Bijlage 1.ICC Dissenting Opinion Judge Péter Kovács.jurisdictie Palestina.CR2021 01167.PDF

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(which will be examined below), one can hardly conclude that the Prosecutor’s main starting point 107 – that, according to the General Assembly, Palestine already and independently possesses sufficient attributes of Statehood – is substantiated, even today. 94.

I am convinced that all of the basic legal provisions to be applied will remain exactly the

same when the Prosecutor potentially seizes the Chamber with a request for an arrest warrant. Why should we wait to enter into a plain legal analysis? Will this really help to meet the ‘[expected] full cooperation from all ICC States Parties’?108 95.

The Chamber could have arrived, however, at a different conclusion, consistent with

positive international law and the Rome Statute. 96.

In the following pages, I present an alternative approach based on an in extenso reading

of relevant international instruments, most of them referenced in the Request. This approach will also cover the issues, legal problems and legal aspects abundantly analysed by the Prosecutor (in the Request and Response) and by some amici, but which the Majority did not address at all or only superficially (such as the question of the Montevideo criteria and the impact of the Oslo Accords). The legitimacy and importance of relying on international law when assessing the impact of international legal documents on the situation sub judice 97.

The Majority Decision is largely based on the interplay between article 12(2)(a), 109

article 21(1)(a)110 and article 125(3)111 of the Statute. Response, para. 14 (‘an appreciation by […] the UN General Assembly that the entity in question already and independently possesses sufficient attributes of Statehood’) (emphasis in original). 108 Response, para. 7. 109 Article 12(2)(a) of the Statute (‘Preconditions to the exercise of jurisdiction’) reads: ‘In the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3: (a) The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft’. 110 Article 21(1)(a) of the Statute (‘Applicable law’) reads: ‘The Court shall apply: (a) In the first place, this Statute, Elements of Crimes and its Rules of Procedure and Evidence’. 111 Article 125 of the Statute (‘Signature, ratification, acceptance, approval or accession’) reads: ‘This Statute shall be open to accession by all States. Instruments of accession shall be deposited with the Secretary-General of the United Nations’. 107

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98.

I am convinced that article 21(1)(b)112 and (c)113 of the Statute should also be considered

and I am not satisfied with the surprisingly rather short reasoning in the Majority Decision114 that article 21(1)(a) of the Statute forms an adequate legal basis in itself. To the contrary, the numerous but one-sided references in the Request to different UN resolutions and other international rules and principles should provide the Chamber with an appropriate basis for proceeding under article 21(1)(b) and (c) of the Statute. If this had been the case, the outcome would have been considerably different from the current position of the Majority. 99.

Even if it is plainly evident that article 21 of the Statute (relating to ‘applicable law’)

contains a hierarchical structure (unlike article 38 of the Statute of the ICJ), judges must not end their analysis at article 21(1)(a) of the Statute simply because it begins with ‘in the first place’. Rather, they have the obligation to refer to article 21(1)(b) of the Statute (‘in the second place, where appropriate’) and also to article 21(1)(c) of the Statute (‘failing that’) when the circumstances require. 100. According to jurisprudence and legal doctrine, judges can base their findings solely on article 21(1)(a) of the Statute only when the issue under scrutiny is so simple that the answer can evidently be found in the provisions of the Statute, the Elements of Crimes and the Rules of Procedure and Evidence (the ‘Rules’). 101. I am convinced that the issues before this Chamber are not at all simple, but rather involve complex questions of the proper interpretation of UNO practice, including the proper legal value of different types of resolutions and the importance of their counterbalanced and nuanced formulas, as well as consideration of the interactions between commitments provided in special agreements and in documents of international mediation and of the UNO. 102.

From the onset, the Prosecutor’s application for a leave for extension of pages stated that ‘[h]owever, mindful of the unique and complex factual and legal circumstances in this Article 21(b) of the Statute reads: ‘In the second place, where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict’. 113 Article 21(c) of the Statute reads: ‘Failing that, general principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with this Statute and with international law and internationally recognized norms and standards’. 114 See Majority Decision, para. 111 (‘The Statute, thus, exhaustively deals with the issue under consideration and, as a consequence, a determination on the basis of article 21(1)(b) of the Statute as to whether an entity acceding to the Statute fulfils the requirements of statehood under general international law and related questions is not called for.’). 112

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situation, and the significance of the requested ruling on the Court’s exercise of jurisdiction, the Prosecution requests an extension of pages to a maximum of 110 pages.’115 It further added that ‘the Request addresses an issue which is not only highly significant to any exercise of jurisdiction over this situation by the Court, but touches upon matters which are perhaps uniquely controversial within the international community. As such, it is legally and factually complex.’116 103. In its decision related to the said application, the Chamber agreed ‘with the Prosecutor that the nature, novelty and complexity of the issue, that is, the jurisdiction of the Court with respect to the situation in Palestine, both in terms of its legal and factual aspects, gives rise to “exceptional circumstances” within the meaning of regulation 37(2) of the Regulations.’117 104. The Request also emphasised the complexity 118 of the issues at hand, including the division of states, 119 historical 120 and political aspects, 121 among others. The Request also referred to the practice of the United Nations and several other international organizations.122 105. This complexity is perhaps what led the Prosecutor to suggest two options in the Request, a primary position and a secondary position: i. ‘Palestine is a State’123 and ii.

