Palestine: From a ‘will-be’ party to the CWC to a ‘would-have-been’?

[Cross-posted from The Trench]

Something really remarkable happened in the first two weeks of 2018. On 2 January, quite out of the blue came the notification by UN Secretary-General António Guterres that the State of Palestine had deposited its instrument of accession to the Chemical Weapons Convention (CWC). It was to become the 193rd state party on 28 January, thirty days after having submitted the document (29 December). Indeed, ‘was’. Guterres formally informed UN members on 11 January that Palestine had withdrawn its instrument of accession three days earlier.

States withdrawing from a disarmament or arms control treaty is extremely rare. But it does happen. North Korea, for example, left the Nuclear Non-Proliferation Treaty (NPT) in 2003. However, I do not recall having come across an instrument of accession being withdrawn after its formal deposit. (Internet searches did not yield any results either, although poor selection of search terms might be responsible for that.) The closest is the ‘unsigning’ of treaties (as the USA did with the Rome Statute of the International Criminal Court). In those cases the agreement had not yet entered into force for the country concerned.

Palestine’s initial action on the CWC did not come in isolation. Today, 16 January 2018, the Implementation Support Unit announced that Palestine had become the 180th state party to the Biological and Toxin Weapons Convention (BTWC).

Out of the blue

I have been expecting Palestine’s accession to the CWC since it attempted to attend 2014 CWC Conference of States Parties (CSP) as a non-State Party observer. I do not recollect similar efforts since then, certainly not at last November’s CSP. The attendance request caused some unease among certain participating states. However, it was denied because the Palestinian delegation had not registered before the formal deadline and the CSP had already formally approved the list of attending observers.

Palestine became eligible to join treaties on 29 November 2012 when the UN General Assembly granted it status of ‘non-member observer state’ (Resolution A/RES/67/19). According to the UN Under-Secretary-General for Legal Affairs, the upgrade from ‘observer entity’ is significant because ‘Palestine may participate in multilateral treaties to which the Secretary-General is the depositary and in international conferences convened under the auspices of the UN that are open to “all States” (the “all States” formula)’. In reality the impact is broader, as is evidenced by Palestine’s accession to the NPT in February 2015 (instrument deposited with Moscow) and the BTWC (deposit with Russia and the United Kingdom). The Holy See is the only other sovereign entity with similar status. It joined the NPT in February 1971, the BTWC in January 2002, and the CWC in June 1999.

Since the upgrade Palestine has gone trough three waves of treaty adhesion: April 2014 (15 documents), December 2014 (18 documents), and December 2017 (22 documents). The treaties in question are listed in annex below. They fall in four major areas, namely diplomatic relations; human, economic and social rights; environmental law; and humanitarian/arms control law.

Of the 22 Palestinian applications in December, the UN Secretary-General issued Depositary Notifications for 19 treaties on 2 and 3 January. The notifications included several weapon control treaties. Only the instrument of accession to the CWC was subsequently withdrawn.

Why the retraction?

Since achieving UN Observer State status in 2012 Palestine has pursued a deliberate policy of becoming a respected member of the international community by unreservedly adhering to international law. In his Master of Laws dissertation entitled Palestine’s Ratification of International Treaties – A Back Door to Independence? (Lund University, 2016), Victor Persson argued that ‘ratifying international treaties strengthens Palestine’s claim for statehood through recognition, which in turn increases pressure for independence on its occupier, Israel’.

However, the latest wave of applications may have been more impulsive than considered. On the day of the deposit of the instruments of accession the Israeli daily Haaretz claimed that US President Donald Trump’s announcement on 6 December to move the US embassy from Tel Aviv to Jerusalem prompted Palestinian President Mahmoud Abbas’ decision. The article further noted that Israel’s ambassador to the UN was holding meetings with his US counterpart to formulate a joint response to the Palestinian move. Meanwhile, the rhetoric between Washington and Ramallah has grown increasingly strident.

