The Legal Consequences of Limited Statehood

Palestine in Multilateral Frameworks

Shadi Sakran

• Publisher: Routledge
• Year: 2019
• ISBN:
  9781000763577
• Edition: 1
• Topic: Derecho
• Subtopic: Teoría y práctica del derecho

This book analyzes Palestine's acceptance as a State in multilateral frameworks and its legal consequences.Using Palestine as a case study, this book argues that participation in a State-reserved regime is not determined by the traditional requisites of statehood. UNESCO membership unveils the acceptance of Palestine as a State for the limited purpose of the organization, without any immediate or implicit implications for the statehood of Palestine. Palestine's accessions to various multilateral treaties demonstrate this argument as do its instruments of accession being accepted by the depositaries of both the United Nations Secretary-General and national Governments without requiring any clarification of the statehood question. This book also provides the first in-depth study of the legal relationship of the rights and duties of Palestine with different groups of State Parties; the recent dispute settlement brought by Palestine against the United States and Israel; and theoretical and practical challenges for Palestine in its acceptance as a State in multilateral frameworks.The book will be of interest to scholars and students of international law, legal theory, state law, and Middle East studies.

1 Limited statehood in multilateral frameworks

1.1 General introduction

Multilateral frameworks, such as international organizations and multilateral treaties, which delineate their participation to “States” and invoke the designation “States” in their admission or accession clause may seem, prima facie, open only to formal States. This is, in fact, the established consensus in international law.¹ Only formal States, which accordingly fulfill the traditional requisites for statehood can by virtue of their status as States adhere to a State-reserved regime.² However, contemporary international law is witnessing entities which are not States in the general-law-sense being accepted as States and thereby treated as such in many multilateral frameworks.³ The acceptance of a highly controversial entity as a State in a specific multilateral framework, which lies at the heart of this book, does not mean that the accepted entity becomes a formal State as a result of this acceptance,⁴ but it is an acceptance as a State for a limited purpose and strictly limited to the specific multilateral framework in question. The name given to this acceptance, which will be used throughout this book, is “a State for a limited purpose” and/or “limited statehood.”

1 Many multilateral frameworks delimit their participation to formal States, see e.g., Henry G. Schermers and Niels M. Blokker, International Institutional Law: Unity Within Diversity, 5th ed. (Leiden and Boston: Martinus Nijhoff Publishers, 2011), 64: “The most important members of international organizations are states. Indeed, many constitutions of organizations expressly require statehood as a condition for membership” (footnotes omitted); from a similar strand, Yuval Shany, “In Defense of Functional Interpretation of Article 12(3) of the Rome Statute: A Response to Yaël Ronen,” Journal of International Criminal Justice 8, no. 2 (2010): 335, in which he argues that “Formal statehood remains an absolute prerequisite for membership in some international organizations, such as the UN, and for participation in many treaties” (reference has been made to the Geneva Conventions and their Additional Protocols, and Palestine as an example of being rejected by the depositary of these treaties in 1989, Switzerland); on the UN Membership: Robert Kolb, The Law of Treaties: An Introduction (Cheltenham and Northampton: Edward Elgar Publishing, 2016), 106, in which he argues that “Only States may be members of the United Nations in accordance with Articles 3–4 of the Charter. The organization is above all an ‘inter-State club.’” This, again, has been mentioned in respect to accession to the ICC: Daniel Benoliel and Ronen Perry, “Israel, Palestine, and the ICC,” Michigan Journal of International Law 32, no. 1 (2010): 79. Benoliel and Perry argue: “The state-based system was clearly preserved within the Rome Statute. At the outset, the Statute contains many provisions, some complex concerning the ICC’s jurisdiction. No provision, with a single exception to be discussed below, transcends the state-based system … Moreover, as it is currently configured, the Rome Statute is not open to ratification by entities other than states recognized by the United Nations. Furthermore, rule 44.1 of the ICC Rules of Procedure and Evidence states that the Registrar, upon request of the Prosecutor, may inquire of a state that is not ‘a Party to the Statute’ or that ‘has become a Party to the Statute’ after its entry into force, on a confidential basis, as to whether it intends to make the declaration provided for in Article 12(3). The rule thereby limits the Prosecutor’s discretion to states.” Another example of international organization that limit its admission to “States” is witnessed in the membership of ICPO-Interpol. Constitution of the International Criminal Police Organization, June 13, 1956, (I/CONS/GA/1956(2017), art. 4, which stipulates the following: “Any country may delegate as a Member to the Organization any official police body whose functions come within the framework of activities of the Organization.” The term country used in ICPO-Interpol constitution was not defined until September 2017. ICPO-INTERPOL General Assembly, adopted a resolution on “The process for membership of INTERPOL.” In this regard, the ICPO-Interpol General Assembly resolved that “the word ‘country’ in Article 4 of the Constitution shall be interpreted as ‘state’ and that, as of September 27, 2017, the INTERPOL membership shall be open to ‘states’ as Members of the Organization.” It has been further explained that “Under this heading the requesting country should explain that it meets the conditions for statehood: a territory; a population; a government; and capacity to enter into relations with other states. An important element is also that the requesting country mentions if it is a member of other intergovernmental organizations and, in particular, if the country is a Member of the United Nations or an Observer State recognized by the United Nations.” The Process for Membership of INTERPOL, ICPO-Interpol Doc GA-2017-86-RES-01, at 3 (September 26–29, 2017), www.interpol.int/content/download/5728/file/GA-2017-86-RES-01%20-%20The%20process%20for%20membership%20of%20INTERPOL.pdf.

