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Wednesday, February 24, 2016

Diplomatic fights over Kosovo: Netherlands severely criticized as depositary

Is Kosovo a sovereign state? That's a matter of dispute, not only between Serbia (that considers it part of its territory) and Kosovo itself, but also within its neighbors, the EU and other states. According to wikipedia (who tends to be up to date in view of all discussion about the subject) Kosovo is recognized by 108 out of 193 (56%) United Nations member states. In terms of membership of international organizations, that recognition has not paid off: Kosovo is only a member of the World Bank and IMF. A few months ago an attempt to enter UNESCO failed to obtain the required 2/3 of the vote by only 3%.

The Netherlands has recognized the independence of Kosovo and concluded several agreements in the past years: a readmission agreement between Kosovo and the Benelux states, and a host state agreement on a special tribunal for Kosovo (Kosovo Relocated Specialist Judicial Institution) that is to open its doors in 2016 in The Hague.

But in November last year the Netherlands seems to have made both a technical and a diplomatic error regarding Kosovo, that makes for an interesting annual meeting of the Hague Conference of Private International Law. In both cases concern international conventions for which the Netherlands acts as depositary: administrator of the treaty.

Error: Convention for the pacific settlement of international disputes

the Peace Palace, seat of the Permanent Court, in The Hague
The Netherlands is the depositary of the second Hague Peace Conference of 1907 and this convention is a relevant one: it encompasses membership of the Permanent Court of Arbitration and thus a platform for state to state arbitration processes. 

The Netherlands received the instruments of accession of Kosovo and Palestine within a week of each other in October/November 2015, and send out standard notifications to the parties, followed by "the standard" objections of the states Georgia, Russia (regarding Kosovo) and Canada and Israel (regarding Palestine). The most to the point reaction however came from the United States, who clearly has done its homework regarding eligibility to accede: 
On the basis of this subsequent agreement of the parties to the Convention, eligibility to accede to the Convention has been extended to UN member states. The Government of the United States is not aware of any subsequent decision of the parties to the Convention to extend eligibility to accede to the Convention to entities that are not members of the United Nations.
It took the Netherlands only a few days to remove Kosovo and Palestine again from the entry in its treaty database, but it did not send out a notification retracting the depositary notification. To be continued thus...
And continued indeed: The depositary re-added Palestine today to the treaty parties, but it kept Kosovo out of the list. The reason? Not mentioned... So still: to be continued.

Diplomatic error: Apostille Convention

A Croatian Apostille
Kosovo acceded to the Apostille convention, formally the Convention abolishing the requirement of legalisation for foreign public documents of 1961 on 6 November 2015, to become its 109th member. The convention allows an easy system to recognize/verify official documents of one convention country in the other, by affixing an Apostille on the document.

Again, objections were lodged, but this time there were two/three categories:

  • Objections regarding the accession of what was considered not a state (Russia, Serbia, Georgia, Spain, Azerbaijan, Belarus, Moldova)
  • Objections based on Article 12 of the convention; a method through which states may preventing the convention entering into force between them.  (China, on behalf of Hong Kong and Macao)
  • A combination of both objections (Cyprus, Mexico, Romania)
While Article 12 objections are quite common to new acceding states, the first type of objection is rare. The strong criticism of the actions of the Netherlands is -in diplomatic circles- also rare. A few "juicy" quotes:
  • Serbia (in its third(!) note on the matter): Under these circumstances, it should be a duty to the depositary not to receive the instrument of ratification of the Kosovo authorities, or at least to suspend its deposition until the proper decision of the organs of the Hague Conference. 
  • Spain: Under these circumstances, the Embassy of Spain requests the Ministry of Foreign Affairs of the Kingdom of the Netherlands not to receive the instrument of accession of this territory to the Apostille Convention or, at least, to suspend its deposition until a proper decision could be adopted by the competent organs of the Hague Conference on Private Law.
  • Cyprus: (....) without prior consultation with the state-parties, sets a precarious precedent. 
  • Georgia does not recognize that the depositary has the power to undertake actions under the Apostille Convention, the treaty practice or public international law that may be construed as direct or implied qualification of entities as states. Georgia pursuing its state interests, considers unacceptable and dangerous adoption of such a practice.
  • China: The Embassy noted that relevant States have raised objections to the acceptance of Kosovo's accession by the Ministry of Foreign Affairs of the Netherlands as the Depositary, and reminds the Dutch side to take appropriate actions in accordance with Article 77.2 of the Vienna Convention on the Law of the Treaties.

 Lots of objections thus, that are in no uncertain term criticizing the depositary, especially for not discussing this with the members of the Hague Conference of Private International law under whose auspicien this convention was drawn up. And indeed, according to article 77.2 of the Vienna Convention (as China points out): that is its duty:
77.2. In the event of any difference appearing between a State and the depositary as to the performance of the latter's functions, the depositary shall bring the question to the attention of the signatory States and the contracting States or, where appropriate, of the competent organ of the international organization concerned.
The last point is indeed what seems to be the way forward. The Hague Conference happens to have its annual meeting (its Council on General Affairs and Policy) in 15-17 March in The Hague and its agenda now has the item:

  • 3. New ratifications / accessions: the roles of the Depository & the Permanent Bureau (subject to further developments)
It's to be hoped (for the Netherlands and the image of HCCH) that a diplomatic solution will be found before the start of the conference, although I have no idea along which lines that will be. For membership of the Conference (which is not at issue here) unanimity is required, and during conference, consensus shall be the goal. However voting at the conference is based on one-country-one-vote and a simple majority suffices. It seems at this moment impossible to guess what the outcome will be...
UPDATE:Based on the voting during the admission procedure of Kosovo to UNESCO of November, (assuming there is a vote; assuming all states vote; and vote the same; and assuming the EU will not vote, but its member states will), 39 will vote in favour, 25 against and 11 will abstain. The votes 4 five member states are unclear, as they didn't vote during the Kovoso admission. 

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