaties 1155 U.N.T.S. 331, Article 32. 46

Manfrek Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (NP Engel 2005), 804. 47

Manfrek Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (NP Engel 2005), 804.


could be describing the nature of UN members and also members of specialised agencies.

After all, the ‘constitution’ of the specialised agencies generally only allow for states to

become members. Article II(2) of the UNESCO Constitution, for example, refers to

membership of ‘states not members of the UN’ (emphasis added).

On the other hand, there are numerous arguments in favour of a more expansive

interpretation of Article 48(1). First, The ICCPR is, without a doubt, a human rights treaty.

Human rights treaties confer rights on the individual which are opposable to states. As can be

distilled from the Genocide Convention Advisory Opinion, human rights treaties are intended

to be universal in scope, with the object and purpose that as many parties as possible should

participate.48

Thus a broad interpretation should be given to the membership clauses so as to

maximise participation in the treaty, and thus maximise the number of individuals who will

benefit from the protection of the treaty.

Secondly, treaties must be interpreted in accordance with the principle of effectiveness,

which provides that the object of treaty interpretation is to produce an interpretation that

advances the aim of the treaty.49

Israel does not claim the exercise of territorial sovereignty

over the occupied territories: thus for instance, in its report to the Committee on Economic

and Social Rights, dated 19 October 2001, it argued that ‘Israel has consistently maintained

that the Covenant does not apply to areas that are not subject to its sovereign territory and

jurisdiction (ie the West Bank and Gaza)’. If Palestine is not a party to the ICCPR, then the

ICCPR will not be applicable in the West Bank and Gaza, leaving a ‘black hole’ of human

rights protection. As aforementioned, the very nature of human rights treaties entails that the

largest amount of people possible benefit from its protection, in accordance with the principle

of effectiveness a broad approach should be given to its membership criteria.

Article 31(3)(b) of the VCLT provides that ‘subsequent practice in the application of the

treaty which establishes the agreement of the parties regarding its interpretation’ should be

taken into account when interpreting a treaty. The VCLT does not say whose practice is

relevant here, however Gardiner points out that ‘the relevant practice will usually be that of

those on whom the obligation of performance falls’, in this case, states.50

As is it states that

decide who becomes a member of specialised agencies, and membership of specialised

agencies is determinative of capacity to become a State Party to the ICCPR, it is submitted

that the practice of states in admitting members of specialised agencies qualifies as

subsequent practice in the sense of Article 31(3)(b). As discussed above, this practice

indicates that membership of the ICCPR is not solely the prerogative of states. This is

supported by ICJ precedent which holds that a term in a treaty is capable of evolving over

time.51

The ICCPR was drafted on the premise that that at that time, states were the sole

repositories of power in international law, international relations, and political theory. In

contrast to 1966, states are no longer the only actors in the international system and the

ICCPR should be interpreted accordingly. Put simply, Palestine’s membership of the ICCPR

shows us that the modern-day interpretation of the ICCPR’s membership criteria leads to

results that may not have been envisaged in 1966.

48

Reservations to the Convention on Genocide: Advisory Opinion, ICJ Reports 1951, p. 15. 49

Richard K. Gardiner, Treaty Interpretation (Oxford University Press 2008). 50

Ibid. 51

Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, I.C.J. Reports

2009, p. 213 [66].


6. Impact for Palestine

Moving away from a theoretical discussion to a more forward-looking view, membership of

the ICCPR has practical consequences for Palestine. In terms of monitoring and enforcement

of the Covenant, Palestine has not made a declaration under Article 41 recognising the

competence of the Human Rights Committee to hear inter-state communications, nor has it

become a party to the Optional Protocol to the ICCPR which recognises the competence of

the Committee to hear complaints from individuals. Palestine, as a non-member of the UN,

does not have to participate in the review mechanisms of the Human Rights Council.

However, under Article 40 of the ICCPR, Palestine has one year from the date of entry into

force of the ICCPR (from 2 July 2014) to submit a report to the Human Rights Committee

indicating the measures adopted to give effect to the provisions of the ICCPR. Thereafter,

Palestine will have to submit a report to the Committee whenever requested (usually every

four years). The Committee will examine each report and will address its concerns and

recommendations to the State party in the form of ‘concluding observations’.

The content of these reports will be of significant interest to scholars of statehood. Israel has

consistently put forward the position that the ICCPR and other human rights treaties to which

it is a party do not give rise to obligations for Israel in the occupied territories.52

In its

concluding observations on the fourth periodic report of Israel, the Human Rights Committee

requested Israel to review their position on the applicability of the ICCPR and to accept that

the Covenant applies extraterritorially.53

In this respect, the Committee referred to its General

Comment 31 which sets out that ‘a State Party must respect and ensure the rights laid down

in the Covenant to anyone within the power or effective control of that State Party, even if

not situated within the territory of the State Party’.54

If Palestine is now a state for the

purposes of the ICCPR, it will be interesting to see how the Human Rights Committee

determines who has effective control over the occupied territories, considering that effective

control is one of the criteria for statehood.

These and further questions will be explored in depth in the finished paper. Suggestions

and/or comments on this section and the following section are particularly welcome, as these

sections represent the most underdeveloped areas in terms of research and ideas.

