Realpolitik and Rhetoric in the Case of Palestine’s Quest for UN Membership

Realpolitik and Rhetoric in the Case of Palestine’s Quest for UN Membership

Abstract

Sovereignty is not an entity based on principle of effectiveness but also an international subject status extensively recognized by international community. Recognition and admission by United Nations may not only serve as direct, authoritative acknowledgement and mainstay for overall construction of state status in international community, but also has great impact on the sovereign state fully enjoying sovereign rights and participating in concrete international relations. The article tell about the state of Palestine submit application for admission to United Nations membership. However, there exist clear divergence in international community, form different gaming forces, factors and complicated gaming pattern.

 

 

 

 


Introduction

Under article 1(2) of the United Nations Charter, all people have an indiscriminate right to self-determination. This right has been cemented by the passage of the numerous resolutions regarding the existence and rights of Palestine. The Committee on the Exercise of the Inalienable Rights of the Palestinian People, formed in 1975 gives credence to the recognition of the Palestine people’s rights. Historians argue that Palestinians have had this inalienable right prior to World War II and World War I and dates back to the Ottoman rule.

On 23 September 2011, Palestine applied for admission into the United Nations. The Palestine liberation organization cited section F of the Plan of Partition in UN General Assembly Resolution 181(II) that encouraged the formation of separate Jewish and Arab states and also the 1988 declaration of independence that was later that year acknowledged by the UN general assembly (GA)[1]. The application was sent for preliminary consideration to the Security Council which in turn referred it to the Committee on the Admission of New Members under Security Council’s Provisional Rules of Procedure rule 59. While this process was still ongoing, the United Nations’ educational, scientific and cultural organization (UNESCO) convened a general conference that resolved to admit Palestine into it[2]. An armed conflict in late 2008 and early 2009 in the Gaza strip led to the Minister of Justice for the Government of Palestine recognizing the jurisdiction of the international criminal court (ICC). The resulting action by the office of the prosecutor was an examination of all criteria to establish whether such jurisdiction was supported under the United Nation’s numerous resolutions.

Journal critique

Criteria for admittance to the UN

Article 4 of the UN charter states that “Membership in the United Nations is open to all 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”. And “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”[3]. Here, there are a few criteria that must be met. Key among them is peace-loving, independence, acceptance of obligations, ability to carry out these obligations and the willingness to do so. In the application letter sent by Palestine requesting admittance, the state categorically admitted to meeting all the mentioned criteria. However, article 4 (2) then mandates the general assembly to further scrutinize the suitability of membership after recommendations by the Security Council.

In 1974, an UNGA resolution designated the Palestine Liberal Organization (PLO) an observer status due to its existence as a national liberation movement[4]. This gave Palestine a chance to participate in sessions where matters regarding it and the Middle East were discussed. In 1988, the UN resolved to recognize Palestine as an independent state and immediately changed the designee of the observer status from the PLO to the state. Additional rights and privileges were conferred unto Palestine after yet another UNGA resolution that allowed the state to act more like a member state in the sense of sitting in the GA, raising point of orders and replying to pertinent matters. Its sitting arrangement was also altered in order to reflect the new status accompanied by an increased number of seats allocated; from two to six. Subsequent developments have seen the state invited to sit on the Security Council especially on matters of the Middle East.

Legal issues arising

There are a number of legal issues that arise in the process leading up to the vote by the GA to allow the Palestine Authority into the UN. First, article 4 (2) envisages a situation where fulfilment of the general principles in article 4 (1) naturally guarantees entry. The use of the phrase “any such state” connotes that there is an obligation for admittance. The second part of article 4 (2) however makes this phrase ambiguous as it confers the General Assembly and the Security Council lieu to consider other political factors. The Palestine state, in a formal declaration, indicated that it was ready to adhere to the membership obligations. This declaration and the fact that criteria in article 4 (1) were met were not enough to convince the Security Council and the general assembly on its fitness in joining the UN. Therefore, one can argue that absolute facts of the law become more ambiguous where there are competing political interests. President Obama had, prior to the application, affirmed his desire for the Palestine people to have their own state. He had given a timeline of a year after his speech to the general assembly in 2010. However, even before the dust settled on this position, preconditions were issued that would be the determinants of the consideration of formation of a state. Key among them was the requirement of a guarantee for the security and sovereignty of Israel. In 2011, President Obama further expressed his desire for Palestine to be a sovereign state but added that the preconditions had not been guaranteed[5]. In the same meeting, President Netanyahu of Israel stated that there was no likelihood of a peace agreement between his country and Palestine.

