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

Finally, as will be elaborated below, it is worth mentioning that the special taxation regime in place in some dependencies, such as Guernsey178 and Jersey,179 could also have an impact on their treaty-making capacity, mandated to them by either Her Majesty the Queen or by a customary or parliamentary norm. 153. This phenomenon of the participation of sub-State entities in international treaties and instruments requires a closer look. 154. In modern times, one might realize that several sovereign States have considerably diversified their original ‘treaty-making power’. Similarly, this could have already been observed within the Austro-Hungarian Monarchy where, from time to time, some special legal See Republic of Croatia, Ministry of Foreign and European Affairs, ‘Multilateral Relations’, http://www.mvep.hr/en/foreign-politics/multilateral-relationsold/the-alps-adriatic-working-group. 176 See Organisation Internationale de la Francophonie, https://www.francophonie.org/88-etats-etgouvernements-125. 177 See Délégation Générale du Québec à Paris, http://www.international.gouv.qc.ca/fr/paris. 178 Agreement Between the Government of Hungary and the States of Guernsy on Exchange of Information on Tax Matters, 11 September 2013, promulgated under Hungarian Act 2013/CLII., https://net.jogtar.hu/jogszabaly?docid=a1300162.tv.

179 Agreement between the Government of Hungary and the Government of Jersey on Exchange of Information on Tax Matters, 28 January 2014, promulgated under Hungarian Act 2014/L., https://net.jogtar.hu/jogszabaly?docid=A1400050.TV. 175

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agreements between the constitutive entities were contracted and then promulgated, 180 or where the two main entities were admitted as distinct parties by other contracting parties181 or where the geographical field of application concerned only the territory of one of the entities.182 The United Kingdom developed a widespread practice with several of its dependencies (BOTs: British Overseas Territories) where the arrangements of a legal nature are contracted between i. the United Kingdom and the given dependency,183 or ii. the dependencies,184 or iii. a British dependency and a foreign dependency or territories with special status,185 or iv. full-fledged 180

See e.g. Act 1880/LIV adopted by the Hungarian Parliament for the promulgation of an agreement on financial settlements concluded between Hungary and Croatia-Slavonia-Dalmatia; Act 1889/XL adopted by the Hungarian Parliament for the promulgation of an agreement on financial settlements concluded between Hungary and Croatia-Slavonia-Dalmatia. The Meerauge arbitration was resolved by parallel legislative acts, instead of ‘compromise’/arbitration agreement. See also Act 1897/II, para. 1 (‘The Ministerium is empowered to submit the determination of the frontier at [….] to arbitration and to act in agreement with the Austrian Government in order to set up the arbitral tribunal.’). See further United Nations, 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, Vol. XXVIII, p. 383 (‘By Imperial Austrian Act of 25 January 1897 (Reichsgesetzblatt RGBI No. 32) and Royal Hungarian Law II of 1897, the Imperial Austrian Government and the Royal Hungarian Government were authorized to entrust an arbitral tribunal, to be constituted, with determining the course of the boundary between Galicia and Hungary close to the lake called the “Meerauge” in the Tatra mountains.’).

181 United States Department of State, Office of the Historian, Convention concerning the sugar regime, signed at Brussels, 5 March 1902, article 7 (‘The high contracting parties agree to create a permanent commission, having charge of the surveillance of the execution of the provisions of the present convention. This commission shall be composed of delegates of the different contracting States, and to it will be attached a permanent bureau. […] Each of the high parties is entitled to be represented on the commission by a delegate or by a delegate and associate delegates. Austria and Hungary shall be considered separately as contracting parties. The first meeting of the commission shall take place at Brussels, on the call of the Belgian Government, at least three months before the present convention comes into force.’) (emphasis added). 182 See e.g. Act 1907/II adopted by the Hungarian Parliament for the promulgation of the agreement concluded with Romania on 31 January 1903 on the protection and management of the fishing in the Danube, article 1 (‘The field of application covers only the Hungarian and Rumanian part of the Danube’).

183 See UK/Falkland Island Double taxation arrangement signed on 17 December 1997, https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/496668/falkla nds-dt_-_in_force.pdf; UK/Jersey Double Taxation Agreement and Protocol, Given Effect by an Exchange of Letters Signed in London on 2 July 2018, https://www.gov.uk/government/publications/jersey-tax-treaties; UK/Guernsey Double Taxation Arrangement, signed on 24 June 1952, amended by protocol and arrangements on 20 July 1994, 20 January 2009, 22 September 2015 and 29 February 2016, https://www.gov.uk/government/publications/guernsey-tax-treaties; UK – Isle of Man Double Taxation Agreement and Protocol, Given Effect by an Exchange of Letters, 2 July 2018, https://www.gov.uk/government/publications/isle-of-man-tax-treaties. 184 Arrangement Between the States of Guernsey and the States of Jersey for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income, 1 January 1956, https://www.gov.gg/dta.

185 Agreement Between the States of Guernsey and the Faroes for the Avoidance of Double Taxation on Individuals, 28 October 2008, https://www.gov.gg/dta; Agreement Between the States of Guernsey and Greenland for the Avoidance of Double Taxation on Individuals, 28 October 2008, https://www.gov.gg/dta; Agreement Between the Government of Guernsey and the Government of the Hong Kong Special Administrative Region of the People’s Republic of China for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income, 28 March and 22 April 2013, https://www.gov.gg/dta; Agreement Between the Government of Guernsey and the Government of the Macao Special Administrative Region of the People’s

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sovereign States and the British dependencies.186 Similarly, Danish dependencies, such as selfgoverning Greenland 187 or the Faroe Islands, 188 also contracted several agreements on tax issues with sovereign States. 155. Other territories with special status (for example, Hong Kong) have also entered into treaties with sovereign States concerning, inter alia, issues of cooperation in air traffic,189 tax, judicial and criminal prosecution.190 156. Agreements that contain dispositions regarding entry into force, denunciation, notification on the completion of home approbation and promulgation, among others,191 are Republic of China for the Exchange of Information Relating to Tax Matters, 3 September 2014, https://www.gov.gg/tiea.

