Commentary by Shereen Dbouk – 18 August 2011
Source: http://www.sauer-thompson.com/.
It is official. According to Foreign Minister Riyad Al-Malki, the Palestinian National Authority (PA) will present its application for a full UN membership this September at the 66th UN General Assembly. Faced with a peace process in a persistent deadlock and Israeli Prime Minister B. Netanyahu’s continued defiance of the international consensus over a two State solution, the PA has decided to take a unilateral step toward international recognition. This marks the culmination of a two years strategy by Prime Minister Salam Fayed, which has led to wide diplomatic recognition and the building of independent Institutions for the future State of Palestine within the1967 borders. Now the moment is ripe for Palestine to claim its admission as the 194th member state of the United Nations.
What are the Palestinians really asking for at the UN?
Contrary to popular belief, Statehood recognition cannot formally be granted by the UN. Recognition operates at a bilateral level between States who chose to enter into diplomatic relations, thereby recognizing each other as an independent and sovereign entity.
What the Palestinians will ask for is full UN membership, which will automatically grant them international recognition, as only States can become party to the UN Charter. However in order to defend its bid, the PA will need to prove that Palestine is a State and can act accordingly so.
As of today, Palestine fulfills all the criteria laid down in the Montevideo Convention of 1933, which is usually invoked in customary international law to determine statehood. It has a permanent population, a defined territory set within the 1967 borders, and an established government that has effective control [1]. It must also have the capacity to enter into diplomatic relations. Currently, 122 States have recognized Palestine within its 1967 borders while countries like France and the UK have also upgraded their mission to permanent diplomatic missions.
Further strengthening their position as an independent State, the European Union, the International Monetary Fund (IMF) and the United Nations special coordinator for the Middle East peace process (UNSCO) have all declared the Palestinian Authority (PA) “sufficient for a functioning government of a state.”
Why go to the UN at all?
The UN acts as the central authority of the international community. A UN membership validates the existence of a State and formally includes it as a member of the international community.
Principally, as custodian of international peace, it is the only legitimate body to deal with international quarrels.[2] It places the Palestinian State under the protection of the UN Charter over “the threat or use of force against the territorial integrity or political independence of any state”.
Evidently this is what Palestinians are after [3]: getting membership would allow them to use mechanisms of the international legal order and comply Israel to recognize their territorial integrity and sovereignty.[4]
How is the Palestinian strategy likely to unfold?
Step 1: Submit the request for membership to the UN Security Council’s vote
To proceed to the adoption of a Resolution, The UN General Assembly (UNGA) needs a positive recommendation of the UN Security Council.
The Palestinian bid will coincide with the Lebanese presidency at the UNSC with Qatar holding the same seat at the UNGA.[5] As president of the UNSC, Lebanon has the power to approve the provisional agenda of the SC meetings, thus making sure to block any attempts by the US to delay the bid.
However to obtain full membership, Palestine will have to demonstrate that they fulfill the conditions of article 4 of the UN Charter: “to be admitted to membership in the United Nations, an applicant must (1) be a State; (2) be peace-loving; (3) accept the obligations of the Charter; (4) be able to carry out these obligations; and (5) be willing to do so”. [6]
With regard to questions relating to peace, the PA will have to prove that its unity government, which includes Hamas, is committed to peace with Israel. The United States will be sure to raise this issue. In order to counter any attempts to undermine the legitimacy of their bid, the Palestinians will have to rely on the many Member States who have recognized Palestine as a State.
Overall the bid at the SC is secure. That is if it was not for the United States who will inevitably strike the veto card. At this point the PA’s upstream strategy will make all the difference.
US Ambassador Susan Rice will have the difficult task to demonstrate that Palestine does not fulfill the criteria laid down at Article 4 of the UN Charter, thus going against the International Court of Justice’s (ICJ) advisory opinion on the «Condition of Admission of a State to Membership in the United Nations». The ICJ ruled out the prospects of an interpretation beyond the wording of article 4, stating it «would lead to conferring upon Members an indefinite and practically unlimited power of discretion in the imposition of new conditions».
This time, the US has no legal stand to justify an extensive interpretation of article 4 of the UN charter. Thus, simultaneously to its bid for membership, Palestinians are also using the UN forum to isolate the US-Israeli tandem and highlight the extent to which the US are willing to support their ally.
