Palestine’s UN Membership And International Law – OpEd

By Martin Waehlisch

‘Membership in the United Nations is open to all other peace-loving states,’ notes the UN Charter. The admission depends on ‘a decision of the General Assembly upon the recommendation of the Security Council,’ the Charter continues. The process for gaining membership to the UN certainly sounds simple, but for Palestine the reality of international politics has been blocking its way into the world institution for decades.

President Mahmoud Abbas announced in the New York Times in May this year: “This September, at the United Nations General Assembly, we will request international recognition of the State of Palestine on the 1967 border and that our state be admitted as a full member of the United Nations.”(1) Fearing a delegitimization of Israel, the Obama administration has already indicated to veto any decision taken by the Security Council in this regard. The US still hopes for a prior comprehensive peace agreement. In December 2010, the House of Representatives unanimously approved a resolution opposing unilateral declaration of a Palestinian state.

An open debate on the Middle East is scheduled in the Security Council for July 26th. The German UN Ambassador, Peter Wittig, signaled that this could be an occasion to explore the various options that might exist for the Palestinians. Germany, being a non-permanent member in Council until 2012, is currently acting as the UN Security Council President. While Germany supports the right of the Palestinian people to build their own state, Chancellor Angela Merkel raised concerns that one-sided steps could be counter-productive.

Palestine
Palestine

The fact that there is still no assertion from the Quartet about a UN membership is a negative sign for Palestine’s effort. The recent meeting of the Middle East Quartet in Washington on July 12th did not result in a joint statement, which testifies to the deadlock in the negotiations between Palestine and Israel. Elsewhere, the Palestinians are enjoying greater receptivity: during a meeting with a Palestinian delegation in Beijing, Chinese Minister of Foreign Affairs Yang Jiechi stressed China’s support. Parallel, the Palestinian National Authority is still trying to get a commitment from Moscow.

Despite all political maneuvers, international law offers an encouraging perspective on the matter of Palestinian statehood. The legal framework under which Palestine can be admitted to the United Nations is clear. Basing its decision solely on respect for international law, it would be very hard for the US not to support a UN membership for Palestine.

Disputed Statehood of Palestine

Palestine’s admission to the UN is not decisive for its statehood. Usually, four elements are needed to be considered as a state. Following the Montevideo Convention on Rights and Duties of States of 1933, a state requires a permanent population, a defined territory, a government and the capacity to enter into relations with other states. Purely following the treaty, most criteria appear fulfilled by Palestine, at least in parts of it. However, the case of Palestine is special. Since the end of the British Mandate and the UN Partition Plan of 1947, Palestine is mostly understood to be an emerging but unsettled state entity – in legal terms of international law it is called a state “in statu nascendi.”

The crux is the disputed Palestinian territory. Some international legal scholars argue that Palestine has no “defined territory” yet. In addition, since the Six-Day War of 1967, the majority of Palestinians lives outside the territory. Of about 11 million Palestinians, only 3.8 million people are estimated to live within the Palestinian territories. The Palestinian National Council adopted Palestine’s declaration of independence in exile in Algiers in 1988, having no control over the occupied territories. On the other hand, Palestine is at least defined through a UN Assembly Resolution in the borders of 1947, or even in the borders of 1967. That certain parts are occupied or disputed does not harm the control over the rest of the territory. Additionally, having a majority of people living outside the country is not uncommon. For instance, approximately 7 million Lebanese are said to live in Brazil, whereas only 4 million reside in Lebanon.

Factually, the General Assembly already voted for a Palestinian State by adopting the Partition Plan of Palestine in 1947. In the resolution, an admission to membership in the UN was made conditional, depending on whether “the independence of either the Arab or the Jewish State as envisaged in this plan has become effective” and a declaration “signed by either of them.” The resolution only favored “sympathetic consideration” for a membership admission in the moment of a joint declaration, which did not succeed. Other circumstances for a UN membership were not excluded, as the admission of Israel showed. Also the 1993 Oslo Accords do not dismiss a UN membership for Palestine prior to a peace agreement.

Israel’s UN Membership Admission

Israel’s entrance into the UN has been a less tedious journey. After an unsuccessful application in May 1948, its second submission failed to win the necessary majority in the Security Council in December 1949. Six month later, in May 1949, after formally signing armistice agreements with Egypt, Jordan and Lebanon, Israel was admitted by 37 votes in favor, 12 negative votes, and 9 abstentions. The decision in the Security Council was 9-1, with the UK abstaining from the vote.

