ATFP Backgrounder on the Question of Palestinian UN initiatives

http://www.un.org/en/documents/charter/chapter2.shtml - June 24, 2011 - Back to Resources Page [1]

The process for acquiring UN membership

With the exception of the founding states of the United Nations, the UN Charter, Article 4, Section 2, provides that, “The admission of any... state to membership in the United Nations will be effected by a decision of the General Assembly upon the recommendation of the Security Council." (http://www.un.org/en/documents/charter/chapter2.shtml [2]) The UN does not recognize states as such; this is a matter of bilateral relations between individual states that recognize each other.

The established procedure for the admission of a new UN member state is that:

1) The applicant state submits an application of membership to the Secretary General, along with a letter formally stating that it accepts its responsibilities and undertakings under the UN Charter;

2) The application is then referred to the UN Security Council, at which at least nine members must vote to recommend the application to the General Assembly, but which is subject to a potential veto by any of the five permanent members;

3) If the Security Council recommends membership to the General Assembly, two thirds of the General Assembly must vote to accept the new state as a UN member, effective on the date on which the resolution is adopted. There are 192 member states at present (although Southern Sudan may become a new member before September), meaning that 128 votes are now needed to adopt a membership resolution if it were recommended by the Security Council.

In the event of a permanent member veto annulling a majority vote at the Security Council, it is possible for a General Assembly resolution to be tabled under the "Uniting for Peace" resolution of November 1950 (Resolution 377 (V)), which was designed to overcome persistent USSR vetoes of Security Council resolutions regarding Korea. (http://habitat.igc.org/ufp/a-r377e.htm [3]) However, Uniting for Peace resolutions do not address the question of UN membership, but rather are concerned with a “threat to the peace, breach of the peace, or act of aggression.” In effect, they are a way to authorize use of force, sanctions and other coercive measures with UN authorization in spite of a Security Council veto by a permanent member. It is very difficult to see how a Uniting for Peace resolution would advance the cause of Palestinian membership in the UN, although states could cite such a resolution as justification for boycotts or other sanctions against Israel. Such boycotts and sanctions have been in place in many contexts, including the Middle East conflict, without such a resolution, and there is no indication that it would have any practical impact on either Palestinian UN membership or coercive measures aimed at Israel by other member states. In 1981, the UNGA did pass a 377 resolution regarding Namibia that authorized force and sanctions that did have an effect on the conflict in that country, and reaffirmed the Assembly's right to authorize force without UNSC approval. (http://www.jpost.com/LandedPages/PrintArticle.aspx?id=213794 [4]) Again, however, that case does not address the issue UN membership.

The UN charter makes it clear that the General Assembly is the ultimate arbiter of UN membership, however the UN Charter, UN structures, past precedent, and general understandings make it clear that Security Council recommendation is a sine qua non for a membership vote at the UNGA. Given that the United States is publicly committed to vetoing a Palestine statehood recommendation resolution at the Security Council, full UN membership for Palestine is not possible under the present circumstances. This was confirmed by statements by the President of the General Assembly, Joseph Deiss, who told a press conference on May 27 that there is no way to bypass a Security Council veto. (http://www.haaretz.com/news/diplomacy-defense/top-un-official-u-s-veto-would-block-vote-on-palestinian-statehood-1.364506 [5])

Israel's path to statehood, recognition and UN membership

Israel's path to statehood and international acceptance is worth reviewing, and proceeded in three phases:

1) On November 29, 1947, the recently-created United Nations adopted General Assembly Resolution 181 (http://www.yale.edu/lawweb/avalon/un/res181.htm [6]), which proposed to divide mandatory Palestine between a Jewish and an Arab state, and establish Jerusalem as a “corpus separatum” under UN administration.

2) On May 14, 1948, the day before the end of the British mandate in Palestine, the Jewish Agency declared the establishment of the State of Israel (http://www.knesset.gov.il/docs/eng/megilat_eng.htm [7]), and it was immediately recognized on a bilateral basis by the major powers of the day including the United States and the Soviet Union. Israel originally applied for UN membership in the fall of 1948, but failed to secure majority support in the Security Council, largely because of the ongoing state of belligerency between it and its Arab neighbors. The Israeli application was re-submitted in the spring of 1949, following the conclusion of armistice agreements with Egypt, Jordan and Lebanon.