If the PA succeeds in its strategy and gathers a majority of SC [7] members in favor of its bid, it will foster tremendous support among the UNGA where the battlefield over Palestinian Statehood will actually take place.
Step 2: Activate “Uniting for Peace” Resolution at the UN General Assembly
If the request is denied at the SC and no action is taken thereafter, the PA has already declared its intention to activate UNCG Resolution 377 A. Also known as «Uniting for Peace», the Resolution was adopted in 1950 at the request of the United States, in an attempt to circumvent the Soviet veto during the Korean War. It allows the GA to bypass the veto under special circumstances and take action independently of the SC. This loophole in the UN system represents the main asset to the Palestinian strategy to circumvent the US veto.
Section A of the Resolution states that in the event in which the SC, particularly P5 members, fail to its “primary responsibility for the maintenance of international peace and security”, and “(its) duty to seek unanimity and to exercise restraint in the use of the veto”, the General Assembly shall then seize the matter.
To justify this action by the General Assembly, its president, Qatar, will have to argue that the denial of membership is contravening one of UN’s core principles, namely to « develop friendly relations among nations based on respect for the principle of equal rights and self determination of peoples (…).»[8]
Palestinians need two thirds of UNGA votes to obtain a Resolution granting them membership or any other form of endorsement. It seems attainable, as an impressive 122 to 126 votes have been secured by the Palestinian leadership.
The main concern remains that UN membership has never been obtained without a prior approval by the UNSC, which leaves the outcome of a UNGA-adopted Resolution uncertain in terms of legitimacy.
Still, “Uniting for Peace” has the potential to reverse the power dynamic within the UN and any type of Resolution adopted at an overwhelming majority will allow the Palestinian to demonstrate the support of the international community and the growing belief that Palestine is indeed a State.
Beyond symbolism: What a UN Resolution can do for Palestine
Eventually, Palestine will follow into Israel’s footstep and proclaim its independence unilaterally. In percentage terms, Palestine has gathered an equal number of votes than what Israel received in 1949 during the vote on Israel’s application for UN membership.
A UNGA Resolution adopted today at an overwhelming majority will have an even greater impact than UN General Assembly resolution 43/177 which supported The Palestinian Declaration of Independence of November 15, 1988.
Additionally, the PA has also filed a declaration accepting the jurisdiction of the International Criminal Court (ICC) “for the purpose of identifying, prosecuting and judging the authors and accomplices of acts committed on the territory of Palestine since 1 July 2002.” If ICC Prosecutor Luis Moreno-Ocampo accepts the PA’s declaration, it will automatically turn Palestine into a State according to the ICC Rome Statute[9].
These facts purport to believe that Palestine has enough grounds to evidence both State Practice and opinio juris. In other words, Palestine may well use principles of customary international law to act a State in every aspect if Israel proves reluctant to review its policy in future negotiation rounds.
If Israel wants to avoid another diplomatic tsunami, it is left with no choice but to formally confer Palestinians the right to a sovereign and independent State existing alongside its neighbor.
[1] For more details I suggest the reading of Errol Mendes, Statehood and Palestine for the purposes of Article 12(3) of the ICC Statute: a contrary perspective, 30 March 2010 which can be found by clicking the following link.
[2] For instance Palestinians could invoke the right to self-defense (Article 51 UN Charter) to consolidate their borders and defend their right to a land free of Israeli settlements.
[3] Mahmoud Abbas recently wrote in the NYtimes “Palestine’s admission to the United Nations would pave the way for the internationalization of the conflict as a legal matter, not only a political one. It would also pave the way for us to pursue claims against Israel at the United Nations, human rights treaty bodies and the International Court of Justice.”
[4] For instance, if granted full membership, the state of Palestine will become a member of the ICJ -the judicial body of the UN- and will be able to submit contentious cases against Israel, particularly in regard to territorial delimitation and de facto occupation of sovereign territory.
[5] Qatar has been elected strategically as this year president of the UNGA. The Emirate has hosted last month Arab League meeting which announced the League’s intention to apply to upgrade the Palestinians to full member status at the United Nations
[6] For all the requisite conditions: “to be admitted to membership in the United Nations, an applicant must (1) be a State; (2) be peace-loving; (3) accept the obligations of the Charter; (4) be able to carry out these obligations; and (5) be willing to do so” (article 4 UN Charter)
[7] Currently at the Security Council, Bosnia- Herzegovina, Brazil, Gabon, India, Nigeria, Lebanon, S. Africa China and Russia are said to vote in favor of granting full membership. Palestinians will have to lobby until the end to see France, Germany and Portugal vote in their favor. The European union is said to be leaning toward recognition which means that Germany will, at worst abstain, at best vote yes.
