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Letter to the Editor from former Deputy Legal Adviser to Israel’s Permanent Mission to the United Nations

[Editor's Note: Be sure to see Fionnuala Ní Aoláin's response to this letter to the editor, which was published on April 11, 2014]

In her recent post, Fionnuala Ní Aoláin examines the legality of Palestinian accession to the Geneva Conventions, i.e. whether Palestine’s status under international law sufficiently satisfies the statehood status required for accession. This twenty-five-years-old (at least) debate has been lately rekindled, following the most recent turn in the Israeli-Palestinian labyrinth; the legal analysis takes place in light of yet another recent turn – the UN General Assembly resolution according Palestinians with ‘non-member observer State status in the United Nations.’ However, this telegraphic resolution doesn’t detail what this status entails, so in order to assess whether the resolution “removes accession uncertainty” for the Palestinians, Ní Aoláin relies on the “Holy See precedent”. From there she draws normative content for the “parallel status” accorded to the Palestinians, and suggests that previous legal barriers in their path have now been removed.

At first blush, it seems nothing could be more straightforward than making the Palestinian claim for statehood based on a long-standing precedent, a notion which carries inherent legal, prudential, and moral weight – and which most probably guided the drafters of the resolution. While this move is indeed crucial for upgrading Palestine’s international legal status, the commonsensical appearance here is highly misleading. On the contrary, in terms of both international legal doctrine and institutional analysis, this is a much more complex proposition, as I will immediately turn to show; only when recognized as such this move could be fully appreciated, taking into account its implications – which I suspect some would be hesitant to follow through on.

Soon after being established as an international legal entity by the 1929 Lateran Treaty, the Holy See acted and was treated as a State. It joined the UPU that same year. In the 1949 Geneva Conference, the Holy See delegation negotiated with full and equal powers, including plenipotentiary signing the Final Act. These are just two illustrative examples of an extensive practice and corresponding recognition, both long predating Holy See participation in the work of the UN as a non-member observer (which began in 1964).

For Palestine, however, history flows in the other direction: having first attained non-member observer status, it now seeks treaty accession. Applying the Holy See precedent to Palestine erases this significant factual difference between the two cases; in Ní Aoláin’s analysis, this can be glimpsed in the description of the Holy See as maintaining “non-member state status at the United Nations as well as holding long-standing High Contracting Party status to the Geneva Conventions.” Almost unnoticeably, a period of some 15 years has been collapsed into a single legal instance.

In fact, the Holy See originally contemplated full UN membership, and even though no genuine legal doubts existed with respect to statehood, the Holy See encountered political objections, as indicated by the awkward reasoning provided, inter alia, by the US. This also seems to fit the bigger political picture of UN early years, during which several legally-fully-fledged states – such as the losing parties of World War II – were politically barred from UN membership and allowed to participate only as observers. The same political compromise was eventually applied also to the Holy See, whose status under international law was the same as that of previous observers – for our purposes, this means a preexisting, uncontested capacity to accede to international treaties.

Once again, with Palestine things are the other way around: first participating in the UN in a functionally equivalent manner to that of the Holy See, and consequently claiming the general faculties of legal statehood which the latter already possessed upon assuming non-member observer status. This, as explained, is the crux of Ní Aoláin’s analysis.

The complex move which I’m describing is, to my understanding, structurally similar to arguments which have previously been described as “flipping”. It consists of two parts. The first one was just elaborated, and can be thought as decoupling the precedent from its historical legal and political context. Freed from its formative chains, the precedent could then be normatively reoriented. Thus, the non-member observer State status, conceived as a “diplomatic fix” for a case which gave no rise to genuine legal doubts regarding an entity’s statehood, but nevertheless presented a need to overcome a political objection to said entity’s full participation in the UN, is now used to paint a genuine legal doubt regarding an entity’s statehood as a mere political objection to treaty accession, which can arguably be overcome by the same diplomatic fix created for this purpose.

Seen in this light, citing the Holy See precedent in support of Palestine’s treaty accession is a rather sophisticated and not at all straightforward move which seriously challenges the purported politics/law and procedure/substance distinctions and resulting tensions underlying the international public sphere. In this sense, it is similar to the previous Palestinian move in the statehood debate, i.e. before the recent General Assembly resolution, which combined the admission of Palestine to membership in a UN specialized agency (UNESCO) and the so-called ‘Vienna’ and ‘All-State’ formulas. One can praise such moves as shrewd plays promoting global political justice; or celebrate them as transcending international legal formalism and positivism; or simply consider them as rearranging the ‘chicken and egg’ of statehood, namely possessing certain objective qualities and gaining a certain measure of political recognition. But this is exactly where doctrinal and institutional implications should be given serious consideration.

