Palestinian UN membership in international law
Precedents in international law give every reason to be optimistic about Palestinian admission to the UN, writes Martin Waehlisch*
"Membership in the United Nations is open to all other peace-loving states," notes the UN Charter. 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.
Palestinian President Mahmoud Abbas announced in the New York Times in May this year that "this September, at the United Nations General Assembly, we will request international recognition of the State of Palestine on the 1967 borders and that our state be admitted as a full member of the United Nations."
However, fearing the delegitimisation of Israel, the US Obama administration has already indicated its intention to veto any decision taken by the Security Council in this regard. The US still hopes for a prior comprehensive peace agreement, and in December 2010 the US House of Representatives unanimously approved a resolution opposing any unilateral declaration of a Palestinian state.
An open debate on the Middle East is scheduled in the Security Council for 26 July, and the German ambassador to the UN, Peter Wittig, has signaled that this could be an occasion to explore the various options that might exist for the Palestinians. Germany, being a non-permanent member of the Security Council until 2012, is currently acting as president of the Council. While Germany supports the right of the Palestinian people to build their own state, German chancellor Angela Merkel has raised concerns that one-sided steps could be counter-productive.
The fact that there has still been no statement from the Middle East Quartet about Palestinian UN membership is a negative sign. The recent meeting of the Quartet in Washington on 12 July did not result in a joint statement, which testifies to the deadlock in negotiations between Palestine and Israel. But 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. At the same time, the Palestinian Authority (PA) is still trying to get a commitment from Moscow.
Despite all these political maneuvers, international law offers an encouraging perspective on the matter of Palestinian statehood. The legal framework under which Palestine could 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 for a territory to be considered as a state. Following the Montevideo Convention on the 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 in terms of this treaty, most of these criteria appear to be fulfilled by Palestine, at least in parts. However, the case of Palestine is special. Since the end of the British Mandate in Palestine and the UN Partition Plan of 1947, Palestine has mostly been understood to be an emerging, but unsettled, state entity -- in the 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 as yet no "defined territory". In addition, since the Six Day War of 1967, the majority of Palestinians have lived outside the territory. Of about 11 million Palestinians, only 3.8 million are estimated to live within the Palestinian territories. The Palestinian National Council adopted Palestine's declaration of independence in exile in Algiers in 1988, but it had no control over the occupied territories.
On the other hand, Palestine has at least been defined through a UN General Assembly resolution as lying within the borders of 1947, or even the borders of 1967. That certain parts are occupied or disputed does not harm control over the rest of the territory. Additionally, having a majority of people living outside the country is not uncommon. For instance, approximately seven million Lebanese are said to live in Brazil, whereas only four million reside in Lebanon.
In fact, the UN General Assembly has already voted for a Palestinian state by adopting the Partition Plan for Palestine in 1947. In the resolution, admission to membership of the UN was made conditional 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 favoured "sympathetic consideration" for membership admission at the moment of a joint declaration, which did not succeed. Other circumstances for UN membership were not excluded, as the admission of Israel showed. The 1993 Oslo Accords also did not dismiss UN membership for Palestine prior to a peace agreement.
ISRAEL'S ADMISSION TO THE UN: Israel's entrance into the UN was 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 favour, 12 against and nine abstentions. The decision in the Security Council was 9-1, with the UK abstaining from the vote.
The majority of the UN General 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 of 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 futureŇê¦ 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, he concluded.
The then Israeli foreign minister, Moshe Sharett, held that 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."
In the Palestinian case, one could also equally well recall the impressive psalm Sharett cited on this occasion: "nation shall not lift up sword against nation; neither shall they learn war anymore." It is hard to understand why the denial of membership of the UN to Palestine is not a case of double standards. Reciprocity has become an important element in international law, which was re-emphasised as a principle by Israeli Prime Minister Binyamin Netanyahu in the latest round of peace talks. In 2009, Netanyahu promised that "we want an end to the conflict and we want reciprocity in the demands made of both sides, and in carrying them out."
PROCEDURES FOR PALESTINIAN UN MEMBERSHIP: From a strictly legal point of view, the UN Charter enshrines no right to become a member. As Oxford scholar Ian Brownlie has highlighted in his classic book Principles of Public International Law, membership in an international organisation 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."
This year, Nasser Abdel-Aziz Al-Nasser, the current ambassador of Qatar, will preside as president of the UN General Assembly. He was elected strategically. Initially, Nepal was set to assume the office, as the Asian country group was set to choose the president. However, several African, Middle Eastern and Central Asian nations then switched their votes, in the hope that a Qatari General Assembly president might ease support for a vote on Palestinian statehood.
