More than one commentary referred to Palestine’s recognition as a “member state of UNESCO.” At first glance, this reference to member-state recognition, unless intended to be colloquial, seems wrong. “Recognition” in international law differentiates states from non-states and delineates forms of legal capacity, but it does not define membership in an organization. The word carries with it convictions about the rights and obligations on the parts of the grantor and receiver according to a prescribed set of norms that has developed through official statements and through practice. One of those convictions might involve the capacity to become a member of certain organizations, but that is not necessarily assumed. Thus, one might speak of recognizing Palestine as a state or acknowledging it as a member of UNESCO, but to blur those boundaries adds confusion to an already “notoriously murky” area of law and politics.
Despite this pickiness, the commentators were right to point out that the UNESCO Constitution speaks of “member states.” By voting in favour of permitting Palestine to seek membership, did 107 states just collectively recognize Palestine as a state? Well, if you were getting your hopes up about a potential windfall for the notion of collective recognition, sorry to disappoint: those states had already formally recognized Palestine. At the time of the vote, roughly 127 states recognized Palestine as a state, so the result should have come as no surprise. By contrast, most states and commentators expect the United States to veto Palestine’s application to the United Nations itself when it comes up on the organization’s agenda later this month.
Palestine is not the first “limited recognition entity” (for lack of a better term) to make inroads in international institutions. While the question of “which China” to recognize was ongoing in the UN and related agencies, the Executive and Liaison Committee of the Universal Postal Union – a UN specialized agency — admitted the delegate of the People’s Republic of China as the sole representative of China, though this decision was later reversed. In a similar fashion, Kosovo became a member of the International Monetary Fund in June 2009, after which it was admitted to the World Bank and signed up to the Convention on the Settlement of Investment Disputes between States and Nationals of Other States. Membership to the Fund is controlled in part by the organization’s 24-member Executive Board which purports to represent all members through a weighted voting system. At the time of its application to the Fund, only a fraction of the Fund’s approximately 185 members recognized Kosovo as a state. As a result of its admittance, Kosovo enjoys full membership, which, according to the Articles of Agreement of the Fund, is limited to “countries.” It has not sought membership to the UN where its application would almost surely be vetoed by Russia and China, though perhaps now Kosovo will follow Palestine’s lead and aim for UN agencies where the permanent members have no veto authority.
From the perspective of these limited recognition entities, membership and participation in international institutions is a no-brainer. The crux of their rationale is simple: if an entity looks like a state, acts like a state, and sounds like a state, there comes a point when it may become difficult to think of it as anything other than a state. Thus, Professor Bill Schabas encouraged Palestine to “build on the momentum” it achieved in the UNESCO vote. Good advice. In other words, build your credibility, your statehood capital, by continuing to act like a state, participating in any regime you can that is thought to be reserved to states.
Is it that easy? Unfortunately, often the exception to the “looks/acts/sounds” hypothesis is where the entity is caught up in an intractable political quagmire. After all, as Rob Sloane has noted, recognition is quintessentially political. Though the state community has developed legal criteria which lend legitimacy to acts of recognition, political overtones largely obscure the application of those criteria.
Operating along the continuum between politics and law, recognition relates to a process of responding to changes within the world community with which legal consequences are associated (see, for related definitions, Reisman & Suzuki, and Grant). In this sense, recognition is not a single event, but rather constantly ongoing, reflective of many types of changes. Most importantly, it rests in the eye of the beholder. With few exceptions, limited recognition entities sometimes enjoy the full set of privileges associated with statehood (with those states that recognize them as states) despite their otherwise seemingly uncertain status. Recognition decisions take place all the time at multiple levels of the plurality of legal orders. Even the media and civil society can play significant roles in this process as well, far more so today than before the age of the internet.
Further, context matters. The “who,” “[as] what,” “where,” “when,” “why,” and “how” are all highly relevant. At least one state (New Zealand) has announced a policy of no longer making formal declarations about recognition. As more states follow suit (perhaps in part to avoid the appearance of being bound to a particular decision in difficult cases), practices such as recognition in international organizations and other interactions take on added value.
Those practices continue to highlight the variations in gatekeeping and decision-making in the recognition process. As limited recognition entities race to accede to those treaties, such as the Rome Statute, that do not require acceptance from other states party, who decides which entities are allowed in and which are kept out? In the case of the Rome Statute, if the UN Secretary-General accepts a depositary instrument from Palestine, must he then accept every depositary instrument from a limited recognized entity (or non-recognized entity) that attempts to make such a deposit? Perhaps fortunately for the Secretary-General, he is not entirely without guidance on how to proceed with this very question. The UN Treaty Manual, prepared by the UN Office of Legal Affairs, provides:
“The depositary of a treaty is responsible for ensuring the proper execution of all treaty actions relating to that treaty. The depositary’s duties are international in character, and the depositary is under an obligation to act impartially in the performance of those duties.
The Secretary-General is guided in the performance of depositary functions by:
(a) Provisions of the relevant treaty;
(b) Resolutions of the General Assembly and other United Nations organs;
(c) Customary international law; and
(d) Article 77 of the Vienna Convention 1969.”
Those opposed to Palestine’s accession could lobby the Secretary-General to reject Palestine’s depositary instrument on the basis of nearly any of those grounds.
A second internal document prepared by the UN Office of Legal Affairs, though not listed among the four sources of guidance enumerated in the Treaty Manual, is the Summary of Practice of the Secretary-General as Depositary. The Summary of Practice is designed to “highlight the main features” of past practice of the Secretary-General regarding his depositary function. With respect to difficult questions of state status, it conveniently advises him to request the opinion of the General Assembly “whenever advisable.”
Professor Schabas contends that the Secretary-General would be hard-pressed to refuse Palestine’s accession to the Rome Statute on the basis of its “recognition” as a state pursuant to the Constitution of UNESCO. He underscores the Cook Islands precedent mentioned in the Summary of Practice in which the Secretary-General relied on the Islands membership to the World Health Organization, whose “membership was fully representative of the international community” and “representative” of the UN General Assembly. Of course, the Secretary-General is not bound by his prior practice (and the Summary of Practice also mentions at least one somewhat contrary example), especially in light of the fact that each of his former decisions concerned highly unique circumstances easily differentiated from the Palestinian case.
Ultimately, the Secretary-General’s selection to accept or reject an instrument should Palestine present it will represent another contribution to the recognition process, just as we have seen from other agencies and non-state actors. As these institutions exercise their discretion, the status of each limited recognition entity continues to evolve.