186 Agreement Between the Government of Australia and the States of Guernsey for the Allocation of Taxing Rights with Respect to Certain Income of Individuals and to Establish a Mutual Agreement Procedure in Respect of Transfer Pricing Adjustments, 7 October 2009, https://www.gov.gg/dta; Agreement between the States of Guernsey and the Republic of Poland for the Avoidance of Double Taxation with Respect to Certain Income of Individuals, 8 October 2013, https://www.gov.gg/dta; Agreement between the Government of Guernsey and the Government of Japan for the Exchange of Information Relating to Tax Matters and the Avoidance of Double Taxation with Respect to Taxes on Income of Individuals, 6 December 2011, https://www.gov.gg/dta; Agreement Between the States of Guernsey and the Government of Hungary on Exchange of Information on Tax Matters, 11 September 2013, https://www.gov.gg/tiea (In Hungary, it was promulgated by the Act 2013/CLXII, https://net.jogtar.hu/jogszabaly?docid=a1300162.tv ); Agreement Between the Government of the United States of America and the Government of the States of Guernsey for the Exchange of Information Relating to Taxes, 19 September 2002, https://www.gov.gg/tiea. 187 See e.g.

Treaty between Greenland and Norway, 4 October 2005, https://www.regjeringen.no/no/dokumenter/stprp-nr-78-2004-2005-/id138940/?q&ch=6; Agreement Between The Government Of Greenland And The Government Of The Republic Of San Marino Concerning Information On Tax Matters, https://www.oecd.org/countries/sanmarino/43753194.pdf. 188 See e.g. UK/Faroes Double Taxation Convention, signed in London on 20 June 2007 (https://www.gov.uk/government/publications/faroes-tax-treaties); Agreement between the Faroes and Monaco for the exchange of information relating to tax matters, 23 June 2010, https://www.oecd.org/countries/faroeislands/; Agreement between the Faroe Islands and Antigua & Barbuda for the exchange of information relating to tax matters, 19 May 2010, https://www.oecd.org/countries/faroeislands/; Agreement between the Faroe Islands and Dominica for the exchange of information relating to tax matters, 19 May 2010, https://www.oecd.org/countries/faroeislands/. 189 See e.g.

Agreement between the Government of the Hong Kong Special Administrative Region of the People’s Republic of China and the Government of the State of Israel Concerning Air Services, 9 September 1998 (Preamble: ‘The Government of the Hong Kong Special Administrative Region of the People’s Republic of China (“the Hong Kong Special Administrative Region”) and the Government of the State of Israel […], Desiring to conclude an Agreement for the purpose of providing the framework for air services between the Hong Kong Special Administrative Region and the State of Israel, Have agreed as follows’), https://www.doj.gov.hk/eng/laws/table1ti.html. 190 See e.g. the list of States having contracted bilateral treaties with Hong Kong, such as the Transfer of sentenced persons agreements (https://www.doj.gov.hk/eng/laws/table5ti.html), Surrender of Fugitive Offenders Agreements (https://www.doj.gov.hk/eng/laws/table4ti.html), Consular Agreements (https://www.doj.gov.hk/eng/laws/table8ti.html), Double Taxation Avoidance Agreements (https://www.doj.gov.hk/eng/laws/table6ti.html), Air Services Agreements and Air Services Transit Agreements (https://www.doj.gov.hk/eng/laws/table1ti.html). 191 See e.g.

Agreement Between the Government of Australia and the State of Guernsey, article 9 (‘The Parties shall notify each other, in writing, through the appropriate channel of the completion of their constitutional and

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mostly related to taxation issues (avoidance of double taxation and avoidance of tax evasion) but some of them also concern the suppression of money laundering or the financing of international terrorism192 (they possess an evident criminal law character). 157. On a multilateral level, other relevant examples illustrate the participation of sub-State territorial entities, such as the tax convention between Norway, Denmark, Sweden, Finland and the Faroe Islands193 or the agreement on fishery between the European Union and Greenland.194 158. As the Corten-Klein Commentary puts it as regards article 3195 of the Vienna Convention on the Law of Treaties: Territorial entities dependent on States […] are generally, but not exclusively, part of a federal State. The rules of international law leave it to each federal State to determine if its own components should have the capacity to conclude treaties. If a State’s constitution grants this capacity, these sub-entities enter the realm of international law precisely because they are able to conclude treaties. Whether one entity is called a State, a ‘canton’, a ‘land’, or a province, it is ultimately for legal procedures for the entry into force of this Agreement.

This Agreement shall enter into force on the thirtieth day after the date of the last notification and shall, provided an Agreement for the Exchange of Information Relating to Tax Matters is in force between the Parties, thereupon have effect’). 192 See e.g. Agreement between the Government of the United States of America and the Government of the States of Guernsey, Preamble (‘Whereas Guernsey has long been active in international efforts in the fight against financial and other crimes, including recent efforts involving terrorist financing; Whereas the Internal Revenue Service of the United States has determined Guernsey’s “know your customer” rules to be acceptable for purposes of the Qualified Intermediary regime, which provides simplified withholding and reporting obligations for payments of income from the United States to an account holder through one or more foreign intermediaries; Whereas the Government of the States of Guernsey and the Government of the United States (“the parties”) recognise that present legislation already provides for the exchange of information in criminal tax matters, which under current practice is conducted by the United States through the Department of Justice and by Guernsey through its Attorney General; Whereas the parties wish to establish the terms and conditions governing the exchange of information relating to taxes; Now, therefore, the

parties have agreed as follows’) (emphasis added). 193 Skatteavtale mellom Norge Danmark, Sverige, Finland, Island og Færøyene, 1 July 2011, https://www.regjeringen.no/no/tema/okonomi-og-budsjett/skatter-og-avgifter/skatteavtaler/skatteavtale-mellomde-nordiske-land/id651100/. 194 Fisheries Partnership Agreement between the European Community on the one hand, and the Government of Denmark and the Home Rule Government of Greenland, on the other hand (2 July 2007), Official Journal of the European Union L172-EN, 30 June 2007, p. 4, http://www.fao.org/faolex/results/details/en/c/LEX-FAOC072582/; Protocol setting out the fishing opportunities and the financial contribution provided for by the Fisheries Partnership Agreement between the European Community on the one hand, and the Government of Denmark and the Home Rule Government of Greenland, on the other hand, https://eur-lex.europa.eu/legalcontent/EN/TXT/HTML/?uri=CELEX:22015A1121(01)&from=EN.

