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UN Week 12/3/12

January 18, 2013

This blog entry is written by members of our blogging community and expresses those experts’ views alone.

John and Douglas Carey, Editors

In this issue: is Palestine a state?

The UN General Assembly on November 29th adopted by a vote of 138-9-41 a resolution (original in English) containing the following paragraph: “2. Decides to accord to Palestine non-member observer State status in the United Nations, without prejudice to the acquired rights, privileges and role of the Palestine Liberation Organization in the United Nations as the representative of the Palestinian people, in accordance with the relevant resolutions and practice.”

Nothing that I have found in the UN Charter gives the Assembly authority to declare statehood for a geographical entity, or to declare that a non-member entity is accorded non-member State status in the UN.[1] Jamaica observed that, “In its view, the granting of Non-Member Observer State status as on the same level as the status afforded to the Holy See delegation; it was not equivalent to membership in the United Nations.”

Statehood has certain prerequisites according to traditional international law. They were set forth by the US in the Security Council on December 2, 1948, in support of Israel’s application for membership:

“We are all aware that under the traditional definition of a state in international law all of the great writers have pointed to four qualifications: First: There must be a people. Second: There must be a territory. Third: There must be a government. Fourth: There must be capacity to enter into relations with other states of the world.”[2]

According to the UN’s press release describing the Assembly’s debate on and adoption of its resolution, GA/1137, no representative discussed any of these traditional prerequisites to statehood. In fact, there seemed to be some difference as to just what the underlying issues actually were.

PLO Chairman and Palestinian Authority President Mahmoud Abbas declared that, “We will accept no less than the independence of the state of Palestine with East Jerusalem as its capital,” on all the Palestinian territory occupied in 1967. This formulation precludes any “land for peace” border adjustments and would reduce Israel’s width north of Tel Aviv to 14 miles. Further, it has nothing to do with whether Palestine at present is a state qualified for recognition as such by the Assembly.

As paraphrased in the UN press release, Israel’s representative said that, “The truth was that from 1948 until 1967, the West Bank had been ruled by Jordan, and Gaza had been ruled by Egypt. The Arab States had not lifted a finger to create a Palestinian State.” This would tend to show that in 1967 Israel occupied Jordanian and Egyptian, not Palestinian territories.

Israel made the claim that, “‘There is only one route to Palestinian statehood. And that route does not run through this chamber in New York’ he said, adding that that route ran through direct negotiations between Jerusalem and Ramallah.” This us a broad claim, asserting that Israel’s approval is needed for Palestinian statehood. Certainly wide recognition of statehood buttresses an entity’s statehood claim, but recognition by any one member of the family of nations is not essential. If that were so, the United States would not have achieved statehood until the Treaty of Paris in 1783 despite wartime aid from France, the decisive victory at Yorktown and the British withdrawal of British forces from New York.

Turkey stated that, “The denial of the right of Palestinians to a State had no justification on moral, political or legal grounds.” Indeed the Palestinians cannot be denied statehood if they meet the pre-requisites; if they do, no one party can deny them statehood. Greece seems also to have believed that Israel can deny statehood to Palestine when it said, if paraphrased accurately, that, “The inalienable right to statehood should be fulfilled through negotiation between the two parties.” Similarly, Guatemala said it abstained on the vote because it “was not prepared to grant the category of Observe State to that entity, which it had not yet recognized as a State, subjecting the latter to its conviction that the final status of the creation of the State of Palestine must be the outcome of a direct negotiation between the Palestinian Authority and Israel.”

New Zealand’s representative apparently wanted to have it both ways when, “Noting that the resolution just adopted conferred non-Member Observer State status, he said that the question of recognition of a Palestinian State was a separate issue.” Finland “stressed, the Assembly’s vote did not entail a formal recognition of a Palestinian State. Finland’s national position on the matter would be considered at a later date.”

Unnecessary confusion is created when reference is made to the “1967 borders,” as was done by Turkey and others. It is not clear whether that means the borders before or after the military action by which Israel took over the West Bank. The Netherlands’ representative “strongly support[ed] a peace agreement based on the borders of 1967 . . . .” without saying whether he understood those borders to include the West Bank, no small matter.

Kuwait said the resolution was an extremely important stage in the lives of Palestinians, especially in recognition of independent Palestinian State along the 1967 borders. * * * He urged Israel’s implementation of resolution 497 (1981) and return to 1967 borders, reaffirming its occupation of Syrian land was another obstacle to establishing peace in the Middle East.”

Syria noted its “support of Palestinian rights for the creation of a sovereign State with East Jerusalem as its capital, along borders decided upon in 1967 . . . . Israel’s accession to the United Nations was contingent on its commitment to the creation of a Palestinian State and the return of refugees.” Namibia spoke of a Palestinian State “to coexist with Israel on the basis of the 1967 borders.”

“The European Union reaffirmed it would not recognize any changes to the pre-1967 borders, including with regard to Jerusalem, other than those agreed by the parties.

Russia, which voted in favor of the resolution, said that, “In 1988, his delegation had decided to recognize the declaration of Palestinian statehood. There had been a Palestinian embassy operating in Moscow for some time.”

“As early as 1988, China announced its recognition of the State of Palestine and established diplomatic relations with it.”

The proposition that Palestine is a state raises certain questions. For example, since a state must have governmental control over specific territory, what territory qualifies? Gaza qualifies if we ignore the fact that it is Hamas, not the Palestinian Authority, that controls Gaza. If they would combine, this problem would disappear. But will they?

Does the PA control the West Bank? At most in those parts designated for it in the Oslo Accords. If the PA had organized a state in the West Bank or Gaza after the PA was organized and before Israel seized control in 1967, then today’s rubric might be “occupied Palestine,” not just “occupied Palestinian territories.”

Among the 138 votes in favor of the resolution were those of Austria, Belgium, Denmark, Finland, France, Iceland, Ireland, Italy, Japan, New Zealand, Portugal, Spain and Switzerland. Abstaining were Australia, Germany, Netherlands, and the United Kingdom.

Britain, France, Spain, Sweden and Denmark summoned the Israeli ambassadors to their countries on Monday, December 3rd, to protest Israel’s plans for increased settlement construction, an unusually sharp diplomatic step that reflected the growing frustration abroad with Israel’s policies on the Palestinian issue.

Israel may also suffer damaging antipathy among western and other countries if it withholds from the PA of payments collected by Israel on its behalf. A justification that the withholding is to offset Israeli counterclaims might not win sympathy unless persuasive ground work is first laid.

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