* This text was reproduced and reformatted from the text available at the United Nations Educational, Scientific and Cultural Organization website (visited Mar. 21, 2012) http://www.icc-cpi.int/NR.rdonlyres.C6162BBF-FEB9-4FAF-AFA9-836106D2694A/284387/SituationinPalestine030412ENG.pdf

* This text was reproduced and reformatted from the text available at the United Nations website (visited Mar. 21, 2012) http://www.un.org/Docs/journal/asp/ws.asp?m=S/2011/592.

* This text was reproduced and reformatted from the text available at the International Criminal Court website (visited Mar. 21, 2012) http://www.icc-cpi.int/NR.rdonlyres.C6162BBF-FEB9-4FAF-AFA9-836106D2694A/284387/SituationinPalestine030412ENG.pdf

1 It would of course also be subject to all of the duties of states under general international law.

2 While it cannot be a party to the Statute of the International Court of Justice (‘‘ICJ’’) without Security Council approval, it may be able to access the ICJ under Article 35(2) of its Statute and pursuant to Security Council Resolution 9 (1946), which allows states not parties to the ICJ Statute to file a declaration accepting the Court’s jurisdiction.

3 Declaration Recognizing the Jurisdiction of the International Criminal Court (Jan. 21, 2009) (submitted on behalf of the Palestinian National Authority).

4 United Nations Educational, Scientific and Cultural Organization [UNESCO] Constitution, Nov. 16, 1945, available at http://unesdoc.unesco.org/images/0018/001874/187429e.pdf.

5 Rules of Procedure of the UNESCO General Conference rule 85, Records of the General Conference of UNESCO, 3rd Sess., available at http://unesdoc.unesco.org/images/0011/001145/114593e.pdf.

6 Id. rule 86.

7 The Montevideo criteria, set forth in the 1933 Montevideo Convention, are now widely accepted as the definitive criteria for the establishment of statehood. Montevideo Convention on the Rights and Duties of States, Dec. 26, 1933, 49 Stat. 3097, 165 U.N.T.S. 21, available at http://www.oas.org/juridico/english/sigs/a-40.html; Stephen McCaffrey, Dinah Shelton & John Cerone, Public International Law: Cases, Problems & Texts 439 (2010). The United States referred to the Montevideo criteria in asserting the statehood of Kosovo at a time when fewer than sixty states had recognized Kosovo. See Written Statement of the United States of America Concerning the Request of the UN General Assembly for an Advisory Opinion on the Question of the Accordance with International Law of the Unilateral Declaration of Independence by the Provisional Institutions of Self-Government of Kosovo (Apr. 17, 2009), available at http://www.icj-cij.org/docket/files/141/15640.pdf. For one U.S. court’s assessment of whether Palestine satisfied the Montevideo criteria as of 2004, see Knox v. PLO, 306 F. Supp. 2d 424 (S.D.N.Y. 2004).

8 For example, collective non-recognition could effectively prevent fulfillment of the fourth Montevideo criterion. Collective recognition, on the other hand, reflects an authoritative opinion that the criteria have been met, even if, from a more ‘‘scientific’’ perspective, there might appear to be a shortfall.

9 It has been suggested that the term ‘‘states’’ as used in Article 4 of the Charter is broader than in general international law. A number of states that are less than fully independent have been admitted to UN membership in recent years.

10 U.N. Charter art. 4, ¶ 2, June 26, 1945, 59 Stat. 1031, TS No. 993, 3 Bevans 1153.

11 Some Security Council members had sought to condition their affirmative votes for membership on a quid pro quo basis; hence the request for the Advisory Opinion.

12 Pursuant to Article 27(3) of the Charter, ‘‘Decisions of the Security Council on all other matters [other than purely procedural matters] shall be made by an affirmative vote of nine members including the concurring votes of the permanent members . . . .’’ The ICJ, in a 1950 Advisory Opinion, affirmed that the Security Council’s recommendation must be in favor of admission in order for a state to be admitted to membership by the General Assembly. Competence of the General Assembly for the Admission of a State to the United Nations, Advisory Opinion, 1950 I.C.J. 4 (Mar. 3), available at http://www.icj-cij.org/docket/files/9/1883.pdf.

13 See G.A. Res. 65/308, U.N. GAOR 65th Sess., U.N. Doc. A/ RES/65/308 (July 14, 2011), available at http://www.un.org/depts/dhl/resguide/r65.shtml.

14 It is arguable that Kosovo satisfies the Montevideo criteria. If Kosovo’s statehood were to be affirmed by the overwhelming majority of Member States in the General Assembly, Kosovo would be a state, despite the objections of at least one permanent member of the Security Council. However, a majority of states have withheld recognition from Kosovo, making such an affirmation unlikely.

15 Rep. of the Int’l Crim. Ct. to the U.N. General Assembly, ¶ 81, A/65/313 (Aug. 19, 2010).

16 It might also include the question of the territorial scope of Palestine and whether the Palestinian Authority is legally competent to represent Palestine in the international legal system.

17 Int’l Crim. Ct. Office of the Prosecutor, Statement: Situation in Palestine (Apr. 3, 2012), available at http://www.icc-cpi.int/NR/rdonlyres/C6162BBF-FEB9-4FAF-AFA9-836106D2694A/284387/SituationinPalestine030412ENG.pdf [hereinafter Situation in Palestine].

18 See, e.g., United Nations Convention on the Law of the Sea [UNCLOS] art. 305, Dec. 10, 1982, 1833 U.N.T.S. 3, 21 I.L.M. 1261 (1982).

19 See Situation in Palestine, supra note 17, n.3.

20 ‘‘In interpreting and applying article 12 of the Rome Statute, the Office has assessed that it is for the relevant bodies at the United Nations or the Assembly of States Parties to make the legal determination whether Palestine qualifies as a State for the purpose of acceding to the Rome Statute and thereby enabling the exercise of jurisdiction by the Court under article 12(1). The Rome Statute provides no authority for the Office of the Prosecutor to adopt a method to define the term ‘State’ under article 12(3) which would be at variance with that established for the purpose of article 12(1).’’

1. Until the 30th session, the records of the General Conference were printed in three volumes: Resolutions (Volume I); Reports (Volume 2); Proceedings (Volume 3).

2. Resolution adopted at the 11th plenary meeting, on 31 October 2011.

3. Resolution adopted on the report of the joint meeting of the programme commissions and the ADM Commission at the 17th plenary meeting, on 10 November 2011.

1 The declaration can be accessed at: http://www.icc-cpi.int/NR/rdonlyres/74EEE201-0FED-4481-95D4-C8071087102C/279777/20090122PalestinianDeclaration2.pdf

2 For a summary of submissions see http://www.icc-cpi.int/Menus/ICC/Structure+of+the+Court/Office+of+the+Prosecutor/Comm+and+Ref/Palestine/.

3 This position is set out in the understandings adopted by the General Assembly at its 2202^nd plenary meeting on 14 December 1973; see Summary of Practice of the Secretary- General as Depositary of Multilateral Treaties, ST/LEG/7/ Rev. 1, paras 81-83; http://untreaty.un.org/ola-internet/Assistance/Summary.htm