195 VCLT, article 3 (‘International agreements not within the scope of the present Convention’) (‘The fact that the present Convention does not apply to international agreements concluded between States and other subjects of international law or between such other subjects of international law, or to international agreements not in written form, shall not affect: (a) the legal force of such agreements; (b) the application to them of any of the rules set forth in the present Convention to which they would be subject under international law independently of the Convention; (c) the application of the Convention to the relations of States as between themselves under international agreements to which other subjects of international law are also parties.’).

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each State to determine what should be the capacity of that particular entity. In some federations, the power to conclude treaties is vested exclusively in the federal government. Some States have granted this capacity to their federated entities in specific areas, while other States have extended such capacity to all areas falling within the competences of these entities.196

159. To conclude this point, it should be emphasised that under current State practice, i. it is not at all absurd to involve sub-State entities in the international law network; but ii. such practice depends on the entity’s recognition by the sovereign State or on the mandate given to its entities according to the sovereign State’s constitutional or legal system; iii. it depends on whether the partner States consider it useful to enter into a bilateral contract with these entities and to conceive this contractual relationship as having the character of international law; iv. more or less the same can be said for cooperation at the multilateral level; v. in the bilateral and multilateral context, the sovereign States may have several technical solutions (for example, (a) to give an ad hoc mandate,197 (b) to give or to recognize a permanent mandate to act alone, (c) to participate together on one side of the negotiation and conclusion of the agreement,198 or (d) to reserve the power of acting to the sovereign State who will enter into treaty obligations with another sovereign State only vis-à-vis the self-governing entity,199 if they would like to Y. le Bouthillier and J.F. Bonin, ‘Art.3 1969 Vienna Convention’ in O. Corten and P. Klein (eds) The Vienna Conventions on the Law of Treaties: A Commentary (2011) (‘Bouthillier and Bonin’), p. 74, paras 22, 23 (footnotes omitted).

197 See e.g. Agreement between the Government of the United States of America and the Government of Montserrat to Improve International Tax Compliance and to Implement FATCA, Preamble (‘Whereas, the Government of the United States of America and the Government of Montserrat (each, a “Party,” and together, the “Parties”) desire to conclude an agreement to improve international tax compliance; Noting that the Government of the United Kingdom of Great Britain and Northern Ireland (the “United Kingdom”) informed the Government of the United States by providing a copy of a Letter of Entrustment, via note verbale no. 21/03/14 of 26 March 2014 to the Government of the United States of America, that the Government of the United Kingdom of Great Britain and Northern Ireland has entrusted the Government of Montserrat to negotiate and conclude a tax agreement with the Government of the United States of America on information exchange to facilitate implementation of the Foreign Account Tax Compliance Act’), https://www.treasury.gov/resource-center/taxpolicy/treaties/Documents/FATCA-Agreement-Montserrat-9-8-2015.pdf. 198 See e.g.

Fisheries Partnership Agreement between the European Community on the one hand, and the Government of Denmark and the Home Rule Government of Greenland, on the other hand (‘The European Community, […], and The Government of Denmark And the Home Rule Government of Greenland, (hereinafter referred to as “Greenland”), […] Having regard to the Protocol on the special arrangement applicable to Greenland, Recognising that the European Community and Greenland wish to strengthen the links between them and to establish a partnership and a cooperation which would support, complement and extend the relations and cooperation established between them in the past’), Official Journal of the European Union, 30 June 2007, L 172/4-8. 199 Protocol between the Kingdom of Norway and the Kingdom of the Netherlands in respect of the Netherlands Antilles, amending the convention between the Kingdom of Norway and the Kingdom of the Netherlands in 196

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involve these entities in the formation of commitments of international law); and finally vi. States may also decide not to recognize that capacity or to recognize it only for noninternational law type transboundary contracts. 160. It is worth noting that nearly all of the States acting as amici curiae in the present case are also contracting parties in at least one, if not several treaties, where a sub-State entity is also a contracting party.200

161. International jurisprudence is scarce when it comes to defining statehood or any closely related notion. 162. During a German-Polish litigation, four years before the adoption of the Montevideo convention, a special arbitral tribunal whose establishment was prescribed by the Versailles peace treaty, namely the German-Polish Mixed Arbitral Commission, gave the following definition, slightly relativizing the importance of precision as it relates to borders: ‘[a] State does not exist unless it fulfills the conditions of possessing a territory, a people inhabiting that territory, and a public power which is exercised over the people and the territory.’201 It added that: In order to say that a State exists and can be recognized as such [...] it is enough that this territory has a sufficient consistency, even though its boundaries have not yet been accurately delimited [...] There are numerous examples of cases in which States have existed without their statehood being called into doubt […] at a time when the frontier between them was not accurately traced.202 163.

It is worth mentioning the PCIJ’s advisory opinion on the Customs Regime between Germany and Austria.203 If we make abstraction of the reference to Austria and the peace treaty respect of the Netherlands Antilles for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income and on capital, 13 November 1989. 200 See e.g. Tax Information Exchange Agreements contracted by Jersey with Australia, Austria, Brazil, Czech Republic, Germany, and Hungary, https://www.gov.je/TaxesMoney/InternationalTaxAgreements/TIEA/Pages/TIEACountries.aspx#anchor-2. 201 Deutsche Continental Gas-Gesellschaft v. Polish State, 1 August 1929, 5 Annual Digest of Public International Law Cases (1929) 11 (‘Deutsche Continental Gas’), pp. 14-15. 202 Deutsche Continental Gas, p. 15. 203 PCIJ, Customs Regime Between Germany and Austria, Advisory Opinion of 5 September 1931, Series A/B, No. 41, 5 September 1931 (‘Advisory Opinion of 5 September 1931’).

