Kosovo’s Membership in the PCA: Some comments on Professor Zimmermann’s post

* Cross-posted from EJIL:Talk (13 April 2016).

It was nice to read Professor Zimmermann’s post on the issue of membership of Palestine and Kosovo in the Permanent Court of Arbitration (PCA), as this matter should get more attention from the community of international lawyers. I have already dealt with some of the relevant legal issues in an ESIL Reflection of 11 March 2016 which Professor Milanović has kindly referred to in a comment to Professor Zimmermann’s post. I would like to use this opportunity to engage with some issues raised by Professor Zimmermann, namely: whether the Netherlands should have raised proprio motu the issue of Kosovo’s accession to the 1907 Convention; whether there has been an ‘entente ulterieure’ among the member States of the PCA; what are the powers of the PCA Administrative Council and what is the value of its decision of 4 January 2016, and; what is the way forward concerning Kosovo’s accession to the 1907 Convention.

Calling a meeting of the PCA Administrative Council proprio motu

There was no need for the Netherlands as State depositary to raise proprio motu the matter of Kosovo’s accession to the 1907 Convention within the framework of the PCA Administrative Council. Any State who had an issue with Kosovo’s accession could have called for a meeting of the Administrative Council, even at short notice, like Serbia did, albeit not being a party to the 1907 Convention. Also, it must be noted that by the time of the 4 January 2016 meeting of the PCA Administrative Council, only three out of the 116 Member States of the PCA, namely Russia, Serbia and Mexico seemed to have raised an issue concerning Kosovo’s membership in the PCA. Finally, given that more than half of the member States of the PCA recognize Kosovo as an independent State, there was no need for the Netherlands to raise this issueproprio motu.

Entente ultérieure among PCA member States

Contrary to what Professor Zimmermann claims, there has been no ‘entente ultérieure’ along the lines of Article 60 of the 1899 Convention and Article 94 of the 1907 Convention. The December 1959 agreement among the PCA member States simply authorized the Government of the Netherlands, as State depositary, to send an invitation to new members of the United Nations which were not yet a party to the PCA or whose membership position was unclear. The aim was to increase the membership of the PCA. The document to which Professor Zimmermann refers to as ‘UN support’ is a Study prepared by the Secretariat in 1968 concerning the succession of States to multilateral treaties. The main point of this Study is that given most of the new UN member States were former dependent territories, ‘the Administrative Council’s decision made it possible […] to become parties to the Conventions by succession. They need only send the Netherlands Government a simple declaration of continuity’ (see United Nations, Codification Division of the Office of Legal Affairs of the United Nations Secretariat, The Succession of States to multilateral treaties – Studies prepared by the Secretariat, UN Doc. A/CN.4/200 & Corr.1 and Add.1 & 2, para. 121, p. 30- 31). The US proposal during a meeting of the PCA’s Administrative Council of 27 April 1961 to introduce the system underlying the ‘Vienna Formula’ into the practice under the 1907 Convention, was not withdrawn because it failed to gather sufficient support, but because the USSR’s counter-proposal wanted to open the PCA to all States of the world. This last proposal would have created many practical and other difficulties at a time when the political tension between the Eastern bloc and the Western bloc was quite high. Professor Zimmermann rightly points out that the overall object and purpose of the 1960 ad hoc agreement of the PCA member States has been to accept additional contracting parties provided they were perceived by the international community at large as States. At the same time, requiring formal membership within the United Nations would subject the accession of additional States to the 1907 Convention (via the requirement of admission to the United Nations as such) to the veto of the five permanent members of the Security Council, something which is hardly reconcilable with the object and purpose of the PCA system. UN practice shows that there is sufficient support for membership in international treaties by States which are not members of the UN (see the Treaty Handbook of 2012 and the Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties of 1999). While more clarity concerning the PCA membership criteria might be desirable, and the member States of the PCA can decide to address this issue in the future, any new rules adopted cannot be applied retroactively to States that acting in good faith have already accepted their obligations under the 1907 Convention, like Kosovo.

The competences of the PCA Administrative Council and its decision of 4 January 2016 meeting

Article 28 of the 1899 Convention and Article 49 of the 1907 Convention which lay down the competences of the PCA Administrative Council emphasize that this body ‘will decide all questions of administration which may arise with regard to the operations of the Court.’ As shown by the travaux préparatoires concerning Article 28 of the 1899 Convention which is similar to Article 49 of the 1907 Convention, the word ‘administration’ was inserted in this Article to limit the competences of the Administrative Council to those of an administrative nature. In the absence of an explicit legal basis under the 1907 Convention or its internal Rules of Procedure, the Administrative Council cannot suspend or remove from the list of PCA member States those States which have duly notified the State depositary of their intention to join the PCA, like Kosovo. Suspending or removing a State from membership of the PCA is not a question of administration, but one which has a clear legal and political nature.

The way forward concerning Kosovo’s accession to the 1907 Convention

Interestingly, until the recent cases of Palestine and Kosovo, there have been no cases where a State member to the 1899 or the 1907 Convention has objected to another State becoming a party to either of these conventions (with the exception of the controversy surrounding the efforts of the Democratic Republic of Germany to join the PCA in the late 1950s – early 1960s). Such objections, aimed at excluding a State from benefiting from common public goods as international adjudication, seem misplaced for a number of reasons. First, the possibility of making such objections is not explicitly included in the 1899 and 1907 Conventions. Second, this international arbitration mechanism is not vested with compulsory jurisdiction, but simply offers a good venue for States to settle their disputes peacefully. And third, any State remains free to decide whether it wants to be bound by a treaty in relation to another State. Serbia’s objection to Kosovo’s accession to the 1907 Convention is somewhat puzzling given the ongoing process of normalization of relations between Serbia and Kosovo under the mediation of the European Union.

In a manner similar to what the PCA Administrative Council did in the meeting of 14 March 2016 concerning Palestine, it should simply take note that Kosovo is a member State of the PCA. This formal decision by the PCA Administrative Council opens the way for Kosovo to be listed among the PCA member States as its 119^th member.