Published May 23, 2011
RAMALLAH, West Bank – President Barack Obama threw down a gauntlet this weekend: no vote at the United Nations, he asserted, would ever create a Palestinian state.
The Palestinians hope to prove him wrong. But their planned bid for U.N. recognition this fall of a state in the West Bank, Gaza and east Jerusalem — territories occupied by Israel since the 1967 Mideast war — enters largely unknown legal ground, and the Palestinians are still trying to work out how best to work the U.N. labyrinth.
By a strict reading of U.N rules, an American veto at the Security Council — which appears likely — would seem to derail any attempt to win recognition of Palestine as a U.N. member from the General Assembly, where there is widespread sympathy for the Palestinian cause. Never before has the assembly taken on a new member state without a nod from the council.
But legal experts say there may be ways to maneuver around that block. The question is whether any declaration the Palestinians can wrest from the General Assembly would be a largely symbolic gesture or would be strong enough to win them valuable legal leverage against Israel's occupation.
And at this stage, it's also uncertain whether Palestinian President Mahmoud Abbas will actually proceed with the U.N. option. He is to consult with leaders of the PLO and his Fatah movement on Wednesday to consider his next move.
Dropping the U.N. bid would dash rising expectations among Palestinians that statehood will be declared in September. Proceeding would risk confrontation with Obama, who laid out his parameters for a peace deal — including assurances that it must be based on the pre-1967 war lines — in hopes of getting the Palestinians to desist from unilateral actions.
Seeking U.N. recognition of a Palestinian state is an idea born out of frustration, after two decades of on-and-off Israeli-Palestinian talks produced few results. Abbas has said he prefers to establish a state through negotiations, and that he is being pushed into unilateral steps by Israel's refusal to engage in talks on terms backed by the international community.
For years, the Palestinians have been collecting recognition of a state of Palestine from individual countries — and so far 112 nations have done so, mostly in the developing world. The Palestinians predict they will have 135 recognitions by September — more than two-thirds of the 192 U.N. member states.
Their bid at the United Nations would be a more dramatic step: seeking some sort of official recognition by the world body as a nation defined by the 1967 borders.
As a first choice, the Palestinians would seek full U.N. membership as a nation state, Nabil Shaath, an Abbas aide, said Monday.
Right away they would probably face a problem in the form of a U.S. veto.
The U.N. Charter states the admission of new members "will be effected by a decision of the General Assembly upon the recommendation of the Security Council." The council makes its membership recommendation through a resolution, meaning it must be approved by at least nine of the council's 15 members and not be vetoed by one of the five permanent members, including the U.S.
The General Assembly has never admitted a member without a favorable ruling of the Security Council, said John B. Quigley, an international law professor at Ohio State University.
But, he said, the Palestinians and their supporters could try to rally arguments for the assembly to bypass council approval.
Quigley cited an advisory ruling from the International Court of Justice — a U.N. body — that a decision on membership must not involve political considerations and should only determine if a would-be member is peace-loving and meets the criteria for statehood. Conceivably, General Assembly members could claim that a U.S. veto was issued for inappropriate reasons, opening legal arguments at the U.N.
That may be a hard case for them to make, however. Quigley noted that another ICJ advisory ruling states a recommendation from the Security Council is needed for U.N. membership.
Another possibility of bypassing the Security Council — at least to a degree — is the so-called "Uniting for Peace" resolution, first invoked in 1950 to circumvent further Soviet vetoes during the course of the Korean war, U.N. officials say.
Such a resolution allows the General Assembly to consider collective action if the Security Council, because of a veto, "fails to exercise its primary responsibility for the maintenance of international peace and security."
To date, 10 emergency special sessions have been convened under "Uniting for Peace." The Palestinians and their supporters could seek to hold another one, arguing that not recognizing a Palestinian state constitutes a threat to international peace and security, said U.N. officials, speaking on condition of anonymity because they are not authorized to discuss the issue publicly.
To date, 10 emergency special sessions have been convened under "Uniting for Peace." The tenth special session, dealing with the Israeli occupation of Palestinian territory, started in 1997 and is suspended. It was restarted on several occasions and can be resumed at any time at the request of a U.N. member state.
It's unclear how much weight such a decision would have, and it is certain to mire the process in legal wrangling.
U.N. officials say that since there has never been an attempt to circumvent the U.N. Security Council on a membership issue, there are bound to be legal questions.
Instead, the Palestinians could try a less ambitious goal. They could have their supporters directly introduce a General Assembly resolution seeking admission as a "non-member observer state," an upgrade from their current status as an observer "entity," said Shaath. This requires a two-thirds majority and does not require Security Council agreement, he said.
Even the lesser status, as an observer state, is worth pursuing on political grounds, Shaath said.
This would "strengthen the legitimacy of our borders, the borders of 1967," he said. "We can use this to face the Israeli contention that our land is really disputed territory."
Robbie Sabel, an international law expert at the Hebrew University of Jerusalem, said a U.N. vote on the borders, though not binding, "would give them (the Palestinians) impressive political support for their position that Israel should withdraw to the 1967 lines," he said.
Gabriela Shalev, Israel's former U.N. ambassador, said such a declaration would change little on the ground at first, but that Israel could be in an increasingly difficult diplomatic position if most countries in the world consider it to be occupying a sovereign state. She contended it would "definitely be an obstacle to the peace process."
The Palestinian moves put the United States in an awkward position. It's unlikely that Obama's new parameters are enough to restart talks, on hold since 2008: Israeli Prime Minister Benjamin Netanyahu's initial reaction was dismissive and Abbas aides say there's no point in talking unless Israel accepts the U.S. framework.
Obama has warned the Palestinians twice in recent days against unilateral moves.
"The United States will stand up against efforts to single Israel out at the United Nations or in any international forum," he told the pro-Israel lobbying group AIPAC in a speech in Washington on Sunday.
However, the U.S. would clearly want to avoid being put in the position of having to veto Palestinian statehood.
Lederer reported from the United Nations.