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of Saint-Germain, we get a definition of independence also referring to the territorial and governmental aspects: If we consider the general observations at the beginning of the present Opinion concerning […] ’s present status, and irrespective of the definition of the independence of States which may be given by legal doctrine or may be adopted in particular instances in the practice of States, the independence of […], according to Article […] of the Treaty of […], must be understood to mean the continued existence of […] within her present frontiers as a separate State with sole right of decision in all matters economic, political, financial or other with the result that that independence is violated, as soon as there is any violation thereof, either in the economic, political, or any other field, these different aspects of independence being in practice one and indivisible.204 164. It should be noted, however, that it is doubtful whether the ‘sole right of decision in all matters economic, political, financial or other’ and the indivisibility of the economic and political fields provide a valid approach today, given the interdependence and integration phenomena characterizing the 20th century since World War II. 165.

The PCIJ dealt with cases where the borders (or more precisely some parts of the borders) of Albania 205 (with Serbia and then with the SHS Kingdom) and of Poland 206 (with Czechoslovakia) were not defined at the time that the Great Powers decided on their recognition. In these cases, the PCIJ considered whether the first and subsequent decisions altogether properly determined the frontier or whether some parts remained undefined. 166. In the PCIJ’s recapitulation of the history of Albanian borders, 207 it seems clear that Albania’s status (as a State) was not really challenged on the basis that the determination of its 204

Advisory Opinion of 5 September 1931, p. 45. PCIJ, Question of the Monastery of Saint-Naoum, Advisory Opinion of 4 September 1924, 4 September 1924, Series B, No. 9 (‘Advisory Opinion of 4 September 1924’). 206 PCIJ, Question of Jaworzina, Advisory Opinion of 6 December 1923, 6 December 1923, Series B, No. 8. 207 See Advisory Opinion of 4 September 1924, pp. 9-10 (‘At the termination of the second Balkan War, in 1912, the Great Powers agreed in principle that an independent State of Albania should be created, which should be neutralised and placed under the administrative and financial control of the Powers. The Treaty of London of May 17/30th, 1913 (article 3) reserved to them “the task of settling the frontiers of Albania and any other questions regarding Albania”. Accordingly the question of the fixing of the frontiers of the new State was submitted to the Conference of Ambassadors which sat at London in 1913. The Conference adopted certain decisions in this connection which are known as the “Protocol of London”.

Under one of these decisions a Delimitation Commission was created which was at work in 1913, and concluded its work by the final Protocol signed at Florence on December 17th of that year, Albania, which had in the first place been established as a principality under the sovereignty of the Prince of Wied, became a Republic in 1914; but the Great War prevented the complete 205

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borders was partially delayed. The Polish-Czechoslovakian dispute over Jaworzina was related to the previously mentioned arbitral award between the Austrian and the Hungarian components of the Austro-Hungarian Monarchy concerning ownership of the Meerauge lake.208 Per tangentem, the PCIJ confirmed expressis verbis the ‘distinct international units’ nature of the components of the Dual Monarchy. fixing of the frontiers of the new State, which was also invaded by the belligerent armies. [...] From 1920 onwards, Albania entered into relations with the League of Nations, to which it asked to be admitted. This request was granted by a decision taken by the Assembly of the League of Nations in December 1920. The Resolution regarding its admittance expressly reserved the question of the settlement of the frontiers of the new Member State. Having been admitted to the League of Nations, Albania brought before the Council the question of the evacuation of its territory – as fixed by the Conference of London of 1913 – by the Serbian and Greek troops. This question made urgent that of the settlement of the frontiers; for Serbia and Greece maintained that the Principal Powers were alone competent to deal with the latter, whereas Albania contended that the League of Nations, as successor to the European concert of nations, should possess this competence.

The Assembly of the League of Nations, however, by its unanimous vote of October 2nd, 1921, left the task of settling the Albanian frontiers to the Principal Powers, recommending Albania to accept then and there the forthcoming decision of the Powers on this subject. At this point the Conference of Ambassadors took its decision of November 9th, 1921, with which the Court will deal in detail at a later stage. A Commission of Enquiry, however, sent by the League of Nations to Albania, drew attention to difficulties which had arisen with regard to the line of the Albanian frontier in the region of the Monastery of Saint-Naoum amongst others; and subsequently the Delimitation Commission established by the decision above mentioned was faced with difficulties in the same region.’) (emphasis added). 208 Advisory Opinion of 6 December 1923, pp. 42-43 (‘In the opinion of the Court, which differs from that adopted by the Delimitation Commission on September 25th, 1922, the frontier between Hungary and Galicia was in August 1914 an international frontier, Galicia being then part of the Austrian Monarchy. This is proved, e.g. by the Arbitration Award of September 13th, 1902, with regard to the “Meerauge” question. Although Austria and Hungary had common institutions based on analogous laws passed by their legislatures, they were nonetheless distinct international units.’) (emphasis added).

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167. The PCIJ made a lengthy historical summary209 and cited an opinion of the boundary commission210 before concluding that the borders were already well decided and only the visual markings needed to be made.211 It should be pointed out that the PCIJ referred to a decision of the Council of Ambassadors post-dating not only the Saint-Germain212 and Trianon213 Treaties, which recognized Czechoslovakia, but also its participation (as a founding member)214 in the League of Nations. 168. In its advisory opinion on the Lausanne Treaty in which the Council of the League of Nations was mandated to define a part of Turkey’s border 215 (namely that with Iraq to be Advisory Opinion of 6 December 1923, p. 20 (‘When, as a result of the European War and the dissolution of the Austro-Hungarian Monarchy, Poland and Czechoslovakia were reestablished as independent States, their frontiers were, generally speaking, indicated by the same historical and ethnological factors which had led to their reconstitution.