‘Palestine is a State for the purpose of the Statute.’124 According to the different logic of the primary and the secondary positions, the Prosecutor first suggested to refuse a special assessment for Palestine 125 and secondarily, she advocated for it: ‘the Chamber should consider the particularities of the Palestinian situation.’126 115

Application for extension of pages for request under article 19(3) of the Statute, 20 December 2019, ICC01/18-8 (‘Application for extension of pages’), para. 2. 116 Application for extension of pages, para. 5. 117 Decision on the Prosecutor’s Application for an extension of the page limit, 21 January 2020, ICC-01/18-11, para. 12. 118 Request, para. 5. 119 Request, para. 5. 120 Request, paras 46-52. 121 Request, paras 65, 80, 116. 122 Request, paras 52-56, 78-79, 85-87, 108, 193-210 (on the UN), 211-215 (on other international organizations). 123 Request, paras 8, 115, 135. 124 Request, paras 9, 43, 101-103. 125 Request, para. 103 (‘The Prosecution considers that a “State” for the purposes of articles 12(1) and 125(3) should also be considered a “State” under article 12(2) of the Statute. Following the deposit of its instrument of accession with the UN Secretary-General pursuant to article 125(3), Palestine qualified as a “State on the territory of which the conduct in question occurred” for the purposes of article 12(2)(a) of the Rome Statute. This means that once a State becomes party to the Statute, the ICC is automatically entitled to exercise jurisdiction over article 5 crimes committed on its territory. No additional consent or separate assessment is needed.’), para. 114. 126 Request, para. 101. See also paras 138, 144, 178; Majority Decision, para.

110 (‘The Appeals Chamber has held that, if “a matter is exhaustively dealt with by [the Statute] or […] the Rules of Procedure and Evidence, […]

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106. Additionally, the other documents presented to the Chamber, namely the States’ and victims’ observations and amici curiae contributions as well as various cited legal publications, repeatedly emphasised this complexity. Most of them also emphasised the concurrent relevance of ‘international criminal law’ and classic ‘public international law’ concerning almost all the important issues at stake. 107. In support of its refusal to deal with international law, the Majority provides too simple of a justification, relying merely on two Appeals Chamber judgments127 adopted in an entirely different context. 108. The first is a case where the defence requested a stay of proceedings on the basis of an alleged irregularity in the cooperation between the Prosecutor and the government of the Democratic Republic of the Congo. In support of its argument, the defence referred to the practice developed in several common law countries under the name of ‘doctrine of abuse of process’. Of note, this concept only received limited acceptance in civil law countries.128 In fact, the question was whether to accept what was presented by a party as a ‘general principle of law’. In the second decision (which pre-dates the first), the Prosecutor, in attempting to obtain an interlocutory appeal, also referred to some common law rules as general principles of law.

This led the Appeals Chamber into a detailed examination in order to establish that article 82 of the Statute exhaustively regulates the issue. The Appeals Chamber also considered the preparatory works dedicated to this article as well as the wording of some international human rights conventions. no room is left for recourse to the second or third source of law [in article 21(1) of the Statute] to determine the presence or absence of a rule governing a given subject.”’) referring to Appeals Chamber, The Prosecutor v. Thomas Lubanga Dyilo, Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to article 19 (2) (a) of the Statute of 3 October 2006, 14 December 2006, ICC-01/04-01/06-772, para. 34. See also Appeals Chamber, Situation in the Democratic Republic of the Congo, Judgment on the Prosecutor's Application for Extraordinary Review of Pre-Trial Chamber I's 31 March 2006 Decision Denying Leave to Appeal, 13 July 2006, ICC-01/04-168, paras 33-39. 127 Majority Decision, para. 112 referring to Appeals Chamber, The Prosecutor v. Thomas Lubanga Dyilo, Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to article 19 (2) (a) of the Statute of 3 October 2006, 14 December 2006, ICC01/04-01/06-772, para.

34, Situation in the Democratic Republic of the Congo, Judgment on the Prosecutor’s Application for Extraordinary Review of Pre-Trial Chamber I’s 31 March 2006 Decision Denying Leave to Appeal, 13 July 2006, ICC-01/04-168, paras 33-39), The Prosecutor v. Omar Hassan Ahmad Al-Bashir, Judgment in the Jordan Referral re Al-Bashir Appeal, 17 May 2019, ICC-02/05-01/09-397-Corr, para. 97. 128 See Appeals Chamber, The Prosecutor v. Thomas Lubanga Dyilo, Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to article 19 (2) (a) of the Statute of 3 October 2006, 14 December 2006, ICC-01/04-01/06-772, para. 33.

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109. In my view, the lesson learned from these two judgments is that an extensive analysis is in fact required before accepting a prima facie rule as a general principle of law. 110. It is true that in the first ten years of the ICC jurisprudence, several decisions adopted the ‘only in case of lacuna’ approach (such as in the Al Bashir case129 or in the Kenyan situation).130 This is also the position adopted in some commentaries.131 It is worth mentioning that for some commentators, the issue is whether the ‘lacuna’ can be adequately filled through the interpretation of the Rome Statute according to the Vienna Convention on the Law of Treaties 132 and by taking into account the Elements of Crimes and the Rules. Another commentary criticizes the wording of article 21 of the Statute, because, in its view, it confuses primacy with priority.133 These commentators nevertheless emphasise that in practice: The Court is free to refer to all treaties in its search for the principles and rules of international law referenced in paragraph 1(b). While treaties that are merely ‘relevant’ to the work of the Court cannot be applied directly, therefore, they can nonetheless provide evidence in support of the other sources.

This makes sense because [...] it is unlikely that the drafters wished to deprive the Court of the possibility of referring to international treaties to assist them in deciding novel issues.134

The Prosecutor v. Omar Hassan Ahmad Al-Bashir, Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, 3 April 2009, ICC-02/05-01/09-3, para. 44 (‘Third, the consistent case law of the Chamber on the applicable law before the Court has held that, according to article 21 of the Statute, those other sources of law provided for in paragraphs (l)(b) and (l)(c) of article 21 of the Statute, can only be resorted to when the following two conditions are met: (i) there is a lacuna in the written law contained in the Statute, the Elements of Crimes and the Rules; and (ii) such lacuna cannot be filled by the application of the criteria of interpretation provided in articles 31 and 32 of the Vienna Convention on the Law of the Treaties and article 21(3) of the Statute.’). 130 Ruto et al. Confirmation of Charges Decision, para. 289 (‘The jurisprudence of other international or hybrid tribunals is not, in principle, applicable law before the Court and may be resorted to only as a sort of persuasive authority, unless it is indicative of a principle or rule of international law. But even then, applying a customary rule of international law only “where appropriate” limits its application to cases where there is a lacuna in the Statute and the other sources referred to in article 21(1)(a).