2 The most accepted requisites of statehood are set out in the instrument of the Montevideo Convention on Rights and Duties of States, December 26, 1933, 165 LNTS 19, art. I, which was signed at the Seventh International Conference of American States in Uruguay in 1933 (hereinafter the Montevideo Convention). Article I of the Montevideo Convention defines State as a person of international law that should possess the following requirements: “a) a permanent population; b) a defined territory; c) government; and d) capacity to enter into relations with the other states.” For a literature review on the traditional requisites of statehood and in particular on the Montevideo Convention, see e.g., Thomas D. Grant, “Defining Statehood: Montevideo Convention and its Discontents,” Columbia Journal of International Law 37, no. 2 (1999): 403–457; James Crawford, The Creation of States in International Law, 2nd ed. (Oxford and New York: Oxford University Press, 2006), 37–95; David Raič, Statehood and the Law of Self-Determination (The Hague, London and New York: Kluwer Law International, 2002), 49–88; and Jure Vidmar, Democratic Statehood in International Law: The Emergence of New States in Post-Cold War Practice (Oxford: Hart Publishing, 2013), 39–42.

3 See William T. Worster, “Functional Statehood in Contemporary International Law,” SSRN, last revised December 27, 2017: 26, https://dx.doi.org/10.2139/ssrn.2807156. Wosrter observes that there “are numerous situations where there is an entity that, for one reason or another, cannot be or will not be considered a state. However, the international community needs to engage with those same entities in various functional ways for pragmatic reasons. For lack of a different paradigm, the entity is therefore treated as if it were a state on a functional basis, while all the while continuing to refuse it formal statehood.”

4 The legal effect on admissions to international organizations will be extensively discussed in Chapter 2.

Although the acceptance of certain entities as States is a new phenomenon in multilateral frameworks, it has been widely communal and accepted in bilateral settings. A well-known case of this is the way in which a number of domestic courts treat the citizens and properties of a “State” that is not recognized by that country.⁵ Very frequently, if litigation arises between a national and a foreigner who is from a country not recognized by the State where this litigation is taking place, the domestic Court treats individuals or assets from this unrecognized country as if it were a State, for the limited purpose of the litigation.⁶

In a similar strand, again out of practical exigencies, States have frequently developed relationships through bilateral agreements with entities that are not formally States, to which the former do not extend to State recognition. For example, the bilateral trade agreements, which were concluded between the Republic of China (Taiwan)⁷ and States that do not recognize Taiwan as a State (e.g., New Zealand and Singapore) are in fact the result of an acceptance of Taiwan as a State for a limited purpose by these States.⁸