3) On May 11, 1949, following a lengthy debate, (http://unispal.un.org/UNISPAL.NSF/0/0B3AB8D2A7C0273D8525694B00726D1B [8]), Israel was accepted as a member state in the United Nations by a majority vote in favor of General Assembly Resolution 273. (http://en.wikipedia.org/wiki/United_Nations_General_Assembly_Resolution_273 [9])

Therefore, the 1947 partition resolution created the legal groundwork for establishing the Israeli state; the 1948 bilateral recognitions constituted international recognition of the state by the leading powers of the day; and, finally, the 1949 General Assembly resolution made it an established part of the international community and a member state of the United Nations.

Palestine's present status at the United Nations and prospects for its enhancement

At present the Palestinians, through their sole legitimate international representative, the Palestine Liberation Organization, along with the Vatican and the European Union, enjoy “observer” status at the United Nations. Palestine's status is as an “entity” and as an “occupied territory.” Generally speaking, observers have the right to speak at United Nations General Assembly meetings, participate in procedural votes, and to sponsor and sign resolutions, but not to vote on resolutions and other substantive matters.

The EU is the only observer with the additional rights to speak in debates, to submit proposals and amendments, the right of reply, to raise points of order, to circulate documents, and so forth. It is conceivable, therefore, that the Palestinian observer status could be upgraded to that commensurate with the European Union.

Other possible upgrades short of membership are also conceivable as a compromise, but the likelihood of this is unclear. Palestine's observer status was first granted in 1974, through Resolution 3237, in 1988 it was permitted to circulate communications without an intermediary, and in 1998 it was granted the right to participate in general debates and some additional privileges.

Other UN observers with much more limited rights include the International Committee of the Red Cross, the international Federation of Red Cross and Red Crescent societies, the Inter-Parliamentary Union, the International Criminal Court, the International Olympic Committee, and the Sovereign Military Hospitaller Order of Saint John of Jerusalem, of Rhodes and of Malta. The status of these observers is not particularly relevant to the Palestinian case, as none are potential future member states.

An interesting case in point is Kosovo. On June 10, 1999, the UN passed Security Council Resolution 1244 (http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N99/172/89/PDF/N9917289.pdf?OpenElement [10]) which granted Kosovo autonomy within the Federal Republic of Yugoslavia (now legally succeeded by the Republic of Serbia), and placed it under a transitional UN administration and authorized a NATO peacekeeping force. The Republic of Kosovo declared independence on February 17, 2008 and was quickly recognized by the United States, Turkey, Albania, Austria, Croatia, Germany, Italy, France, the United Kingdom, Taiwan, Australia, Poland and others. By now at least 76 UN member states recognize Kosovo and it is a member country of the World Bank and the IMF. Because of a likely veto from Russia, and possibly China, Kosovo has not made a formal application of membership to the United Nations. While most of its member states have recognized Kosovo's independence, the European Union itself has no official position. The UN General Assembly asked for an opinion from the International Court of Justice, which, in July 2010, held that Kosovo's declaration of independence was not a violation of international law. Kosovo is therefore a state with effective independence and widespread diplomatic recognition and membership in several of the most important multilateral institutions, but remains a non-UN member state because of Russian opposition at the Security Council.

States and other entities already recognizing Palestine

On November 15, 1988, under the leadership of the late President Yasser Arafat, Palestinians unilaterally declared independence (http://www.al-bab.com/arab/docs/pal/pal3.htm [11]) and claimed to have won recognition from approximately 100 UN member states, mainly from Asia, Africa and Latin America. Several of those states no longer exist today, including the German Democratic Republic, Yugoslavia, Czechoslovakia, Democratic Yemen, the People's Republic of Kampuchea (now Cambodia) and Zaire (now the Democratic Republic of the Congo). There is no definitive list of states formally recognizing Palestine as an independent country, and there are many different statuses of such recognition.

