Palestinian UN Membership Application

Update: Looks like PA President Mahmoud Abbas will file the paperwork on Friday, after speaking at the UN General Assembly. A fun week in store!

Palestine: the UN's 194th Member?

(PA President Mahmoud Abbas announces his application for UN Membership.

NB: The 1967 Borders includes the Old City; this includes some of the stuff in my helpful visual aide.)

Well, looks like Palestinian Authority President Mahmoud Abbas has decided to go for full UN Membership next week. Back in March, Israeli Deputy Prime Minister Ehud Barak warned that international momentum to recognise a Palestinian State on the 1967 borders constituted a "diplomatic tsunami" - and it appears to be getting ready to break in the next fortnight.

There are two issues to deal with when considering applications for UN Membership - the UN's own membership criteria and the process of obtaining membership. Paradoxically, the process is probably more important (and bizarrely, more interesting) than the criteria - which, as will be seen, can and have been fudged.

(Meanwhile, on the East River...)

So what is the process? Initially, a prospective member applies to the Secretary-General (S-G), including an instrument of willingness to accept the obligations contained within the UN Charter. The S-G then passes this across to the UNSC under Article 4(2) of the UN charter which reads:

"4.2 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."

This double-action element requires the UNSC to approve and recommend membership to the UNGA, meaning that any application has to be approved by at least 9 Security Council Members, with no veto thrown by one or more of the Permanent Members. Two things are noteworthy. First, that the UNGA has never rejected a membership application recommended by the UNSC, and second, that an applicant does not become a member until the application has been approved by a two-thirds vote in the UNGA.

Admission as a political, not legal, process

As strange as it may seem to modern eyes where UN membership is assumed to be near universal - Taiwan, Palestine and Western Sahara being the obvious non-members - between 1946 and 1955 membership applications were completely constrained by the Cold War causing States to link applications together. The situation got so bad that in November 1947 the UN General Assembly asked the ICJ for an Advisory Opinion on Admission, which rejected the notion that an application could be rejected for reasons other than the criteria in Article 4(1). The UNGA went further in UNGA Resolution 197/III of December 8, 1948, in effect calling for the UNSC to give up the veto power on applications (a subject that the Security Council has given a stiff ignoring to since then).

During this period, only 9 of 31 membership applications were approved, and the Soviet Union casting 47 vetoes on membership applications in this period. (Recall, that the US didn't use the veto at all until 1972). Ironically, in light of the Obama Administration's statement that it will veto a Palestinian application for UN Membership, the 1948 US Senate Vandenburg Resolution - a key step on the road to establishing NATO - calls in Article 1 for applications to be exempt from the veto.

What criteria can apply?

Article 4(1) sets out the requirements for UN Membership. Prospective UN Members must:

          (i) be a State; 

          (ii) be peace-loving; 

          (iii) accept the obligations of the Charter;

          (iv) be able to carry out these obligations; and
          (v) be willing to do so.

(i) Is Palestine a State - 1933 Montevideo Convention
So the first question is whether Palestine is a "State"? The classical view of Statehood is the 1933 Montevideo Convention on the Rights and Duties of States, which require:

          (i) a permanent population;
          (ii) a defined territory;
          (iii) government; and
          (iv) capacity to enter into relations with the other states.

There is an interesting debate about whether the Montevideo Criteria are still applicable or whether something more amorphous reflects the current position. However, let's apply Montevideo to Palestine. In their application for UN Membership, it is reported that the Palestinian Authority (PA) will be doing so on the basis of the border of June 4, 1967 - ie, the Gaza Strip, East Jerusalem, and the West Bank occupied by Israel in the 1967 Six Day War. 

Within these boundaries, there is a permanent population, including over 500,000 Israeli settlers, whose presence is illegal under the Fourth Geneva Convention, there is a defined territory, the PA is a government of sorts - namely, it has limited powers over a delimited area - and its' writ does not run in Gaza - but is arguably a lot more effective than other UN member state governments - e.g. Somalia's Transitional Federal Government. Finally, the PA is clearly capable of entering into international relations - it has Embassies around the world, and has had UN Observer Status since 22 November 1974.