The key doctrinal implication of the Holy See-Palestine analogy pertains to the international law of statehood, which undergoes a substantive renovation, as the Palestinian claim for statehood seems to rely on a weird conflation of both constitutive and declarative theories of public international law. This is how it works: unable to make a legally conclusive argument based on the declarative theory and left with genuine doubts with respect to all four objective criteria, the Palestinians try to derive statehood from the wide political support arguably expressed through the recent GA resolution. However, this is also problematic because (a) under the constitutive theory, recognition is a cumulative requirement, i.e. it supplements and does not supplant the four objective criteria; and (b) in a related manner, several States gave conflicting statements in their explanations of vote in the General Assembly (here and here). Therefore, by using the non-member observer State status as legal proxy for statehood, pro-Palestinian-statehood commentators “splice” the declarative and constitutive theories, transforming recognition from a necessary condition of the constitutive theory to a sufficient condition of the declarative theory.

Another important doctrinal aspect of the Holy See precedent-based analysis is the minting of a new concept in international law: the non-member observer status, now decoupled from context and normatively reoriented, is claimed to extend beyond the halls of the UN and confer treaty accession powers. Arguably, the General Assembly tapped this legal concept and applied it with prescriptive authority, by virtue of which it established the Palestinian state as a matter of international law, namely “legislated the two states.” This engenders the institutional implications of Ní Aoláin’s analysis, serving a double whammy to traditional thinking.

First, this new legal concept isn’t spelled out in the UN Charter nor in any resolution of any UN organ; conversely, inasmuch that the Holy See precedent has any substantive legal content (beyond rights and privileges already accorded to the Palestinians in the UN), this content is contained in an exchange of letters between the UN Secretariat and the Holy See, which was never made public. A political arrangement detailed in an unpublished document authored by a single state and an international bureaucracy is thus elevated to the level of international legal norm, which can then be applied to Palestine in a manner that produces the “same” legal outcome. Second, it vests the General Assembly with international legislative power, i.e. the authority to determine legal questions in a binding manner. Eventually, this leads back to the UN bureaucracy, namely the Office of Legal Affairs, which combines a literal analysis with applying the “Holy See precedent” in the same seemingly-straightforward-but-actually-flipping fashion, and advises the General-Secretary to allow Palestinian accession to the treaties for which the GS acts as a depositary. Were the GS to follow this advice, further institutional implications are likely to arise, owing to the delicate political situation of the depositary, and the conflicting legal principles guiding the possible courses of action, which cannot be tackled here, but which the Holy See precedent-based analysis once again overlooks.

This leads me to a final, separate but related point. So far, the “hot potato” of Palestinian accession has landed in the hands of the Swiss, the Dutch and the GS. But the US Government might soon find itself in a similar predicament. The US is depositary of over 200 multilateral treaties – none of the ones on the Palestinians’ current list, but some surely in their sights – including the UN Charter. For current purposes, a more relevant US-deposited treaty is the IAEA Statute, to which Namibia sought to accede in 1983, though still under South African rule and internationally represented through the UN Council for Namibia. A UN legal memo of the same year recounts the US note circulated thereafter to IAEA States Parties, in which the US announced it “does not find itself in a position to accept the instrument” of Namibia’s accession. Comparing the US response and the Swiss response to the 1989 PLO attempted accession to the Geneva Conventions, summarized by Ní Aoláin, indicates the complexity of the depositary’s position in such situations, which is also affected by the particularities of the treaty-regime in question. What’s more, one can only wonder how would the US State Department formulate and circulate such a note with regards to a Palestinian accession attempt, considering the  provision previously triggered by the Palestinian admission to UNESCO, which the US government has been so far unsuccessful in amending.

Nimrod Karin is an LL.M student at the NYU School of Law. He was formerly a legal adviser to the Israel Defense Forces, at the International Law Department of the Military Advocate General’s Corps (2006-2012) and as the Deputy Legal Adviser to Israel’s Permanent Mission to the United Nations (2012-2013). 

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