Most states in Asia and Africa have recognized the Palestinian state in some form or other at some time since 1998, and due to a recent diplomatic initiative by the end of 2011 all states in South America, with the exception of Colombia, will also have extended some sort of recognition to Palestine and established diplomatic relations with it. Many countries including the United States, European Union states and Israel recognize the Palestinian Authority as a legitimate governing body of an autonomous geopolitical entity, but not an independent state. In the past 18 months, PLO missions in many western states, including the United States and many EU member states, have enjoyed mission upgrades that accord mission chiefs de facto ambassadorial status and other privileges short of diplomatic recognition. There appears to be no evidence of any state de-recognizing or withdrawing recognition from Palestine, once granted. Indeed, in January the Russian Federation reiterated its recognition of Palestine, first issued as the USSR in 1998.

The International Olympic Committee has recognized the Palestinian Olympic Committee, and allowed its athletes to participate in events officially representing Palestine. The same applies to a number of other sports bodies, including the world soccer federation, FIFA, which recognized Palestine in 1998.

The official United States position on the question of Palestinian UN initiatives

The United States has expressed strong opposition to Palestinian plans to seek UN membership outside the framework of negotiations. President Barack Obama on May 25 said, "I strongly believe for the Palestinians to take the United Nations route rather than the path of sitting down and talking with the Israelis is a mistake. The only way we are going to see a Palestinian state is if Israelis and Palestinians agree on a just peace." (http://news.yahoo.com/s/afp/20110525/wl_afp/israelpalestinianspeaceunabbas [12])

There are strong indications that the Obama administration is attempting to forestall a Palestinian UN statehood bid in September by resuscitating negotiations along the lines laid out in the president's May 19 Middle East policy speech: talks based on the 1967 borders with mutually agreed-upon land swaps, and focusing on borders and security first. So far, the Palestinian reaction has been more positive than the Israeli one. The recently appointed National Security Council Middle East official Steve Simon had a much-publicized conference call on June 10 with senior leaders of the Jewish American community, which reportedly sought to convince them to advocate Israeli acceptance of this proposal. The Jewish Telegraph Agency reported, "The thrust of Simon's call was that the White House was now awaiting Israel's response on President Obama's May 19 initiative -- the one that has been boiled down to '1967 borders with land swaps.' The Palestinians had given a reply that the administration was 'not comfortable' with but had been 'forthcoming.' The implied rebuke: The Netanyahu government had not been at all forthcoming." (http://blogs.jta.org/politics/article/2011/06/16/3088177/the-steve-simon-call [13])

In Congress, there have been strong calls from important members, including House Committee on Foreign Affairs Chairwoman Ileana Ross Lehtinen, to cut all funding to the Palestinians due to the national reconciliation agreement between Fatah and Hamas and in the event of a Palestinian application for UN membership. She also proposed barring funding to any UN agency that recognizes Palestine. (http://israelmatzav.blogspot.com/2011/06/us-to-bar-funding-for-un-agencies-that.html [14]) Former United States UN Ambassador John Bolton has proposed cutting off all funding to the United Nations or any other international agency that recognizes Palestine. (http://online.wsj.com/article/SB10001424052702303657404576357721571060778.html?mod=googlenews_wsj [15]) US Representatives Shelley Berkley, Benjamin Cardin and Steve Chabot have all suggested similar legislation withholding UN funding in the event of Palestinian statehood recognition. (http://www.washingtontimes.com/news/2011/jun/13/defund-the-un-over-a-palestinian-state/ [16])

