Every year, thousands of students of international law around the world hear ad nauseam that there is no centralized authority in the international system. One consequence of this lack of central authority is that states decide for themselves whether to admit an aspirant to their ranks, through recognition. The recent discussion regarding Palestine in the UNESCO and the International Criminal Court may, however, indicate a tendency of recognition placed from a direct, state-to-(new)state setting to an institutional one.
After being admitted to UNESCO last October, Palestine suffered a setback in its bid for statehood in April, when the Office of the Prosecutor of the ICC rejected Palestine’s declaration accepting the court’s jurisdiction under Article 12(3) of the Rome Statute. From the related discussions, there are two points worth highlighting here. The first one is the argument that – in accordance with the UN Secretary-General’s practice as treaty depositary – Palestine’s membership in a UN specialized agency enables it to accede to any treaty open to ‘all states’ (such as the Rome Statute). The second one is the question of which organ of the ICC may decide whether Palestine is a state for the purposes of the Statute. Rather than going into a detailed technical analysis of either the treaty depositary practice or the provisions of the Rome Statute, I would like to make a more general observation that links these two issues together.
Without questioning the validity of the UNESCO admission / treaty depositary argument, I have to admit it still makes me somewhat uneasy. What is so striking about it is that nothing changed substantially regarding Palestine that would have prompted its admission to UNESCO right at the time when it was eventually admitted. About 130 states had already recognized Palestine the day before its admission, the same as the day after. The Palestinian Authority did not exercise any more control over the occupied territories than it did before. And even the symbolic act of declaring statehood took place 23 years earlier, in 1988. The only difference is ‘recognition’ having occurred in an institutional setting. Yet this admission has suddenly opened the door for Palestine to a host of other international organizations and treaties in general. Does this then mean that recognition is moving to a more institutionalized setting? Or that recognition accorded in such an institutionalized setting is worth more than the traditional state-to-state one? After all, such bilateral recognition does not necessarily entail the establishment of diplomatic (or trade, etc.) relations. Therefore compared to a ‘basic’ state-to-state recognition, without such relations, the aspirant ‘state’ surely gains more with an institutional recognition.
What’s perhaps even more interesting is that there was a considerable difference between those states who recognize Palestine and those who voted in favour of its admission. Notably, quite a few (mostly Western European) states who do not recognize Palestine voted in favour of its UNESCO membership, while a number of states who recognize it did not. This raises an additional question: can it be the case that institutionalized recognition by a given state is somehow worth more than traditional state-to-state bilateral recognition?
Finally, under the treaty depositary argument, Palestine would be able to join the ICC – or, analogously, submit an Article 12(3) declaration. But even if Palestinian statehood were to be decided anew for the purposes of the Rome Statute, the equivalent of the vote of member states in the UNESCO General Conference would be a vote in the ICC Assembly of States Parties, and not a decision by the Office of the Prosecutor (or chambers, for that matter). While here we have a declaration accepting jurisdiction and not treaty accession, the question essentially boils down to the same issue: statehood, which leads us back to the original observation about the nature of the international system and the role of states in determining who their fellow states are. Therefore, even though the Chief Prosecutor of the ICC is elected by the Assembly of States Parties, if we considered the vote in the UNESCO General Conference as one step removed from states according recognition individually, then allowing the Prosecutor to decide in such matters reflects an even further step away from states expressing their opinion directly – and quite possibly one step too far.