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Middle East Issues





Backgrounder: The Palestinian "Non-Member State" Drive at the UN


Palestinian leaders including PA President Mahmoud Abbas have declared that they will move towards statehood by getting the United Nations to upgrade the PLO's status to "non-member state permanent observer"  from its current status as an "other entity permanent observer":

I’m going to the UN to demand a just peace based on international legitimacy to achieve an independent Palestinian state with Jerusalem as its capital (Mahmoud Abbas as quoted in the Jerusalem Post 26 Nov. 2012)

The Palestinians have the right to seek non-member state status at the UN (Nabil Shaath, commissioner of international relations for Fatah)

[The UN vote would be a] historic turning point in the march of our people toward a state and independence (PA Foreign Minister Riad Malki )

However phrased, such a move by the Palestinian side (here is the Draft Resolution, an updated version of which the Palestinians have reportedly submitted to the UN) would fundamentally violate agreements with Israel that were mediated and witnessed by many countries including the United States, would be unlikely to be effective, might provoke unilateral moves by Israel, might also provoke violent clashes, and would certainly hinder rather than advance the search for peace.

Despite their complaints, Palestinians have gained much during the Oslo process, including control of territory. Since any negotiation is a two-way street, should the Palestinians renounce the Oslo process by going to the UN, some Israeli leaders might well argue that the Palestinians should also forfeit those gains, leaving future negotiations between the parties to start from where they were in 1993.

What is the Palestinian status at the UN, and what is a "Permanent Observer"?

The status of "Permanent Observer" does not exist in the United Nations Charter; instead it was created on an ad hoc basis in 1946 by the Secretary General to deal with the situation of neutral Switzerland (which only in 2002 chose to be admitted to full membership in the UN). The rights and rules governing Permanent Observer status are based on practice, meaning they are created and extended as seen fit by the UN Secretariat. Entities with the status of Permanent Observer have, at a minimum, free access to most General Assembly and related meetings.

Permanent Observers at the UN include intergovernmental organizations like the African Union and the EU, NGO's such as the Red Cross and the International Olympic Committee, and non-member states and entities – the Holy See and "Palestine."

As is often the case at the UN, the Palestinians receive special treatment with regard to their observer status:

On 7 July 1998, the General Assembly overwhelming adopted resolution 52/250 entitled: Participation of Palestine in the work of the United Nations . The resolution conferred upon Palestine additional rights and privileges of participation that had previously been exclusive to Member States. These include the right to participate in the general debate held at the start of each session of the General Assembly, the right to cosponsor resolutions and the right to raise points of order on Palestinian and Middle East issues. The resolution also changes the seating of Palestine to a location directly after non-Member States, with the allocation of six seats for delegates (observers get two seats). The resolution also makes several important improvements related to participation in the debate under different agenda items. In short, the resolution upgraded Palestine's representation at the UN to a unique and unprecedented level, somewhere in between the other observers, on the one hand, and Member States on the other...

In November 1998, the U.N. secretariat made some changes regarding Palestine in the book of Permanent Missions to the United Nations ("the Blue Book"). The location of the category under which Palestine is listed was moved and placed immediately after non-member states and before the inter-governmental organizations. The title of Palestine's category was also changed to " Entities Having Received a Standing Invitation to Participate as Observers in the Sessions and the Work of the General Assembly and Maintaining Permanent Observer Missions at Headquarters " instead of "Organizations Having received a standing invitation to participate as observers in the sessions and work of the General Assembly . . ." Earlier, the word " Office " was used instead of " Mission ." Another such change, at the request of the Mission, was the use of the title " Ambassador " in conjunction with "Permanent Observer of Palestine ". (Background Paper Related to Palestine Status)

As a "Permanent Observer" the Holy See is described as a:

Non-member State having received a standing invitation to participate as observer in the sessions and the work of the General Assembly and is maintaining a permanent observer mission at Headquarters

Per the above quoted passage, for the Palestinians the description is the same, except instead of "non-member state" the phrase "other entities" is substituted.

