veto

Discussion 1: Debate on Palestine’s Statehood and possible UN Membership (added 09/2011 and updated 11/2012)

Introduction

Palestinian Authority President Mahmoud Abbas in September 2011 made an application to the UN to obtain full UN membership of a Palestinian State.  Only States can have full membership of the UN, so in essence, his claim for UN membership was also a call to recognize Palestine as a State. He asked for the new Palestinian State to be defined along the 1967 border line – this includes West Bank, Gaza and East Jerusalem.

Source of Map and Text: BBC Indepth. For background information on the Israel and Palestine conflict in simple language click here and here.

In September 2011, three options were discussed with regard to the procedure that can be followed at the UN:

  1. Apply to the Security Council for full UN membership: this is what the Palestinian Authority said it would do; but, there is a possibility that the US might veto or find other means to prevent a positive vote for Palestine. For more on this click here. See also Articles 4 and 18 of the UN Charter, in this regard.
  2. It is speculated that if the US uses its veto,  Palestine may rely on the “United for Peace” Resolution and refer the question to the General Assembly. Under this resolution Palestine would ask for full UN membership. It is important to note that this resolution was originally brought by the US in the 1950′s when the Soviet Union continued to use its veto powers to block the admission of certain States.
  3. Apply to the General Assembly for an upgrade from “observer status” given to the Palestinian Liberation Organization (PLO) to a “non-member observer State”

Update as at November 2012:

On 23 September 2011, the President of the Palestinian Authority applied for full membership of the UN (click here for the application). The Secretary General transmitted this to the Security Council who sought the views of the Admissions Committee under  Rule 59 of the Provisional Rules of Procedure of the Security Council.The Committee reverted to the Security Council with its Report, which said that given the divergent views of its members, the Committee was unable to make an unanimous recommendation on Palestine’s admission (See previous post for the full report and for more information on the Admissions Committee). 

Option 1: Application to the Security Council requesting UN membership 

The  Charter of the UN says:

Article 4

  1. Membership in the United Nations is open to all other peace-loving states which accept the obligations contained in the present Charter and, in the judgment of the Organization, are able and willing to carry out these obligations.
  2. The admission of any such state to membership in the United Nations will be effected by a decision of the General Assembly upon the recommendation of the Security Council.
Article 18 of the UN Charter says that this decision must be taken with a 2/3 majority vote:
Decisions of the General Assembly on important questions shall be made by a two-thirds majority of the members present and voting. These questions shall include: …the admission of new Members to the United Nations…
If you noticed, Article 4(1) says that membership is open to “peace loving States”. This means that to become a member of the UN, the entity asking for membership should fulfill the criteria of statehood. As we learnt, the Montevideo Convention of 1933 sets out a certain criteria that must be met before an entity can become a State. An analysis of the Palestine’s fulfillment of these criteria can be found here. With regard to the criteria on effective control of the territory, you can find the observations of Hamas – the entity controlling Gaza – here.
.
You will also notice that Palestine needs 2/3 of the General Assembly vote to become a member of the UN. After the PLO declared unilateral independence in 1988, over 100 States recognized the State of Palestine. These States entered into international treaties with Palestine. Today, this number has grown and it is possible that Palestine would be able to secure this needed majority in the General Assembly. However, according to Article 4(2) of the UN Charter,  “membership in the United Nations will be effected by a decision of the General Assembly upon the recommendation of the Security Council.”
.
What happened in 2011?
In 2011, the Secretary General forwarded the request to the Security Council – who then referred it to the Admissions Committee for its recommendation (see previous post on the procedure followed and on the relationship between the Security Council and the Admissions Committee). The Committee was unable to recommend that Palestine be admitted as a State. The Security Council approved the Report from the Committee stating its inability “to make a unanimous recommendation.” As a result, the process for the Palestine bid for Statehood through the Security Council was stalled. The General Assembly did not get to vote on the membership in 2011.
.
Option 2: Uniting for Peace Resolution
.
The United for Peace Resolution says:

“if the Security Council, because of lack of unanimity of the permanent members, fails to exercise its primary responsibility for the maintenance of international peace and security in any case where there appears to be a threat to the peace, breach of the peace, or act of aggression, the General Assembly shall consider the matter immediately with a view to making appropriate recommendations to Members for collective measures . . .”.

.
In more recent years the United for Peace Resolution was successfully used  to seek an advisory opinion from the ICJ on the Palestinian Wall Case (see page 2 and 3 of the advisory opinion).
For a good background on the United for Peace Resolution click here.
.
The ICJ, in 1950, discussed the competence of the General Assembly on matters relating to UN membership in face of a deadlocked Security Council. This Advisory Opinion can be found here.
.
Option 3: Apply to the General Assembly for an upgrade from the Palestinian Liberation Organization’s (PLO) current “observer status” to a “non-member observer State”
.
On 29 November 2012, the Palestinian President is expected to ask the U.N. General Assembly for an upgraded observer status – “non-member observer State”. A draft resolution floated by the Palestinians seeks international recognition of the State of Palestine. A  majority vote at the UN (half of its members) is adequate to pass a resolution recognizing Palestine as a non-member observer State”. Palestinian President is confident of getting the necessary support at the General Assembly. 
 
If Palestine succeeds in its latest bid, Palestine would be recognized as a “State” by the UN. However, it will not be a member State (for this, it must succeed in option 1 or 2 above). Non-member States, for example, can join General Assembly debates but it cannot vote at the Assembly. 
 
Once the UN recognizes Palestine as a “State”, this may allow Palestine to become a State party to treaties like the Rome Statute of the International Criminal Court (ICC).  In January 2009, the Palestinian National Authority accepted the jurisdiction of the ICC over crimes committed in Palestinian territory. In April 2012, the Office of the Prosecutor at the ICC refused to decide on Palestine’s acceptance of ICC jurisdiction based on the ICC’s lack of competence to determine if Palestine was a “State”:

“competence  for  determining  the  term  “State”  within  the meaning of article 12 rests, in the first instance, with the United Nations Secretary General who, in case of doubt,  will  defer  to  the  guidance  of  General Assembly. The  Assembly  of States Parties of the Rome Statute could also in due course decide to address the matter in accordance with article 112(2)(g) of the Statute.” (ICC Statement)

For a legal analysis on the ICC’s decision click here
Click here to read about how Palestine’s membership to the ICC would affect Israel.
 
Opinion is divided on the benefits that such a membership would bring to Palestine – politically, to the peace process and economically.  Israel has threatened not to respect the Israel-Palestine peace accords if Palestine pursues its latest bid. Previously when Palestine obtained membership status in UNESCO (membership is only reserved for States), US withdrew its funding to the organization. (Optional: For an overview of the latest bid click here and here.)