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Martin Waehlisch
Martin Waehlisch
Martin Waehlisch, an international lawyer, is currently a visiting researcher at the American University Beirut.
Palestine, the UN, and international law
If Palestine were granted admission to the UN, the Middle East peace process could be set on a new path.
Last Modified: 25 Jul 2011 11:25
Although the UN General Assembly will probably vote for Palestine's admission to the UN, the Obama administration plans to veto the measure using its position on the UN Security Council [GALLO/GETTY] 

"Membership in the United Nations is open to all other peace-loving states," notes the UN Charter. The admission depends on "a decision of the General Assembly upon the recommendation of the Security Council", the Charter continues. The conditions sound feasible, but for Palestine the reality of international politics has been blocking its way into the world institution for decades.

Fearing a delegitimisation of Israel, the Obama administration has already indicated it will veto a decision of the Security Council to grant Palestine statehood. The US still hopes for a prior comprehensive peace agreement. An open debate on the Middle East is scheduled in the Security Council for July 26. From the angle of international law, it will be hard not to grant UN membership to Palestine.

Procedures for Palestine's UN membership

The UN Charter does not enshrine the right to become a member. A membership in an international organisation is regularly fulfilled by accepting a standing offer. A recommendation of the Security Council is mandatory. As the current Swiss President of the General Assembly, Joseph Deiss, commented in a conference in May this year, "the General Assembly cannot take the initiative".

This year, Nassir Abdulaziz al-Nasser will preside as President of the General Assembly. The current UN Ambassador of Qatar was elected strategically. Initially, Nepal was slated to assume the office, as the Asian country group was set to choose. But several African, Middle Eastern, and Central Asian nations switched their votes, in the hopes that a Qatari General Assembly president might boost support for a vote on Palestinian statehood. Qatar backs the Palestinian bid for UN membership. On July 14, 2011, the Arab League pledged to "take all necessary measures" to secure recognition of Palestinian state via an appeal to the Security Council.

Denying UN membership is not without precedent. As of 2007, Taiwan had applied for membership 15 years in a row. Beijing opposed Taiwanese statehood, reinstating the "One-China" resolution of the General Assembly of 1971.

However, the case of Palestine is different from all the examples before. It is neither a divided country like Vietnam or Korea, nor is its membership explicitly hindered by a Security Council resolution. Merely pointing to a comprehensive peace agreement will not be enough. Israel was also allowed to join the UN prior to a final settlement. The admission of Palestine would be just as a step towards a peaceful two-state solution.

Israel's point of view that Hamas and Fatah have not governed Palestine in a "peace-loving" manner is reasonable. Israel constantly feels threatened, as its neighbours feel threatened by Israel. To receive UN membership, the Palestinian Government will have to unambiguously prove that it does not pose a danger to others.

PLO officials have suggested that they would lobby for activating UN Resolution 377, known as "Uniting for Peace", if faced with a US veto in September. Introduced by the US in 1950 during the Korean War, the resolution created an emergency special session if the Security Council was dead-locked in times of a "threat for peace and security".

Until today, the resolution has been invoked on ten occasions, none of which concerned UN membership. While the denial of Palestinian admission to the UN is not necessarily a threat to peace, a Uniting for Peace resolution could, however, relate to the second purpose of the UN Charter: the development of "friendly relations among nations based on respect for the principle of equal rights and self-determination of people". In any case, Palestine would need to mobilise UN member states. Some countries could be reluctant to stand against the US. A Uniting for Peace resolution would be a more intense bargaining position than the approval of a UN membership after a recommendation by the Security Council.

Prospects and challenges

Taiwan is diplomatically recognised by 22 countries. Kosovo is recognised by 75 states, among them the US and most EU countries. Israel has diplomatic relations with 156 states. Palestine is recognised as a state by 122 countries, including Brazil, China, India and Russia. Even if statehood requires sufficient recognition by other states, Palestine has acquired adequate international ties. It needs a two-thirds majority in the General Assembly, or 129 votes, to be admitted as the 194th member state of the United Nations.

As Prime Minister Benjamin Netanyahu made public, Israel could support a Palestinian state under the right conditions. He warned that a Palestinian state that includes Hamas would try to perpetuate conflict with Israel. And indeed, every country's security interests cannot be ignored. The legitimacy of the state of Israel is irrevocable. Nevertheless, the likelihood is equally high that the admission of Palestine to the UN could ease tensions. In the end, this risk and chance is beyond legal interpretation.

Facing a probable veto by the US, the Palestinian authorities have already hinted to opt for an upgrade from an observer to a "non-member state status", which demands only an approval by the General Assembly. Palestine would gain all the rights of a full membership except voting. Previously, Germany, Switzerland, and both Koreas were granted the same status. The Holy See, or the Vatican, is currently a non-member state.

Practically, not much would change. Palestine has already been granted permission of special rights to reply, raise points of order, co-sponsor certain resolutions and make interventions in the General Assembly. The shocking humanitarian and economic situation of Palestinians would remain the same. Nonetheless, the symbolism of the admission would be tremendous. The Middle East peace process could be set on a new path of fairness and equality, leading to a side-by-side of two "peace-loving" states.

Martin Waehlisch, an international lawyer, is currently a visiting researcher at the Issam Fares Institute for Public Policy and International Affairs (IFI) at the American University of Beirut (AUB) and research fellow at the Common Space Initiative in Beirut.

The views expressed in this article are the author's own and do not necessarily reflect Al Jazeera's editorial policy.

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