The majority of the Assembly decided that “Israel is a peace-loving state”, while recalling the commitment of the Israeli government to implement the 1947 Partition Plan. As the Assembly protocols reveal, a draft resolution by Lebanon tried to postpone the decision. Interestingly, the debate mostly revolved around the question whether Israel would be a peaceful member, which had been doubted by most Arab states given the unsettled issue of Palestine.

Former US Representative to the United Nations, Warren R. Austin, stated that “the long discussion of Israel’s application was evidence of the general deep-rooted desire for a just solution of questions relating to Palestine.” It was to be hoped that an “agreement would be concluded in the near future (…) inaugurating an era of peace and stability,” Austin stressed. “Israel had solemnly pledged its word” to peace, which gave the US enough reason to support the resolution.

Then-Israeli Foreign Minister Moshe Sharett upheld that an the admission of Israel would be “the consummation of a people’s transition from political anonymity to clear identity, from inferiority to equal status, from mere passive protest to active responsibility, from exclusion to membership in the family of nations.” Equally for Palestine, one could recall the impressive psalm Sharett cited: “nation shall not lift up a sword against nation; neither shall they learn war anymore.” It is hard to understand why the denial of Palestine’s membership is not a double-standard. Reciprocity has become an important element in the body of international law, which was also reemphasized as a principle by Israeli Prime Minister Benjamin Netanyahu in the latest peace talks. In 2009, Netanyahu promised: “We want an end to the conflict and we want reciprocity in the demands made of both sides, and in carrying them out.”(2)

Procedures for Palestine’s UN Membership

From a strictly legal point of view, the UN Charter enshrines no right to become a member. As Oxford-scholar Ian Brownlie highlighted in his classic book Principles of Public International Law, a membership in an international organization is regularly fulfilled by accepting a standing offer. A recommendation of the Security Council is obligatory. The current Swiss President of the General Assembly, Joseph Deiss, commented in a conference in May this year that “the General Assembly cannot take the initiative.”(3)

This year, Nassir Abdulaziz Al-Nasser will preside as President of the General Assembly. The current UN Ambassador of Qatar was elected strategically. Initially, Nepal was set to assume the office, as the Asian country group was set to choose. Several African, Middle Eastern, and Central Asian nations switched their vote, in the hopes that a Qatari General Assembly president might ease support for a vote on Palestinian statehood.(4) Qatar backs the potential Palestinian bid for UN membership. On 14th July 2011, the Arab League pledged to “take all necessary measures” to secure recognition of the Palestinian state via an appeal to the Security Council.

Denying UN membership is not without precedent. In 2007, it had been Taiwan’s 15th consecutive annual endeavor for membership. Formally, Taiwan tried to push the topic with the help of allied countries on the agenda of the General Assembly. The attempt failed in the General Committee, which finalizes agenda items before the general debate. No consensus could be reached. Beijing opposed, reinstating the “One-China” resolution of the General Assembly of 1971.

The list goes on. During the debate on the admission of Bangladesh in 1972, China objected to the application of Bangladesh on the grounds that it did not implement two United Nations resolutions concerning the withdrawal of troops and the release of prisoners of war. In August 1975, the US voted against the applications of the Republic of South Vietnam and the Democratic Republic of Vietnam referring to the principle of universality of membership. Similar, South Korea was denied UN membership for many years due to the division of Korea. In 1961, the application of Kuwait failed to obtain a recommendation for admission due to a veto of the USSR, arguing it was not an independent state.

The case of Palestine is different to all the above mentioned examples. It is neither a divided country as Vietnam or Korea, nor is its membership explicitly hindered by a Security Council resolution. Merely pointing to a comprehensive peace agreement will not be plausible. Israel was equally allowed to join the UN prior to a final settlement. Towards a peaceful two-state solution, the admission of Palestine is crucial. From the perspective of equality in international law, Palestine’s admittance, even before a settlement of the conflict, would be just.

The argument that a Hamas and Fatah governing Palestine are not “peace-loving”, is from an Israeli point of view reasonable. Israel feels constantly threatened, as vice versa other countries in the region feel threatened by their Israeli neighbor. To receive UN membership, the Palestinian Government will have to unambiguously prove, that it is of no danger to others. As Israel did in 1949, the Government could “solemnly pledge its word.” Fatah and Hamas leaders could restate their Cairo peace pledge of May 2011, and should additionally offer a unilateral peace declaration to dissolve distrust.