Should the Palestinian draft resolution be passed by the General Assembly, this would change and the Palestinian Permanent Observer would be listed with the Holy See as a "non-member State." While this might seem a trivial change, it could have a major impact regarding Palestinian access to certain UN-related entities, especially the International Criminal Court.

The Palestinians would like to have access to the ICC so they could directly file war-crime charges against Israel and against Israeli politicians and soldiers, including low-ranking soldiers. Accordingly, in 2009 the Palestinian Authority filed with the ICC the required declaration that they recognized the jurisdiction of the International Criminal Court," further stating that this was:

for the purpose of identifying, prosecuting and judging the authors and accomplices of acts committed committed on the territory of Palestine since 1 July 2002. (Palestinian declaration to the ICC, 21 January 2009)

The Palestinian declaration was rejected by the ICC precisely because only entities considered to be a state by the United Nations can be a party to the court:

6. ... it is for the relevant bodies at the United Nations or the Assembly of States Parties to make the legal determination whether Palestine qualifies as a State for the purpose of acceding to the Rome Statute and thereby enabling the exercise of jurisdiction by the Court.

7. The Office has been informed that Palestine has been recognised as a State in bilateral relations by more than 130 governments and by certain international organisations, including United Nation bodies. However, the current status granted to Palestine by the United Nations General Assembly is that of "observer", not as a "Non-member State". The Office understands that on 23 September 2011, Palestine submitted an application for admission to the United Nations as a Member State in accordance with article 4(2) of the United Nations Charter, but the Security Council has not yet made a recommendation in this regard. While this process has no direct link with the declaration lodged by Palestine, it informs the current legal status of Palestine for the interpretation and application of article 12.

8. The Office could in the future consider allegations of crimes committed in Palestine, should competent organs of the United Nations or eventually the Assembly of States Parties resolve the legal issue relevant to an assessment of article 12 or should the Security Council, in accordance with article 13(b), make a referral providing jurisdiction. (Situation in Palestine, 3 April 2012)

While the change to non-Member status would have other effects as well, the likely acceptance by the ICC of a re-filed Palestinian application would seem to be the most far-reaching and problematic.

How would a Palestinian appeal to the United Nations violate existing agreements?

All major agreements between Israel and the Palestinians have required that disputes between the parties be settled through direct negotiations and not via third parties. For example, the Declaration of Principles (Sept. 13, 1993), which formalized the direct Israeli-Palestinian peace process, required in Article XV that:

Disputes arising out of the application or interpretation of this Declaration of Principles, or any subsequent agreements pertaining to the interim period, shall be resolved by negotiations through the Joint Liaison Committee to be established pursuant to Article X above.

Disputes which cannot be settled by negotiations may be resolved by a mechanism of conciliation to be agreed upon by the parties.

The parties may agree to submit to arbitration disputes relating to the interim period, which cannot be settled through conciliation. To this end, upon the agreement of both parties, the parties will establish an Arbitration Committee.

The Declaration was signed on the White House lawn and witnessed by the United States and the Russian Federation.

The language requiring negotiations rather than unilateral actions was repeated and referenced in subsequent agreements, including the so-called Interim Agreement (Sept. 28, 1995), which was witnessed by the United States, the Russian Federation, Egypt, Jordan, Norway and the European Union. (See Article XXI on Settlement of Differences and Disputes.)

The Sharm el-Sheikh Memorandum (Sept. 4, 1999), went even further in barring unilateral moves:

Recognizing the necessity to create a positive environment for the negotiations, neither side shall initiate or take any step that will change the status of the West Bank and the Gaza Strip in accordance with the Interim Agreement.

The Memorandum was witnessed by Egypt, Jordan and the United States.

