Palestine v US: why the ICJ does not need to decide whether Palestine is a state
This post will focus on the Article 34(1) ICJ Statute requirement that ‘[o]nly states may be parties in cases before the Court’.
Palestine’s institution of proceedings against the United States before the International Court of Justice (ICJ) has already drawn much attention on the EJIL: Talk blog (see blog by Marko Milanovic and a blog by Alina Miron) and elsewhere by Victor Kattan. A great deal has already been said on Monetary Gold and admissibility. My post will focus on the Article 34(1) ICJ Statute requirement that ‘[o]nly states may be parties in cases before the Court’.
Contrary to some arguments that have been made on this blog and elsewhere, I will argue that for the purposes of Article 34(1) the ICJ does not need to decide whether Palestine is a state, let alone weigh the Montevideo criteria. An entity may be a ‘state’ for the functional purposes of certain treaties and procedures created by those treaties, but such procedures have no implications for the substantive legal status of the entity under general international law. I will also argue that Palestine’s access to these procedural treaty mechanisms is UNESCO membership and not the status of a non-member observer state in the UN.
When a treaty uses the word ‘state’
The ICJ proceedings are only open to states. But this does not mean that the legal status of an entity can be determined as a side-effect of the ICJ’s procedural rules. The logic of such an argument would go as follows: the ICJ can only hear cases between states, so if the ICJ exercises its jurisdiction, the parties in the proceedings must be states. This would be an implicit reading of the requirement contained in an international treaty that an entity be a state. Such implicit readings are not uncommon in international legal scholarship. We indeed often read in leading textbooks that since UN membership is only open to states, this is the ultimate confirmation that a UN member indeed is a state.
If the logic of implicit reading of the state requirement in international treaties were correct, the ICJ would clarify Palestine’s legal status by declaring the case inadmissible, e.g. if it found the situation as falling within the Monetary Gold principle. In order to apply the Monetary Gold principle, the Court would arguably need to have jurisdiction to hear a case between the two parties which would be, according to the implicit reading of the ‘state requirement’, enough to claim that Palestine was a party in the proceedings and thus a state. But this is clearly not the intention of the word ‘state’ when it is used for the purposes of international treaties and their procedural mechanisms, and where regulating an entity’s legal status is clearly not the object and purpose of the treaty.
The ‘Vienna formula’
The VCLT defines an international treaty as an agreement between states. Article 81 VCLT opens the Convention for signature to
|all States Members of the United Nations or of any of the specialized agencies or of the International Atomic Energy Agency or parties to the Statute of the International Court of Justice, and by any other State invited by the General Assembly of the United Nations to become a party to the Convention.|
Note that Article 81 VCLT (the ‘Vienna formula’) does not open the Convention to any entity that meets the Montevideo criteria or any other so-called objective criteria for statehood under general international law. It adopts a purely functional approach for the purposes of treaty participation and without any discussion about the entity’s legal status under the law of statehood.
As was explained on this blog back in 2012 (see here and here), the ‘Vienna formula’ has also been applied in other treaties, not only in the VCLT context, and functionally used when a treaty generically says it is open to any state, yet without specifying how the term state is to be understood for its purposes (see summary of Practice of the Secretary-General as Depositary of Multilateral Treaties). This means that Palestine can participate in international treaty regimes that are generically open to any state (see below for details). The legal situation at stake is nevertheless a bit different because the question is not whether Palestine can become a party to the ICJ Statute but whether it can bring this case as a state non-party to the Statute. The question is now whether the ‘Vienna formula’ can be applied more broadly and beyond the process of joining a treaty.
As I explained in detail in this article, the actual effect of the ‘Vienna formula’ is that it defines the term ‘state’ for the procedural purposes of participation in a treaty regime and does so without any prejudice toward the entity’s territorial legal status. This means that where treaties refer to states party or non-party to that treaty (absent any other treaty definition), the default definition of the word ‘state’ follows the ‘Vienna formula’. This is not to say that either Article 81 or even the VCLT as a whole are necessarily applicable. It only means that the ‘Vienna formula’ is functionally used even outside the VCLT context. While Palestine would not be joining a treaty in this case, it would still be participating in the treaty-established procedures. Treaties cannot adopt different functional definitions of the term ‘state’ when they refer to procedural participation of states party and of states non-party. In both circumstances the yardstick should be the ‘Vienna formula’.
If Palestine can participate in international treaty regimes or in certain procedural mechanisms established by international treaties, this has nothing to do with the Montevideo criteria or any other substantive rules governing the law of statehood. For these reasons I also believe that the ICJ can decide on its jurisdiction without discussing Palestine’s statehood. The ICJ could here once again draw a line between substantive and procedural law. It could say that membership of a specialized agency of the UN gives Palestine the procedural capacity to bring this case, while this has no substantive implications for Palestine’s legal status under general international law.
UNESCO membership as a window to international treaties
It has been suggested on this blog and elsewhere that Palestine’s legal capacity was created by its status as a non-member observer state in the UN. As discussed on this blog back in 2012 when Palestine was admitted to this informal club (see here and here), this ‘membership’ may have been significant politically, but it did not create any new legal capacities for Palestine. Some attempts have been made to again attach certain implicit meanings to the phrasing ‘non-member state’. I have already rejected the implicit readings of the word ‘state’ in international treaties. The status of a non-member observer states in the UN is not even grounded in any treaty. This is an informal extra-Charter club. Moreover, some previous members of this informal club actually were not states or at least had contested legal status (e.g. Austria prior to 1955, East Germany between 1972 and 1973, Bangladesh between 1973 and 1974, South Vietnam between 1952 and 1976).
What gave Palestine the legal capacity to enter into international treaties and even bring a case to the ICJ is its UNESCO membership. As UNESCO is a specialized agency of the UN, this was Palestine’s window into the ‘Vienna formula’. Note that the status of a non-member observer state in the UN does not have such effects. If one were willing to accept that states can be created as a procedural side-effect of international treaty organs, one could also conclude that a two-thirds majority in the UNESCO General Conference has the power to create states (see Article 2(2) of the UNESCO Constitution which uses the phrasing ‘states not members of the [UN]’ and makes new admissions contingent on a two-thirds majority in the General Conference). But again, the ‘Vienna formula’ is not about the substantive law of statehood. It is a procedural yardstick.
UNESCO membership gave Palestine the legal capacity to participate in international treaty regimes via the ‘Vienna formula’. But the ‘Vienna formula’ is not there to create states or clarify international legal status. It understands the term state for certain functional purposes of participation in international treaty regimes. Some international treaties create complex procedural mechanisms and independent treaty organs. When an entity becomes a party to these procedural mechanisms, this has no implications for the substantive legal status of the entity. After all, even the UN has had two fully-fledged non-state members, Belarus and Ukraine while they still were Soviet republics. For these reasons, the ICJ does not need to consider Palestine’s status under the law of statehood when deciding on its jurisdiction in the case at hand; and vice versa, if the ICJ does exercise its jurisdiction, Palestine will not become any more or less of a state than it is now.