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The UN, Palestine and the Criteria for Statehood

How does a State Obtain UN Membership and what Benefits Could Palestine Expect from Admittance? By Sebastian A. Baciu (03.11.2011) Palestines bid for UN membership and its more recent admittance to the UN cultural body UNESCO are important steps in its quest for international recognition of its statehood. On the 23rd of September, Mahmoud Abbas submitted his countrys application for official UN recognition amidst enthusiastic applause and a warm atmosphere. However much of the recent coverage concerning Palestines international ambitions has been limited to outlining what effects UN recognition might have on the Mideast peace process and Palestines relationship with the US and Israel. On the other hand, remarkably little attention has been paid to exactly what benefits Palestine might derive from UN membership and how one moves from mere observer status to fully fledged membership in worlds most important international institution. The Criteria for Statehood Determining precisely what characterizes a state is far from straightforward. So too, is establishing to what degree an aspiring state must have recognition from other states or from the UN and other international institutions. In general, two schools of thought dominate the global debate concerning the criteria for statehood and both see the importance of third-party recognition differently. The Declarative Theory of Statehood was established and codified by the Montevideo Convention, which sets out the rights and duties of states. Despite having been signed in 1933 by only 19 states, the Convention is still considered a relevant part of customary international law. It is a declarative theory because it is based strictly on normative characteristics that states may fulfil independently. This circumvents the need for diplomatic recognition as a prerequisite to statehood at least in theory. The Convention dictates that for a state to be regarded as a person under international law, it must meet the following four criteria: A defined territory: While the Gaza Strip and the West Bank may be considered defined Palestinian territory, opinions vary with regards to precisely how the exact borders might be drawn. Some would argue that due to Palestines territorial fragmentation it cannot be considered to have a defined territory in the sense intended by the Montevideo Convention. However, decisions by the UN General Assembly and the International Court of Justice oppose this standpoint and do in fact see Palestines current territorial situation as essentially integral. And regarding Palestines still indeterminate borders, this cannot be used as an argument against statehood because it applies in equal measure to Israel as well. But in any case, the question does remain open

as to how Israel and Palestine might achieve territorial reconciliation, particularly regarding the hotly contested issue of East Jerusalem. A permanent population: Palestine has a population of just over four million and seems to comply adequately with this requirement. A government: While Palestine does have a governing authority, it is questionable to what extent this qualifies as proper government by the standards of international law. In this case, the problem boils down to autonomy. It is estimated that 83 per cent of claimed Palestinian territory is either fully or partially controlled by Israel. Parts of both Gaza and the West Bank, where the PA has its administrative capital in Ramallah, still remain occupied by Israeli military forces. This raises the question of whether it is a requirement under law that a government must have effective control over its territory in order to comply with this criterion. One could argue convincingly that Palestines government cannot exercise full authority over its territory because of Israels continued occupation. It is therefore not a problem of incompetence or incapability on behalf of the PA, but just another barrier that could be lifted by according Palestine the full rights of a UN member state. Proponents of a Palestinian state also argue that the Montevideo Convention makes no mention pertaining to the effectiveness of government. In fact, several states such as the Democratic Republic of Congo, East Timor, Kosovo and Guinea-Bissau have been granted formal recognition despite at the time possessing only rudimentary governments at best.1 Denying Palestinian statehood on the basis of inadequate government must therefore acknowledge the major impediment created by the continued Israeli occupation on present state functions. A capacity to enter into relations with other states: Palestine has the capability to enter into relations with other states. While the Oslo Accord actually denies the PA powers and responsibilities in the sphere of foreign relations, numerous Palestinian missions and special delegations do in fact exist abroad.2 It must also be said that smaller states such as Palestine often tend to be more dependent on international institutions for enhancing their diplomatic presence, because they are given a fair and open forum to articulate their interests. By contrast, larger states can more easily establish diplomatic links based on trade deals and other economic incentives.

