Statehood

Documents: Palestine Bid for Statehood: Report of the Committee on the Admission of New Members (Palestine)

 © Ruwanthika Gunaratne and Public International Law at https://ruwanthikagunaratne.wordpress.com, 2008 – present. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Ruwanthika Gunaratne and Public International Law with appropriate and specific direction to the original content.

Background:

On 23 September 2011, the President of the Palestinian Authority applied for full membership of the UN. 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 (reproduced in full below), which said that given the divergent views of its members, the Committee was unable to make an unanimous recommendation on Palestine’s admission. The Report summarizes the discussions had in the Committee.

REPORT OF THE COMMITTEE ON THE ADMISSION OF NEW MEMBERS CONCERNING THE APPLICATION OF PALESTINE FOR MEMBERSHIP IN THE UNITED NATIONS

1.  At its 6624th meeting on 28 September 2011, the Security Council had before it the application of Palestine for admission to membership in the United Nations(S/2011/592). In accordance with rule 59 of the provisional rules of procedure and in the absence of a proposal to the contrary, the President of the Council (Lebanon) referred the application to the Committee for examination and report.

2.  At the 109th and 110th meetings of the Security Council Committee on the Admission of New Members, held on 30 September and 3 November 2011, respectively, the Committee considered the application.

3.  Following the 109th meeting of the Committee, the Presidency of the Security Council for the month of October (Nigeria) convened five informal meetings of the Committee, four of which took place at the expert level, to carefully consider whether Palestine met the specific criteria for admission to membership contained in Article 4 of the Charter of the United Nations. Experts considered whether Palestine met the criteria for statehood, was a peace-loving State, and was willing and able to carry out the obligations contained in the Charter.

4.  In the course of the meetings of the Committee on the Admission of New Members, differing views were expressed. The view was expressed that the applicant fulfils all the criteria set out in the Charter. Questions were raised as to whether the applicant meets all of the Charter membership requirements. The view was also expressed that deliberations should take into account the broader political context of the matter at hand.

5.  It was stated that the criteria set out in Article 4 of the Charter were the only factors that could be taken into consideration in the Committee’s deliberations. In support of this position, reference was made to the Advisory Opinion of 28 May 1948 of the International Court of Justice (ICJ), on the Conditions of Admission of a State to Membership in the United Nations (Article 4 of the Charter).

6.  It was also asserted that the Committee’s work, whatever its outcome, should be mindful of the broader political context. The view was expressed that a negotiated solution remained the only option for a long-term sustainable peace and that final status issues had to be resolved through negotiations. Support was expressed for a two-State solution based on pre-1967 borders, resulting from political negotiations, leading to an independent State of Palestine with East Jerusalem as its capital. It was stressed that the granting of Palestine’s right to self-determination and recognition must not be seen as contrary to Israel’s inalienable right to exist.

7.  It was stated that the Committee’s work should not harm the prospects of the resumption of peace talks, particularly in light of the Quartet statement on 23 September 2011 that had set out a clear timetable for the resumption of negotiations. Similarly, it was also stated that the prospect of negotiations should not delay the Security Council’s consideration of Palestine’s application. In addition, It was stated that Palestine’s application was neither detrimental to the political process nor an alternative to negotiations. Concerns were raised in relation to Israel’s continued settlement activities, which were considered illegal under international law and were an obstacle to a comprehensive peace.

8.  In relation to the application of Palestine (S/2011/592), attention was drawn to the letter received by the Secretary-General from the President of Palestine on 23 September 2011, which contained a declaration – made in a formal instrument – stating that the State of Palestine was a peace-loving nation; that it accepted the obligations contained in the Charter of the United Nations; and that it solemnly undertook to fulfil them.

9.  On the criterion of statehood, reference was made to the 1933 Montevideo Convention on the Rights and Duties of States, which declares that a State as a person of international law should possess a permanent population, a defined territory, a government and the capacity to enter into relations with other States.

10.  With regard to the requirements of a permanent population and a defined territory, the view was expressed that Palestine fulfilled these criteria. It was stressed that the lack of precisely settled borders was not an obstacle to statehood.

11.  Questions were raised, however, regarding Palestine’s control over its territory, in light of the fact that Hamas was the de facto authority in the Gaza Strip. It was affirmed that the Israeli occupation was a factor preventing the Palestinian government from exercising full control over its territory. However, the view was expressed that occupation by a foreign power did not imply that the sovereignty of an occupied territory was to be transferred to the occupying power.

12.  With regard to the requirement of a government, the view was expressed that Palestine fulfilled this criterion. However, it was stated that Hamas was in control of 40 percent of the population of Palestine; therefore the Palestinian Authority (PA) could not be considered an effective government. However, it was stressed that the PLO, and not Hamas, was the legitimate representative of the Palestinian people.

13.  Reference was made to reports of the World Bank, the International Monetary Fund and the Ad Hoc Liaison Committee for the Coordination of the International Assistance to Palestinians, which had concluded that Palestine’s governmental functions were now sufficient for the functioning of a State.