Qatar backs the potential Palestinian bid for UN membership. On 14 July, the Arab League also pledged to "take all necessary measures" to secure recognition of the Palestinian state via an appeal to the Security Council.
However, denying UN membership to a state is not without precedent. In 2007, Taiwan's 15th consecutive annual endeavour to gain membership took place. Formally, Taiwan tried to push the issue, with the help of allied countries, onto the agenda of the General Assembly. The attempt failed in the General Committee, which finalises agenda items before the general debate. No consensus could be reached. Beijing opposed the item, reinstating the "One-China" resolution of the General Assembly in 1971.
The list goes on. During the debate on the admission of Bangladesh in 1972, China objected to the application by Bangladesh on the grounds that it had not implemented two United Nations resolutions concerning the withdrawal of troops and the release of prisoners of war. In August 1975, the US voted against applications by the Republic of South Vietnam and the Democratic Republic of Vietnam, once again referring to the principle of universality of membership. Similarly, South Korea was denied UN membership for many years due to the division of Korea. In 1961, an application by Kuwait failed to obtain a recommendation for admission, due to a veto by the former USSR, which argued that Kuwait was not an independent state.
The case of Palestine is different to all the above-mentioned examples. It is neither a divided country, like Vietnam or Korea, nor is its membership explicitly hindered by a Security Council resolution. Merely pointing to the need for a comprehensive peace agreement will not be plausible either, since Israel was allowed to join the UN prior to a final settlement.
Yet, in order for a peaceful two-state solution to be brought about, 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 Palestine governed by Hamas and Fatah would not be "peace-loving" is reasonable from an Israeli point of view. Israel feels threatened by these groups, as other countries in the region feel threatened by their Israeli neighbour. To receive UN membership, the Palestinian government will have to unambiguously prove that it is no danger to others. Like Israel did in 1949, the Palestinian government could "solemnly pledge its word." Fatah and Hamas leaders could restate their Cairo peace pledge of May 2011, and they could additionally offer a unilateral peace declaration to dissolve any distrust.
One potential option for the Security Council would be to include a clause about the ongoing peace process in a possible resolution, as the Council did in the case of Macedonia in 1993. Macedonia was admitted to the UN, while acknowledging differences which need "to be resolved in the interest of the maintenance of peaceful and good-neighbourly relations in the region."
If Security Council members respect international law, there will be no other conditions to consider in evaluating Palestine's membership request. The US cannot 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 was final. Political considerations could not be superimposed, since this would lead to "indefinite and practically unlimited power of discretion in the imposition of new conditions," the ICJ explained.
For their part, PLO officials have implied that they will lobby to activate UN Resolution 377 of 1950, known as "Uniting for Peace," if they are 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 deadlocked in times of a "threat to peace and security."
Up until today, the resolution has been invoked on ten occasions. None of them has been concerning UN membership. While the denial of admission to Palestine is not necessarily a threat to peace, a Uniting for Peace Resolution could relate to the second purpose of the UN Charter, which is the development of "friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples."
Yet, in order to activate such a resolution Palestine would need to mobilise UN member states. Some countries could be reluctant to stand against the US, and a Uniting for Peace Resolution would be a more intense bargaining constellation than the approval of 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. Palestine is recognised as a state by 122 countries, including Brazil, China, India and Russia. Even if statehood requires 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 Netanyahu has said, Israel could support a Palestinian state under the right conditions. He has also warned that a Palestinian state that included Hamas could try to perpetuate conflict with Israel. And indeed, any country's security interests cannot be ignored. The legitimacy of the state of Israel is irrevocable. However, in the same way, the likelihood is that the admission of Palestine to the UN could ease tensions. In the end, the risk 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 observer to "non-member state status" of the UN, which only requires approval by the General Assembly. Under this arrangement, Palestine would gain all the rights of full membership except voting. Previously, both parts of Korea and Germany, as well as Switzerland, were granted the same status. The Holy See, the Vatican, is also a non-member state of the UN.
On a practical level, not much would change, as Palestine has already been granted special rights to reply, raise points of order, co-sponsor certain resolutions and make interventions in the General Assembly. The shocking humanitarian and economic situation of Palestinians would be the same.
Nonetheless, the symbolic impact of admission would be enormous. It could lead to a new spirit of fairness and equality in the Middle East peace process, leading to the co-existence side-by-side of two "peace-loving" states.
* The writer is an international lawyer and a visiting researcher at the Issam Fares Institute for Public Policy and International Affairs at the American University of Beirut.