In other words, the Chamber should not resort to applying article 21(l)(b), unless it has found no answer in paragraph (a).’). 131 M. M. deGuzman, ‘Article 21: Applicable law’ in Ambos and Triffterer Commentary (‘deGuzman’), p. 936; M. Heikkilä, ‘Article 21(1)(b)’, online commentary on CaseMatrixNetwork, https://www.casematrixnetwork.org/cmn-knowledge-hub/icc-commentary-clicc/commentary-romestatute/commentary-rome-statute-part-2-articles-11-21/#c2020; N. C. Bicudo, ‘Article 21’ in Fernandez-Pacreau Commentary, p. 969. 132 DeGuzman, paras 11, 20, 21. 133 Bicudo, p. 969. 134 DeGuzman, p. 939, para. 22, n. 57 (citing L. Sadat, The International Criminal Court and the Transformation of International Law: Justice for the New Millenium (2002), para. 12). 129

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111. Obviously, there is a great difference between i. claiming an additional, typically procedural right, not recognized by the Rome Statute or the Rules, simply by referring to its presence in another international treaty (or in the interpretation of such treaty in the jurisprudence) and ii. referring to the provisions of the United Nations Charter and the practice of the UNO when interpreting the content of a certain document relevant to an actual situation or case submitted before the ICC. 112. While the former is a claim for ‘importation’, the latter is a question of interpretation. The ‘only in case of lacuna’ approach seems to pertain to the first category (the claim for importation). Of note, the question of whether there is a lacuna or not may also not necessarily be easy to answer at once (as it has been the case, for example, with the issue of ‘no case to answer’ before several chambers of the Court). 113. That is why, in my view, when implementing the latter (the tool of interpretation of a document), the restrictions reflected in the above cited decisions do not prevent consideration of the rules of public international law relevant for assessing the value and content of the UN documents referred to by the Prosecutor. 114.

Accordingly, given that a good number of factors reflect that the actual text is far from unambiguous, I do not find that the Majority provided a reasoned opinion in this respect or sufficiently justified its reliance on these dicta. Even if per tangentem, the cited judgment referred at the same time to article 21(1)(b) and (c) of the Statute, one must not forget that the Appeals Chamber highlighted in these same cases the importance of interpretation in accordance with the rules of the Vienna Convention, namely articles 31 and 32. 115. The exclusion135 of relevant international legal rules is even more problematic because of the Vienna Convention, which stipulates that, under article 31(3): ‘[t]here shall be taken into account, together with the context: […] (c) any relevant rules of international law applicable in the relations between the parties.’ 116. Moreover, the Katanga judgment superseded the two old dicta sometimes referred to for substantiating the ‘only in case of lacuna’ concept. Trial Chamber II gave a rather lengthy presentation of the rules of interpretation contained in articles 31 and 32 of the Vienna Majority Decision, para.

103 (‘It follows that the absence of such a power conferred upon the Chamber confirms the exclusion of an interpretation of “[t]he State on the territory of which the conduct in question occurred” in article 12(2)(a) of the Statute as referring to a State within the meaning of general international law’). 135

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Convention, and then clarified when a chamber ‘may’ and when it ‘must’ rely on extraneous rules.136 The chamber did not reiterate the alleged ‘prohibition’ to have recourse to extraneous rules. On the contrary, according to its interpretation, it is an obligation (‘the Chamber must’) ‘where the founding texts do not specifically resolve a particular issue’, and there is always a possibility (‘the Chamber may’) to profit from extraneous international legal rules ‘where it is established that they are applicable to the relations between the States Parties’.137 It is clear from the examples it gives that the chamber understood article 21(1)(b) and (c), and article 21(3) of the Statute as needing to be interpreted in conjunction with article 31(3)(c) of the Vienna Convention. 117. Consequently, as to the recourse to international law, the ‘only in case of lacuna’ approach is rather an arbitrary interpretation made in some academic and scholarly works. Yet, as to restrictions regarding tools of interpretation, it was not and is not an authoritative position established in the Court’s jurisprudence. 118. Refusing to work with rules and established notions of international law is unusual given that the ICC is itself an international tribunal and the issue sub judice raises multiple questions of international law.

Moreover, even the Prosecutor emphasised that: Certainly, it is not the case that anything in the Request asks the Chamber to decline to apply international law. Such a position would indeed be inconsistent with article 21 of the Statute. Rather, the Request merely asks the Chamber to confirm which principles of international law apply, given the interlocking nature of the issues raised by this situation of treaty interpretation. Statehood, international humanitarian law, and international human rights law. On that basis, the Chamber will decide how the Court should proceed.138

136

Trial Chamber II, The Prosecutor v. Germain Katanga, Judgment pursuant to article 74 of the Statute, 7 March 2014, ICC-01/04-01/07-3436-tENG (‘Katanga Judgment’), para. 47 (‘Article 31 of the Vienna Convention also provides that in addition to the context consideration shall be given to “any relevant rules of international law applicable in the relations between the parties”. The General Rule provides that, to interpret or impart meaning to a provision of a treaty, the bench may rely on rules extraneous to the text concerned (in this case, the founding texts) where it is established that they are applicable to the relations between the States Parties. Where the founding texts do not specifically resolve a particular issue, the Chamber must refer to treaty or customary humanitarian law and the general principles of law. To this end, the Chamber may, for example, be required to refer to the jurisprudence of the ad hoc tribunals and other courts on the matter. Nonetheless, the ultimate meaning which the Chamber will apply must always be underpinned by the above-mentioned method of interpretation, which means that it must construe, in good faith, the terms used in accordance with their ordinary meaning, considered in their context and in the light of the purpose and object of the Statute.’) (emphasis added) (footnotes omitted). 137 Katanga Judgment, para. 47. 138 Response, para.

12 (footnotes omitted) (emphasis in original).