The power of permanent members of the Security Council cannot be underestimated. The Security Council is a very important prerequisite to admission to the United Nations, all rules notwithstanding. For Palestine’s application to be considered, it needed nine out of fifteen votes. However, it got eight with only two permanent members voting in the affirmative. The United States voted in the negative whereas the United Kingdom abstained. France supported that Palestine be designated the ‘observer state’ status while abstaining from voting for UN membership. The US had indicated that if Palestine got the required nine out of fifteen votes, then it would veto that outcome. This means that the effort for seeking admittance to the UN was an exercise in futility as only one viable outcome was projected from the beginning; rejection.

            Perspective from international law

International law requires that the state as a person have the following qualities: a permanent population, a defined territory, a government and the capacity to enter into relations with other states. Here, Palestine more or less meets three out of the four criteria. First, there is a defined and permanent population that is distinct from the Israel population. The difference is fundamental and is thus undeniable. Second, there is a defined territory that has been in existence since the Ottoman Empire and was formally acknowledged on 4th June 1967 by the UN[6]. Although the future boundaries of the state are yet to be decided, there is enough territory for the case for recognition to be upheld. Third, there is a legitimate government that is led by president Mahmoud Abbas, who is the Chairman of the Executive Committee of the Palestine Liberation Organization. This criterion has been disputed by numerous scholars who claim that Palestine in its present form is fragmented and unpredictable. The fact that there are two competing interests, with Hamas controlling Gaza and Fatah controlling the West Bank is evidence that even if the state was to be recognized, it would soon disintegrate into two distinct halves. This fact alone has made other nations sceptical of the harm that independence would have, not only on the country itself but also in terms of foreign relations. All these facts are well documented and are not points of contention. The fourth factor is what denies the existence of Palestine as a state; its incapacity to enter relations with other countries. For the most part, there remain hostilities between Palestine and Israel. This has put the country at crosshairs with others who are sympathetic to Israel. As such, Palestine becomes incapacitated in forming relations with these countries.

            Effects of Palestine in UNESCO

The United States has continually indicated its intention of having Palestine recognized as a member of the UN. However, there are a number of competing political forces that make this endeavour more unlikely. During the vote by the UNSC in determining whether Palestine should join the UN, nine members voted for its inclusion in UNESCO but not in the UN. The deterring vote was from France which advocated an intermediary position. The US is vehemently opposed to this position since it will ultimately undermine its power in the UNSC[7]. There remain sharp divisions within the UNSC on matters regarding Palestine. Russia and China strongly support its inclusion while the US and UK oppose. France is in the middle of this tussle. This tug of war has made Palestine increasingly aware that its only available avenue into the UN would be as an intermediary state and hence has embarked on this endeavour. President Mahmoud Abbas has increasingly expressed his desire to join the UN and has indicated that his country will remain relentless in its quest to be considered as a non-member state in the interim.

For any state to be admitted into UNESCO there is no requirement for it to be a member of the UN. The only prerequisite is a recommendation from the Executive Board and also a two-third vote from the general conference. Palestine attained these two and was formerly accepted into UNESCO despite protests by Israel and the US. The latter on its part withdrew its funding to the UN body citing a 1990 rule that prohibited governments from funding organizations that accorded the PLO the same treatment as member states. President Obama has stated that he supports the programmes of UNESCO and regrets that such rules prohibit the good work being done from progressing. Congress is seeking to ratify this rule in order to allow for funding to be resumed. However, the republicans seem determined to thwart this effort making it a tall order for the Obama administration.