The necessity remained, however, either for a formal pronouncement with regard to the extent of the territories respectively allocated to two States above-mentioned or for a settlement of territorial questions in regions where, owing to special circumstances, the historical or ethnological frontier remained uncertain or met with difficulties which prevented the parties concerned from voluntarily accepting it. The task of ensuring the recognition of the frontiers of the new States and of settling disputes which might arise between them was undertaken by the Principal Allied and Associated Powers represented in the Supreme Council then sitting at Paris. Thus, in the Peace Treaties, side by side with clauses regarding the frontiers of Germany, Austria and Hungary, are to be found clauses by which the Principal Allied and Associated Powers reserve the right subsequently to fix the frontiers of the new States, having obtained in advance the consent of the States enumerated above, to the frontiers thus to be determined. As regards Poland and Czechoslovakia, clauses of this kind are to be found in Articles 81 and 87 of the Treaty of Versailles, Article 91 of the Treaty of St. Germain-en-Laye and Article 75 of the Treaty of Trianon.’), p.

28 (‘The preamble of the decision of July 28th, 1920, clearly shows that this decision is intended to carry into execution the terms of the Resolution of the Supreme Council of July 11th, 1920. A comparison of the two documents proves that it was intended to carry out these terms completely and definitively. In view of the reservations made and doubts raised on this subject, it is, however, necessary to consider very closely three questions: (1) What is the nature and effect of the decision of July 28th, 1920; (2) What is the frontier line as defined by this decision in the Spisz district; (3) Is this frontier line wholly or partly subject to modifications, and in what circumstances. A further question, namely, whether the delimitation effected in the Teschen and Orava districts might, as the Polish Government maintained, depend upon the solution adopted as regards the Spisz territory, will be considered separately, after the various aspects of the special problem of Spisz have been analysed.’) (emphasis added). 210 Advisory Opinion of 6 December 1923, p.

35 (‘Since the Treaty of August 10th, 1920, the only one which deals with the region of Jaworzina is not in force, and since the decision of July 29th, 1920, leaves this frontier undetermined, it follows that the Principal Allied Powers have, at the present time, only to consider the declaration of Spa of July 10th, 1920, whichprovides them with full powers for the determination of this frontier.’) (emphasis added). 211 Advisory Opinion of 6 December 1923, p. 57 (‘The Court is of the opinion, that the question of the delimitation of the frontier between Poland and Czechoslovakia has been settled by the decision of the Conference of Ambassadors of July 28th, 1920, which is definitive, but that this decision must be applied in its entirety, and that consequently that portion of the frontier in the region of Spisz topographically described therein remains subject (apart from the modifications of detail which the customary procedure of marking boundaries locally may entail) to the modifications provided for under paragraph 3 of Article II of the same decision.’). 212 Dated 10 September 1919. 213 Dated 4 June 1920. 214 On 10 January 1920. 215 Advisory Opinion of 21 November 1925, pp.

18-19 (‘From the Mediterranean to the frontier of Persia, the frontier of Turkey is laid down as follows: (1) With, Syria: The frontier described in Article 8 of the FrancoTurkish Agreement of October 20th, 1921; (2) With Iraq: The frontier between Turkey and Iraq shall be laid down 209

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established under British mandate), in circumstances where bilateral Turkish-British negotiations did not yield any result, the PCIJ emphasised the importance of precision with respect to boundaries.216 Yet, here too, the PCIJ admitted that this aspect did not mean that all segments of the border should be fixed at the same time.217 169. The practice of the various political organs of the League of Nations also adressed the question of statehood. It is important to cite a statement made by an ad hoc conflict settling body entrusted by the Council to mediate the dispute between Sweden and Finland, which highlights the difficulty of establishing a precise timeframe for the establishment of statehood in a post-secession context.218 170. As Sir Hersch Lauterpacht put it: Most of the new States which arose after the War of 1914-1918 were recognized de facto or de jure before their frontiers were finally laid down in treaties, although as a rule such recognition was accompanied in friendly arrangement to be concluded between Turkey and Great Britain within nine months. In the event of no agreement being reached between the two Governments within the time mentioned, the dispute shall be referred to the Council of the League of Nations.

The Turkish and British Governments reciprocally undertake that, pending the decision to be reached on the subject of the frontier, no military or other movement shall take place which might modify in any way the present state of the territories of which the final fate will depend upon that decision.’) (emphasis added). 216 Advisory Opinion of 21 November 1925, p. 20 (‘[T]he very nature of a frontier and of any convention designed to establish frontiers between two countries imports that a frontier must constitute a definite boundary line throughout its length [...] It is, however, natural that at any article designed to fix a frontier should, if possible, be so interpreted that the result of the application of its provisions in their entirety should be the establishment of a precise, complete and definitive frontier.’). 217 Advisory Opinion of 21 November 1925, pp. 20-21 (‘It often happens that, at the time of signature of a treaty establishing new frontiers, certain portions of these frontiers are not yet determined and that the treaty provides certain measures for their determination. […] Even if there were any possible doubt in regard to the meaning of the first two sub-paragraphs of paragraph 2 of the article, this would be dissipated by the terms of the third subparagraph.

By this clause, the British and Turkish Governments undertake that, pending the decision to be reached on the subject of the frontier, no military or other movement shall take place which might modify in any way the present state of the territories of which the final fate will depend upon that decision. This, therefore, is a temporary settlement, pending a definitive settlement. The latter will be effected by the “decision to be reached”, or, according to the Protocol of July 24th, 1923, relating to the evacuation of the Turkish territory occupied by the British, French and Italian forces, by the “determination of the frontier”. Again this decision may be either an agreement between the Parties or, failing such agreement, the solution given by the Council. Now a decision on which the final fate of the territories in question depends can only be a decision laying down in a definitive manner the frontier between Turkey and Iraq binding upon the two States.’) (emphasis in original). 218 League of Nations, ‘The Aaland Islands Question: Report of the Committee of Jurists’, League of Nations Official Journal, Special Supplement No. 3 (1920), p. 9 (‘It is therefore difficult to say at what exact date the Finnish Republic in the legal sense of the term actually became a definitely constituted sovereign state.

