The Palestine Member State Application: A Legal Explainer

What Just Happened?

President Abbas has submitted the application for a granting of Member State of the United Nations status to Palestine.

The Secretary General has forwarded the application to UN Security Council which is the body which initially adjudicates on its validity. Under the UN Charter, the admission of a new Member state is ‘effected by a decision of the General Assembly upon the recommendation of the Security Council”. The decision is to be made according to provisions of Article 4(1) of the Charter which stipulates that membership 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’.

According to the International Court of Justice, no other conditions or requirements may be attached to membership apart from this (First Advisory Opinion of the Internatonal Court of Justice, Conditions of Admission of a State to Membership in the United Nations).

If the Security Council motion to approve the application is vetoed, what would follow within the U.N. system?

The recommendation of the Security Council is essential, without it, membership cannot be granted.

If a recommendation were forthcoming, a two-thirds majority vote of the 193 Member General Assembly would then make Palestine a Member.

If vetoed, it seems certain that Palestine would attempt to gain Non-Member Observer State status, which can be bestowed upon it by the General Assembly. This is the status enjoyed by the Holy See, but not by Palestine, which is currently designated as an ‘entity’. While ‘Observer State’ might be perceived as a secondary status, it would carry with it a range of consequences: such as strengthing Palestine’s case to be party to the International Criminal Court and to take complaints before international human rights bodies, the implications of which I consider below. French President Sarkozy and Former President Carter had urged President Abbas to follow this course, arguing this would somewhat moderate provocative diplomatic clashes while yielding significant practical legal protections and advances.

If successful, would this application mean Palestine would be a State?

No. It is very important (despite the inconvenience to newspaper headline writers), to distinguish between status as a Member State of the United Nations and status as a State under international law. For example, India was recognized as a Member State before it became a fully independent State. The question of statehood is distinct from the question of UN Membership. The question of membership is regulated by the UN Charter, the question of statehood by the principles of general international law.

A vote recognizing Palestine as a State in the Security Council would weigh enormously on the general analysis (as would, if to a slightly lesser extent, a favourable Observor State vote in the General Assembly). Nevertheless, each State and international legal institution, would still have to carry out its own objective assessment as to whether Palestine possesses the necessary attributes to be a valid state under international law.

What are the Criteria to be a State?

For a new state to come into existence, it must meet the Montevideo criteria, namely, possess ‘a permanent population’, a defined territory, a government and a capacity to enter into relations with other states. This centres obviously on possessing defined borders, and effective control over the governance of that territory. In addition, international law may require that any emerging state must not constitute a threat to the peace, and, more controversially, that it must secure a basic level of fundamental human rights protection for its citizens, particularly avoiding systematic discrimination against minority groups

The Role of Recognition: Each state is within its rights to recognize Palestine, but the prevailing view, is that this recognition does not have legal effects – it is merely declaratory: a political act. Therefore, under modern interpretations, the fact that a large number of other states have recognized Palestine would not bind other States into recognizing Palestine as a state – the objective criteria are what matter.

So does Palestine qualify under the objective criteria as a State?

Political viewpoints and causality debates will be the order of the day in determining this question. As a lawyer, I will simply draw attention to the main flashpoints.

Firstly, in support of the Palestinian case, there is the report Palestinian State Building: An Achievement at Risk, by the Office of Robert Serry, the UN Special Co-ordinator for the Middle East Peace Process (UNSCO). In April, it concluded that in two years of working with the UN, the Palestinian Authority had reached sufficient competence in six areas key to the functioning government of a State. These included governance, rule of law and human rights, livelihoods and productive sectors, education and culture, health, social protection and infrastructure.

However, others argue that without a final peace settlement, Palestine will not have territory over which it exercises effective sovereignty, its borders will remain disputed and population unsettled. This strengthens the case of those who argue that the current application is better understood as a trigger to cause the world community to meet its obligations to pursue a peace process, rather than generating a determinative outcome. Crucially, the above UN report itself warned that such state-building achievements would simply not be sustainable in the absence of far-reaching political progress:

The reality is that there is only so much that can be done in conditions of prolonged occupation, unresolved final status issues, no serious progress on a two-State solution, and a continuing Palestinian divide. Further achievements in state-building require that the politics catch up with impressive progress on the ground.

The IMF, in its report, noted that Palestinian state-building progress was entirely contingent on co-operation by Israel. Statehood would not be possible without the lifting of restrictions, remedying the utterly fragile security situation in Hamas controlled Gaza and donor support to cure a fiscal shortfall. The IMF, as an economic actor, simply noted, matter of factly, that the prospects for such cooperation would vanish in the event a statehood declaration was sought.

The Hamas question is central to the counter-arguments of Israel, even Mahmoud Abbas has admitted that administration of Palestine is contingent upon ‘unity’ of purpose and action with Hamas. A number of commentators are uncomfortable with this aspect.

In addition, Alan Dershowitz, the extremely vocal defender of Israeli approaches in region, has also highlighted another likely flashpoint in a recent controversial blog post. He notes that the draft constitution for the new State of Palestine invokes sharia law and instances prominent comments regarding the expulsion of all Israelis from a Palestinian State. This bears highlighting, even if the reader may be overcome by extreme frustration in the light of efforts to establish Israel as an expressly Jewish state and the extreme rights violations suffered by Israeli Arabs and other minorities. The question of universal human rights protection in emerging states is a general criterion which must be considered calmly away from polemics, as it was in the case of Southern Sudan.