Focussing on the escalating conflict, three explanations for the retraction of the instrument of accession seemed possible.

Power politics

First, the USA (and through it, Israel) exerted great pressure on UN Secretary-General Guterres to force Palestine to reconsider its action. However, while nobody should be surprised about consultations with him, in his role as depositary he is just an executioner. As Article 77 of the Vienna Convention on the Law of Treaties states, one of the functions of a treaty depositary is ‘Receiving any signatures to the treaty and receiving and keeping custody of any instruments, notifications and communications relating to it’. The USA could also have leaned on some of its Arab partners in the region, but given his mood and escalating anger with Washington it appears unlikely that President Abbas would have been persuaded.

Financial coercion

Second, as noted earlier, the CWC is the only treaty for which Palestine rescinded its accession. Of all the treaties it applied to join, the CWC is the only one with a dedicated international organisation. (The International Atomic Energy Agency, which supports aspects of NPT implementation, is founded in a different document.) The USA is not loath to exercising the power of the purse to try and compel international organisations to more or less toe its line. For example, in October 2011 the board of UN Educational, Scientific and Cultural Organization (UNESCO) voted to admit Palestine as a state, which prompted Washington to cut in its annual contributions to the organisation. In April 2016 the UN Framework Convention on Climate Change (UNFCCC) accepted the Palestinian Authority as a state party, prompting a group of US Senators to demand that the UN agency be denied any further US funding.

The root of such actions lies in US Federal Law. As explained by the American Center for Law and Justice, US Public Law 101-246 (1990) provides:

No funds authorized to be appropriated by this Act or any other Act shall be available for the United Nations or any specialized agency thereof which accords the Palestine Liberation Organization the same standing as member states.

Moreover, Public Law 103-236, enacted in 1994, prohibits

voluntary or assessed contribution to any affiliated organization of the United Nations which grants full membership as a state to any organization or group that does not have the internationally recognized attributes of statehood.

According to this line of reasoning, pressure would have been exerted on Palestine to rescind its accession because of fears that the OPCW might otherwise lose over 25% of its budget.

This scenario also seems problematic. First, while the UN Secretary-General may be the CWC’s depositary, the OPCW is an independent treaty implementation organisation rather than a specialised UN agency. Second, contrary to UNESCO or UNFCCC, it is not the OPCW that invites in Palestine (or any other entity). A state automatically becomes an OPCW member as soon as the CWC enters into force for it. No single entity—another state party, the OPCW Technical Secretariat, or the UN Secretary-General—can halt or block that dynamic. Third, no US official has hinted in conversations since the Palestinian delegation attempted to officially participate in an OPCW meeting in 2014 that withholding contributions to the annual budget was an option. On the contrary, the USA has too great stakes in the successful global implementation of the CWC.

Avoidance to internationalise the Israeli–Palestinian conflict

Finally, a third possible explanation was suggested by several people from the Middle East whom I contacted: all parties involved tend to avoid internationalising the Israeli–Palestinian conflict.

Palestine’s joining the CWC could indeed have risked the opposite effect because of Israel’s widespread use of riot control agents and other irritants in the occupied territories. Any request to the OPCW to investigate such use would require clarification of the legal status of the occupied territories under international law. Only if Israel exerts full legal jurisdiction over those areas in which it uses riot control agents, it could be argued that such use is domestic and therefore part of legitimate law enforcement. Given Israel’s settlement policies, Palestine will continue to contest Israel’s jurisdiction over large swaths of land. OPCW investigators require authorisation by the state party concerned to access the site of an alleged incident. Israel, of course, is not a party to the CWC and questions would arise whether OPCW personnel can access all parts of the Palestinian territory without requiring transit approval by Israeli authorities (see also below). In addition, given the rawness of international feeling about the Israeli–Palestinian conflict, political and ideological divisions similar to the ones exposed by the debates on Syria’s CW use might split decision-making in the OPCW even further.