Israel on its part responded harshly to the admittance of Palestine into UNESCO. It immediately began the construction of over 1,500 housing units in East Jerusalem as well as an additional 600 in the west bank. Moreover, the government withheld remittance of tax owed to Palestine which amounted to over two thirds of the country’s annual revenues. In 2011, Israel rescinded its earlier decision on tax remittance but did not cease construction. According to the Interim Agreement, the PLO is mandated to conduct negotiation with other states and international organizations in matters pertaining to education, science and culture[8]. In themselves, these are not actions that fall under contravention of the agreements with Israel. The argument is that since the Oslo Accord that allowed for the existence of two distinct parts of Palestinian authority, namely; the PA and the PLO, there has been a blurring of roles. The former is mandated with internal governance and is prohibited from engaging in foreign relations while the latter is mandated with engaging in foreign relations but not in internal governance. The overlap of the mandates exercised by these two authorities has complicated the situation.

Alternative perspective

Illegality of the Israeli state

According to the League of Nations, Palestine’s detachment from the Ottoman Empire after the First World War was viewed as a form of provisional independence. The Covenant of the League of Nations regarded territories formerly under Turkish rule as being “not yet able to stand by themselves”[9] The League of Nations Mandate that touched on Palestine in 1922 is largely seen as having been a contradiction of the Balfour Declaration. The territory was regarded as a “sacred trust of civilization”[10]. Therefore, when it was handed to Britons, its national sovereignty was in no way annulled. As with other territories like Syria, Jordan, Iraq and Lebanon, Palestine was considered as being in category A which was on the fast track towards early independence[11]. Under international law, Palestinians were on their way to enjoying sovereignty right after detachment from the Ottoman Empire. International law states that sovereignty lies with the people who inhabit a mandated territory. The UN accepted this legal notion when attempting to create a solution for the impasse in Palestine by stating that sovereignty “could not be alienated either by the Mandatory Power or by the League”[12]. Applying basic legal facts brings us to the conclusion that the Palestinian people have been continuously denied sovereignty for decades of which they were entitled to after the Second World War. In 1947, the UNGA under resolution 181 (II) denied Palestinians of their inalienable right to independence by partitioning their country into two states[13]. This action, under vague ethnic backing and the discriminatory Balfour Declaration that was incorporated into the League of Nations’ Mandate was the genesis of the problems present in Palestine today. Historical accounts indicate that the Palestinian people were at no time consulted in the proceedings leading and after partition of their country. UNGA had no right whatsoever to allocate the Jewish people their own state under any law. Ironically, Israel was denied membership into the UN after 1947 since it did not have a territory. The body of jus cogens in international rights directs that inalienable rights are just that and no body has the authority to deny them. It was therefore wrong for the ICJ, UNGA or the UNSC to abrogate the Palestinian boundaries. These bodies, however powerful, are in no way above the law. Brownly asserts that the UN does not have the authority to play the role of territorial sovereign regardless of its implied powers due to it being a non-state actor and only has the power for recommendation after a general assembly resolution[14]. Potter on the other hand supports the sentiment by stating that the UN does not have authority to dictate a solution to Palestine unless such a situation is worked out, which has yet to occur[15]. He further states that the UN has had a habit of disregarding international law where faced with an international problem.

Mandate of the UN

A partition resolution is only viable where recommended measures for peaceful relations have been ineffective and where relations between nations are likely to be impaired due to inaction. However, even under article 14 of the charter, the role of the UN is to make recommendations but not to create/deny sovereign entities. The resolution for Palestinian partition broke international law since it “contradicted the principle of the inadmissibility of the acquisition of territory by war”[16]. This fact alone means that the UN resolution denied the occupants of the partitioned territories their right to consent under article 80 (1). The occupation of Palestine in 1947 by Israel is not supported anywhere in international law since it was done with insufficient authority. Further occupation in 1967 did little to alleviate the situation. Israel is considered as a belligerent occupant in those territories. All actions that Israel has taken in a unilateral manner are illegal. The annexation of Jerusalem is one of the most blatant yet. The UN has on many occasions condemned these actions and has made resolutions that indicate the illegality of the occupations. Although these resolutions are not legally binding, they nonetheless show that the moral and legal strategy preferred by the international community is based on the rights to self-determination. The Palestinian National Charter claims in article 3 that; “the Palestinian Arab people possess the legal right to their homeland and have the right to determine their destiny after achieving the liberation of their country in accordance with their wishes and entirely of their own accord and will”[17].