This is a summary of the possible issues involved, though it bears repeating that strong regard would have to be had to any General Assembly resolution supporting Palestinian Statehood. The number of supporting States and exact content of the resolution would also be critical to the analysis.

What are the consequences of Palestine being recognized as a Member State of the United Nations? As a Non-Member Observor State?

Firstly, the precedents set by the Holy See would help support Palestine’s right as a Non-Member Observer State to ratify international agreements and access international remedies. President Abbas clearly targeted these legal protections in a May Op-Ed:

[recognition of statehood] would pave the way for the internationalization of the conflict as a legal matter, not only a political one…It would also pave the way for us to pursue claims against Israel at the United Nations, human rights treaty bodies and the International Court of Justice

Palestine, even if it only gains Non Member Observer State status, would request membership or accession to international treaties. Each has its own rules of admission, but as stated, a General Assembly resolution would be a strong piece of evidence in Palestine’s favour.

The highest profile venue is the ICC. In 2009, Palestine requested the prosecution of Israeli officials following the Gaza campaign of 2008/9, but the prosecutor never adjudicated on their standing to make such a claim. If the Palestinians of the Statute of the ICC  according to the conservative Foreign Minister Liebermann, Israel would withdraw all security co-operation.  An eerie legal cold war could also ensue, given that Palestinians would also be liable to prosecutions. As noted in an International Crisis Group report, Curb Your Enthusiasm: Israel and Palestine after the UN, many procedural barriers lie in the way of such actions, and the ICC is often a political body as well as a legal one. Realistically, actions could be put on a long finger by geopolitical considerations. This matter is complex, and something to return to in a later post.

Could the relationship between the PLO and the Palestinian Authority give rise to legal problems following recognition?

The Palestine Liberation Organisation, was granted observer status by the General Assembly in 1974, gaining the right to participate in its sessions and meetings. Upon the Palestinian National Council’s declaration of the independence of Palestine, UN General Assembly, allowed the designation ‘Palestine’ to be used in place of that of the ‘Palestine Liberation Organisation’ in proceedings.

A crucial point, raised by Professor Guy Goodwin Gill, which may legally delay recognition, is that the PLO represents all Palestinians, even those outside those areas of the West Bank and Gaza designated to the Palestinian authority. Out of the 669 members of the National Council, its nominal legislative body, 483 actually represent the Palestinian diaspora, refugees in countries such as Syria. As part of the Oslo Peace Accords of 1993, the PLO established the Palestinian Authority as a short-term administrative entity charged with limited governance over areas of West Bank and Gaza placed under Palestinian responsibility. Goodwin Gill argues that to replace PLO representation with Palestine representation is to frustrate the legal rights of displaced Palestinian population:

Within the constitutional structure of the PLO and the governance of the Occupied Palestinian Territory, therefore, the Palestinian Authority is a subsidiary body, competent only to exercise those powers conferred on it by the Palestinian National Council. By definition, it does not have the capacity to assume greater powers, to ‘dissolve’ its parent body, or otherwise to establish itself independently of the Palestinian National Council and the PLO. Moreover, it is the PLO and the Palestinian National Council which derive their legitimacy from the fact that they represent all sectors of the displaced Palestinian people, no matter where they presently live or have refuge…[the latter…constitute more than half of the people of Palestine, and if they are ‘disenfranchised’ and lose their representation in the UN, it will not only prejudice their entitlement to equal representation, contrary to the will of the General Assembly, but also their ability to vocalise their views, to participate in matters of national governance

Right so after all this controversy what is likely to happen?  Can any of this deliver a kick start to a peace process?

The Americans will push for an abstention strategy. It will argue that the Security Council has a legal and overriding responsibility to avoid a vote. Under the Charter, the Security Council is meant to act promptly to stop any ‘threat to the peace’. Regardless of the Palestinians’ moral claims, the reality is, that to recognize Palestinian Statehood would be trigger a grave, de facto, threat to peace. It will instance the likelihood of clashes between Turkey and Isreal in the Eastern Mediterrean. Additionally, it will instance statements like that by Iran’s ambassador that statehood is a ‘step to wiping out Israel’. A deferral strategy may also head off the promised withdrawal by Saudi Arabia from all regional co-operation, including in Yemen and Iraq. The leading international relations academic Anne Marie Slaghter, describing the Middle East as ‘on the brink’, proposes that the Security Council adopt a resolution endorsing Palestinian aspirations to UN Membership, while condemning illegal settlements, together with exacting perameters for negotiation. Caught between an electoral cycle at home, and a confluence of power vectors abroad, President Obama will likely try this road.

This dispute is the product of neglect by the international community, which has underwritten illegal settlement activity, the rise of Hamas, and the rise of extreme small parties in Israel. One’s instinct is to comment that international law will never solve problems where international politics are so utterly dysfunctional. It can only highlight responsibility and be the venue which can shock us into crisis and out of hopeless and immoral passivity.


Given the passions involved in this issue, the author would like to state that this post attempts a legal analysis aimed to identify issues, rather than the taking of a political stance. Comments and queries are welcome.

The Palestine Member State Application: A Legal Explainer

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