This certainly did not take place until a stable political organization had been created, and until the public authorities had become strong enough to assert themselves throughout the territories of the state without the assistance of foreign troops.’) (emphasis added).

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by stipulations relating to the acceptance by the State concerned of the frontiers to be laid down by the peace conference.’219 171. He added: ‘[t]he existence of the conditions of statehood outlined above-external independence and effective internal government within a reasonably well-defined territory may be and has often been controversial in reference to particular situations. But, in essence, these conditions are definite and exhaustive.’220 172. It bears repeating that at the end of World War II, on 26 June 1945, Poland was a founding State of the United Nations even though its borders, which were treated vaguely and with cynicism in Tehran221 and in Yalta,222 were decided on weeks later at the Potsdam Conference of 17 July to 2 August 1945 (and still with some uncertainties).223 The events of World War II and the language of some armistice agreements224 also exemplify this – at first glance – strange 219

Lauterpacht, p. 412. Lauterpacht, pp. 412-413. 221 The Tehran Conference, 28 November to 1 December 1943, https://avalon.law.yale.edu/wwii/tehran.asp. See also Churchill’s famous demonstration with three matches on the map, https://history.state.gov/historicaldocuments/frus1943CairoTehran/d362. 222 Protocol of Procedings, Yalta (Crimea) Conference, February 1945, Section VII. Poland (‘The three heads of Government consider that the eastern frontier of Poland should follow the Curzon Line with digressions from it in some regions of five to eight kilometers in favor of Poland. They recognize that Poland must receive substantial accessions in territory in the north and west. They feel that the opinion of the new Polish Provisional Government of National Unity should be sought in due course of the extent of these accessions and that the final delimitation of the western frontier of Poland should thereafter await the peace conference.’) (emphasis added). 223 The Berlin (Potsdam) Conference, 17 July-2 August 1945, https://avalon.law.yale.edu/20th_century/decade17.asp (‘Western frontier of Poland. In conformity with the agreement on Poland reached at the Crimea Conference the three Heads of Government have sought the opinion of the Polish Provisional Government of National Unity in regard to the accession of territory in the north ’end west which Poland should receive.

The President of the National Council of Poland and members of the Polish Provisional Government of National Unity have been received at the Conference and have fully presented their views. The three Heads of Government reaffirm their opinion that the final delimitation of the western frontier of Poland should await the peace settlement. The three Heads of Government agree that, pending the final determination of Poland’s western frontier, the former German territories cast of a line running from the Baltic Sea immediately west of Swinamunde, and thence along the Oder River to the confluence of the western Neisse River and along the Western Neisse to the Czechoslovak frontier, including that portion of East Prussia not placed under the administration of the Union of Soviet Socialist Republics in accordance with the understanding reached at this conference and including the area of the former free city of Danzig, shall be under the administration of the Polish State and for such purposes should not be considered as part of the Soviet zone of occupation in Germany.’) (emphasis added).

224 Agreement Between the Governments of the United States of America, the United Kingdom, and the Union of Soviet Socialist Republics, on the One Hand, and the Government of Rumania, on the Other Hand, Concerning an Armistice, article 4 (‘The state frontier between the Union of Soviet Socialist Republics and Rumania, established by the Soviet-Rumanian Agreement of June 8 1940, is restored.’), article 19 (‘The Allied Governments regard the decision of the Vienna award regarding Transylvania as and void and are agreed that Transylvania the greater part thereof) should be returned to Rumania, subject to confirmation at the peace settlement, and the Soviet Government agrees that Soviet forces shall take part for this purpose in joint military operations with Rumania against Germany and Hungary.’). This is to be read in conjunction with the Armistice Agreement with Hungary, 220

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phenomenon, where it is sometimes (or rather rarely and under very peculiar historical circumstances) possible to definitely speak of a State having a territory even where the extent of said territory is yet to be geographically defined, at least in some aspects. 173. It is worth mentioning that in the practice of the United Nations, even Israel’s admission to the UN was hindered by British and Arab arguments contesting Israel’s statehood and emphasising the inchoate character of its borders.225 174. The States’ positions were expressed first and foremost in the debates of the Security Council and the General Assembly. In 1948, four Security Council meetings (383rd, 354th 385th, 386th) were devoted thereto, and only one in the General Assembly. 175. From all these statements, the most remarkable one in the context of the question sub judice is that of Philip Jessup, who at that time was still in the State Department and who reacted as follows before the Security Council: It is common knowledge that, while there are traditional definitions of a State in international law, the term has been used in many different ways.

We are all aware that, under the traditional definition of a State in international law, all the great writers have pointed to four qualifications: first, there must be a people; second, there must be a territory; third, there must be a government; and, fourth, there must be capacity to enter into relations with other States of the world. [... ] [But] the term ‘State’, as used and applied in Article 4 of the Charter of the United Nations, may not be wholly identical with the term ‘State’ as it is used and defined in classic textbooks of international law.226 20 January 1945 (‘Hungary has accepted the obligation to evacuate all Hungarian troops and officials from the territory of Czechoslovakia, Yugoslavia, and Rumania occupied by her within the limits of the frontiers of Hungary existing on December 31, 1937, and also to repeal all legislative and administrative provisions relating to the annexation or incorporation into Hungary of Czechoslovak, Yugoslav and Rumanian territory.’), https://avalon.law.yale.edu/wwii/hungary.asp. The peace treaties of 10 February 1947 between the Allies and these two countries definitively re-established the previous boundaries based on the decisions of the Council of Foreign Ministers where some American proposals were rejected (Meetings of 7 May and 5 September 1946 in Paris). 225 R.