UNGA has passed two resolutions with the same message: resolution 3236 (XXII) of 1974 and resolution 169 A (XXXV) of 1980[18]. They state that Palestinians have the right to self-determination devoid of all external interference and an inalienable right to independence and sovereignty. Furthermore, the UNGA has resolved on numerous occasions that there can be no peace in the Middle East unless there is a guarantee of the Palestinian people’s rights. The major point here is that the UN agrees that the right to self-determination is one that is sacred and must be accorded.  In its 1947 resolution, however, those rights were trampled in the creation of the Israeli state. It is prudent to note that at the time, the constituency of the UN was in no way representative of the world but rather represented the interests of colonialists who made unilateral decisions that only suited them. The legitimacy of the UN resolutions and the UN itself in 1947 and prior is questionable. In this discussion therefore, the authors seem to concur that the problems that bedevil Palestine arose due to an illegality committed by the UN.

Summarising realpolitik and rhetoric        

The reaffirming of Palestinian rights by the UNGA through resolutions is merely a matter of making recommendations. The occupation in Palestine unlike in other Arab occupations like Libya and Iraq were never adopted as required under chapter VII of the UN charter. This means that all resolutions made on the matter are non-binding. The UN has not been given the opportunity to deal with the Palestinian matter on a purely legal basis. This is because the present power balance is skewed towards an unfavourable outcome for Palestine. Addressing this issue has always been relegated to the backburner and more so today due to the influence wielded by powers that are fundamentally anti-Palestinian. Politics has marred any exercise geared towards the resolution of this impasse. The realpolitik pressures that led to the controversial resolutions by the UNGA in 1947 are still at play in today’s society. The end of the Cold and Gulf wars, coupled by the Oslo Accords further compounded Palestinian misery. The Gulf War in particular was a major loss for Palestine as the entire Arab world lost its clout in international affairs which was as a direct result of the fall of the soviet bloc. The pacification of the Middle East that followed the 1991 cease fire and the numerous agreements that have followed including those in Madrid and Oslo had nothing to do with the legal framework of addressing real problems affecting the Arab world. Instead, they were political moves that were strategically aimed at undermining the position of the region in international politics. The adoption of the PLO as the de facto negotiator for the Palestinian people robbed them of the small political margin that they had enjoyed during the Cold War.

An in-depth analysis of the Oslo Accords reflects that there is no resolution quoted therein that touched on the sovereignty of Palestinians or their right to self-determination. Instead, they exclusively deal with permanent settlement [SC resolutions 242 (1967) and 338 (1973)], withdrawal of troops from occupied territory and “just settlement for refugees”[19]. All interpretations of resolutions 242 must be considered under their political connotations as they are not founded in any international laws. The accords categorically exclude all matters of Palestinian foreign relations as well as outside interference. All agreements regarding the contested areas including the Gaza strip, the West Bank and areas of Jericho are skewed to the point that they allow for Israeli supremacy in terms of dealing with arising criminal matters. The lack of an explicit framework for the recognition of Palestinian rights to self-determination create an aura of Israeli dominance as the reference to “mutual legitimate and political rights” between the two states only seems to bolster Israel’s position as a colonial power and a trustee of the Palestinian authority.

Paul Eden makes a compelling case as to the reasons why Palestine is not recognized as a sovereign state and the reasons why it was denied admission into the UN. According to international law, the state does not meet some criteria in its present condition. The fact that there are divisions in the country between Fatah and Hamas also beggars the question of whether an independent sovereign Palestine would stand for long. The capacity for relations between Palestine and other nations on the international stage is also a subject of doubt. Even after formally declaring to be a peace-loving state which accepts the obligations contained in the present UN Charter demonstrating the ability and willingness to carry out these obligations, the UNSC found the country still lacking in some perspective.

