In this article, the author looks into the legal relevance and implications of the recent UNESCO vote which recognised Palestine as a full member of the United Nations agency.
By Abdulaziz Khalefa, 2 Nov, 2011
Of the 193 member states of the United Nations, 127 have recognized a Palestinian state. When the UN cultural body (UNESCO) voted on admitting Palestine as a full member, what came as a surprise was that of the 66 states not recognizing Palestine, seven (Myanmar, France, Spain, Finland, Greece, Ireland and Austria) voted yes. One Israeli academic expressed a pervasive view among those states which stand against the Palestinian bid for full UN membership. He explained “what the Palestinians really have to look for is the establishment of a Palestinian state and this is not going to be implemented by the decision of an international organization – of course not UNESCO, but (not) even the General Assembly.” Such a position expects the establishment of a Palestinian state through negotiations with Israel. There are two problems with such a stance however; from an international legal perspective the case can be made that such negotiations are irrelevant, as for the political side the negotiations are unnecessary.
When talking about Palestinian statehood, one cannot ignore the history of the territory. After taking consideration of the area in its colonial context, the question of self-determination is bound to come up (see Quigley, 2011). I am talking about the right of self-determination. Self-determination is a right of people, and it is a right erga omnes (see Advisory Opinion, 1975). Several UN resolutions, the International Court of Justice’s advisory opinion on the Wall, and even Israel itself have recognized the Palestinians as a people (see Quigley, 2011). The entitlement of the Palestinian people to a Palestinian state is uncontroversial. What is controversial however is what the Palestinian state would look like. Fortunately for the Palestinians the law on self-determination has specific core content which can guide the statehood process to have Israel, the US and the many European states recognize Palestine and admit it as a full member in the UN. Unfortunately for the Palestinians however, several Security Council members have decided to sidestep the legal formalism of self-determination, to instead opt for a negotiated settlement which has effectively made the Israeli endorsement a pre-requisite for Palestinian recognition and eventual admittance into the UN as a full member.
Before addressing why the negotiations are politically unnecessary, I would like to address the legal formalism which ought to be.
The law of self-determination involves (1) the free choice of people and (2) substance. The relevant UNGA resolutions and conventions (such as article 1 of the UN Covenant on Economic, Social and Cultural Rights. UNGA resolution 2656, 1514 and 1541) highlight that the free choice of the people must be ascertained (see Advisory Opinion, 1975, para 55). This can be done through a referendum as has been done with the Timor-Leste or through a UN mission as has been done with the Western Sahara. (Do note the East Timorese referendum has been criticized for not allowing for all the options to be put on the table).
The outcome the people choose can be (1) independence as a sovereign state (2) association with an independent state (3) integration with an independent state (see UNGA, 1970).
As for the second component of the law, substance, it might seem quite obvious that after the ascertaining of the will of the people, their decision would be followed. However this is not as obvious as it may seem. It has been the case in the past where the free choice has been ascertained without any substance. The best example I can think of is the Australian exploitation of oil resources in East Timor. In the Oral proceedings of the East Timor case at the ICJ, Australia argued that exploiting the East Timorese oil did not impede their free choice and their right of self-determination. However Judge Rosalyn Higgins deconstructed this line of argument and explained that there is no point in having the East Timorese exercise their right to choose freely if the land and resources remain under the exploitation of others (see Higgins, 1995).
With ascertaining the will of the people by granting them the option to choose; and by maintaining the substantive aspects of what they choose, we can have the legal formalism of self-determination. However the Quartet’s Road Map to peace has neither given regard to the free choice of the Palestinian people to determine what their future state would look like, nor has it even addressed substantive issues such as the danger of the Wall prejudging the future boundaries, or even the expansion of the settlements. In legal terms, specifically when it comes to self-determination, it is irrelevant for the Palestinians to negotiate given a framework which does not take into consideration their free choice and substance. It is also politically imprudent, and I will explain why in the following section.
The Negotiations: What’s the point?
Just hours after the UNESCO vote admitting Palestine as a full member, Israel ordered the building of new housing units in East Jerusalem. While one might think this is a punitive measure taken by Israel in response to the Palestinian maneuvering for full UN recognition, one only needs to be reminded of the fact that the expansion of settlements in the West Bank and East Jerusalem were never to be stopped. In a speech the Israeli PM gave in 2009, he explained that Jerusalem will remain the unified capital of Israel and that he will not do anything to stop the natural growth of the settlements (in both the West bank and East Jerusalem – both areas recognized as being occupied by the ICJ) (see Advisory Opinion, 2004). The Israeli foreign minister said two weeks beforehand that “I want to make it clear that the current Israeli government will not accept in any way the freezing of legal settlement activity in Judea and Samaria [the biblical name for the West Bank].” What this means is that the settlement expansions will continue whether the Palestinians do something about it or not.
Unfortunately, this means that the negotiations with Israel from a political perspective will be very unproductive for the cause of a possible future Palestine and its eventual membership in the UN. Negotiations have effectively meant more time deciding on nothing while the settlements continue with the natural growth. With the US vetoing almost any UNSC resolution or bid not in Israel’s interest, Israel can continue the building of settlements without any repercussions. Perhaps the staunch US support for Israel can be attributed to the Israel Lobby in the US; I know John Mearshiemer wrote a best-selling book in 2007 about the Israel Lobby, and it certainly was an interesting read.
This is the reason why the Palestinian Authority cannot do as the Israeli academic implied and return to the negotiating table. The Palestinians have nothing to gain from that table, and are better off focusing their efforts elsewhere.
Perhaps the recent cluster of South American states recognizing the state can add to the needed pressure to move the Palestinian case forward. In the UNESCO vote only 14 states voted against Palestinian membership with 107 voting yes, with 52 abstentions. Now to become full UN member the Palestinian bid will have to survive the US veto, which the US has already said it will use. What this means is that the Palestinians will have to rely on the other option to submit a resolution to the General Assembly seeking an upgrade from its current status of “observer” to “non-member observer state.” This status is currently held by the Vatican and was held by other full members such as Switzerland.
The international efforts to realize the statehood of the Palestinian people have trumped the legal formalism. The Quartet’s road-map says nothing about ascertaining the will of the Palestinian people, and ignores the substantive issues raised by the Wall. Politically, the negotiations with the Israelis have become sterile. It has become apparent that Israelis are determined to do nothing about the settlement expansions with the United States passionately wagging its finger at Israel for doing so. The Palestinian authority is left with no other choice but to focus its efforts elsewhere in hope that its status in the UN grows ever steadily until they become full members.
- Advisory Opinion, 1975; Western Sahara, ICJ Rep. Cited in David Harris, Cases and Materials on International Law (7th edn Sweet & Maxwell, London 2010) 108.
- Advisory Opinion, 2004; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ Rep para 75 – 78. Cited in Stephanie Koury, ‘Legal Strategies at the United Nations: A Comparative Look at Namibia. Western Sahara, and Palestine’ in Susan M, Akram (ed), International Law and the Israeli-Palestinian Context (Routledge, Oxon 2011), 159.
- Higgins, R., 1995; Final Oral Argument, CR 1995/13 8.
- Quigley, John, 2011; ‘Self-Determination in the Palestine Context’ in Susan M, Akram, Michael Dumper, Michael Lynk and Iain Scobbie (eds), International Law and the Israeli-Palestinian Context (Routledge, Oxon 2011) 212 – 219.
- UNGA Res 2625 (XXV), 24 October 1970