[9] The declaration was filed in conformity with Article 12 (3) of the ICC Statute states that “If the acceptance by a State which is not a Party to this Statute is required under paragraph 2, that State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question…”
ArabsThink.com 
An excellent article from someone who has a strong knowledge of international law, something quite refreshing in what is often a purely opinion-based debate.
There are a couple of points to look out for though. The biggest weak-spot for Palestine’s acceptance into the UN comes under Article 4, and that is whether or not the PA is peace-loving. I don’t know if Hamas still adheres to its 1988 Charter, but in there are some pretty outright anti-Israel if not anti-Jewish articles (see 7, 22 and 32 in particular), and some of the statements by Hamas officials hardly add to the idea that the PA, if it includes Hamas, is peace-loving. The fact that Hamas in particular is designated as a terrorist group (rightly or wrongly) by not just the US but the EU, Canada and Japan, is going to make things difficult also. This suspicion that perhaps the PA needs to clean up some of its membership is likely the reason for why, as your article points out, UNGA support for PA membership is less than certain.
The problem is going to be that it is in Israel’s interests to antagonise Hamas, to keep drawing out less than peaceful statements and to provoke further rocket attacks and suicide bombings that will undermine the credibility of the PA’s claim to UN membership. Hamas, at this stage, is a liability.
First of all, Hamas leader, Khaled Meshal, has actually openly expressed that Hamas would accept a two-state agreement if it would be accepted in a Palestinian referendum, which would provide mutual recognition; Palestine would recognize Israel and Israel would recognize independent Palestinian state. Also, he has said that Hamas Charter is a “piece of history and no longer relevant, but cannot be changed for internal reasons”. Furthermore, when Israel negotiated with the PLO in Oslo in, PLO´s Charter had similar provisions. The Charter wasn’t changed until years later. Also interesting is the fact that Israel was accepted in the UN at a time where they had just expelled hundreds of thousand of Palestinians from their homelands which had no legal stand as to the Partition Plan was concerned. It was really hard to demonstrate Israel at the time (or now) as a peace loving state! According to recent news there have been some complications with reconciliation talks between Hamas and Fatah, mostly regarding different views on whether Salam Fayyad stays on as prime minister. But even though Hamas and Fatah are divided, it doesn’t mean that Palestine doesn’t fulfill the Montevideo criterion. It only means that the authority of the government is in dispute.
My biggest worry about the bid is the obvious threat of US veto in the SC. The ICJ, in its advisory opinion “Competence of the General Assembly for the Admission of a State to the United Nations”, in 1950, gave its opinion on whether the General Assembly could admit a State, who fulfilled the criteria defined in article 4(1) of the UN Charter, when the SC failed to approve admission applicant by a majority or by a veto or if a recommendation by the SC was necessary for admission. The Court ruled that in all cases the SC recommendation is necessary and that the recommendation takes priority over a GA decision. So like you mention in your article Shereen, the big concern is that UN membership has never been obtained without a prior approval by the SC, which in turn leaves the outcome of a GA resolution uncertain in terms of legitimacy. Some have said that if the Uniting for Peace” resolution was meant to help state bypass the SC in order to gain membership at the UN, the resolution would have been used in the 1940s and 1950s when the former USSR vetoed any pro-Western applicant and the Western countries vetoed any Communist applicant. The fact that the Uniting for Peace wasn’t used at that time for the same purpose might hesitate states to use it now.
It still remains to be seen whether Palestine will enjoy support of the two-third majority of the GA, but the Palestinians have predicted they will have 135 recognitions by September, which is more than two-thirds of the GA´s 193 members. Just the fact that a large majority of the members will support Palestine’s bid for recognition will be a huge success for the Palestinian people and will give legitimacy to their claims to statehood. But in order to gain membership at the UN, which would consequently make the road to full recognition of statehood for Palestine a lot shorter, Palestine needs the SC to play along. I don’t really see how a “Uniting for peace” resolution can admit Palestine in the UN.
Sadly I think the veto Obama used in February is a strong indication on what will happen in September. The matter is just too damn political…
Brilliant article Shereen!
We want to see Palestine as a full member of the UNO. We want to see their rights fully estbalished.