Assumptions made by the author

The author of the journal article missed two critical points. First is that the issues surrounding the admission of Palestine into the UN are historically and presently political. Consider the position held by the US: if the Security Council had ratified the admission of Palestine into the UN, then, it was prepared to use its veto to oppose the decision. There are no legal grounds for such a strong position to be taken especially from a nation whose president has taken a public stance as desiring a sovereign Palestine within his term in office. The preconditions issued for the admission to be granted were based on guarantees of Israeli security. This is a radical move since these guarantees are difficult to give since Palestine is already divided. The lack of a comprehensive process where dialogue is used to come to a consensus as the only sure way that a lasting solution is arrived at is glaring. Failure to this only worsens the situation and hardens the resolve of Palestinians for their sovereignty which would be more of threat to Israeli security[20]. The second point is that legal considerations are not absolute in themselves. Simply stating that Palestine does not qualify for UN membership for the reason that it has no capacity for meaningful relations with other countries is trivial. Consider that the Palestine state has been the legitimate state ever since the Ottoman Empire and whose position was only undermined by the League of Nation’s Mandate that formed an illegal entity named Israel. Correction of these unlawful acts is the only sure way from whence legal considerations can be considered in their proper contexts.

My view

Continued insistence by the UN and the US that there is need for the recognition of Palestine as a sovereign state holds no water, as no concrete initiatives to realize this goal have been introduced. This forms the rhetoric that has plagued Palestine for decades on end. The denial for recognition as a member of the UN was a continued suppression of the rights that are due to the Palestinian people. Analyzing the issue from a purely legal standing produces one outcome. That Palestinians have a right to self-determination. Numerous UN resolutions have reiterated this fact time and again. However, realpolitik has always won the day and has continued to compound the misery of the Palestinian people through agreements like the Oslo Accords that were never centred on law. All initiatives undertaken by the US, UK, Israel and to some extent France geared towards the achievement of Palestinian self-determination are simply based on rhetoric for the simple reason that these powers are at the centre of the continued oppression of the Palestinian people. A return to the arrangement prior to the partition of the country and an acknowledgement of the wrongs done to that country should be the starting point towards a peaceful middle east. Palestinians have consistent in their quest for self determination. Instead of pushing for their boundaries prior to 1967 to be restored, they have chosen to abide by those created after this year. Currently, the country’s chances of being admitted to the UN or realizing self-determination are almost non-existent, what with the current political powers.

 

References

WEILER, Joseph. The Birth of Israel and Palestine – The Ifs of History. EJIL, 22 (2011), 621-3

ERLANGER, Steven and SAYRE, Scott, UNESCO Approves Full Membership for Palestinians, New York Times, November 1, 2011, A8

GRANT, Thomas, D, Admission to the United Nations: Charter Article 4 and the Rise of Universal Organisation. (Martin Nijhoff, Leiden, 2009)

‘Observer status for the Palestine Liberation Organization’, UNGA Res 3237 (XXIX) (22 November 1974) UN Doc A/RES/3237 (XXIX) (voting record: 95-17-19).

UNGA 66th session, 11th plenary meeting (21 September 2011) UN Doc A/66/PV.11, at 12

UNGA 66th session 19th plenary meeting (23 September 2011) UN Doc A/66/PV.19, at 30.

COOPER, Helene, Obama Says Palestinians are Using Wrong Forum, New York Times, September 22, 2011, A12.

WATSON, Geoffrey, The Oslo Accords: International Law and the Israeli-Palestinian Peace Agreements. (Oxford: Oxford University Press, 2000) 245.

KOECHLER, Hans (ed.), The Legal Aspects of the Palestine Problem with Special Regard to the Question of Jerusalem. (Vienna: International Progress Organization, 1981), pp. 67-97.

HALL, Hessel, Duncan, Mandates, Dependencies and Trusteeship. Studies in the Administration of International Law and Organization, no. 9. (Washington DC: Carnegie Endowment for International Peace, 1948), p. 80.

TANNOUS, Izzat, The Palestinians. A Detailed Documented Eyewitness History of Palestine under British Mandate. (London: I.G.T. Company), 1988.

WRIGHT, Quincy, Mandates under the League of Nations. (New York: Greenwood Press), 1968.