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She further added that ‘[t]he Prosecution did not disregard nor circumvent public international law—which is obviously not possible; instead it applied its principles and rules to this case, while also considering the context and purpose of the Statute.’139 119. Consequently, I do not see clearly how ‘the unique and complex factual and legal circumstances in this situation’, with special regard to the ‘nature, novelty and complexity of the issue’, can be answered having recourse only to article 125(3), article 12(2)(a) and article 21(1)(a) of the Statute, especially if we take into account the Chamber’s previous statement on the complexity of the situation in its decision of 21 January 2020. The issue of the Montevideo criteria 120. The Request and a number of the amici curiae contributions paid exceptional attention to the satisfaction (or lack thereof) of the Montevideo criteria which are, incidentally, very similar to the famous Austrian professor Georg Jellinek’s definition of ‘State’ formulated decades earlier.140 121. However, I note with interest professor (and since then ICJ Judge) James Crawford’s remark describing the Montevideo criteria as a ‘hackneyed’ formula.141 My personal opinion is that their alleged mandatory character, their value or even their practical usefulness should not be overemphasised. 122.

The Montevideo criteria (‘The state as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states’) contained in article 1 of the Montevideo Convention on the Rights and Duties of States (1933) are abundantly analysed in the Request and in the amici curiae submissions. Most of the submissions refer to the Montevideo criteria as the expression of customary international law.

123. First, it is to be noted that if the Montevideo criteria are found to be of customary nature, their use in the reasoning of the Chamber would presuppose that article 21(1)(a) of the Statute 139

Response, para. 59 (footnotes omitted). See G. Jellinek, Allgemeine Staaatslehre (1914), pp. 180-181. 141 Request, para. 140, n. 467, where the formula of the Montevideo Convention is considered to a certain extent insufficient and outdated, even ‘hackneyed’ (referring to J. Crawford, The Creation of States in International Law (2007), p. 437). 140

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cannot actually be its sole legal basis, but that it is rather necessary to turn ‘in the second place, where appropriate’ to article 21(1)(b) of the Statute. This also bears the logical consequence that other applicable treaties of international law will also form part of the reasoning. Since the Montevideo Convention was concluded within the framework of the Pan-American cooperation at the Seventh International Conference of American States, it cannot be relied upon per se by the Chamber. It can, however, be used as proof of customary law at the regional level, enjoying very large doctrinal support worldwide. 124. It is worth noting, however, that even proponents of its customary law character are not unanimous as to: i. whether the Montevideo Convention as a whole is of customary character or only its article 1 (containing the definition), and ii. whether the customary law nature of the so-called declaratory concept of State recognition is manifested here (namely in articles 3(1)142 and 6143) or whether fundamental principles of international law should also be added (namely articles 3(2), 4, 5, 8, 10, 11(2),144 which were later included with more or less a very similar formulation in the Preamble and article 2 of the Charter of the United Nations).

Moreover, it also contains very important rules that cannot be considered customary in nature (such as article 11,145 a manifestation of the so-called Stimson-doctrine). Montevideo Convention on the Rights and Duties of States, article 3(1) (‘The political existence of the state is independent of recognition by the other states. Even before recognition the state has the right to defend its integrity and independence, to provide for its conservation and prosperity, and consequently to organize itself as it sees fit, to legislate upon its interests, administer its services, and to define the jurisdiction and competence of its courts.’). 143 Montevideo Convention, article 6 (‘The recognition of a state merely signifies that the state which recognizes it accepts the personality of the other with all the rights and duties determined by international law. Recognition is unconditional and irrevocable.’). 144 Montevideo Convention, article 3(2) (‘The exercise of these rights has no other limitation than the exercise of the rights of other states according to international law.’), article 4 (‘States are juridically equal, enjoy the same rights, and have equal capacity in their exercise.

The rights of each one do not depend upon the power which it possesses to assure its exercise, but upon the simple fact of its existence as a person under international law.’), article 5 (‘The fundamental rights of states are not susceptible of being affected in any manner whatsoever.’), article 8 (‘No state has the right to intervene in the internal or external affairs of another.’), article 10 (‘The primary interest of states is the conservation of peace. Differences of any nature which arise between them should be settled by recognized pacific methods.’), article 11(2) (‘The territory of a state is inviolable and may not be the object of military occupation nor of other measures of force imposed by another state directly or indirectly or for any motive whatever even temporarily.’). 145 Montevideo Convention, article 11 (‘The contracting states definitely establish as the rule of their conduct the precise obligation not to recognize territorial acquisitions or special advantages which have been obtained by force whether this consists in the employment of arms, in threatening diplomatic representations, or in any other effective coercive measure.’). 142

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125. The Montevideo Convention also contains rules that can be considered as ‘main principles’ but which have not been strictly followed in international practice 146 or treaty making.147 126. Even article 12 of the Convention may be cited against the argument that the contracting parties must have wanted to codify customary law as it stood at that time.148 This, however, does not rule out per se the possibility of referring to the Montevideo Convention or its criteria approximately 90 years later, in the context of subsequent changes in modern international law. The Montevideo criteria, in their original form, can hardly be of immemorial character as it will be shown in the subsequent parts of my Opinion and obviously even the ‘more than 99 years’ time frame has not yet elapsed since its adoption. 127. The Montevideo Convention was, however, ratified with reservations by, inter alia, the United States. The language of its reservation is not easy to understand. Manifestly, it reflects Washington’s resentment for the rejection of some of the United States’ proposals and may have had as a purpose to distinguish between Theodore Roosevelt’s policies and those of Franklin Delanoe Roosevelt.

149 However, according to Sir Hersch Lauterpacht, the reason See Montevideo Convention, article 6 (‘Recognition is unconditional and irrevocable’) and the denunciation (on 29 April 1945) of the Soviet-Japanese Neutrality Pact of 13 April 1941 with its secret protocol, in which the Soviet Union recognized Manchoukuo: ‘In conformity with the spirit of the Pact on neutrality concluded on April 13, 1941, between the U.S.S.R. and Japan, the Government of the U.S.S.R. and the Government of Japan, in the interest of insuring peaceful and friendly relations between the two countries, solemnly declare that the U.S.S.R. pledges to respect the territorial integrity and inviolability of Manchoukuo and Japan pledges to respect the territorial integrity and inviolability of the Mongolian People’s Republic.’ See http://www.ibiblio.org/pha/policy/1941/410413a.html. 147 See Montevideo Convention, article 9 (‘The jurisdiction of states within the limits of national territory applies to all the inhabitants.