Following negotiations in the summer of 2000, United States President William Clinton, Israeli Prime Minister Ehud Barak and Palestinian leader Yasir Arafat agreed in a Trilateral Statement (July 25, 2000) that:

3) Both sides agree that negotiations based on UN Security Council Resolutions 242 and 338 are the only way to achieve such an agreement and they undertake to create an environment for negotiations free from pressure, intimidation and threats of violence.

4) The two sides understand the importance of avoiding unilateral actions that prejudge the outcome of negotiations and that their differences will be resolved only by good faith negotiations.

As with the prior documents, the Trilateral Statement explicitly bars any resort to outside parties or unilateral actions to settle disputes.

Similarly, the Roadmap (Apr. 30, 2003) called for the parties to:

... reach final and comprehensive permanent status agreement that ends the Israel-Palestinian conflict in 2005, through a settlement negotiated between the parties based on UNSCR 242, 338, and 1397 ...

And the Middle East Quartet (United Nations, European Union, Russian Federation, and the United States), in a statement issued on June 26, 2009, affirmed that:

... unilateral actions taken by either party cannot prejudge the outcome of negotiations and will not be recognized by the international community.

Thus, any Palestinian appeal for statehood to the United Nations, or a Palestinian unilateral declaration of statehood, would be a fundamental and grave violation of its signed agreements with Israel, and would call into question the worth of any future Palestinian commitments. The Palestinians being allowed to accede to the International Criminal Court, and any charges against Israel or Israelis brought by the Palestinians to the ICC, would also be grave violations of their solemn committments.

Similarly, support for or acquiescence to such a Palestinian move by the United States, the United Nations, the Russian Federation, the European Union or its member states, or Norway, would be a clear violation of agreements that these countries and the UN have witnessed and in many cases endorsed, and would also call into question the value of their commitments.

How would a Palestinian appeal to the United Nations violate US assurances to Israel?

Following completion of the Redeployment from Hebron agreement in 1997, US Secretary of State Warren Christopher sent a letter to Prime Minister Netanyahu outlining the US position on peace between Israel and the Arabs, concluding with this key line:

Finally, I would like to reiterate our position that Israel is entitled to secure and defensible borders, which should be directly negotiated and agreed with its neighbors.

Obviously a unilateral move by the Palestinians would contradict this US assurance to Israel.

Similarly, after Israel’s complete withdrawal from Gaza, President Bush on April 14, 2004 sent the so-called Bush Letter to Prime Minister Sharon, affirming that:

The United States appreciates the risks such an undertaking represents. I therefore want to reassure you on several points.

First, the United States remains committed to my vision and to its implementation as described in the roadmap. The United States will do its utmost to prevent any attempt by anyone to impose any other plan.

(The Bush letter was endorsed by the House and the Senate in a non-binding concurrent resolution H. Con. Res. 460.)

A unilateral Palestinian move towards statehood, via the United Nations or otherwise, would violate the terms of the Roadmap, and President Bush’s letter commits the United States to “do its utmost to prevent” such a move from occurring, or if it occurs, from succeeding.

While these letters were not official agreements or treaties, and were not ratified by the Senate, were the United States now to disavow or ignore such commitments the value of all such Presidential assurances would be called into question, thereby doing great damage to the power and credibility of future Presidents in their conduct of foreign policy.

What is the Obama Administration's position on the PA's effort to upgrade its UN status ?

The Obama administration has opposed any Palestinian plans to upgrade their status at the UN and has called for restarting direct negotiations as the only way to move forward.. For example State Department spokesman Victoria Nuland recently stated:

Our comment is no different than the comment that we’ve been making for more than a year. Action in the United Nations efforts to move this forward in the United Nations are not going to bring the Palestinian people any closer to a state. Only negotiations can do that. And we are concerned about creating new tensions and making it harder. (State Department Daily Press Briefing, Nov. 2, 2012)

This has been the consistent position of the Obama administration. For example, in a speech a few years ago at the Brookings Institution, Secretary of State Hillary Clinton said:

For two years, you have heard me and others emphasize again and again that negotiations between the parties is the only path that will succeed in securing their respective aspirations; for the Israelis, security and recognition; for the Palestinians, an independent, viable sovereign state of their own. This remains true today. There is no alternative other than reaching mutual agreement...

