This article was originally published in Al Ayyam Arabic newspaper in Ramallah, Palestine on 10 July 2011.
What could be called the September “Wende” is fast approaching, and interpretations put forward by Palestinian officials abound as to what it will be possible and impossible to attain then at the United Nations (UN). This has engendered a certain confusion in Palestinian, Arab and international public opinion, as it is not clear which of these interpretations stem from apriori political considerations, which are based on an adequate understanding of UN procedures, and which are grounded on expectations of how member states will vote, or even on external pressures. In this article I intend to present the options that could be considered by the Palestinian leadership as it looks to the UN for a way out of the present impasse in negotiations with the United States and Israel. Two avenues will be considered: direct approaches to the General Assembly (options 1); direct approaches to the Security Council (option 2 and rejoinders, and option 3)
Option 1.A: Directly approaching the UNGA to adopt a resolution recommending that member states that have not yet done so, recognize the State of Palestine on the 1967 borders.
It seems to me that such a resolution would be easily attainable, since it requires a simple majority vote of present and voting GA members (abstentions do not count). Indeed, many of the resolutions in the long list of GA resolutions on Palestine passed since 1974 are far stronger in the principles they contain than this option. At its sixty-fifth session which opened in September 2010, for example, the GA adopted 17 resolutions in support of Palestinian rights, including the right to self-determination, right of return in accordance with Resolution 194, the right to an independent state, non-recognition of the annexation of Jerusalem and the changes effected by the occupation, condemnation of Israeli settlement activity, and so on.
Option 1.B: Directly approaching the GA to obtain the status of Non- Member Observer State at the United Nations.
The UN Blue Book, issued each year by the Secretariat’s Protocol and Liaison Service, categorizes Palestine since 1998 under the heading: “Entities Having Received a Standing Invitation to Participate as Observers in the Sessions and the Work of the General Assembly and Maintaining Permanent Observer Missions at Headquarters.” No other entity figures under this heading. A simple majority in the GA could, at any ordinary future session, decide to grant Palestine the status of non-member observer state, replacing the term “Entity” with the term “State.” In this event, Palestine would be placed on the list of observer states, which currently comprises only the Holy See, the other fourteen countries once on this list having since become full members. It should be noted that such a status is not provided for in the UN Charter, but is the cumulative result of customary practice of the GA since its establishment. We should also recall that in December 1988 the GA resolved that it “acknowledges the proclamation of the State of Palestine by the Palestine National Council on 15 November 1988” and that more than 100 countries recognized the State of Palestine at the time.
Option 1.C: Directly approaching the GA to issue a resolution incorporating options 1.A and 1.B with additions
It seems to me that the Palestinian leadership’s decision on 26 June 2011 “to approach the UN this coming September to obtain recognition of the State of Palestine on the 1967 borders and Palestinian membership in the international community” was ambiguous in two respects, perhaps intentionally. UN recognition of a given country is virtually meaningless, there is no manifest effect that such recognition per se would have. However, what the GA could do is to adopt a single resolution that would include the following: welcoming (in addition to acknowledging) the 1988 proclamation of the State of Palestine together with Palestinian achievements since 1993 with regard to the establishment of state institutions; merging options 1.A and 1.B (i.e., calling on GA members to recognize the State of Palestine and granting it non-member observer state status); giving some additional privileges to Palestine’s UN mission in terms of protocol or its ability to contribute to GA debates, but without a right to vote. Secondly, the Palestinian leadership’s declared intention to gain “Palestinian membership in the international community” is also vague. The term “international community” could not be more general, to such an extent that one could say that Palestine has been a member of this community for the past three decades because of its status at the UN and the number of countries that have recognized it, as well as the near-consensus it has enjoyed among peoples across the globe. If, however, the leadership’s goal is to obtain membership in the UN, the procedures governing such an application, are of a different order, more difficult and with greater political and diplomatic implications. Such a process requires a positive recommendation from the UNSC, to which we now turn.
Option 2: Approaching the Security Council for Palestinian membership in the United Nations.
The positive recommendation from the SC needed for membership in the United Nations must be followed by a two-thirds majority of the UNGA’s present and voting members. It can be assumed that a SC resolution recommending Palestine membership would easily be approved by the GA; the difficulty, clearly, would be obtaining the required nine-vote majority of the SC, or, in the event that this majority were obtained, avoiding a veto by one or more of the Council’s permanent members. The question, then, becomes whether the GA can find ways to circumvent possible opposition in the SC. It seems to me that in such cases, the Palestinian delegation might approach the GA to adopt one or more of the following procedures.
Option 2.A: The GA could respond by inviting the SC to reconsider its position.
There are several precedents for such an action, dating back to the late 1940s and early 1950s. In addition to expressing the GA’s support for Palestine, such an action would reflect its desire to keep the Palestinian membership application alive in the UN system until suitable conditions arise that allow for the approval of the application. However, the preferred course of action in the past seems to have been to re-submit the request once such conditions were met (as with Japan in 1952, then in 1956).
Option 2.B: The GA could respond by inviting the SC to reconsider its position, while recognizing Palestine’s status as a non-member UN observer state until such time as the SC reconsiders its objection.
This option means merging options 2.A and 1.B.
Option 2.C: In the event that the Palestinian request enjoys a majority of SC votes, but is denied as a result of a veto by one of the SC’s permanent members, the GA could respond by requesting that the International Court of Justice (ICJ) give an Advisory Opinion on the following question of principle: “Is a negative vote by a permanent member of the SC to be treated as a veto in voting on membership applications?”
