PALESTINE

Recently, President Mahmoud Ahmadinejad of Iran gave an interview to NBC’s Ann Curry, during which he disclosed that in his upcoming address at the United Nations General Assembly – and in general as advice to President Obama and others – he will stress that time has come for reforming the management system for global affairs. By this, he intended to mean that reform is overdue in the way that the United Nations system, including the International Atomic Energy Agency, is being used by western Powers. This is nothing new. For sometime countries like India and Brazil have called for a more egalitarian and representative distribution of political power at the United Nations, especially in the composition of the Security Council, including the veto powers of the permanent five – China, France, Great Britain, Russian Federation, and the United States.

While Mahmoud No. 1 will be talking international governance, Mahmoud No. 2 – Mahmoud Abbas, the President of Palestine National Authority (“PNA”) - will be testing in a very real and transparent way the very proposition of whether the United Nations is a global institution or just a tool in the hands of western Powers bent on pursuing their own narrow self-interest. The hypocritical nature of the UN system is about to be lain bare before an ever-increasingly savvy and information-wired world citizenry.

I rather brew tea leaves than read them. But, for what is worth, in my class these days we are on “UN Watch,” trying to predict the outcome of PNA’s application for membership of the State of Palestine in the United Nations.

Whether Palestine is a State under international law is not the issue. If an entity has a more-or-less defined territory, a permanent population, a government in control of the population and territory – a state it is. It is only a sovereign State if it also has the legal capacity to enter into international obligations and/or discharge its international obligations. In 1988, the Palestinian National Council, meeting in Algiers, declared the existence of an independent State of Palestine. The declaration renounced terror and recognized the existence of the State of Israel. The only territorial reference in the declaration was to Jerusalem as the capital of Palestine.

To become a Member State of the United Nations is trickier than being a State per se, because it rests not on the existence of a number of constitutive elements; it depends on the political declaration of other States who already are the Member States of the United Nations.

If the Security Council recommends membership for Palestine, the issue will then go before the General Assembly of the United Nations, where approval of membership must gain 2/3 of the votes.

On the basis of the reported stories in the media, this Friday, Abbas will tender to the Secretary-General a document whereby Palestine will seek membership in the United Nations. Reports indicate that the U.S. will veto that request in the Security Council and Abbas will turn next to the General Assembly to admit Palestine to the United Nations as an “observer State.” This latter outcome will still be politically significant as it will recognize Palestine as a sovereign State, like the Holy See. But Abbas can do better by forcing the General Assembly to accept Palestine as a Member State in spite of Security Council’s inability to recommend Palestine for membership.

In the aftermath of WWI (1914-1919) and the demise of the tsarist regime in Russia beginning in 1917, Azerbaijan declared its independence by a proclamation in May 1918. In 1919, the prime minister of Persia set out to explore independent relations with the nascent Azerbaijan government: A Persian economic and political mission traveled to Baku and discussed recognition and trade relations with the new republic. In January 1920 the Entente Powers recognized de facto the Azerbaijan republic as an independent country. Subsequently, Azerbaijan applied for membership in the League of Nations. The League's first assembly, which opened in Geneva, Switzerland, on November 15, 1920, relegated the issue of new admissions to the assembly's fifth committee. The committee proceeded to review the fourteen applications then pending before the League. The committee advised the Assembly to refuse Azerbaijan's application and the Assembly accepted that advice, even though it had the authority to disregard the dis-recommendation, as it did in the case of Albania.

Under the United Nations Charter, the role of the Security Council is to recommend or dis-recommend membership. It is the General Assembly that has the final and binding say as to membership. There is nothing in the Charter that bars the General Assembly to override the Security Council’s inaction or non-action in this area. One of the very few matters in which the Charter gives the General Assembly binding decision-making authority is in the realm of membership of new States.

There is also precedent regarding the General Assembly’s authority to act where the Security Council fails to discharge its primary responsibility for addressing maters that threaten international peace and security.