Nationals and foreigners are under the same protection of the law and the national authorities and the foreigners may not claim rights other or more extensive than those of the nationals.’) See also the Status of Forces Agreements (‘SOFA’), which are multilateral or bilateral agreements aiming to exempt military personnel and civilians from the host state’s jurisdiction or from fulfilling other treaty obligations, e.g. vis-à-vis the Rome Statute. 148 Montevideo Convention, article 12 (‘The present Convention shall not affect obligations previously entered into by the High Contracting Parties by virtue of international agreements.’). 149 See League of Nations, Reservation made by the Governement of the United States to the Convention on Rights and Duties of States adopted by the Seventh International Conference of American States signed at Montevideo on 26 December 1933, Treaty Series: Treaties and International Engagements Registered with the Secretariat of the League of Nations, Nos. 3801-3824 (1936), p. 29.

The United States’ reservation reads, in full: ‘The Delegation of the United States, in voting “yes” on the final vote on this committee recommendation and proposal, makes the same reservation to the eleven Articles of the project or proposal that the United States Delegation made to the first ten Articles during the final vote in the full Commission, which reservation is in words as follows: “The policy and attitude of the United States Government toward every important phase of international relationships in this hemisphere could scarcely be made more clear and definite than they have been made by both word and action especially since March 4 th. I have no disposition therefore to indulge in any repetition or rehearsal of these acts and utterances and shall not do so. Every observing person must by this time thoroughly understand that under the Roosevelt Administration the United States Government is as much opposed as any 146

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behind the reservation was that the notions were ambiguous.150 Regardless of the reason, the use of reservations and their wording151 reflect the hypothesis that the Montevideo Convention as a whole cannot be considered purely codificatory. 128. As previously stated, the Montevideo criteria are incidentally very similar to the definition of ‘State’ given by the famous Austrian professor, Georg Jellinek, formulated decades earlier.152 It is well known, however, that all four components faced criticisms and are often also based on purely political/geopolitical considerations. This can also be linked to the fact that in Montevideo, the participating States viewed the world from their own perspective, conditioned by their particular position, namely on the American continent.

129. The ‘easiest’ is to begin by asking whether the adjective permanent, preceding the term population, still holds practical significance today or whether it held any practical meaning at the time. other Government to interference with the freedom, the sovereignty, or other internal affairs or processes of the Governments of other nations. In addition to numerous acts and utterances in connection with the carrying out of these doctrines and policies, President Roosevelt, during recent weeks, gave out a public statement expressing his disposition to open negotiations with the Cuban Government for the purpose of dealing with the treaty which has existed since 1903. I feel safe in undertaking to say that under our support of the general principle of nonintervention as has been suggested, no Government need fear any intervention on the part of the United States under the Roosevelt Administration. We think it unfortunate that during the brief period of this Conference there is apparently not time within which to prepare interpretations and definitions of these fundamental terms that are embraced in the report. Such definitions and interpretations would enable every Government to proceed in a uniform way without any difference of opinion or of interpretations. I hope that at the earliest possible date such very important work will be done.

In the meantime in case of differences of interpretations and also until they (the proposed doctrines and principles) can be worked out and codified for the common use of every Government, I desire to say that the United States Government in all of its international associations and relationships and conduct will follow scrupulously the doctrines and policies which it has pursued since March 4th which are embodied in the different addresses of President Roosevelt since that time and in the recent peace address of myself on the 15th day of December before this Conference and in the law of nations as generally recognized and accepted.”’ 150 H. Lauterpacht, ‘Recognition of States in International Law’ in 53 The Yale Law Journal 385 (1944) (‘Lauterpacht’), p. 423 (‘In signing the Convention the United States added a reservation, which described as unfortunate the fact that the conference did not prepare a definition or interpretation of the fundamental terms used in the Convention so as to “enable every government to proceed in a uniform way without any difference of opinion or interpretations.”’). 151 League of Nations, Treaty Series: Treaties and International Engagements Registered with the Secretariat of the League of Nations, Nos. 3801-3824 (1936), p.

29 (‘The delegates of Brazil and Peru recorded the following private vote with regard to Article 11: That they accept the doctrine in principle but that they do not consider it codifiable because there are some countries which have not yet signed the Anti-War Pact of Rio de Janeiro of which this doctrine is a part and therefore it does not yet constitute positive international law suitable for codification.’). 152 G. Jellinek, Allgemeine Staaatslehre (1914), pp. 180-181.

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130. While it is evident that there is no State without a population, international law neither sets a minimum size requirement, nor requires a permanent character for a population. This is because populations experience natural growth and loss, but also because of the phenomenon of immigration with which a large number of States are familiar. The territorial changes following World War I and World War II produced changes in demographic and ethnic composition, without necessarily having an impact on the legal identity of States. Even the Holocaust during World War II or the odious genocide and ethnic cleansing attempts since that time, did not impact the legal identity of the given States.

131. As to a ‘defined territory’, it goes without saying that a State needs a territory. However, international law prescribes neither a minimum nor a maximum size for it. Rather, what matters is that a substantial part of that territory may be used for normal human life, meaning agriculture and industry. 132. It is rather unclear whether the adjective ‘defined’ should be understood as ‘well defined’, a fortiori internationally defined or recognized, or only as an equivalent to ‘a certain’. 133. When scrutinizing pre-20th century States, it is obvious that there were large empires, the precise territorial scope of which are not easy to establish with absolute precision.153 When a given empire or kingdom was composed of an ‘ancestral home’ surrounded by a certain number of vassal entities, the fidelity of which depended largely on the military success of the empire, it was not always easy to define the borders of that empire.154 The arbitral decision of Pope Alexander VI (the Bull Inter Caetera of 4 May 1493, basis of the Treaty of Tordesillas) is a famous example not only of the division of ‘spheres of interests’ but also of the fact that a territory may be defined with considerable latitude.

