Palestine’s withdrawal of its instrument of accession to the CWC (Part 2)

[Cross-posted from The Trench]

In my blog posting of 16 January entitled ‘Palestine: From a “will-be” party to the CWC to a “would-have-been”?’, I described how Palestine submitted its instrument of accession to the Chemical Weapons Convention (CWC) with the UN Secretary-General on 29 December, only to withdraw it on 8 January. Since having achieved the status of ‘UN non-member observer state’ in 2012, Palestine has joined over 50 international agreements, including the Biological and Toxin Weapons Convention, to which it became formally a party on 16 January. The CWC is the only treaty on which it reversed its position.

Retracting an instrument of accession is a highly unusual and the motivation behind the step was unclear. Since the blog posting, still nobody is able to offer even a beginning of an explanation for the step.

A rare step nonetheless

Prof. Masahiko Asada of the Graduate School of Law at Kyoto University responded to the blog posting by pointing out that there are in fact precedents involving the withdrawal of an instrument of ratification before the entry into force of a treaty. He specifically pointed to the 1995 UN Fish Stocks Agreement. Italy and Luxembourg ratified it in 1999 and 2000 respectively. Both countries withdrew their instruments ratification and re-ratified it in 2003 along with other European Union (then still the European Communities) members with declarations.

He also referred me to a publication prepared by the Treaty Section of the UN Office of Legal Affairs, Summary of Practice of the Secretary-General As Depositary of Multilateral Treaties. Section H (p. 47) describes circumstances and gives more examples:

157. A State that had deposited an instrument of ratification or of a similar nature may subsequently decide to withdraw its instrument. The Vienna Conference on the Law of Treaties did not address this question. The practice of the Secretary-General has been to allow such a withdrawal until the entry into force of the treaty, on the understanding that, until that time, States are not definitely bound by the treaty.

158. In some cases, States that had thus withdrawn an instrument subsequently deposited a new instrument, but this time with reservations. In this manner, they were in compliance with the rule according to which reservations must be made at the time of deposit of the instrument (see para. 204). Thus, for example, the Government of Greece, which on 6 December 1950 had deposited an instrument of acceptance of the Convention on the Intergovernmental Maritime Organization of 6 March 1948, withdrew that instrument on 26 March 1952 (before the entry into force of the Convention, which took place on 17 March 1958), but reaccepted the Convention on 31 December 1958, with a reservation. And the Government of Spain, which on 29 July 1958 had deposited an instrument of accession to the Customs Convention on the Temporary Importation for Private Use of Aircraft and Pleasure Boats, and Protocol of Signature, signed at Geneva on 18 May 1956, withdrew the said instrument on 2 October 1958 (before the entry into force of the Convention, which took place on 1 January 1959) and then deposited a new instrument with a reservation.

So, while there have been a few withdrawals of instruments of ratification, countries seem to have taken this step (1) when the treaty had not yet entered into force for anybody; and (2) possibly with the intention to re-ratify at a later stage but with the addition of reservations.

Palestine’s action does not seem to fit this practice.

First, none of the treaties in the examples concern international security or weapon control.

Second, Article XXII of the CWC stipulates that ‘The Articles of this Convention shall not be subject to reservations’. In other words, Palestine cannot retract its instrument of accession with a view of re-submitting it with a reservation. It could, however, express some reservations with respect to the annexes to the CWC provided these are not incompatible with the object and purpose of the convention.

Third, the UN Office of Legal Affairs also noted that ‘the withdrawal of instruments is accepted until the entry into force of the corresponding treaty’ (para. 159). The CWC has now been in force for over 20 years.

The UN Office of Legal Affairs primarily assessed the implications of such withdrawal on when a treaty takes legal effect. It did not delve into the question of withdrawal of accession. Yet, it seems to have left the door open for scenarios involving accession or succession (implying that the treaty would already have entered into force) when it referred to ‘instrument of ratification or of a similar nature‘. However, the lack of concrete examples may suggest that UN Secretary-General Guterres’ acceptance of the Palestinian retraction may yet have set a precedent in international legal history.

Answers? Questions! Questions? Answers!

Literally nobody has an explanation for Palestine’s withdrawal of its instrument of accession or an idea what the Palestinian Authority’s next move might be.

Senior staff within the Technical Secretariat of the Organisation for the Prohibition of Chemical Weapons (OPCW) were as confounded as anyone else. This puts to rest my benign suggestion that the OPCW might have alerted the UN Secretary-General to possible complications of Palestine joining the CWC without any formal preparations. No such steps or similar types of communication were undertaken.