The Korean peninsula had been under Japanese rule from 1910 until the end of World War II. Following the surrender of Japan, in 1945, the U.S. administrators divided the peninsula along the 38th Parallel, between the Soviet-Union supported People’s Democratic Republic in North Korea and the American-backed Republic of Korea in the south. The attempts by the United Nations to reunify the peninsula were rebuffed by the veto-wielding U.S.S.R. On 25 June 1950, the North Korean forces -- supported by the People’s Republic of China, with assistance from the Soviet Union.

At the insistence of the United States, the Security Council, boycotted by the Soviet Union, on 27 June, called on the Member States to repel the North Korean attack. The legitimacy of the call however was in serious doubt because of the disagreement between the Soviet Union and the other permanent members of the Security Council. The United States turned to the General Assembly and it adopted, by a vote of 52 to 5, the “Uniting for Peace” resolution (Res. 377 (V) of 3 November 1950). It resolved, inter alia,

“[T]hat if the Security Council, because of lack of unanimity of the permanent members, fails to exercise its primary responsibility for the maintenance of international peace and security in any case where there appears to be a threat to the peace, breach of the peace, or act of aggression, the General Assembly shall consider the matter immediately with a view to making appropriate recommendations to Members for collective measures, including in the case of a breach of the peace or act of aggression the use of armed force when necessary, to maintain or restore international peace and security. If not in session at the time, the General Assembly may meet in emergency special session within twenty-four hours of the request therefor. Such emergency special session shall be called if requested by the Security Council on the vote of any seven members, or by a majority of the Members of the United Nations.”

Thus the legal groundwork was set for fifteen countries to send troops to Korea, where they were placed under the unified command of the United States, as a United Nations force, complete with UN helmets.

If Abbas could sell that current situation of “no-war, no peace” as threatening international peace and security, then the General Assembly could well take steps to admit Palestine as a Member State because the Security Council has failed to live up to its responsibility to eliminate a serious threat to international peace and security. The General Assembly has to sell the idea that not accepting Palestine as a Member State itself will create additional international tension and conflict; accepting it as a Member State will promote the cause of peace because it will put Palestine juridically on equal footing with Israel. Then – let the negotiations (and possible adjudication before the International Court of Justice) begin in earnest about boundaries, repatriations and other issues as if between to sovereign neighbors.

The U.S. wishes it did not have to veto the Palestinian application for membership, even more so countries with substantial Moslem, and nutty right and left wing radicals, who can take to the streets and make a mess of things. The Quartet – consisting of U.S., Russia, European Union and the United Nations (as an institution represented by Tony Blair, the former British prime minister) has a vested interest in seeing that the Palestinian State emerge as the result of a negotiated settlement with Israel and then join the United Nations. The U.S. Secretary of State, Hillary Clinton, let it slip (maybe not) the other day when she said the ultimate settlement of the Israeli and Palestinian conflict is a matter to be decided “between Ramallah and Jerusalem,” thereby admitting that the United State may react to the Palestinian bid at the U.N. by formally recognizing Jerusalem as the capital of Israel. This will dash the expectation of the Palestinians to have East Jerusalem as their capital, leaving them with Ramallah – the temporary administrative capital of the Palestinian National Authority that is located 6 miles outside of Jerusalem.

If the Security Council does not recommend membership and the General Assembly is asked to admit Palestine as a member State, the General Assembly could resolve to ask the International Court of Justice to issue and Advisory Opinion as to the following: Absent a recommendation by the Security Council, would the admission of the Palestine as a Member State of the United Nations violate the Charter of the United Nations? This will take a few years to sort out, whereby the Palestinian application is neither accepted, nor rejected; nobody has to cast a veto; nobody loses face; the General Assembly would still be relevant; and the Palestinians and Israelis can work out a peaceful settlement.

Vote predictions at the Security Council vote on Palestinian membership:

Bosnia and Herzegovina -- “no”
Brazil -- abstain
China -- “yes”
Colombia -- “no”
France -- abstain
Gabon -- “no”
Germany -- abstain
India -- “yes”
Lebanon – “yes”
Nigeria – “yes”
Portugal – “no”
Russian Federation -- abstain
South Africa – “yes”
United Kingdom -- abstain
United States – “no”

Totals: 5 yes, 5 no, 5 abstentions