7. Impact for other entities

The result of the above discussion is that Palestine, as a result of its UNESCO membership

can become a party to any treaty that uses the Vienna formula of membership. This does not

mean that Palestine is a state, for to accept that Palestine is a state because of these

developments means to accept that a state can be created by a vote by UNESCO. As put by

Vidmar:

52

See for example, ‘Consideration of reports submitted by States parties under article 40 of the Covenant

pursuant to the optional reporting procedure’, Fourth periodic reports of States parties due in 2013, Israel, UN

Doc CCPR/C/ISR/4, 11. 53

Human Rights Committee, Concluding observations on the fourth periodic report of Israel, UN Doc

CCPR/C/ISR/CO/4, 21 November 2014, 2. 54

Human Rights Committee, General Comment No. 31: The Nature of the General Legal Obligation Imposed

on States Parties to the Covenant (CCPR/C/21/Rev.1/Add. 13 2004), [10].


‘The object and purpose of treaties is not state creation. If the treaty uses the

term ‘state parties’ rather than high contracting parties’, this should not be

read in the opposite direction and interpreted with reversed effect.’55

Thus membership of a specialised agency entitles an entity to become party to a large range

of treaties. This conclusion could be taken advantage of by entities aside from Palestine. For

example, the Holy See is a member of various specialised agencies such as the International

Telecommunication Union and the World Intellectual Property Organisations.56

It thus

satisfies the ‘Vienna Formula’ and is a member of various treaties, including the 1965

Convention on the Elimination of All Forms of Racial Discrimination, the 1989 Convention

on the Rights of the Child, and the 1951 Refugee Convention.

To give another example, Kosovo is a member of the International Monetary Fund (IMF). As

the IMF is part of the World Bank Group, which in turn is a specialised agency of the UN,57

Kosovo also falls within the Vienna Formula. Kosovo’s claim to statehood is even more

contested than that of Palestine, with a lower number of states recognising the existence of

the state of Kosovo. Should Kosovo become a member of the ICCPR and thus be obliged to

submit reports on the implementation of the Covenant in Kosovo, the question of effective

control will be even more complicated than that relating to Palestine. Following the adoption

of Security Council Resolution 1244 (1999), international security presences known

respectively as UNMIK (United Nations Mission in Kosovo) and KFOR (Kosovo Force)

have been deployed in Kosovo. In essence, the effect of Resolution 1244 was that all

legislative and executive powers, including the administration of the judiciary, were

transferred to UNMIK.58

The responsibilities of KFOR pursuant to Resolution 1244 include

‘establishing a secure environment in which refugees and displaced persons can return home

in safety, the international civil presence can operate, a transitional administration can be

established, and humanitarian aid can be delivered’ and ‘ensuring public safety and order

until the international civil presence can take responsibility for this task.’59

The resolution did

not alter the status of Kosovo as part of the Former Republic of Yugoslavia. Thus in the case

of Kosovo, there are three possible entities in possession of effective control – Serbia,

Kosovo, and the UN (via the UN Mission in Kosovo) – and should Kosovo become a State

Party of the ICCPR, the ICCPR would have to determine which of these entities is in

effective control for the purposes of monitoring of the Covenant’s implementation.

Finally, Hong Kong and Macau are members of the International Labour Organisation, which

is also a specialised agency of the UN. Thus these entities have the capacity to enter into

treaties that use the Vienna Formula as membership criteria. The final version of this paper

may look at the question of whether the ICCPR already applies to Hong Kong, as the United

Kingdom ratified the ICCPR in 1976 and extended it to Hong Kong.60

If human rights

55

Jure Vidmar, ‘Palestine and the Conceptual Problem of Implicit Statehood’ (2013) 12 Chinese Journal of

International Law 19, [56], [60]. 56





UN Security Council Resolution 1244, 10 June 1999, Operative paragraphs 10, 11. 59

UN Security Council Resolution 1244, 10 June 1999, Operative paragraph 9. 60

Johannes Chan, ‘State Succession to Human Rights Treaties: Hong Kong and the International Covenant on

Civil and Political Rights’ 45 International & Comparative Law Quarterly 928.




obligations run with the people, rather than the government, this would mean that the ICCPR

applied to Hong Kong after it was returned to China in 1997, notwithstanding the fact that

China is not a party to the ICCPR. It is not clear to this author yet whether this discussion is

relevant to the content of this paper.

8. Conclusion

This question posed at the beginning of this working paper was what the recent treaty

developments in relation to Palestine tell us who or what can become a party to international

treaties. The preliminary results of this research are as follows: First, Palestine had the

capacity to enter into treaties with the ‘Vienna Formula’ of membership criteria when it

became a member of a UN specialised agency, namely UNESCO. Membership of specialised

agencies is not determinative of statehood, therefore statehood is not necessary to become a

party to treaties such as the ICCPR that use the Vienna criteria of membership. This means

that other entities that are members of specialised agencies, such as Kosovo, Hong Kong, and

Macau have the capacity to become a party to treaties, notwithstanding the fact that the

drafters may not have contemplated membership of non-states. The results of this research

also means that an entity wishing to be part of a treaty that uses the Vienna Formula will most

likely be able to do so if that entity becomes a member of a specialised agency. Becoming a

member of a specialised agency is considerably less difficult than becoming a member of the

UN, and thus this is an avenue open to other entities who wish to be seen as sovereign equals

in the international community. It is hoped that the discussion at the ESIL Research Forum

will lead to further development of the ideas raised in this working paper.

who can become a party to international treaties? a case …€¦ · · 2015-04-27international...

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