Palestine Signs The New York Convention
Posted on January 2, 2015
The big news in the past few days is that Palestine, after being rebuffed by the Security Council, signed the Rome Statute, taking a first step toward seeking to bring war crimes charges against Israelis and also perhaps opening the way to war crimes charges being brought against Hamas terrorists. But Palestine also signed a bunch of other conventions, including the New York Convention.
What is the effect of the signing of the New York Convention? Short answer: I’m not sure. More detailed answer: under Article IX of the Convention, the Convention is open for accessions to “all States referred to in Article VIII”. Article VIII provides:
This Convention shall be open until 31 December 1958 for signature on behalf of any Member of the United Nations and also on behalf of any other State which is or hereafter becomes a member of any specialized agency of the United Nations, or which is or hereafter becomes a party to the Statute of the International Court of Justice, or any other State to which an invitation has been addressed by the General Assembly of the United Nations.
It seems to me that Palestine is not a “Member of the United Nations” (it is a “non-member observer State”). I believe but am not certain that Palestine is not a party to the statute of the International Court of Justice, and I believe but am not certain that the General Assembly has not addressed an invitation to Palestine to join the Convention. On the other hand, Palestine is a member of UNESCO, which I think is a specialized agency of the UN. So Palestine is within the scope of Article IX of the Convention—if it is a “state.”
And that’s the rub. Many countries have been recognizing Palestine as a state recently, but does that mean Palestine is a state? This is a question of public international law that I can’t really answer. The Restatement view (which is not the universally held view) is that
Under international law, a state is an entity that has a defined territory and a permanent population, under the control of its own government, and that engages in, or has the capacity to engage in, formal relations with other such entities.
It’s not clear, to me at least, whether Palestine satisfies these criteria. There are several US cases holding that Palestine does not meet them, at least at the time of the decisions (e.g., Unger v. PLO, 402 F.3d 274 (1st Cir. 2005)). Indeed, in 2010, it seems that the Palestinian Authority itself took the position that it was a non-state actor in Ali Shafi v. Palestinian Authority, 686 F. Supp. 2d 23, 29 (D.D.C. 2010), when it argued that a Palestinian’s claim that he had been tortured by the PA did not state a claim for relief under the law of nations because the law of nations did not recognize non-state torture as a violation. While the politics of the Palestinian question have changed since 2010, and while some states and the General Assembly have recognized Palestine since then, it’s not clear to me whether Palestine is closer to satisfying the criteria of statehood now than it was in 2010.
So again—I’m not really sure what the answer is here, though it seems unlikely that US courts, at least, would treat the Convention as in effect as between the United States and Palestine.
This may have very little practical import. Under Chapter 2 of the FAA, I think a US court would consider a Palestinian arbitral award to fall under the Convention in any case, and presumably the courts of Palestine will regard themselves as obligated by the Convention. The practical questions will only arise if a Palestinian court refuses to recognize an award and we have to ask whether Palestine was in fact bound by the Convention so as to make its refusal to recognize the award a violation of its international obligations.