by Daniel Rietiker, PhD

The facts:

On 2 January 2015, Palestine deposited its instrument of accession with United Nations authorities in New York in respect of the Convention on Cluster Munitions (CCM).

Palestine is the fourth Party to the CCM in the region – following Iraq, Lebanon,and Tunisia – to ban cluster munitions. Since 2010, Palestine has participated in the work of the Convention on Cluster Munitions as an observer. It attended the Convention’s Meeting of States Parties in 2010, 2011, and the Fourth Meeting of States Parties in Lusaka, Zambia in September 2013. Palestine also participated in the Convention’s intersessional meetings in Geneva in 2013 and April 2014.

In November 2010, a government representative informed the Landmine and Cluster Munition Monitor that Palestine does not possess any cluster munitions and that there had never been any use of cluster munitions in the Occupied Palestinian Territories by Israeli forces.

The Convention on Cluster Munitions will enter into force for Palestine on 1 July 2015 [summary taken from the website of Cluster Munition Coalition].

In a communication of 16 January 2015 addressed to the Secretary-General of the United Nations, Canada observes the following:

“…The Permanent Mission of Canada notes the technical and administrative role of the Depositary, and that it is for States Parties to the treaty, not the Depositary, to make their own determination with respect to any legal issues raised by instruments circulated by a depositary. (emphasis added)

In the context, the Permanent Mission of Canada notes that ‘Palestine’ does not meet the criteria of a State under international law and is not recognized by Canada as a State. Therefore, it order to avoid confusion, the Permanent Mission of Canada wishes to note its position that in the context of the purported Palestinian accession to the Convention on Cluster Munitions, ‘Palestin’ is not able to accede to this convention, and that Canada considers the declaration made [by] the ‘State of Palestine’ to be without any legal validity or effect.” (emphasis added)

It can also be recalled that in January 2015, Palestine ratified the Rome Statute on the International Criminal Court (ICC). In total, it has ratified  to date more than 15 international instruments. Moreover, more than 130 States have recognized Palestine as a State, including the EU Parliament and, in 2014, Sweden.

Some legal considerations:

Apart from the political implications, this episode raises very interesting legal questions. Here some rather spontaneous thoughts, that would deserve further consideration:

1. What is the legal nature of Canada’s declaration? A “reservation” in the sense of the 1969 Vienna Convention on the Law of Treaties?

Canada’s declaration cannot be qualified as a “reservation” within the meaning of Article 2 § 1 d) of the 1969 Vienna Convention on the Law of Treaties (VCLT), that is customary in nature and reads as follows:

“’Reservation’ means a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State.”

First of all, Canada’s declaration was made too late in order to be considered a reservation; moreover, it did not aim at “excluding” or “modifying” the legal effect of certain provisions, but to exclude categorically a State from being a Party to the treaty. In any event, even if the declaration was considered a reservation, it would turn out to be void, since the CCM prohibits reservations in absolute terms (Article 19 CCM).

Canada’s declaration can best be described as unilateral act by which it asserted that it does not consider Palestine a State Party and does not want to enter into any legal relation with it as far as the CCM is concerned. It can be regarded as an expression of free consent, one of the underlying principle of treaty law (see para. 3 of the VCLT). It emanates from the principle of sovereign equality of States (Article 2 § 1 UN Charter). There is basically nothing illegal as such in Canada’s behavior.

2. Possible solutions to this dilemma?

As indicated above, many States have recognized the statehood of Palestine and are likely to endorse its ratification of the CCM. How can this dilemma be resolved?

Even thought Canada’s declaration is not a reservation within the definition of the VCLT, a comparison with the regime of reservations is nevertheless noteworthy: indeed, according to Article 20 § 3 b) VCLT,

“an objection by another contracting State to a reservation does not preclude the entry into force of the treaty as between the objecting and reserving States unless a contrary intention is definitely expressed by the objecting State.”

A contrario, if the objecting State indicates that it does not want the treaty to enter into force between it and the reserving State (“absolute” or “categorical” objection), no treaty relationship is established between them. In addition, according to Article 21 § 2 VCLT, the reservation does not modify the provisions of the treaty for the other parties inter se. This solution could be applied, mutatis mutandis, to the present situation with the consequence that the CCM would fully apply between the States that have recognized Palestine’s ratification and those having refused it. Such a solution would raise difficult practical problems insofar as it challenges the integrality of the treaty regime and endangers the security of law; on the other hand, it would have some foundation in the VCLT, at least by analogy.

The question is allowed whether a formal amendment to the CCM, in accordance with its Article 13, could solve the issue? One could think of amending Articles 15 (signature) and 16 (ratification, acceptance, approval or accession) by enlarging the circle of parties to the CCM to “occupied territories”. Indeed, in the Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 9 July 2004, the ICJ has defined Palestine as such a territory. Thereby, Palestine could formally become a Party, without necessarily being recognized as a State, which might constitute an acceptable solution for everybody.