Representatives from CWC states parties expressed similar surprise. One rumour circulating in The Hague suggested that Egypt had persuaded the Palestinian Authority in Ramallah to withdraw from the treaty. However, as one ambassador from a Western country told me, ‘this is all what it is, a rumour’. Some persons pointed to the prospect of US financial retaliation (which I explained, but discounted in the original blog posting), but nobody heard an American official even suggest such a possibility.

A former Arab ambassador reached out to colleagues and friends in the Middle East. He replied that nobody was able to provide answers to my questions. Palestinians reached out to the Authority and Palestinian diplomats in disarmament capitals, but again the answer was that ‘no one either knows or wants to talk about it’.

No explanation as to why Palestine withdrew its instrument of accession to the CWC is forthcoming at present. The questions raised in my initial blog posting remain open. Particularly vexing is: why the CWC, and not also one of the 54 other treaties that Palestine has joined over the past three years?

I would like to thank Prof. Masahiko Asada for having pointed me to the broader context of withdrawal of instruments of ratification. My great appreciation also goes to research colleagues and present and former diplomats who brought me in contact with relevant personalities and/or have tried to receive answers from relevant policy makers and implementers.

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8 Comments on “Palestine’s withdrawal of its instrument of accession to the CWC (Part 2)”

  1. Nice write up! Thank you.

    However, to me, it looks like that the UN Summary of Practice of the Secretary-General as Depository of Multilateral Treaties – does not provide a correct legal position when it limits the right of States to withdraw from a Treaty. To become or not to become member of a Treaty is an aspect of sovereignty and NO other States much less Organizations (for e.g. UN) have any business to dictate such a State.

    Coming to the Palestinian withdrawal, it can’t be faulted from the legal angle as again, it is a sovereign decision. It may be easily guessed that the real intention of the State of Palestine is to give a message to its adversaries that it does not commit itself to an obligation of not using CW on them (adversaries). Of course this is very unfortunate.

    • JP Zanders says:

      Thank you for your comment.

      Please be advised that my analysis, comments and citations do not aim at determining the legality of or questioning the Palestinian moves. My interest is in trying to understand from the perspective of the CWC why the Palestininan Authority first deposited its instrument of accession, only then to withdraw it again. The point to take away is that nobody on the ouside of the Palestinian decision-making seems to have an idea about the rationale for the different moves.

      The reference to the UN analysis only serves to underscore the point in my previous contribution how rare the the withdrawal of an instrument of acessions is.

  2. El roam says:

    Thanks again for that interesting post also in this subject . First , it should be noticed , that the Vienna convention obliges a state , not to defeat or undermine the purpose of a treaty , even if only a signatory to it , but not yet ratified . In this regard it is binding (Article 18 ” Obligation not to defeat the object and purpose of a treaty prior to its entry into force ” ) .

    Concerning the enigma of the Palestinians withdrawal , one may suggest another direction or lead ( although also highly unlikely due to the reasons I have stated in the previous post here ) :
    And it is , that in the ” protective edge ” operation , Israel , used in Gaza , incendiary weapon ( shells for smoke screen caused by white phosphorus ) . Now , to my best knowledge , there is a debate whether it is a chemical weapon or not ( surly you can express here your considered opinion ) . But , it is a very essential weapon for the IDF . One may evoke , a speculation , that pressure has been exercised on the Palestinian authority to withdraw , and due to it . ( yet , questioned or highly unlikely , yet , slim possibility ) . Here one may read for example :

    https://www.hrw.org/news/2009/03/25/israel-white-phosphorus-use-evidence-war-crimes

    Thanks

    • JP Zanders says:

      Thanks once again for your useful comments.
      Please be advised that incendiary weapons do not fall under the definition of a chemical weapon in the CWC. There is no doubt about this.
      Incendiary weapons are covered by Protocol III of the Convention on Certain Conventional Weapons (CCW).

      • El roam says:

        comments of mine , disappear here , so first part has gone missing , I shall try further

      • El roam says:

        Until that comments with links appear here or otherwise , You seem to confuse the general category of ” incendiary weapon ” with the specific one of : ” White phosphorus ” , concerning the latter , there is certain debate .

    • JP Zanders says:

      Thanks. No confusion whatsoever as regards the CWC; and WP does not even come close to the definition of a CW in Article II of the CWC.

      You are right in the sense that in World War 1 and afterwards the special units for chemical warfare operations of many countries also had responsibility for incendiary and smoke weapons. During the Viet-Nam war, the US Chemical Corps focussed on flame weapons, including napalm; while other units carried out the herbicide spraying over the jungle.

      Personally, I think that this history is at the root of the confusion, but from a treaty perspective: no confusion whatsoever.


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