Even the 20th century provides examples where a given State’s territory was only defined grosso modo, and yet other States did not consider this to affect that State’s statehood.155 See e.g. Attila’s Hun empire, the Mongols’ Golden Horde, the Maya, Aztec and Inca empires. See e.g. the Ottoman Empire which had a number of half-sovereign duchies on the periphery, including the khanate (knyazivstvo) in Eastern Europe and around the Black Sea, and the banate (banstvo) in the Balkans. 155 See e.g. Articles of Agreement for a Treaty between Great Britain and Ireland (the Anglo-Irish Treaty of 1921), 6 December 1921, article 12 (‘[A Commission] shall determine in accordance with the wishes of the inhabitants, so far as may be compatible with economic and geographic conditions, the boundaries between Northern Ireland and the rest of Ireland, and for the purposes of the Government of Ireland Act, 1920, and of this instrument, the boundary of Northern Ireland shall be such as may be determined by such Commission.’) (cited in K. J. Rankin, 153 154

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134. The ICJ also touched upon this phenomenon in its advisory opinion on Western Sahara, albeit in the context of nomadic state-formations.156 135. One might say that these are only exceptions. Yet, if there is such a large number of exceptions, why should we consider a certain rule to be absolute?

136. The third Montevideo criterion is ‘government’. 137. In practice, this involves not only a necessary central authority, but also the effective implementation of its functions, namely its ability to manage the territory and its capacity to legislate and to see its laws executed by the administration and applied by the judiciary. The events of the 20th century contributed to the enlargement of the criterion of effective government by considering that the exercise of power by a puppet government could not be considered effective (see the Stimson doctrine157 and its follow ups in the League of Nations and after 1945 in the United Nations). This approach was manifested in the UN General ‘The Creation and Consolidation of the Irish Border’ (2005), Working Papers in British-Irish Studies No. 48, p. 18). See also below the history of Poland’s borders as established at the Tehran, Yalta and Potsdam conferences, n. 221-223. 156 ICJ, Western Sahara, Advisory Opinion of 16 October 1975, 16 October 1975, (‘Western Sahara Advisory Opinion’), para. 148 (‘In the case concerning Reparation for Injuries Suffered in the Service of the United Nations, the Court observed: “The subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights, and their nature depends upon the needs of the community” (I.C.J. Reports 1949, p. 178).

In examining the propositions of Mauritania regarding the legal nature of the Bilad Shinguitti or Mauritanian entity, the Court gives full weight both to that observation and to the special characteristics of the Saharan region and peoples with which the present proceedings are concerned. Some criterion has, however, to be employed to determine in any particular case whether what confronts the law is or is not legally an “entity”.’). 157 ‘With the recent military operations about Chinchow, the last remaining administrative authority of the Government of the Chinese Republic in South Manchuria, as it existed prior to September 18th, 1931, has been destroyed. The American Government continues confident that the work of the neutral commission recently authorized by the Council of the League of Nations will facilitate an ultimate solution of the difficulties sow existing between China and Japan.

But in view of the present situation and of its own rights and obligations therein, the American Government deems it to be its duty to notify both the Imperial Japanese Government and the Government of the Chinese Republic that it cannot admit the legality of any situation de facto nor does it intend to recognize any treaty or agreement entered into between those Governments, or agents thereof, which may impair the treaty rights of the United States or its citizens in China, including those which relate to the sovereignty, the independence, or the territorial and administrative integrity of the Republic of China, or to the international policy relative to China, commonly known as the open door policy; and that it does not intend to recognize any situation, treaty or agreement which may be brought about by means contrary to the covenants and obligations of the Pact of Paris of August 27, 1928, to which Treaty both China and Japan, as well as the United States, are parties.’ (available at: http://courses.knox.edu/hist285schneid/stimsondoctrine.html) (emphasis added). See also https://2001-2009.state.gov/r/pa/ho/time/id/16326.htm; https://history.state.gov/milestones/1921-1936/mukdenincident.

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Assembly vis-à-vis the so-called Turkish Republic of Northern Cyprus158 and was interpreted in the self-determination and anti-apartheid context vis-à-vis the Bantustan policy of South Africa. 159 Some scholars consider these to be additional criteria, while a great part of the academic world classifies them under the condition of ‘effective government’. 138. Yet, the question of government is even more nuanced. 139. It is well known that it is not easy to differentiate between autonomy and statehood-like participation in a greater statehood-entity. Ordinarily, if the competences of the smaller unit are regulated by the constitution of the greater unit, the smaller unit is considered only an autonomy. If its competences are regulated by an international treaty which was not replaced by a constitution, the smaller unit is probably a sovereign State (generally a component of a ‘personal union’ or a confederation). The Montevideo Convention refers only to the issue of federal states160 from the point of view of the federation, but there are examples of special rights sometimes enjoyed by member states of certain federations vis-à-vis the outside world.161 140. Historical examples are important to observe.

It is worth mentioning the Holy Roman Empire, 162 the subsequent forms of the empire under the Habsburgs 163 and its final Security Council, Resolution 541, 18 November 1983, S/RES/541 (‘The Security Council […] Considering therefore that the attempt to create a “Turkish Republic of Northern Cyprus” is invalid, [...] Calls upon all states not to recognise any Cypriot state other than the Republic of Cyprus’). See also United Nations, Security Council, Resolution 550, 11 May 1984, S/RES/550, adopted in response to the ‘exchange of ambassadors’ between Turkey and the ‘Turkish Republic of Northern Cyprus’ (‘Reiterates the call upon all States not to recognise the purported State of the “Turkish Republic of Northern Cyprus”’). 159 General Assembly, Resolution 3411 D, 28 November 1975, A/RES/3411 (‘Calls upon all Governments and organizations not to deal with any institutions or authorities of the bantustans or to accord any form of recognition to them.’). 160 Montevideo Convention, article 2 (‘The federal state shall constitute a sole person in the eyes of international law.’). 161 See E. The ‘capacity to enter into relations with the other states’ criterion below. 162 Sigismund of Luxemburg (1368-1437) first became Hungary’s king (1387) and was then elected emperor of the Holy Roman Empire (1433).