One potential option for the Security Council would be to include a clause about the ongoing peace process in a resolution, as the Council did in the case of Macedonia in 1993. Macedonia was admitted, acknowledging differences which need “to be resolved in the interest of the maintenance of peaceful and good-neighbourly relations in the region.”(5)

If Security Council members respect international law, there will be no other conditions to consider in evaluating Palestine’s membership request. The US could not simply invent further requirements beyond Article 4 of the UN Charter. In 1948, the International Court of Justice (ICJ) ruled in an advisory opinion on the “Conditions of Admission of a State to Membership in the United Nations” that the wording of Article 4 is final. Political considerations could not be superimposed. It would lead to “indefinite and practically unlimited power of discretion in the imposition of new conditions,” the ICJ explained.

PLO officials have implied that they would lobby for activating UN resolution 377 of 1950, known as “Uniting for Peace”, if faced with a US veto in September. Brought up by the US during the Korean War, the resolution created the device of an emergency special session should the Security Council be dead-locked in times of a “threat for peace and security.” Until today, the resolution has been invoked on ten occasions. None of them has been concerning UN membership. While the denial of an admission of Palestine is not necessarily a threat to peace, a Uniting for Peace resolution could, however, relate to the second purpose of the UN Charter: the development of “friendly relations among nations based on respect for the principle of equal rights and self-determination of people.” In any case, Palestine would need to mobilize UN member states. Some countries could be reluctant to stand against the US. A Uniting for Peace resolution would be a more intense bargaining constellation, than the approval of a UN membership after a recommendation by the Security Council.

Prospects and Challenges

Taiwan is acknowledged by 22 countries. Kosovo is accepted by 75 states, among them the US and most EU countries. Israel has diplomatic relations with 156 states.(6) Palestine is recognized as a state by 122 countries, including Brazil, China, India and Russia.(7) Even if statehood requires sufficient recognition by other states, Palestine has acquired adequate international ties. It needs a two-thirds majority in the General Assembly, 129 votes, to be admitted as the 194th member state of the United Nations.

As Prime Minister Benjamin Netanyahu made public, Israel could support a Palestinian state under the right conditions. He warned that a Palestinian state which includes Hamas would try to perpetuate conflict with Israel. And indeed, every country’s security interests cannot be ignored. The legitimacy of the state of Israel is irrevocable. Likewise, the likelihood is equally high that an admission of Palestine to the UN could ease tension. In the end, this risk and chance is beyond legal interpretation.

Facing a probable veto by the US, the Palestinian authorities have already hinted that they will opt for an upgrade from an observer to a “non-member state status,” which demands only an approval by the General Assembly. Palestine would gain all the rights of a full membership except voting. Previously, both parts of Korea and Germany as well as Switzerland were granted the same status. Also the Holy See, the Vatican, is a non-member state. Practically, not much would change, as Palestine was already granted special rights to reply, raise points of order, co-sponsor certain resolution and make interventions in the General Assembly. The shocking humanitarian and economic situation of Palestinians would be the same. Nonetheless, the symbolic notion of the admission would be tremendous. The Middle East peace process could be set on a new spirit of fairness and equality leading to a side-by-side of two “peace-loving” states.

– Martin Waehlisch, an international lawyer, is currently a visiting researcher at the Issam Fares Institute for Public Policy and International Affairs (IFI) at the American University of Beirut (AUB) and research fellow at the Common Space Initiative in Beirut. He contributed this article to PalestineChronicle.com.

Notes:

(1) Mahmoud Abbas. “The Long Overdue Palestinian State,” N.Y. TIMES. May 16, 2011.
(2) Jeffrey Heller. “Netanyahu cites reciprocity on eve of Abbas U.S. trip,” REUTERS. May 27, 2009.
(3) “Assembly President looks for compromise on Security Council reform,” UN NEWS CENTRE. May 27, 2011.
(4) Connor Schratz. “Qatar Representative elected President of the General Assembly,” SOUTH-SOUTH NEWS. June 23, 2011.
(5) REPERTORY OF PRACTICE OF UNITED NATIONS ORGANS SUPPLEMENT NO. 8, VOL. 1, ARTICLE 4.
(6) “Israel’s Diplomatic Missions Abroad,” ISRAEL MINISTRY OF FOREIGN AFFAIRS. Aug 2010.
(7) Barak Ravid. “Palestinian envoy to UN: European states will recognize Palestine before September,” HAARETZ. July 13, 2011.


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Palestine Chronicle

Palestine Chronicle

The Palestine Chronicle publishes news and commentary related to the Middle East Peace Conflict.

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