Cohen, ‘The Concept of Statehood in the United Nations Practice’ in 109 University of Pennsylvania Law Review 1127 (1961) (‘Cohen’), p. 1134 (‘Much of the controversy which surrounded the application of the newly proclaimed state of Israel for membership in the United Nations stemmed from doubts as to whether it met the requirement of a defined territory. The Arab states, led by Syria, contended that since Israel’s borders were contested, its statehood must be denied. The United Kingdom also offered this as the reason for its refusal either to recognize the state of Israel or to support its application for admission. Other representatives, construing the territorial requirement more liberally, thought that the General Assembly resolution of 1947 conferred territory upon Israel and that it did not matter that certain details as to the delimitation of this territory remained unsettled. When, after postponement of the issue, consideration of the application was taken up again, Israel’s request for membership was granted.’). 226 Security Council, 383rd Meeting, Official Records, 2 December 1948 (‘UNSC 383rd Meeting’), p. 10.

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176. He added that: One does not find in the general classic treatment of this subject any insistence that the territory of a State must be exactly fixed by definite frontiers. […] The formulae in the classic treatises somewhat vary, […] but both reason and history demonstrate that the concept of territory does not necessarily include precise delimitation of the boundaries of that territory. The reason for the rule that one of the necessary attributes of a State is that it shall possess territory is that one cannot contemplate a State as a kind of disembodied spirit […] [T]here must be some portion of the earth’s surface which its people inhabit and over which its Government exercises authority. No one can deny that the State of Israel responds to this requirement.227 177. At that time, when the full-fledged statehood of some founding States was not at all evident,228 Jessup also advocated for a flexible interpretation of sovereignty based on the will of the founding States in San Francisco and established practice.229 178. According to Rosalyn Cohen: In other cases the requirement of a ‘defined territory’ has tended to be blurred by the existence of territorial disputes and other factors; and in yet other cases it has been used as something of an automatic argument in the cold war. 230 Nevertheless, the only unambiguous case which 227

UNSC 383rd Meeting, p. 11. Tse-shyang Chen, p. 37 (‘When the Charter came into effect on October 24, 1945, India was still a non-selfgoverning entity under the rule of the United Kingdom, the Philippines was an overseas possession of the United States, Lebanon and Syria were mandated territories under the administering authority of France, and Byelorussia and Ukraine were constituent republics of the Soviet Union. In sum, under Article 3, “states” seems to mean not only states under the traditional definition but also territorial bodies politic that failed to comply with this definition.’) (footnotes omitted). 229 See F. Tse-shyang Chen, ‘The meaning of “States” in the Membership Provisions of the United Nations Charter’ in 12 Indiana International & Comparative Law Review 25 (2001) (‘Tse-shyang Chen’), p. 33 (‘In so far as the question of capacity to enter into relations with other States of the world is concerned, learned academic arguments can be and have been made to the effect that we already have, among the Members of the United Nations, some political entities which do not possess full sovereign freedom to form their own international policy, which traditionally has been considered characteristic of a State.

We know, however, that neither at San Francisco nor subsequently has the United Nations considered that complete freedom to frame and manage one’s own foreign policy was an essential requisite of United Nations membership.’). 230 See Cohen, pp. 1134-1135, n. 32 (‘Thus France couched its objections to the admission of Siam, with which it had a territorial dispute, in terms of the continuation of a state of war between the two countries caused by Siam’s aggression in Indo-China. In actual fact, Siam’s agreement to participate in a projected conciliation commission was the sine qua non of French support for her application, and this support was ultimately obtained.’), n. 33 (‘Thus Greece’s objection to the admission of Albania, whose application came in the coldest era of the cold war, was that a disputed claim between them to northern Epirus was still outstanding. […] The issue of defined territory constantly arose with regard to the applications of the divided states of North and South Korea and North and 228

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could be cited in support of the contention that power politics has caused the United Nations to ignore this traditional legal requirement is that of Israel. However, an examination of past practice will at once reveal that this criterion has never been interpreted very strictly. […] It would therefore seem that this traditional criterion of statehood has been treated as of importance in United Nations practice, and that, given its traditional liberal interpretation, it has always been properly applied.231 179. While the ICJ adjudicated an impressive number of States’ boundary disputes, its judges did not give a precise definition of statehood as it relates to borders. Rather, they avoided the issue such as in the advisory opinion on Kosovo.232 The border disputes concerned existing states, most of which had a colonial past, and the ICJ could generally submit its reasoning on the use of the uti possidetis juris principle and the exemptions referenced above.233 That is why the ICJ’s jurisprudence, despite its legal authority, is not very helpful in the case sub judice insofar as the legal problem at issue is very different. 180. As a starting point, like the PCIJ, the ICJ attributes the utmost importance to the stability of borders, as emphasised in the Preah Vihear Judgment.234 South Vietnam.

The Afghanistan representative refused to vote for the admission of Pakistan because his government did not recognize the northwest frontier as a part of Pakistan.’). 231 Cohen, pp. 1134-1135. 232 ICJ, Advisory Opinion of the International Court of Justice on the Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, 22 July 2010, para. 51 (‘In the present case, the question posed by the General Assembly is clearly formulated. The question is narrow and specific; it asks for the Court’s opinion on whether or not the declaration of independence is in accordance with international law. It does not ask about the legal consequences of that declaration. In particular, it does not ask whether or not Kosovo has achieved statehood. Nor does it ask about the validity or legal effects of the recognition of Kosovo by those States which have recognized it as an independent State. […] Accordingly, the Court does not consider that it is necessary to address such issues as whether or not the declaration has led to the creation of a State or the status of the acts of recognition in order to answer the question put by the General Assembly. The Court accordingly sees no reason to reformulate the scope of the question.’) (emphasis added). 233 See e.g.