So even on the Montevideo Criteria, Palestine appears to be a State.

(Unlike Gaddafi's effort, a Green Book to revere: Justice Simma's brilliant Commentary on the UN Charter.)

(ii) Is Palestine "Peace-Loving"?
Of all of the arguments that those who oppose Palestinian UN Membership, this is superficially the most attractive - after all, hasn't there been a stream of terrorist attacks on Israel from Gaza and the West Bank? Certainly there have been some, and rocket attacks from Gaza against civilian targets inside Israel - and vice versa - should be unambiguously condemned. But as Prof. Konrad Ginther as the University of Graz notes in Simma's Commentary,

"With regard to the admission of the large number of new States resulting from decolonization, however, the criterion 'peace-loving State' was of no practical importance at all." (Ginther in Simma, Commentary, p. 182).

On this basis, the criteria is irrelevant, and we can move on. Ginther offers a more detailed explanation of the historical position: 

"More frequently, an applicant State was judged 'peace-loving' or non-'peace-loving' by reference to its current international behaviour, such as non-compliance with UN Resolutions, interference with innocent passage in territorial waters, recourse to peaceful means for the settlement of disputes, and respect for the principle of non-intervention." (Ginther in Simma, Commentary, p. 182).

Given the effort that Israel is putting into defeating a Palestinian UN membership application, it is an interesting exercise to consider whether on these criteria Israel itself could pass the requirement of being a 'peace-loving' nation.  

International good citizenship: (iii) accept the obligations of the Charter / (iv) be able to carry out these obligations / (v) be willing to do so.

It is pretty clear that the PA would comply with these five requirements - at least as well as the least effective of the UN's existing members. So I would argue that none would preclude a Palestinian membership application.  

 (President Obama speaking at Cairo University in 2009, setting out the his Administration's new approach to the Islamic World in general and the Middle East Peace Process in particular. Ah.)

Avoiding the Trainwreck
Given their public statements, it is essentially inconceivable that the Obama Administration could now back down and vote in favour of Palestinian UN membership - even though in my personal view this is the correct legal and policy choice; to do so would look ridiculous and would open the Obama Administration up to further domestic political attack that it is insufficiently supportive of Israel.*

But a veto - especially a solo veto - is far from a zero-cost option for the US. It is clear that a US veto will isolate the US internationally and in particular in the Arab and Islamic worlds, opening Obama in particular up to a reasonable charge of double standards between his support for pro-democratic forces in the Arab Spring, and the continued Israeli occupation of East Jerusalem, the West Bank and blockade of Gaza.

There is another option; the UNSC can refer an application to a Committee on Admission - a process used only once since 1952 in the case of Bangladesh in 1971/72. This provides a route for avoiding the negative fallout for the US and the region occasioned by a US veto, and buys a limited amount of time - probably up to 12 months - for real negotiations to get underway. The NY Times editorial of September 12th suggests that the Quartet (UN, US, EU, Russia) place a map on the table and essentially force both sides to negotiate the land-swaps, water rights and right of return that are at the centre of the final status agreements.  Given the circumstances, therefore, a Committee on Admission and a big-step up in the diplomatic pressure on both sides to achieve a settlement is probably the best of a number of bad options.

Conclusion

Ultimately, the niceties of international law are irrelevant if the Obama Administration has already decided to veto any resolution to allow Palestinian UN Membership. But given the above, if the US wants to veto, then they should be forced to do so alone, and the EU, and in particular Britain and France as fellow P5 members should not offer them any cover. If Palestine qualifies for Membership - and for the reasons outlined above, legally I think that it does - then let the UNSCR fail by 14-1-0 (United States).

*In fact, the Obama May 2011 speech was fair and balanced, and simply reflected the position that everyone else is working to - a two-state solution with agreed land swaps, and final status issues to be negotiated.

Another nail in the coffin

(See you in court.)