14.  With regard to the requirement that a State have the capacity to enter into relations with other States, the view was expressed that Palestine fulfilled this criterion. It was recalled that Palestine had been accepted into membership in the Non-Aligned Movement, the Organization of the Islamic Conference, the United Nations Economic and Social Commission for Western Asia, the Group of 77 and UNESCO. In addition, over 130 States had recognized Palestine as an independent sovereign State. Questions were raised, however, regarding the authority of the PA to engage in relations with other States, since under the Oslo Accords the PA could not engage in foreign relations.

15.  With regard to the requirement that an applicant be “peace-loving”, the view was expressed that Palestine fulfilled this criterion in light of its commitment to the achievement of a just, lasting and comprehensive resolution of the Israeli-Palestinian conflict. It was further stated that Palestine’s fulfilment of this criterion was also evident in its commitment to resuming negotiations on all final status issues on the basis of the internationally endorsed terms of reference, relevant United Nations resolutions, the Madrid principles, the Arab Peace Initiative and the Quartet road map.

16. Questions were raised as to whether Palestine was indeed a peace-loving state, since Hamas refused to renounce terrorism and violence, and had the stated aim of destroying Israel. Reference was made, on the other hand, to the Advisory Opinion of the ICJ on Namibia of 1971, which stated that the only acts that could be attributable to a State were those of the State’s recognized authority.

17.  With regard to the requirement that an applicant accept the obligations contained in the Charter and be able and willing to carry out these obligations, the view was expressed that Palestine fulfilled these criteria, as was evident, inter alia, from the solemn declaration to this effect contained in its application. It was recalled that in 1946, when considering the application of Israel for membership, it had been argued that Israel’s solemn pledge to carry out its obligations under the Charter was sufficient to meet this criterion.

18.  The view was also expressed that the Charter required more than a verbal commitment by an applicant to carry out its Charter obligations; an applicant had to show a commitment to the peaceful settlement of disputes and to refrain from the threat or the use of force in the conduct of its international relations. In this connection, it was stressed that Hamas had not accepted these obligations.

19.  The view was expressed that the Committee should recommend to the Council that Palestine be admitted to membership in the United Nations. A different view was expressed that the membership application could not be supported at this time and an abstention was envisaged in the event of a vote. Yet another view expressed was that the applicant did not meet the requirements for membership and a favourable recommendation to the General Assembly would not be supported.

20.  Further, it was suggested that, as an intermediate step, the General Assembly should adopt a resolution by which Palestine would be made an Observer State.

21.  In summing up the debate at the 110th meeting of the Committee on the Admission of New members, the Chairman stated that the Committee was unable to make a unanimous recommendation to the Security Council.

22.  The Security Council Committee on the Admission of New Members concluded its consideration of the application of Palestine for admission to membership in the United Nations.

23.  At its 111th meeting, the Committee approved the present report on its consideration of the application of Palestine for membership in the United Nations.

More on the Admissions Committee

This Committee is a sub-Committee of the Security Council and consists of 15 representatives who, as far as possible, make decisions through consensus. The role of the Committee is to “…examine any application referred to it (by the President of the Security Council) and report its conclusions thereon to the Council” (Rule 59 of the Provisional Rules of Procedure)

Based on its conclusions, it is the Security Council that finally decides “…whether in its judgement the applicant is a peace-loving State and is able and willing to carry out the obligations contained in the Charter and, accordingly, whether to recommend the applicant State for membership.” (Rule 60 of the Provisional Rules of Procedure). According to the UN Situation Report on Palestine:

If   the   Committee   recommends   admission  it  usually  presents  the  Council   with  a  draft  resolution  recommending   admission  of  the  new  member  for  con-­ sideration   by   the   General   Assembly.   In  recent  years,  if  there  is  no  disagreement   over   the   Committee’s   recom-­ mendation,  the  Council  has  chosen  to   adopt   this   resolution   “in   accordance   with  the  understanding  reached  in  prior  consultations”  and  without  either  a   debate  or  a  vote.

The  Council  could  also  choose  not  to   refer  the  application  to  the  Committee. Over   the   years   the   practice   of   referring   membership   applications varied. For example, the Council recommended the admission of Pakistan  (1947),  Finland   (1947)  and  Indonesia  (1950),  directly, without going through the Admissions Committee.  Between   1952  and  1968  the  Council  did  not  refer  any  applications  to  the  Committee.   However,   since   1969,  the Security Council referred applications  to   the   Committee (See SC Situation Report on Palestine).

 © Ruwanthika Gunaratne and Public International Law at https://ruwanthikagunaratne.wordpress.com, 2008 – present. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Ruwanthika Gunaratne and Public International Law with appropriate and specific direction to the original content.

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

© Ruwanthika Gunaratne and Public International Law at https://ruwanthikagunaratne.wordpress.com, 2008 – present. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Ruwanthika Gunaratne and Public International Law with appropriate and specific direction to the original content.

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.
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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.”
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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.
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Option 2: Uniting for Peace Resolution
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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 . . .”.

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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.
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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.
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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”
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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.)

© Ruwanthika Gunaratne and Public International Law at https://ruwanthikagunaratne.wordpress.com, 2008 – present. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Ruwanthika Gunaratne and Public International Law with appropriate and specific direction to the original content.