ICJ, Burkina Faso/Republic of Mali (Frontier Dispute), Judgment of 22 December 1986, 22 December 1986, p. 554; El Salvador v. Honduras (Case Concerning The Land, Island And Maritime Frontier Dispute), Judgment of 11 September 1992, 11 September 1992, p. 558, para. 333; Benin v. Niger (Case Concerning Frontier Dispute), Judgment of 12 July 2005, 12 July 2005, p. 110, paras 28, 29. 234 ICJ, Cambodia v. Thailand (Case Concerning Temple of Preah Vihear), Judgment of 15 June 1962, 15 June 1962, ICJ Report 1962, p. 34 (‘In general, when two countries establish a frontier between them, one of the primary objects is to achieve stability and finality. This is impossible if the line so established can, at any moment, and on the basis of a continuously available process, be called in question, and its rectification claimed, whenever any inaccuracy by reference to a clause in the parent treaty is discovered. Such a process could continue indefinitely, and finality would never be reached so long as possible errors still remained to be discovered. Such a frontier, so far from being stable, would be completely precarious.’).

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181. In another case, it dealt with the boundary dispute between Belgium and the Netherlands. Although both States subsequently agreed on the borders for the first dozen years after the separation, a section of the Belgian and Dutch borders was not properly defined, especially around some enclaves. As for the 1830 separation, it was formally recognized in the 1839 Treaty of London which also contained an article calling for the precision of the boundary.235 Belgium’s de facto and de jure independence started with only partially clear boundaries. 182. The ICJ highlighted the relativity of the precision of boundaries and the court referred to the previously mentioned Albanian case, stating: The appurtenance of a given area, considered as an entity, in no way governs the precise delimitation of its boundaries, any more than uncertainty as to boundaries can affect territorial rights. There is for instance no rule that the land frontiers of a State must be fully delimited and defined, and often in various places and for long periods of time they are not, as is shown by the case of the entry of Albania into the League of Nations.236 183. Neither must we forget the ICJ’s conclusions in its advisory opinion on Western Sahara, even if it concerned nomadic state-formations.237

184. It can be deduced from the above that all elements of the Montevideo criteria are arguable and can be nuanced, as there exist sub-rules and exceptions. Though, this is clear, it should be noted that it is well known that (either rightly or wrongly) several States did not always follow these rules, which were formulated in an abstract manner in 1933.It is worth noting that the Badinter Arbitration Committee (Commission d’arbitrage de la conférence pour la paix en Yougoslavie) used a definition similar to the Montevideo criteria, but which was simpler and 235

ICJ, Belgium v. Netherlands (Case Concerning Sovereignty over Certain Frontier Land), Judgment of 20 June 1959, 20 June 1959, pp. 213-214. 236 ICJ, Federal Republic of Germany v. Denmark (Case Concerning North Sea Continental Shelf), Judgment of 20 February 1969, 20 February 1969, p. 32. 237 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”’.).

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did not contain the problematic adjectives referenced above. In the Opinion No. 1, it stated that ‘the state is commonly defined as a community which consists of a territory and a population subject to an organized political authority; that such a state is characterized by sovereignty’.238 185. From this definition, which closely resembles the one given by the German-Polish Mixed Arbitral Commission,239 we may see that the only real differentia specifica is the presence or lack of sovereignty. It is, however, another challenge to determine how an analysis of sovereignty should proceed in order to arrive at a generally acceptable definition that can be used as a practical tool. 186. In conclusion, the Montevideo criteria are neither erroneous nor universally followed as an imperative rule which does not tolerate any exception. When States had to decide about the recognition of another entity as a State, they used these criteria as a starting point before deciding, according to their own interests, international commitments, political sympathy and feelings of solidarity. 187.

As Michael Reisman puts it: ‘[I]n practical application, Article 4(1) really says little more than that those applicants will be admitted which the Security Council and the General Assembly (or in more political terms, the effective elites of the world) think ought to be admitted, a conclusion which the International Court appears to have obliquely and perhaps reluctantly reached.’240 188. There is no convincing reason to assume that if an entity satisfies all four Montevideo criteria, it is absolutely certain that States will recognize and admit it as a State. Conversely, the admission of a new member into an interstate organization (such as the former League of Nations or the United Nations and its specialized agencies) does not necessarily guarantee that all four Montevideo criteria are fulfilled (or were fulfilled at the time of the admission) and especially does not guarantee that the member’s territory is defined with absolute precision for all segments. 189. From my reading, the fact that an entity is a State (because it has a population, a territory and sovereignty) does not mean that its borders are absolutely settled. Something similar can A. Pellet, ‘The Opinions of the Badinter Arbitration Committee: A Second Breath for the Self-Determination of Peoples’ in 3 European Journal of International Law 178 (1992), p. 182. 239 Deutsche Continental Gas, p. 15. 240 W. M.

Reisman, ‘Puerto Rico and the International Process: New Roles in Association, A Report for the Conference on Puerto Rico and the Foreign Policy Process’ (1973), p. 54 (cited by Tse-shyang Chen, p. 42). 238

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also be said concerning Palestine’s territory: at this time, Palestine’s actual boundaries are uncertain and no one is in the position to say – despite resolutions suggesting what would be just or equitable – when they will be settled or finalized. Certainly, defining them is by no means the task of this Court. 190. There is, however, one statement that could be made regarding the current status of relevant international legal rules and UN documents: the decision on Palestine’s borders (as understood under international law), based on negotiation and agreement, still has a long way to go. The issue of Resolution 67/19 of the General Assembly

191. The arguments in the Prosecutor’s primary approach are based on the interplay of Resolution 67/19 with the accession instrument. 192. The Majority Decision lengthily describes the accession 241 and touches upon the respective roles of the Secretary-General and the General Assembly. 242 In this context, it conceives that Resolution 67/19 was determinative in the opening of the accession to the Rome Statute and other treaties, on the basis of the ‘all States’ formula. 193. Years ago, the then-Prosecutor refused to deal with the Palestinian declaration submitted in 2009 based on a particular reading of article 12(3) of the Statute, stating that he could not act until the relevant UN organs explicitly recognised Palestine as a State.243 This position was 241