The official PLO position on the question of Palestinian UN initiatives

The standard position of PLO officials is that the international community through the UN voted to establish two states - one Israeli and one Palestinian - in 1947, and that one of those states, Israel, has been established while the other, Palestine, has not. They say it is high time that this process is completed via the establishment of that Palestinian state anticipated in the partition resolution of 1947. Palestinians are adamant that they fulfill all the requirements of statehood as stipulated under Article 4 of the UN Charter and the Montevideo Convention, and therefore are a de facto state that simply needs to be recognized and entered into the United Nations. They also say that Palestinian UN membership would alter the dynamics of the conflict because while the occupation would still be in place, Israel would be occupying not undefined territory but the territory of another member state of the United Nations. Palestinians also anticipate being able to use UN mechanisms directly, rather than through friendly Arab states and others, to pursue their interests through the various UN systems, agencies and mechanisms. The Palestinians also argue that the timing of September, 2011 fits with several announced deadlines. The Middle East Peace Quartet - the European Union, United States, Russia and UN - committed itself to the target of achieving a two-state solution to the Israel-Palestinian conflict by September 2011. Last September in his General Assembly speech, Pres. Obama said that he “hoped” that in one year's time the UN would be able to welcome a new member state, Palestine. September 2011 is also consistent with the two-year Palestinian state and institution building initiative that was designed to lead to independence around that time.

In his May 17 commentary in the New York Times, Palestinian President Mahmoud Abbas said flatly “this September, at the United Nations General Assembly, we will request international recognition of the State of Palestine on the 1967 border and that our state be admitted as a full member of the United Nations." (http://www.nytimes.com/2011/05/17/opinion/17abbas.html?_r=2&scp=2&sq=mahmoud%20abbas&st=cse [17]) However, the official Palestinian position as expressed by Pres. Abbas is also that negotiations are preferable to an application for UN membership. In May Pres. Abbas said “Our first choice is negotiations, but if there is no progress before September we will go to the United Nations.” (http://english.alarabiya.net/articles/2011/05/25/150464.html [18]) He has reiterated this position on a number of occasions. According to Ha'aretz, in early June “Senior PA figures Saeb Erekat and Nabil Abu Rudaineh met on Monday in Washington with U.S. Secretary of State Hillary Clinton. They conveyed a message from Abbas to Clinton and other senior U.S. officials that the PA was ready to return to the negotiating table on the basis of President Barack Obama's May 19 speech - supporting a two-state solution based on 1967 borders with agreed swaps of territory - but only if Israeli Prime Minister Benjamin Netanyahu publicly expresses similar willingness. 'If Netanyahu refuses, we will approach the UN secretary general and ask for full membership of Palestine in the United Nations,' Erekat told Clinton." (http://www.haaretz.com/print-edition/news/palestinian-leadership-divided-over-plan-to-seek-un-recognition-1.366679 [19])

On June 20 Pres. Abbas told the Lebanese satellite channel LBC that he still preferred negotiations and that if the United States, Israel and Europe have objections to the UN plan, "they must come up with an alternative." (http://www.maannews.net/eng/ViewDetails.aspx?ID=398407 [20]) Therefore, the most consistent and high-level Palestinian position appears to be that the UN membership bid in September is contingent on no resumption of negotiations, and that if talks would resume, such a diplomatic initiative would be postponed or abandoned.

However, other officials have suggested the plan will go forward with or without negotiations in progress. On June 16 Mohammed Shtayeh said, "We are by all means going to the United Nations, whether there are negotiations or no negotiations. We think that is not either/or -- we think that going to the United Nations and negotiations can go hand in hand and they are complementary to each other.” (http://www.maannews.net/eng/ViewDetails.aspx?ID=397417 [21]) Some reports suggest the Palestinian leadership is badly divided on the question, with some strongly feeling that the costs of requesting UN membership outweigh the benefits. On June 9 the Israeli newspaper Ha'aretz reported that, “While Palestinian Authority President Mahmoud Abbas is determined to go through with the move, a group of senior Palestinians have said in closed conversations that they oppose it because they believe seeking recognition from the United Nations could do more harm than good to their cause." The report suggested that, "Among those opposed to the United Nations declaration are senior officials, including PA Prime Minister Salam Fayyad, former Prime Minister Ahmed Qureia and the former Palestinian UN envoy Nasser al-Qudwa. The latter's opposition is particularly significant because he is considered the most experienced Palestinian official when it comes to dealing with the United Nations.” (http://www.haaretz.com/print-edition/news/palestinian-leadership-divided-over-plan-to-seek-un-recognition-1.366679 [19]) Many Palestinian officials have urged the United States to try to re-start negotiations based on the principles laid out by Pres. Obama in his recent Middle East policy speech. On May 25 the PLO issued a statement calling on the United States to "lay out a mechanism and a timeframe... to implement Obama's ideas in accordance with all the Arab and international references to launch a serious peace process. The Palestinian leadership affirms its choice for negotiations but the fact that the door to the peace process is closed will force it to consider all other options, including going to the Security Council or the General Assembly in September." (http://news.yahoo.com/s/afp/20110525/wl_afp/israelpalestinianspeaceunabbas [12])