He could perform his royal/imperial duties independently, without bringing Hungary inside the empire. The emperor of the Holy Roman Empire was chosen by the seven prince-electors (i.e. by three ecclesiastical Electors, namely the Archbishop of Mainz, the Archbishop of Trier, and the Archbishop of Cologne, and four secular Electors, including the King of Bohemia, the Count Palatine of the Rhine, the Duke of Saxony and the Margrave of Brandenburg). One of them was the king of Bohemia who, under the Jagello dynasty, happened to also be a Hungarian king as he was in a personal union relationship. At that time, both Bohemia (i.e. Czech) and Hungary had their own dieta (i.e. legislative assembly). 163 In order to receive protection against the expansionism of the Osman Empire, Hungary joined the Habsburg Empire in 1526 with the election of Ferdinand Habsburg as king of Hungary at the time Charles V was emperor of the Holy Roman Empire. In the following centuries, a considerable part of the nobility and population entered into secessionist uprisings (emancipation movements, revolution) as for example in 1606, 1703-1711, and 18481849 based on the violation of the royal oath paid on the observation of the rules of the Hungarian constitutionalism. Between 1526 and 1541, the territory was shared between two rival kings (Ferdinand 1 st von Habsburg and John 1st Zapolya).

Thereafter, between 1541 and 1699, a considerable part of Hungary was annexed 158

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transformation into the Austro-Hungarian Monarchy (1867-1918). 164 Similarly, the union between Sweden and Norway (1814-1905) 165 and the Grand Duchy of Finland in the framework of the Czars’ Russia (1809-1917)166 show notable state-like specificities. In these State formations, the rights and obligations of the territorially smaller entities cannot be described as being territorial autonomies only. 141. From a purely legal standpoint, the structure of the Soviet Union could be conceived as a federation, the composite elements of which were, at least constitutionally, sovereign by the Osman Empire while Transylvania, ruled by an elected ‘grand duke’, was acting as a kind of legal continuator of the former independent Hungary. Yet, the Sultan manu militari sanctioned the policies he considered to be a threat to Turkish interests. The Hungarian Kingdom and Transylvanian Duchy contracted with each other peace treaties and other agreements recognizing Transylvanian Duchy as a distinct, independent entity while reaffirming the right of the Habsburgs to rule as kings of Hungary for the reunification (1538, 1606). Note that this is a very simplified explanation of very complicated historical events. 164 The Austro-Hungarian Monarchy, according to the so-called great reconciliation (also known as ‘the great compromise’) of 1867, was composed of i.

the ‘Austrian eternal territories’ (Cisleutania i.e. grosso modo current Austria), Bohemia-Moravia (i.e. the Czech kingdom), Galicia (i.e. the southern part of today’s Poland and some parts of today’s Ukraine), Bukowina, Dalmatia, and ii. the historical Hungary. There was no common assembly and no common government for the constituting entities. Both units had their own national assembly, their own legislation, their own civil and penal law system, their own citizenship, their own government, and their own police. Military and foreign affairs (i.e. army and diplomatic staff and their respective budget) belonged to the ‘common affairs’ managed by the monarch, Franz-Joseph, emperor of Austria and king of Hungary. Despite the common foreign policy, Franz-Joseph mandated the Hungarian government to enter into interstate contractual obligations in the name of Hungary only (see e.g. the agreement of 31 January 1903, contracted between Hungary and Romania on the preservation and management of the fishing activity in the Danube, as promulgated by the act of 1907/II). There was even an international arbitral award between Austria and Hungary concerning a small lake in the High Tatras, before Austrian and Hungarian judges with the president of the Swiss Federal Court as the umpire.

(See Decision of the arbitral tribunal established to settle the dispute concerning the course of the boundary between Austria and Hungary near the lake called the ‘Meerauge’, 13 September 1902, Reports of International Arbitral Awards, Recueil des Sentences Arbitrales, Volume XXVIII, pp. 379-396). While recognizing that participation in the Olympic games is decided by national olympic committees and not by states, it is still worth mentioning that there was no common austro-hungarian participation at the Olympic games, but rather the participants were sent by the Austrian Olympic Committee and the Hungarian National Olympic Committee, respectively. The situation was, however, even more complicated because within the Hungarian Kingdom, the Kingdom of Croatia was a constituent entity with Franz-Joseph as its king, a national assembly (Sabor) in Zagreb and its own government. Croatia was competent to rule on domestic affairs, the judiciary, religion and education, while the military and its related budgetary issues belonged to the common affairs (with Hungary). 165 The Union between Sweden and Norway was a personal union with separate constitutions, legislation, administrations, armed forces and finances. However, foreign affairs were considered common and were managed through the Swedish foreign ministry.

166 After acquiring Finland from Sweden in the Fredrikshamn peace treaty, the Russian czar succeeded the Swedish king as Grand duke of Finland. The (until 1905 parliamentless) autocratic czarist regime had to rule the democratic Finnish Grand duchy, having a constitution (suspended in 1903), a legislative assembly (Diet), the convocation of which, depended on the Czar and the sessions became regular only after 1863 but until 1909. The government (i.e. the ‘Senate’) was acting under the authority of the governor appointed by the czar and there was also an independent judiciary system. The policy of ‘russification’, the forced infiltration of Russian imperial law in the legal system and the different interventions into the autonomy caused, however, serious tensions on the territory of the Grand Duchy. The Grand Duchy could send its own Olympic athlete delegation to the Olympic games of 1912.