.. of Blair and Bush pretending that they ever actually intended to follow the international law when it came to Iraq. From tomorrow's Guardian, with the wonderful Philippe Sands prominent again.

I'll write more soon, I promise - been rather swamped with work.

Happy Birthday, America!

Happy July 4th to all!

But what does US Independence Day have to tell us about conceptions of Statehood? (Strange question to interrupt hot dogs, ice cream and watermelon with, I appreciate, but this is an international law blog.) Oddly, this is a more interesting question than it may at first seem.

So why July 4th? On July 2nd, 1776, the Second Continental Congress meeting in Philadelphia voted to approve a Resolution of Independence drafted by Richard Henry Lee of Virginia, and was explained in a polemic drafted by John Adams of Massachusetts, Roger Sherman of Connecticut, Robert Livingston of New York, Benjamin Franklin of Pennsylvania, and Thomas Jefferson of Virginia - the Committee of Five. Signed by John Hancock as President of the Second Continental Congress, this was approved on July 4th, and released on July 5th, and is known as the Dunlap Broadside after the printer John Dunlap and the size of paper he used - though the double entendre of a legal broadside is accurate, too.

(A different kind of broadside - USS Constitution defeats HMS Guerriere in 1812)

So what was the effect of the Declaration of Independence? At one level, it presumably demonstrated that the Continental Congress was serious in its intent to lead a revolution against British rule; but this was already underway - the Battles of Lexington and Concord had occurred in 1775. Moreover, the Revolutionary War would go on (and on, and on) until the final surrender of Cornwallis's army at Yorktown in October 1781 (though this marked what today may be called "the end of major combat operations"), with de jure independence being achieved in the 1783 Treaty of Paris, with ratification instruments exchanged in Paris on May 12, 1784. 

So, July 4th has rivals as "Independence Day". It could be the de facto independence after Cornwallis's defeat on October 19th, or the de jure independence on May 12th. 

 (Charles Cornwallis, a loser despite his immaculate tailoring)

Why does this matter?

At one level, it clearly doesn't: everyone knows that the 4th of July is US Independence Day, with parades, fireworks and family time: and a national holiday certainly isn't going to get moved to May 12th because of this blog post. But at another, it suggests that the US celebrates its' own Statehood from the Declarations of Independence - which presumably means that if a State were to meet the 1933 Montevideo Convention Criteria which enshrines the Declarative Theory's four criteria for statehood into international law, and were to declare independence, then the US would grant recognition. 

For example, this could mean that Somaliland and Palestine would be recognised by the US without further ado, and that Taiwan need only to formally declare independence to achieve US recognition. Clearly this isn't going to happen, not least as it would be far too disruptive. But it's interesting to ponder none the less. 

So, Happy 4th everyone!

Governance....

(Right, Somalia.... why didn't I think of that?)

Ok, so the video is amusing. And in fact, the beaches of Somalia can be amazingly beautiful, as we'll see later on. But the real challenge of Governance still remains - and indeed, the ultimate legacy of Regan / Thatcherism may be that the notion that Government is problem, not the solution (and, inter alia, taxes are bad / evil).

In my view, this is deeply unhelpful, especially in states which are facing crises. And there's plenty of them to go around. Consider the debt crises in Greece and Ireland - or indeed the widespread public sector strikes in the UK tomorrow, let alone the US Congress playing chicken with the debt ceiling. And this is before we look at places with "imperfect" governments - anywhere from Afghanistan, where the Central Bank Governor fled in fear of his life after investigating the looting of Kabul Bank, to Angola, where a resource boom has created one of the world's most unequal societies.

Governance - fundamentally, the competence of the government combined with the consent of the governed, is critical to long term economic growth and social stability. Massively unequal countries tend to have revolutions, as do kleptocratic ones - just ask Tunisians or Yemenis. But the solution is not less government or more government: it is better governance, fuelled by representative, responsive institutions, in which corruption in particular is not tolerated.

(One of Somalia's beautiful beaches. Attracts surfers and tank-spotters.)