The United States and the international community cannot impose a solution. Sometimes I think both parties seem to think we can. We cannot. And even if we could, we would not, because it is only a negotiated agreement between the parties that will be sustainable. The parties themselves have to want it. The people of the region must decide to move beyond a past that cannot change and embrace a future they can shape together...

[Both sides] should avoid actions that prejudge the outcome of negotiations or undermine good faith efforts to resolve final status issues. Unilateral efforts at the United Nations are not helpful and undermine trust. Provocative announcements on East Jerusalem are counterproductive. And the United States will not shy away from saying so. (December 10, 2010)

And on February 18, 2011, after vetoing what the US judged to be an unbalanced Security Council resolution, United Nations Ambassador Susan Rice stated:

No outside country has invested more effort and energy and resources in pursuit of that peace than the United States has, and we will continue to do so. But the only way that that goal can be reached, the common goal of a two-state solution, is, as a practical matter, through direct negotiations between the parties. There’s no short cut to that end. And every potential action, including action in the Security Council, has to be measured against one test, and that’s whether it will move the parties closer to negotiations and agreement or take them further apart.

And in a speech to the U.S.–Islamic World Forum, Mrs. Clinton said:

This includes renewed pursuit of comprehensive Arab-Israeli peace. The status quo between Palestinians and Israelis is no more sustainable than the political systems that have crumbled in recent months. Neither Israel’s future as a Jewish democratic state nor the legitimate aspirations of Palestinians can be secured without a negotiated two-state solution. And while it is a truism that only the parties themselves can make the hard choices necessary for peace, there is no substitute for continued active American leadership. (April 12, 2011)

The United States thus seems to be clearly opposed to a unilateral Palestinian declaration of statehood, or an attempt to gain recognition of statehood through the United Nations rather than through direct negotiations between the parties.

Could the Palestinians gain statehood via the United Nations?

No – the UN doesn't grant statehood, it grants membership to states, and a political entity doesn't have to be a member of the UN to be a state .Communist China, for example, was a state before it was admitted to the UN in the place of Taiwan, and Taiwan remains a state despite its exclusion from the UN.

If not statehood, what could the Palestinians gain from going to the UN?

A UN vote in favor of upgrading their status at the UN would be portrayed by the Palestinians and their sympathizers as an endorsement of Palestinian statehood, though, as per the next section, the UN has already passed such votes.

As explained above, the Palestinians could also gain access to UN affiliated agencies such as the International Criminal Court, allowing them to file war-crime charges against Israel and against Israeli officials.

Palestinian declarations of statehood, then and now

Should the Palestinians declare statehood this year it would be at least the third time they have done so. The first was in 1948, when the Higher Arab Committee (claiming to represent the Palestinian people) passed the following:

Proclamation of the Independence of Palestine by the Higher Arab Committee and the Representatives of Palestine Meeting in Congress (Oct. 1, 1948):

Acting on the basis of the natural and historic right of the Arab people of Palestine to freedom and independence – a right for which they have shed the noblest blood and for which they have fought against the imperialistic forces, which, together with Zionism, have combined to meet (these people) and prevent them from enjoying that (right),

We, members of the Palestinian National Council, meeting in the city of Gaza, proclaim on this day, the 28th day of Dhi al-Qi'da, 1367 (A.H.), corresponding to October 1st, 1948, the full independence of the whole of Palestine as bounded by Syria and Lebanon from the north, by Syria and Transjordan from the east, by the Mediterranean from the west, and by Egypt from the south, as well as the establishment of a free and democratic sovereign State. In this (State), citizens will enjoy their liberties and their rights, and (this State) will march forward, in a fraternal spirit, side by side with its sister Arab States, in order to build up Arab glory and to serve human civilization. (In doing this, they) will be inspired by the spirit of the nation and its glorious history, and will resolve to maintain and defend its independence. May God bear witness to what we say. (The Arab States and the Arab League: A Documentary Record, Vol. 2: International Affairs, Palestine, p. 579, Doc 261; Muhammad Khalil, ed; 1962, Khayats Press, Beirut)