The official Israeli position on the question of Palestinian UN initiatives

The official Israeli position has been defined by Prime Minister Benjamin Netanyahu at a June 13 press conference: "First, it would violate the agreements between the Palestinians and Israel but it would also harden the Palestinian position because if the U.N. General Assembly adopts the Palestinian positions in advance of negotiations why should they negotiate? So such a resolution is backed by an overwhelming majority including the leading countries of the world, that could actually push peace back by hardening Palestinian positions, by pushing negotiations further away. Peace will only come from negotiations. It will be a negotiated peace. It cannot be imposed from the outside, not by any power and certainly not by one-sided U.N. resolutions.” (http://uk.reuters.com/article/2011/06/13/uk-palestinians-netanyahu-idUKTRE75C2U920110613 [22]) Israeli officials have said they are trying to form a block of 30 UN member states to stand solidly against Palestinian statehood, in particular European states. PM Netanyahu has said such a block "will not create an opposing majority, but it will balance out the bid's potential support." (http://www.ynetnews.com/articles/0,7340,L-4082285,00.html [23]) Deputy Foreign Minister Danny Ayalon has also launched an initiative to try to reverse Palestinian diplomatic gains in Latin America and rally support there against a Palestinian UN bid. (http://www.jpost.com/DiplomacyAndPolitics/Article.aspx?ID=223051&R=R1 [24])

The Israeli newspaper Ha'aretz has revealed a secret diplomatic cable sent on June 2 instructing Israeli diplomats around the world to try to mobilize opposition to Palestinian UN membership. The cable reads, in part: "The goal we have set is to have the maximum number of countries oppose the process of having the UN recognize a Palestinian state. The Palestinian effort must be referred to as a process that erodes the legitimacy of the State of Israel... The primary argument is that by pursuing this process in the UN, the Palestinians are trying to achieve their aims in a manner other than negotiations with Israel, and this violates the principle that the only route to resolving the conflict is through bilateral negotiations." (http://www.haaretz.com/print-edition/news/haaretz-exclusive-secret-cables-show-israel-s-battle-plan-over-palestinian-un-bid-1.366852 [25])

Other Israeli responses have varied from dismissal to dire threats. On June 17 Foreign Minister Avigdor Lieberman declared that, “A move like that will be a violation of all the agreements that were signed until today. Israel will no longer be committed to the agreements signed with the Palestinians in the past 18 years." (http://www.jpost.com/DiplomacyAndPolitics/Article.aspx?id=225434 [26]) Likud party MK Danny Danon has said he is preparing a bill proposing the annexation of the West Bank. "A Palestinian declaration of statehood would officially bury the Oslo Accords. If [the Palestinians declare a state], I'm going to suggest to my government to extend our sovereignty over the Jordan Valley and over the highly populated blocs we have in Judea and Samaria, just to start with." (http://english.aljazeera.net/indepth/opinion/2011/05/2011528162040529845.html [27]) Other Israelis have voiced deep concerns about both the effects of a Palestinian approach to the UN and counterproductive Israeli responses. Most notably, outgoing Mossad chief Meir Dagan warned, "Israel will be mistaken to attempt to block 'the September move' and the UN's expected recognition of a Palestinian state. Israel's attempts to derail the Palestinian move will ultimately lead to its forceful imposition on Palestinian terms, not ours," adding that an Israeli acceptance of Palestine could "minimize damages." (http://news.xinhuanet.com/english2010/world/2011-05/26/c_13895874.htm [28])

Other significant official international positions on the question of Palestinian UN initiatives