This hypothesis leaves open who might be the instigator of the pressure to have Palestine withdraw its instrument of accession and which diplomatic channels might have been used. It also ignores the various options—many of which could and would be devised within the treaty framework once issues are formally raised—available under the CWC to address any specific threats posed by CW to a state party. Indeed, similar legal and political questions have already been considered in connection with Palestine’s accession in January 2015 to the Rome Statute founding the International Criminal Court (ICC). Even while some key players are not party to the Statute, Beti Hohler concluded her analysis of Palestinian accession as follows:

By assessing admissibility of a case, the ICC would effectively be called to assess Israel’s justice system and its capability to genuinely deal with war crimes allegations. Whilst the actual determination would be made on the basis of a specific case and the individual concerned, it cannot be overlooked that Israel in general has a well functioning legal system headed by a respected supreme court.

What is then the likelihood of an intervention by the ICC following Palestine’s accession? Besides the aforementioned legal issues, policy and political realities should also be considered. The reality is that the ICC is heavily dependent on the support of its states parties, including for any type of enforcement as well as for actually ensuring the attendance of suspected perpetrators at The Hague.

In conclusion, the impact of Palestine’s accession to the ICC and what will be its political implications for the Middle East peace process remains to be seen. There are at the moment far more questions than there are clear-cut answers.

One thing however is certain: with Palestine’s accession to the Statute, the legal framework has changed and the parties to the conflict would be wise to accept and respect that.

A more benign explanation for the retraction of accession?

Did you know that the CWC contains 42 instances of situations that will legally affect states parties or require actions that they must complete within 30 days? One example is that the treaty enters into force for a new state party 30 days after the deposit of the instrument of ratification or accession (Article XXI, 2). Another one is that a new state party must submit a series of detailed declarations not later than 30 days after the CWC enters into force for it.

Given that President Abbas seems to have decided to take action on accession in retaliation for the announced move of the US embassy to Jerusalem, did the Palestinian government fully appreciate the level of preparations joining the CWC requires? The country may lie in an active conflict zone, but it is hardly a Syria that would justify consideration of exceptional measures.

Other countries with internal or cross-border conflicts have become member of the OPCW. However, the process takes time. It often involves regional organisations and other states parties facilitating or supporting interactions, providing concrete assistance with legal and practical preparations, teaching and training officials as well as reaching out to key stakeholder communities (including parliamentarians, industry, academia, or any other constituency whose activities could be affected by the treaty) to build political support and capacity. Expert staff from the OPCW Technical Secretariat may already be involved in the concrete preparations to meet the treaty requirements within the set deadlines well before a state becomes a party. In fact, the deposit of the instrument of accession may be timed in function of milestones achieved.

Palestine would face an additional major legal and practical problem: how and where would inspectors enter or exit its territory? First, the Palestinian territories are non-contiguous. Second, the Palestinian Authority does not control all of the Palestinian territory, which means that it would have to special arrangements with Hamas who controls the Gaza strip. However, while a border crossing with Jordan could conceivably be designated as the CWC-required Point of Entry/Point of Exit (Verification Annex, Part I ‘Definitions’, para. 24), the Gaza strip is completely surrounded by Egypt and Israel, two non-states parties. Reaching it over land from the West Bank, by air or via a sea port would likely involve Israel one way or another.

So, a benign explanation might hold that the OPCW alerted the UN Secretary-General or regional states parties to the host of practical problems the unexpected application would pose for Palestine.

Perhaps persuasion might not have been all that difficult. In the afore-cited dissertation, Victor Persson points to the possible role of another significant domestic factor in the process:

due to the current suspension of the parliament, Palestine must choose either to postpone the implementation process or implement the treaties by presidential decree. Postponing the implementation would raise doubts on Palestine’s commitment to follow its new international obligations. Implementing international law by presidential decree on the other hand is an undemocratic legislative procedure.

That dilemma does not even begin to address the complexity of CWC implementation.