Similarly, on November 15, 1988, at a meeting of the Palestinian National Council in Algiers, the Palestine Liberation Organization declared an independent Palestinian state, proclaiming in part that:

Whereas the Palestinian people reaffirms most definitively its inalienable rights in the land of its patrimony:

Now by virtue of natural, historical and legal rights, and the sacrifices of successive generations who gave of themselves in defense of the freedom and independence of their homeland;

In pursuance of Resolutions adopted by Arab Summit Conferences and relying on the authority bestowed by international legitimacy as embodied in the Resolutions of the United Nations Organization since 1947;

And in exercise by the Palestinian Arab people of its rights to self-determination, political independence and sovereignty over its territory,

The Palestine National Council, in the name of God, and in the name of the Palestinian Arab people, hereby proclaims the establishment of the State of Palestine on our Palestinian territory with its capital Jerusalem (Al-Quds Ash-Sharif).

The State of Palestine is the state of Palestinians wherever they may be...

The State of Palestine is an Arab state, an integral and indivisible part of the Arab nation, at one with that nation in heritage and civilization, with it also in its aspiration for liberation, progress, democracy and unity.

In response, the United Nations General Assembly invited PLO leader Yasir Arafat to address the body, which then passed A/RES/43/177 (15 December 1988), declaring in part that:

The General Assembly,

Having considered the item entitled "Question of Palestine",

Recalling its resolution 181 (II) of 29 November 1947, in which, inter alia, it called for the establishment of an Arab State and a Jewish State in Palestine ...

1. Acknowledges the proclamation of the State of Palestine by the Palestine National Council on 15 November 1988;

The resolution passed by a vote of 104 to 2, with 36 abstentions.

If and when the General Assembly votes on a Palestinian move to upgrade their status at the UN, there is little doubt that there would be a similarly lopsided majority in favor.

Would a Palestinian declaration of, or move towards, statehood be valid under international law?

As noted above, the United Nations does not grant statehood – in fact, no organization or body does. And while the Palestinians can always declare statehood yet again, that doesn't make them a state.

Under international law there are specific requirements for a political entity to be considered a state, which were codified under the Montevideo Convention (Convention on Rights and Duties of States, 1933 )

The following articles of this convention are the most relevant:

ARTICLE 1

The state as a person of international law should possess the following qualifications: a ) a permanent population; b ) a defined territory; c ) government; and d) capacity to enter into relations with the other states.

ARTICLE 2

The federal state shall constitute a sole person in the eyes of international law.

ARTICLE 3

The political existence of the state is independent of recognition by the other states. Even before recognition the state has the right to defend its integrity and independence, to provide for its conservation and prosperity, and consequently to organize itself as it sees fit, to legislate upon its interests, administer its services, and to define the jurisdiction and competence of its courts.

The exercise of these rights has no other limitation than the exercise of the rights of other states according to international law.

More recently, in deciding issues relating to the breakup of Yugoslavia, The Arbitration Commission of the Conference on Yugoslavia (colloquially known as the Badinter Arbitration Committee, 1991) adopted similar requirements.

Under these criteria the territory under the control of the Palestinians does not constitute a state. This is first because under the Oslo Accords and subsequent agreements the PA has limited and even temporary authority, and limited autonomy. In no sense does the PA have complete governmental control over a permanent population, nor does it have control over a defined territory – both because its control is limited, and because the extent of its sovereign territory has to be determined via negotiations with Israel. Nor, under the agreements or in practice, does the PA have the capacity to enter into genuine relations with other states.