Although the permanent members of the SC will not welcome such an action, which clearly impinges on their prerogatives, a number of major regional powers (e,g. India, Brazil, Argentina, South Africa) that are at the forefront of those calling for SC reform—may see such an option as serving their interests. It is worth mentioning that in a March 1950 ICJ advisory opinion declaring that the GA could not go against a negative recommendation by the SC on a membership application, the minority opinion added that the Court should have distinguished between two scenarios. The first scenario would be the one in which the application failed to receive majority support in the SC—the negative recommendation. The second would be where the application received the majority approval, but was opposed by a permanent member. In this latter case, it would not have been permissible, according to the minority opinion, for a permanent member of the SC to obstruct the acceptance of a membership request that received majority approval by the SC, and two-thirds majority support from the voting members of the GA.
Option 2.D: In the event that the Palestinian request enjoys a majority of SC votes, but is denied as a result of a veto by one of the SC permanent members, the GA could overcome the veto on the basis of Resolution 377, known as the “Uniting for Peace” Resolution.
The GA adopted resolution 377 in November 1950 during the Korean crisis, and expressed its readiness to take the initiative by recommending the collective action necessary for the maintenance of international peace and security if the SC was unable to carry out this responsibility because a permanent member exercised its veto power. This option would be based on the argument that obstructing Palestine’s admission as a member of the UN threatened regional security, while Palestine’s acceptance would further the goals of international peace and security. This option, as I see it, would require two consecutive steps: The first would be a recommendation by the GA that its members accept the State of Palestine’s application for membership, as if the GA substituted for a SC incapacitated by the veto of one of its permanent members. The second step would be another GA vote within its usual mandate, giving the final approval of the recommendation for Palestine’s membership. The required majority vote in each of the steps is a two thirds majority of present and voting states, i.e. that only “yes” and “no” votes count, abstentions being considered a non-vote.
Option 3: Approaching the SC with a request to accede to the Statute of the ICJ.
Article 93 of the UN Charter stipulates that a non-member state may become a party to the Statute of the ICJ under conditions to be determined in each case by the GA on recommendation of the SC. In every case in which this procedure has been followed (for example, for Switzerland and Japan, when they were not UN members), the GA, upon the recommendation of the SC, approved the conditions in which the applying state must comply in order to become a party to the ICJ Statute. The GA’s conditions were the same in each case, namely: the applicant’s acceptance of the provisions of the Statute of the Court; acceptance of all the obligations of a Member of the UN under article 94 of the Charter, which calls on states to accept the Court’s decisions in cases to which the state is party; and undertaking to contribute to the expenses of the Court within the fair limits determined by the GA. Among the benefits of this option—assuming the SC veto obstacle can be overcome—is that it would provide Palestine with the same judicial tools offered by membership in the UN. This would include the ability to resort to the ICJ as a full-fledged state, and accession to the International Criminal Court.
It is not easy to prioritize the options listed here. On one level, it must be stressed that it is not appropriate to set priorities according to the various options’ chances of success at the UN, since the measure of success must be held to the standards of progress towards achieving Palestinian national goals, and not necessarily in terms of bringing about the issuance of a given resolution. Moreover, a short term procedural failure at the UN (as a result of a US veto, for example) could contribute political gains in the medium term, while passing a GA measure to Palestinian advantage may constitute little more than a marginal gain in real terms.
On another level, the Palestinian leadership is currently facing a dangerous political and diplomatic battle following an obstructed negotiations process, increasingly brutal Israeli practices, the retreat of the US, and the destabilization of the Arab system as a result of the Arab revolutions. Despite the great risks and mounting pressures marking this critical period, it is up to the Palestinian leadership to navigate the difficult waters ahead: approaching the UN, and, at the same time, moving the intra-Palestinian reconciliation process towards a successful resolution, and preparing to counter possible Israeli provocations through popular mobilization.
On a third level, the adoption of any option will depend on Palestinian success in marshalling the support of friendly and neutral countries as well as mobilizing international opinion, on the cohesion and credibility of Palestinian proclaimed positions, and on the skill of the Palestinian diplomatic corps in assessing which states can be rallied and at what stage. In this area, there are no closed doors that are either preordained as such or that result from set-in-stone legal rules (e.g., the notion that it is impossible for the GA to surmount a possible US veto with regard to the Palestinian request for full UN membership). It is states that develop–or indeed create–UN legal procedures, in accordance with their interests, the values to which their societies are attached, and the compromises they negotiate with each other.
Given these considerations–and also to demonstrate the seriousness of our position on the conditions for resuming negotiations, to manifest our lost confidence in the ability of the US to serve as honest broker for the Palestinian– Israeli peace settlement, to ensure that the coming September is indeed a real landmark, and provided the effective support of the Palestinian people is mobilized at home and abroad, I think it necessary for the Palestinian leadership to confront the great powers and other influential states in the international system with their political diplomatic responsibilities through its submission of a formal request for full membership in the UN, namely through the SC, as outlined in option 2 above. In terms of the other options, I suggest that we not deal with them until such time as the SC meets to vote on the formal Palestinian request, and that preference be given to the options (not just those mentioned here) that involve approaching the SC as a first step. It is also necessary to emphasize that even if a great and course-changing victory is won at the UN, such an achievement can hardly be more than a modest step forward on the long road towards achieving the Palestinian national project.
This article was originally published in Al Ayyam Arabic newspaper in Ramallah, Palestine on 10 July 2011.