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entities, 167 even if in practice this had only some, rather symbolical appearances, such as participation in some international treaties. 168 Moreover, autonomous republics and autonomous territories completed the picture under the strict power of the communist party until the collapse of the regime. In today’s Russia, the different levels of state-like structures – some of them equipped with their own constitution – are constitutionally institutionalized.169 142. On the other hand, several sovereign States, 170 mostly micro-States belonging to the common law world, operate with a judiciary whose highest level is the Judicial Committee of the Privy Council of Her Majesty the Queen. This is generally explained by the necessities or at least specificities of the common law system. However, not all common law States are formally attached to the Privy Council and they are not at all obliged to do so. 143. Similarly, important judiciary competences may be transferred to supranational or similar institutions171 without this putting an end to either sovereignty or to the identity of those States. The same is applicable to the well-known institution of international arbitrations in the context of transnational litigation involving States and non-State private entities.

Because of Andorra’s special status, one member of the Constitutional Court is appointed by the bishop of Urgell in Spain, and the other by the President of the Republic of France, acting as co-prince of Andorra. 144. The transfer of power in regards to military protection against enemies is also legally possible, not only in colonial times but also in modern times.172 145. All these examples illustrate that the third Montevideo criterion faces challenges too. Even an analysis based on the triangle of prescriptive, adjudicative and executive 167

See e.g. the Constitution of 1936, article 15, and Constitution of 1977, articles 76-81, http://www.departments.bucknell.edu/russian/const/36cons01.html#chap02. It is to be noted that the 1977 Constitution mentioned sovereignty generally as an attribute of the USSR, but it preserved a short reference to the sovereign rights of the republics. See https://www.constitution.org/cons/ussr77.txt. 168 See e.g. the Constitution of 1977, article 80. 169 Note the complexity of the rules in articles 65-79 of the Constitution on ‘subjects’ of the Federation composed of ‘republics’, ‘territories’, ‘autonomous regions’ and ‘autonomous areas’, http://www.constitution.ru/en/10003000-04.htm. 170 See e.g. Antigua and Barbados, Cook Islands, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and Grenadines, Trinidad and Tobago among the States Parties to the Rome Statute. 171 See e.g. the position of the Court of Justice of the European Union vis-à-vis the national judiciary and especially the institution of the ‘preliminary ruling’. A similar institution has been introduced in the framework of the European Convention on Human Rights. 172 The Cook Islands entered into such a relationship with New Zealand, and the Marshall Islands empowered the United States of America to secure its defence.

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(enforcement) jurisdictions does not necessarily provide a clear answer to the question of whether the entity at issue is or is not a sovereign state.

146. As to the fourth Montevideo criterion – the ‘capacity to enter into relations with the other states’ – one may ask whether it is in fact a distinct criterion in addition to Jellinek’s three criteria or rather is not a criterion but merely a corollary of sovereignty. 147. Nevertheless, emphasis is to be placed on the fact that history has provided several examples of entities with dubious statehood status that could have effectively entered into interstate contractual obligations or at least de facto relations.173 In modern times, it is worth remembering the independent Principality of Monaco, the international relations of which were managed by France during the greater part of the 20th century (1918-2002). New Zealand exercises a similar competence over the foreign relations of the Cook Islands, a State Party to the Rome Statute. 148. On the other hand, Switzerland, which, despite its then official name ‘Confédération helvétique’, is a federal State equipped with a federal assembly and a federal government over the cantons, recognizes some external competences to the constituting cantons.174 149. Some remarks have already been made above on the Soviet Union.

Without addressing in-depth the inherent failures, problems and crimes of the Soviet regime, it should be noted that the participation of today’s independent Ukraine and Belarus in a number of conventions adopted under the auspices of the United Nations stems officially (and continuously) from their signature and ratification by the Ukrainian SSR and Belarus SSR under their own names. See e.g. Transylvania’s participation in the Osnabrück treaty (1648) or the presence of marquis Des Alleurs as Louis XIV’s special envoy sent to the Hungarian uprising led by F. Rákóczi (1703-1711). 174 See Constitution of Switzerland, article 55 (‘Participation des cantons aux décisions de politique extérieure’) (‘1. Les cantons sont associés à la préparation des décisions de politique extérieure affectant leurs compétences ou leurs intérêts essentiels. 2. La Confédération informe les cantons en temps utile et de manière détaillée et elle les consulte. 3. L’avis des cantons revêt un poids particulier lorsque leurs compétences sont affectées. Dans ces cas, les cantons sont associés de manière appropriée aux négociations internationales.’), article 56, ‘Relations des cantons avec l’étranger’ (‘1. Les cantons peuvent conclure des traités avec l’étranger dans les domaines relevant de leur compétence. 2.

Ces traités ne doivent être contraires ni au droit et aux intérêts de la Confédération, ni au droit d’autres cantons. Avant de conclure un traité, les cantons doivent informer la Confédération. 3. Les cantons peuvent traiter directement avec les autorités étrangères de rang inférieur; dans les autres cas, les relations des cantons avec l’étranger ont lieu par l’intermédiaire de la Confédération.’). See also Loi fédérale sur la participation des cantons à la politique extérieure de la Confédération (LFPC) du 22 décembre 1999, https://www.admin.ch/opc/fr/classified-compilation/19996351/index.html. 173

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150. Under the auspices of the Council of Europe, the internationalized transboundary cooperation (but not necessarily of an interstate-type character) is promoted, inter alia, through the States’ participation in the European Outline Convention on Transfrontier Co-operation between Territorial Communities or Authorities (ETS No. 106). In this context, there is also international co-operation such as the Alpen-Adria cooperation, which includes Austrian Länder, (several) Italian provinces, a Hungarian county and Slovenia as a full-fledged State.175 151. In the Nordic Council, some territorial autonomies (such as the Aland Islands) are working together with States (including Finland as their national State) and in the Organisation de la Francophonie, not only Canada but also Québec and New-Brunswick participate as Canadian federal states.176 Québec has its own representation in Paris177 in a distinct building even though Québec diplomats are also placed on the Canadian embassy’s official list of diplomats. Several countries accredit as consulates, ‘representations’ or representative offices, the contact delegations of non-State entities. Generally, but not always, this is done with the explicit or implicit approval of the other national State. 152.