CATTAN, Henry, Palestine and International Law. The Legal Aspects of the Arab-Israeli Conflict. (London: Longman, 1973), pp. 42ff

BROWNLY, Ian, Principles of Public International Law. (Oxford: Clarendon Press, 1966), p. 161.

POTTER, Pitman, The Palestine Problem before the United Nations. American Journal of International Law, 42 (1948), pp. 859-861; p. 860.

MOORE, John, Norton (ed.), The Middle East Problem, The Arab-Israeli Conflict, Volume II: Readings. (Princeton (NJ): Princeton University Press, 1974), pp. 828-839; p. 829.

RIZK, Edward, The Palestine Question. Seminar of Arab Jurists on Palestine. (Beirut: The Institute for Palestine Studies, 1968), Part two: Legal Titles, pp. 62-111.

MALLISON, Sally V. and MALLISON, W. Thomas Jr., The Juridical Bases for Palestinian Self-determination. The Palestine Yearbook of International Law, I (1984), pp. 36-67.

ASSAD, Mohammed, Palestinians Rap Israeli View on UN Resolution 242, Jerusalem, 30 June 2000.

LAVIE, Mark, Israel Ruling Angers Palestinians, Jerusalem, 30 June 2000

[1] J Weiler, The Birth of Israel and Palestine – The Ifs of History. (2011) 22 EJIL 621-3

[2] S Erlanger and S Sayre, UNESCO Approves Full Membership for Palestinians. New York Times (New York 1 November 2011), at A8

[3] TD Grant, Admission to the United Nations: Charter Article 4 and the Rise of Universal Organisation (Martin Nijhoff, Leiden 2009)

[4] Observer status for the Palestine Liberation Organization, UNGA Res 3237 (XXIX) (22 November 1974) UN Doc A/RES/3237 (XXIX) (voting record: 95-17-19).

[5] UNGA 66th session, 11th plenary meeting (21 September 2011) UN Doc A/66/PV.11, at 12

[6] UNGA 66th session 19th plenary meeting (23 September 2011) UN Doc A/66/PV.19, at 30.

[7] H Cooper, Obama Says Palestinians are Using Wrong Forum. New York Times (New York 22 September 2011), at A12.

[8] G Watson, The Oslo Accords: International Law and the Israeli-Palestinian Peace Agreements (Oxford University Press, Oxford 2000) 245.

[9] H Koechler (ed.), The Legal Aspects of the Palestine Problem with Special Regard to the Question of Jerusalem. Studies in International Relations, IV. Vienna: International Progress Organization, 1981, pp. 67-97.

[10] HD Hall, Mandates, Dependencies and Trusteeship. Studies in the Administration of International Law and Organization, no. 9. Washington DC: Carnegie Endowment for International Peace, 1948, p. 80.

[11] I Tannous, The Palestinians. A Detailed Documented Eyewitness History of Palestine under British Mandate. London: I.G.T. Company, 1988.

[12] Q Wright, Mandates under the League of Nations. New York: Greenwood Press, 1968.

[13] H Cattan, Palestine and International Law. The Legal Aspects of the Arab-Israeli Conflict. London: Longman, 1973, pp. 42ff

[14] I Brownly, Principles of Public International Law. Oxford: Clarendon Press, 1966, p. 161.

[15] P Potter, “The Palestine Problem before the United Nations” in American Journal of International Law, vol. 42 (1948), pp. 859-861; p. 860.

[16] JN Moore (ed.), The Middle East Problem, The Arab-Israeli Conflict, Volume II: Readings. Princeton (NJ): Princeton University Press, 1974, pp. 828-839; p. 829.

[17] E Rizk, The Palestine Question. Seminar of Arab Jurists on Palestine.  Beirut: The Institute for Palestine Studies, 1968, Part two: Legal Titles, pp. 62-111.

[18] SV Mallison and WT Mallison, Jr., “The Juridical Bases for Palestinian Self-determination,” The Palestine Yearbook of International Law, vol. I (1984), pp. 36-67.

[19] M Assad: “Palestinians Rap Israeli View on UN Resolution 242,” Jerusalem, 30 June 2000.

[20] M Lavie, “Israel Ruling Angers Palestinians,” Jerusalem, 30 June 2000

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