One the other hand, the solution is not unproblematic neither: first of all, an amendment conference shall only be held if a majority of the States Parties support an amendment proposal (Article 13 § 1 CCM); second, an amendment requires a majority of two thirds of the States Parties present and voting at such a conference (Article 13 § 4) and third, the amendment will be binding only for the States Parties that have accepted it (this seem clear in spite of the somehow ambiguous formulation of Article 13 § 5). Such a solution would cause the explosion of the CCM into different legal sub-regimes: one the one hand, an instrument that would comprise the States having accepted the amendment allowing Palestine to join the treaty and, on the other hand, the States that are only bound by the initial treaty, excluding Palestine as a Party.

In any event, there might be certain practical difficulties in such an approach, too. For instance, could Palestine participate in the meetings of “States Parties” in the sense of Article 11? An amendment to the CCM would have to include a clause allowing Palestinian authorities to participate in such meetings. It has been observed above that Palestine had already participated in the meetings of States Parties before it ratified the CCM. Moreover, Article 11 § 3 is already formulated very generously:

“Meetings of States Parties

1.  The States Parties shall meet regularly in order to consider and, when necessary, take decisions in respect of any matter with regard to the application or implementation of this Convention (…)

3. States not party to this Convention, as well as the United Nations, other relevant international organisations or institutions, regional organisations, the International Committee of the Red Cross, the International Federation of Red Cross and Red Crescent Societies and relevant non-governmental organisations may be invited to attend these meetings as observers in accordance with the agreed rules of procedure.”

Therefore, the practical effects of such an amendment would be minor as far as the meetings of States Parties are concerned.

3. Who is competent to decide the question whether Palestine’s ratification is valid under international law?

a)  The other States Parties?

International law is still a rather decentralized legal order and, therefore, it would probably be the most natural solution to leave it up to the States to decide on the validity of Palestine’s ratification. On the other hand, it has been observed above that, by such an individualistic approach, the CCM would explode into two different treaty regimes, which would in practice not be easy to deal with and raise difficult issues concerning security of law. Moreover, such a solution would above all depend on political considerations, rather than on legal grounds.

b)  The UN Secretary-General as Depositary of the CCM?

As it derives from the above-mentioned facts, the UN Secretary-General is designated as the Depositary of the treaty (Article 22 CCM). It is regrettable, but the role of the Depositary has traditionally been interpreted very restrictively, as recalled rightly in Canada’s above-mentioned declaration. It might best be described as a mixture between a post office and a custodian, receiving mail from the States Parties, keeping the original documents and distributing copies to the other States Parties, thereby limiting itself to a mere formal control.

Article 22 CCM does not contain any information concerning the mandate given to the UN Secretary-General. Therefore, the subsidiary regime, deriving from Article 77 VCLT, is applicable. By virtue of this provision, the functions  of the Depositary are, inter alia,  keeping custody of the original text of the treaty and of any full powers delivered to the Depositary (letter a); preparing certified copies of the original text and preparing any further text of the treaty in such additional languages as may be required by the treaty and transmitting them to the parties and to the States entitle to become parties to the treaty (b), examining whether the signature or any instrument, notification or communication relating to the treaty is in due and proper form and, if need be, bringing the matter to the attention of the State in question, and performing the functions specified in other provisions of the present Convention (h).

See also para. 2 of Article 77 VCLT:

“In the event of any difference appearing between a State and the Depositary as to the performance of the latter’s functions, the Depositary shall bring the question to the attention of the signatory States and the contracting States or, where appropriate, of the competent organ of the international organization concerned.” (emphasis added)

Para. 2 of Article 77 is quite characteristic for the weak position of a Depositary: in case of a difference concerning its exact powers, it is up to the States Parties or, in particular circumstances, an international body, to decide. In other words, the Depositary does not have the competence to decide its own competence (German: Kompetenzkompetenz). For instance, as far as reservations or objections to them are concerned, the Depositary would limit itself to receiving them, perhaps controlling their formal requirements and distributing them to the other States Parties; but it would not proceed to an exam of their legal validity under international law. As a matter of fact, it would not control whether a certain reservation runs contrary to the “object and purpose” of the treaty within the meaning of Article 19 c) VCLT.

Having said this, the manner which the UN Secretary-General has dealt with Palestine’s instrument of ratification of the CCM and Canada’s declaration serves exactly as an example for the discrete role of the Depositary: The Secretary-General received the declaration and forwarded it to the other States Parties to the CCM without pronouncing itself on the validity, under international law, of the submitted acts.

c)  The International Court of Justice?

Article 10 CCM contains a provision for settlement of disputes:

“Settlement of disputes

1. When a dispute arises between two or more States Parties relating to the interpretation or application of this Convention, the States Parties concerned shall consult together with a view to the expeditious settlement of the dispute by negotiation or by other peaceful means of their choice, including recourse to the Meeting of States Parties and referral to the International Court of Justice in conformity with the Statute of the Court.

           (…)”

The question whether Palestine is entitled to ratify the CCM constitutes, from my point of view, “a dispute…relating to the application or interpretation of the Convention”. In other words, States Partied which do not agree on this issue could submit it to the verdict of the ICJ.