Furthermore, the Palestinian declaration of statehood in 1988, which the Palestinians say is still operative, listed as Palestinian citizens "Palestinians wherever they may be... "

Contrary to the legal requirements for statehood, this is an indefinite population over whom, in many cases, the Palestinian Authority (and even the PLO) has no defacto authority whatsoever. The 1988 declaration is also unclear (or perhaps too clear) regarding the extent of Palestinian territorial claims, proclaiming:

the establishment of the State of Palestine on our Palestinian territory with its capital Jerusalem (Al-Quds Ash-Sharif).

What exactly is "our Palestinian territory" and exactly what portion of Jerusalem are they claiming? In any event, no Palestinian entity has control over this entire territory or Jerusalem, thus again failing to meet the requirements of statehood.

The bottom line is that only through good faith negotiations with Israel can the Palestinians address these issues and achieve statehood.

Would Palestinian unilateralism be justified? Who has refused to negotiate – Israel or the Palestinians?

Contrary to the charge that Israel has refused to seriously and forthrightly negotiate with the Palestinians, it is the Palestinian leader Mahmoud Abbas who has refused to seriously negotiate with Israel since his failure to accept Ehud Olmert's far-reaching proposals in September 2008.

Olmert's plan would have annexed the major Israeli settlements to Israel and in return given Israeli territory to the Palestinians, and would have divided Jerusalem.

Numerous settlements including Ofra, Elon Moreh, Beit El and Kiryat Arba would have been evacuated, and Hebron would have been abandoned. Tens of thousands of settlers would have been uprooted. Olmert even says preliminary agreement had been reached with Abbas on refugees and the Palestinian claim to a "right of return."

In the end Abbas refused to say yes. (Olmert: Abbas never responded to my peace offer, Ha'aretz, Feb. 14, 2010)

Ha'aretz has even published a map delineating the Israeli proposal that Abbas rejected:
Olmert Proposal Map

More recently, Abbas dismissed Prime Minister Netanyahu's 10-month settlement freeze as meaningless, until the ninth month, when he portrayed a continued settlement freeze as crucial and demanded it as a precondition for resuming negotiations.

If the Palestinian leadership is not really considering serious peace proposals, then what are they planning?

The Palestinian strategy is actually quite clear. Negotiating and agreeing to a peace accord entails at least some Palestinian concessions on paper, such as saying that they accept Israel's right to exist, or, better, saying that they accept Israel's right to exist as a Jewish state. Or – at a minimum – saying that with a peace agreement the conflict is over, and there will be no further Palestinian demands on Israel. And these things ought to be said in Arabic to their own people, not in English in a deniable way.

Arafat would not do this – witness Camp David and Taba – and apparently Abbas will not do this either.

It appears, in plain terms, that the Palestinians simply will not take yes for an answer.

Instead their plan was to delegitimize and demonize Israel, and make it an international pariah for the very fact of being a Jewish state. When this process of demonization reached a critical mass, they would try to get the UN and the Europeans to impose unilateral conditions on Israel, with either US acquiescence or participation.

After such unilateral conditions are passed or agreed upon, the price of Israeli refusal would be international BDS – Boycott, Divestment and Sanctions, as in the Apartheid South African model.

Apparently the Palestinian leadership feels that that critical mass has now been achieved and the time is right to get a state, recognized by – at a minimum – the Europeans and the United Nations, without making any compromises, and without ending the conflict.

And then, as the state of Palestine, they can continue to press for Israeli concessions, including on the so-called right-of-return, and they can continue to demonize Israel as supposedly oppressing the new state regarding refugees, or water, or any number of other pretexts for keeping the conflict alive.

When, in response to continuing terror attacks launched from the state of Palestine, Israeli forces cross the "border" to deal with the perpetrators and to prevent future attacks, that will be portrayed as an invasion of a sovereign country and an act of war.

And Israel will likely be blamed for provoking the Palestinian attacks by not agreeing to the Palestinian demands for more Israeli territory, more Israeli water, etc.
 
rev. 11/27

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