On June 15 the President of the European Parliament, Jerzy Buzek, told Israelis the EU does not oppose such a move although, "Unilateral declarations or decisions are not the best solution, but let me be frank. Your decisions about settlements are also unilateral, and have not been the best decisions. The Palestinians may not be making the best decision, but the settlements have complicated negotiations." (http://www.jpost.com/DiplomacyAndPolitics/Article.aspx?ID=225131 [29]) He also said the move could be “dangerous.” German Chancellor Angela Merkel joined Pres. Obama in warning against premature recognition of a Palestinian state outside of the context of negotiations. (http://www.jpost.com/DiplomacyAndPolitics/Article.aspx?ID=224083&R=R1 [30]) However French President Nicolas Sarkozy told the French daily l'Express, "If the peace process is still virtually dead in September, France will take its responsibility on the issue of recognizing the Palestinian state." (http://www.haaretz.com/news/diplomacy-defense/merkel-warns-against-unilateral-recognition-of-palestinian-state-1.360065 [31]) To that end, France has proposed hosting a Middle East peace conference this summer, which has been tentatively welcomed by the Palestinians but not accepted by the Israelis, who say they are "studying the proposal." (http://www.reuters.com/article/2011/06/05/us-palestinians-israel-france-idUSTRE7540PU20110605 [32]) Secretary of State Hillary Rodham Clinton said at a June 6 press conference with the French foreign minister that, "We strongly support a return to negotiations, but we do not think that it would be productive for there to be a conference about returning to negotiations." (http://www.reuters.com/article/2011/06/06/us-palestinians-israel-usa-idUSTRE7555XH20110606 [33]) On June 23 EU foreign policy chief Catherine Ashton told the Israeli newspaper Ha'aretz the European position would depend on many factors and that Palestinians might pursue initiatives at the United Nations other than ones aimed at gaining full UN membership. She said, "Well, first of all, we have to see if there's a vote. Secondly, I don't know what the resolution's going to say. And it will depend very much on what the resolution says as to how the international community in general and the EU states in particular, vote. It's quite possible that there could be a vote at the UN where the European Union states have no difficulty in voting for that." (http://www.haaretz.com/weekend/week-s-end/the-moment-to-move-1.369401 [34])

Arab responses to the plan have varied, but no state has formally opposed the idea. On May 28 then-Arab League chief Amr Moussa told the Reuters news agency that negotiations have proven futile and that he supported the Palestinian plan to seek UN membership in September, saying, "The sound path is going to the United Nations and political struggle.” (http://www.haaretz.com/news/diplomacy-defense/arab-league-chief-backs-un-route-for-palestinian-state-1.364573 [35]). On May 12, then-Egyptian Foreign Minister Nabil el-Arabi sent a letter to Pres. Abbas pledging Egyptian support for the PLO's plan. (http://news.xinhuanet.com/english2010/world/2011-05/12/c_13872212.htm [36]) On June 14 Al-Ayyam, al-Quds and al-Hayat al-Jadida all reported that Pres. Abbas had discussed the UN plan with Saudi King Abdullah. Saudi Arabia has not made an official statement on the matter, and although a June 7 Washington Post commentary (http://www.washingtonpost.com/opinions/palestinian-rights-wont-be-denied-by-the-united-states-and-israel/2011/06/07/AGmnK2OH_story_1.html [37]) by a former official, Prince Turki al Faisal, was seen by some to represent a "Saudi position," in fact no such position has been formally articulated.

Another significant regional actor, Turkey, has signaled its support for the idea with President Abdullah Gül saying on June 16 that there is “no doubt” that Turkey would vote in favor of a Palestinian statehood resolution in the General Assembly. (http://www.todayszaman.com/news-247623-gul-no-doubts-about-turkey-voting-for-recognition-of-palestine-in-un.html [38]) On June 24 PLO officials said after meeting with Turkish leaders that "Turkey will help us in getting more of the nations to recognize the Palestinian state" and that it was "fully ready" to support a Palestinian effort at the UN in September. (http://www.maannews.net/eng/ViewDetails.aspx?ID=399429 [39])

http://www.un.org/en/documents/charter/chapter2.shtml - June 24, 2011 - Back to Resources Page [1]