The question remains open whether the ICJ would decide the question whether Palestine qualifies as a “State” under international law. In its Advisory Opinion on the Accordance with International Law of the Unilateral Declaration of Independence in respect of Kosovo, 22 July 2010, it only concluded that the declaration of 17 February 2008 had not violated international law and, in particular, was not contrary to UN Security Council Res. 1244.

I do not want to enter into this discussion, but just remind that the ICJ, in its Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, mentioned above, concluded in the following terms:

“The Court considers that it has a duty to draw the attention of the General Assembly, to which the present Opinion is addressed, to the need for (the) efforts to be encouraged with a view to achieving as soon as possible, on the basis of international law, a negotiated solution to the outstanding problems and the establishment of a Palestinian State, existing side by side with Israel and its other neighbours, with peace and security for all in the region.” (para. 162).

It is also noteworthy that, in 2012, the UN General Assembly upgraded Palestine’s status in the UN (UNGA Res. 67/19 of 4 December 2012):

“Reaffirms the right of the Palestinian people to self-determination and to independence in their State of Palestine on the Palestinian territory occupied since 1967;

Decides to accord 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 the relevant resolutions and practice;

Expresses the hope that the Security Council will consider favourably the application submitted on 23 September 2011 by the State of Palestine for admission to full membership in the United Nations;

Affirms its determination to contribute to the achievement of the inalienable rights of the Palestinian people and the attainment of a peaceful settlement in the Middle East that ends the occupation that began in 1967 and fulfils the vision of two States: an independent, sovereign, democratic, contiguous and viable State of Palestine living side by side in peace and security with Israel on the basis of the pre-1967 borders…” (emphasis added)

4.  The special, humanitarian nature of the CCM and the requirement of universality – the relevance of Article 21 CCM!

In the end of the day, taking into consideration the special nature of the CCM, the theoretical importance of the matter is perhaps more significant than its practical implications. Indeed, the CCM is generally considered a treaty that imposes on the State Parties so-called “absolute”, non-reciprocal obligations, comparably with human rights treaties. This derives clearly from Article 1 § 1 CCM that contains a general clause formulated as follows:

“General obligations and scope of application

Each State Party undertakes never under any circumstances to:

a)  Use cluster munitions;

b)  Develop, produce, otherwise acquire, stockpile, retain or transfer to anyone, directly or indirectly, cluster munitions;

c)  Assist, encourage or induce anyone to engage in any activity prohibited to a State Party under this Convention.

(…)” (emphasis added)

An analogous provision can be found in the 1997 Ottawa Convention on anti-personnel mines, the so-called “sister treaty” of the CCM. It derives from this formulation that a certain State Party, for instance Canada, has to refrain from using cluster munitions against all States, whether States Parties or not, and even against non-States actors. The same logic applies to the other obligations deriving from the CCM, for instance the prohibition of transfer. In other words, for Canada’s duties under the CCM, the relevance of the recognition of Palestine’s statehood and the legality of its ratification of this treaty are not obvious.

The problem can probably best be compared with the impossibility to terminate a non-reciprocal, humanitarian instrument as a consequence of its breach. Article 60 § 5 VCLT foresees this situation and reads as follows:

“Paragraphs 1 to 3 do not apply to provisions relating to the protection of the human person contained in treaties of a humanitarian character, in particular to provisions prohibiting any form of reprisals against persons by such treaties.”

More traditional arms control treaty, for instance the NPT, relying strongly on mutual respect, are generally considered as “interdependent treaties” in the sense of Article 60 § 2 c) VCLT). They would more easily qualify for termination after their breach (see here, for a post that I made concerning the legal nature of Article VI NPT).

Moreover, it has been observed above that free consent is an underlying principle of treaty law! On the other hand, it is obvious that the aim of universality in this kind of instrument is a fundamental consideration, too. Article 21 CCM contains a surprising, quite unique provision:

“Relations with States not party to this Convention

1. Each State Party shall encourage States not party to this Convention to ratify, accept, approve or accede to this Convention, with the goal of attracting the adherence of all States to this Convention.

             (…)”

This provision is an obvious indication for the erga omnes nature of the duties deriving from the CCM. The same logic can be found, from my point of view, in common Article 1 of the four 1949 Geneva Conventions, that read as follows:

“The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.”

In the light of these provisions, the question is allowed whether it is completely exaggerated to claim that States Parties to the CCM are obliged, mutatis mutandis and acting in good faith, to accept Palestine as a State Party to this treaty, perhaps with a declaration that membership would not amount to statehood! There is no doubt that the principle of pacta sunt servanda, another fundamental norm of international law (Article 26 VCLT), applies to the unusual, but very useful obligation deriving from Article 21 § 1 CCM.

It is interesting to recall in this regard that, on 2 April 2014, Palestine acceded to the four 1949 Geneva Conventions and to the 1977 Protocol I thereto. Moreover, it has become party to other international instruments, for instance the 1948 Genocide Convention. These ratifications can serve as important precedents in the field of humanitarian treaties. From my point of view, the special, humanitarian nature of this kind of treaty, protecting general interests and future generations, should prevail over political considerations relating to statehood, where the States enjoy a very broad margin of appreciation. Allowing Palestine to become a State Party to the CCM can save lives of innocent people, including women and children.