The Declarative Theory is far from an established or commonly accepted formula for statehood. Detractors point out that, while a state might fulfil all the criteria specified in the Montevideo Convention, its statehood is relatively meaningless in the absence of broad diplomatic recognition. According to this so-called Constitutive Theory of Statehood, a states relationship with other states is decisive for the criteria of statehood in general. The Benefits of UN Membership But would a Palestinian victory at the UN be only a symbolic victory, or might it carry some practical benefits as well? Mazin Qumsiyeh, a professor at Bethlehem University, was quoted in a Chinese daily saying that the only benefit to would be to either bring the Palestinians up (in the
DANE, Felix & STETTNER, Ilona-Margarita: Ein Staat Palstina in den Vereinten Nationen? Voraussetzungen, Positionen und Erwartungen vor der VN-Generalversammlung. KAS Auslandsinformationen. (01.11.2011) [http://www.kas.de/wf/doc/kas_23604-544-1-30.pdf?110811142816] 2 (02.11.2011) [http://www.webgaza.net/resources/Embassies_of_Palestine.htm]
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peace negotiations) or bring the Israelis down so that we are close [and] you could also bring [lawsuits] to the International Court of Justice.3 An article on Slate.com also asks if a Palestinian state recognized by the United Nations [would have] the right to bring legal action against Israel and Israeli officials at the International Criminal Court or the U.N.s own International Court of Justice?4 Mahmoud Abbas made it clear in an Op-Ed piece published by the New York Times in May that UN membership would pave the way for us to pursue claims against Israel at the United Nations, human rights treaty bodies and the International Court of Justice.5 And in fact, the matter of Palestines access to the international justice system has proven especially divisive amongst Europeans, some of whom have even speculated about creating a new legal status for Palestinians that would provide an upgrade in status but block potential access to the ICC and other international legal enforcement agencies.6 In his Op-Ed Mr Abbas also stated that admission to the United Nations would pave the way for the internationalization of the conflict as a legal matter.7 This idea is also expressed by law professor Abdel Rahman Abu Nasser, who was quoted by Xinhua as saying that Palestines admission to the UN would make resolving the Israeli-Palestinian conflict an international obligation8. Abu Nasser also expects that a Palestinian state recognized on the 1967 borders will serve as an international reference9 for any future peace talks and would also help cement their position against the continued expansion of settlements and the continued building of a security wall. UNESCO Admittance and Future Outcomes Palestines recent admittance to UNESCO seems to have drawn it one step closer to achieving its international aspirations. But as pointed out by Haaretz, the move is still a long-shot from total victory10 at the UN. And with the imminent withdrawal of $60 million dollars in funding (one-quarter of total UNESCO funding) by the US, Palestinian membership in the UN cultural agency looks more questionable still. At first glance this may seem like an obvious reprisal, however the State Department was actually required to cut UNESCO funding because of a two decade old provision in the US Code which prohibits the funding [of] any specialized agency of the United Nations which accords the Palestine Liberation Organization (PLO) the same standing as member states.11 Palestine has its sights set on sixteen UN agencies in total, including the IAEA and the WHO. And because of existing reciprocity agreements12,
Weal & Woe of Palestines Bid for Statehood, Global Times. (01.11.2011) [http://www.globaltimes.cn/NEWS/tabid/99/ID/677009/WealWoe-of-Palestines-Bid-for-Statehood-and-UN-Membership.aspx] 4 IBISH, Hussein: Could a U.N. Upgrade Help the Palestinians Prosecute Israeli Officials? Slate. (01.11.2011) [http://www.slate.com/articles/news_and_politics/foreigners/2011/09/could_a_un_upgrade_help_the_palestinians_prosecute_israeli_officials. html] 5 ABBAS, Mahmoud: The Long Overdue Palestinian State. The New York Times. (01.11.2011) [http://www.nytimes.com/2011/05/17/opinion/17abbas.html?_r=1] 6 IBISH, Hussein: Could a U.N. Upgrade Help the Palestinians Prosecute Israeli Officials? Slate. (01.11.2011) [http://www.slate.com/articles/news_and_politics/foreigners/2011/09/could_a_un_upgrade_help_the_palestinians_prosecute_israeli_officials. html] 7 Ibid. 8 Interview: Benefits, risks poised[!] in Palestinian bid to UN for membership. Peoples Daily Online. (01.11.2011) [http://english.peopledaily.com.cn/90777/90854/7593430.html] 9 Ibid. 10 SHAMIR, Shlomo: Palestinian win in UNESCO doesnt mean total victory at UN. Haaretz. (04.11.2011) [http://www.haaretz.com/news/diplomacy-defense/palestinian-win-in-unesco-doesn-t-mean-total-victory-at-un-1.393461] 11 PATRICK, Stewart M.: Palestine and UNESCO: Weve Only Just Begun. The Council on Foreign Relations. (04.11.2011) [http://blogs.cfr.org/patrick/2011/11/03/palestine-and-unesco-we%E2%80%99ve-only-just-begun/] 12 Ibid.
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participation in UNESCO will automatically grant Palestine membership in WIPO (World Intellectual Property Organization), UN Conference on Trade and Development (UNCTAD) and the UN Industrial Development Organization (UNIDO). In turn, the US will be forced to respond by cutting its funding to each of these agencies. The strategy of applying independently to UN agencies could ultimately hinder the Palestinian case in front of the UN Security Council. It brings few benefits compared to full UN membership and risks alienating countries which are otherwise be neutral to Palestines membership or might even regard it favourably. Haaretz has already pointed out that United States is not the only member opposed to the United Nations agencies one-side recognition of the PA other members in the security council are [also] distancing themselves from acts seen as openly defying the authority of the council.13 And according to the New York Times, both France and Bosnia, which previously suggested they would support Palestine, have since indicated they intend to abstain,14 although no mention was made as to why. Regardless of support from other countries, the US is certain to apply its veto power when the issue comes to a vote before the Security Council sometime in November. At that point, the matter will be forwarded to the General Assembly for further deliberation. But while members of the GA cannot veto an initiative, they can at most confer advanced observer status. However Palestine has already indicated that only full UN membership will suffice.

SHAMIR, Shlomo: Palestinian win in UNESCO doesnt mean total victory at UN. Haaretz. (04.11.2011) [http://www.haaretz.com/news/diplomacy-defense/palestinian-win-in-unesco-doesn-t-mean-total-victory-at-un-1.393461] 14 MACFARQUHAR, Neil: Palestinians Inch Closer to Rejection at UN Body. The New York Times. (04.11.2011) [http://www.nytimes.com/2011/11/04/world/middleeast/Palestinians-United-Nations-Bid-Moves-Closer-to-Rejection.html]
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