In summary

At present it is not at all clear why Palestine retracted its accession to the CWC. The immediate explanations—different types of diplomatic pressure by different actors or prevention of internationalising the conflict with Israel—do not answer why the CWC is the only one out of more than 50 treaties that suffered this fate. The observation that the convention is the only international agreement to be served by its own international organisation offers few grounds to assume that the OPCW would be exposed to financial coercion.

An alternative explanation is that the Palestinian authorities have withdrawn the instrument of accession after having been informed of the complex ramifications of becoming a party to the CWC. The impulsiveness of the initial decision in the wake of the US announcement to move the embassy to Jerusalem seems to support this hypothesis. However, this line of thought still requires confirmation on the ground, whether in the Middle East, New York or The Hague.

Annex: Palestine’s waves of treaty adhesion

The first wave (April 2014)

• Vienna Convention on Consular Services
• Vienna Convention on Diplomatic Relations
• The Vienna Convention on the Law of Treaties
• Convention on the Elimination of All Forms of Discrimination against Women
• Convention on the Rights of the Child and the Optional Protocol to the Convention on the Rights of the Child (on the involvement of children in armed conflict)
• Convention on the Rights of Persons with Disabilities
• International Convention on the Elimination of All Forms of Racial Discrimination
• International Convention on the Suppression and Punishment of the Crime of Apartheid
• International Covenant on Civil and Political Rights
• International Covenant on Economic, Social and Cultural Rights
• UN Convention against Corruption
• Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
• Convention on the Prevention and Punishment of the Crime of Genocide
• Geneva Conventions of 12 August 1949 and Additional Protocols
• Hague Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations Concerning the Laws and Customs of War on Land

The second wave (December 2014)

• Convention on the Political Rights of Women
• Convention on the Recognition and Enforcement of Foreign Arbitral Awards
• Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal
• Convention on Biological Diversity and the Cartagena Protocol on Biosafety to the Convention on Biological Diversity
• Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II)
• Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Adoption of an Additional Distinctive Emblem (Protocol III)
• Convention on the Law of the Non-Navigational Uses of International Watercourses
• Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents
• United Nations Convention against Transnational Organized Crime
• Convention on the Safety of United Nations and Associated Personnel and the Optional Protocol to the Convention on the Safety of United Nations and Associated Personnel
• United Nations Convention on the Law of the Sea
• Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity
• Agreement on the Privileges and Immunities of the International Criminal Court
• Rome Statute of the International Criminal Court
• Declaration in accordance with the Rome Statute of the International Criminal Court
• The Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons
• The Treaty on the Non-Proliferation of Nuclear Weapons
• Convention on Cluster Munitions

The third wave (December 2017)

• International Convention for the Suppression of Acts of Nuclear Terrorism
• Convention on the Physical Protection of Nuclear Material
• Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides International Trade
• Stockholm Convention on Persistent Organic Pollutants
• The Convention for the Protection of the Mediterranean Sea Against Pollution
• The Convention on the Prohibition of Military or Any Modification Techniques (Environmental Modification Convention or ENMOD)
• Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment
• Chemical Weapons Convention
• Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare (Geneva Protocol)
• Biological and Toxin Weapons Convention
• Anti-Personnel Mine Ban Convention
• Remnants of War additional protocol one (CCW APV 2006)
• Arms Trade treaty
• United Nations Convention on Contracts for the International Sale of Goods
• Single Convention on Narcotic Drugs of 1961 as amended by the 1972 Protocol
• Convention on Psychotropic Substances of 1971
• United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988
• United Nations Convention to Combat Desertification
• The Convention on International Transport of Goods Under Cover of TIR Carnets
• Protocol on the Sale of Children, Child Prostitution and Child Pornography
• Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime
• The Amendment to article 8 of the Rome Statute of the International Criminal Court

(As an aside, the Treaty on the Prohibition of Nuclear Weapons intriguingly does not figure in the latter list, even though Palestine signed it when it was opened for signature on 20 September 2017.)