5 The traditional view holds the strict position that diplomatic relations can be developed through recognition, in particular through the executive branch. Contracting or engaging with other States and/or entities is a consensual matter, based on the willingness of a certain State to engage another entity on the international level for various reasons. For example, the Department of the United States issued to the press on November 1, 1976 in response to a question raised in a news briefing on October 22, 1967 regarding “the criteria applied by the United States in deciding whether to recognize a new state.” In this regard, the United States stated: “In the view of the United States, international law does not require a state to recognize another entity as a state; it is a matter for the judgment of each state whether an entity merits recognition as a state. In reaching this judgment, the United States has traditionally looked for the establishment of certain facts. The United States has also taken into account whether the entity in question has attracted the recognition of the international community of states.” Eleanor C. Mcdowell, Digest of the United States’ Practice in International Law 1975 (Washington, DC: United States. Dept. of State. Office of the Legal Adviser, 1976), 19–20 (emphasis added). Problems, however, arise in situations where a State is required to deal with the unrecognized State for a purported matter. For example, one of the prime problems is well addressed in private rights, in which a domestic court is required to handle cases of individuals from unrecognized States. However, treating an individual as a State cannot be seen as an act of State recognition, rather as acceptance for a limited purpose. The issue of private rights for individuals from an unrecognized country in the domestic foreign courts has been discussed enormously in the literature, see e.g., Edwin D. Dickinson, “The Unrecognized Government or State in English and American Law,” Michigan Law Review 22, no. 2 (1923): 118–134; Stanley Lubman, “The Unrecognized Government in American Courts: Upright v. Mercury Business Machines,” Columbia Law Review 62, no. 2(1962): 275–310; Mary B. West and Sean D. Murphy, “The Impact on US Litigation of Non-Recognition of Foreign Governments,” Stanford Journal of International Law 26, no. 2 (1990): 435–478; and Jianming Shen, “Revisiting the Disability of the Non-Recognized in the Courts of the Non-Recognizing States and Beyond: The Departure of the In re Guanghua Liao Courts from the Rules,” Florida International Law Journal 5, no. 3 (1990): 401–469.

6 For example, the relationship between Israel and Palestine is well-known. So far neither side recognizes the other as a State notwithstanding the exchange of mutual letters prior to the Declaration of Principles on Interim Self-Government Arrangements between Israel and the Palestine Liberation Organization, September 13, 1993, 32 ILM 1525 (1993). A quick glance at the Kav Laoved website shows that for the time being, there are approximately 70,000 Palestinian workers in Israel. Many of these Palestinian workers choose to address the Israeli domestic courts when a conflict arises regarding their labor rights, “Palestinian Workers,” Kav Laoved, accessed on July 12, 2019, www.kavlaoved.org.il/en/areasofactivity/palestinian-workers/. For detailed and critical analyses of Palestinian-Israeli relations from private international law perspective, see Michael Mousa Karayanni, Conflicts in a Conflict: A Conflict of Laws Case Study on Israel and the Palestinian Territories (Oxford and New York: Oxford University Press, 2014).

7 As of today, Taiwan is not recognized as a State by any State. However, Taiwan maintains diplomatic relations with 20 different countries. These countries are: East Asia and Pacific—Kiribati, Republic of the Marshall Islands, Nauru, Republic of Palau, Solomon Islands, and Tuvalu; Africa—Burkina Faso and Kingdom of Swaziland; Europe—Holy Sea; Latin America and Caribbean—Belize, the Dominican Republic, El Salvador, the Republic of Guatemala, Haiti, the Repub...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Acknowledgments
• List of tables
• List of maps
• List of acronyms
• List of international instruments
• List of international documents
• Abstract of the book
• 1. Limited statehood in multilateral frameworks
• PART I: Palestine in international organizations
• PART II: Palestine in multilateral treaties
• Annex 1: tables
• Annex 2: maps of Palestine
• Index