The media will be paying close attention to the Palestinian bid for statehood because that bid sets up a classic human conflict of little guy against Big Guy, of justice vs. injustice, of self-determination and self-rule against opression and autocracy. Moreover, the US, which will oppose the Palestinian bid in the Security Council will be made to look as a power-mongering hypocrite. The media loves this because it sells newspapers and magazines.
However, the legal technicalities will probably escape media attention, and those technicalities are important.They are not that difficult to understand so here’s a primer on the process.
First, there is a difference between statehood and membership in the UN. They are not the same thing. For instance, Taiwan is not a member of the UN, but it is a state. The Vatican is considered a state but it is not a member of the UN. Kosovo is considered a state by major powers, including the US and the EU, but it is not a member of the UN. Switzerland only joined the UN in 2002, but it was a state long before then. During the Cold War, many states had their application for membership at the UN vetoed (such as Ireland, Jordan, and some Soviet republics) but this did not mean that they were not states. So the Palestinians may be granted membership in the UN, but that does not confer statehood upon them.
This is complicated by the fact that international legal scholars do not agree on what “statehood” means. Neither the Treaty of Westphalia (1648) or the Montevideo Convention (1936) define the process of the creation of a nation-state. There are two terms used to described the formation of a nation-state: constitutitve and declarative. Constitutive means that a nation-state is recognized as such by other nation-states. Looks like a duck, walks, like a duck, quacks like a duck, must therefore be a duck. Declarative means that in addition to recognition, the nation-state must demonstrate independence from other authority, have defined geographical borders, a defined population, and control over the internal affairs within the borders and with the population. The declarative standard would be difficult for the Palestinians to establish.
All of this makes for good law review writing, but is politically meaningless. The reality is that an international consensus has to form around recognition of a nation-state. When the consensus has formed, there are legal procedures in place to codify the consensus into a legal reality. Without consensus, forming a new nation-state, e.g., Palestine, is impossible.
I should probably mention that consensus, in this context, means that all of the major military/economic powers agree generally on statehood. This is not a majority-rule situation, which is key to understanding the legal and political dynamics of the Palestinian situation. If one major power says no, there is no consensus, and nothing that is legally effective is likely to happen. And having said that, in the 21st century, wielding that kind of veto power may be politically very, very costly if the veto is against the sentiment of the rest of the world.
The process of seeking admission to the UN as a member starts with a formal letter from the leaders of the region seeking recognition as a nation-state to the UN secretary-general asking for acceptance as a full member to the United Nations. (See Rules 134-138) The letter has to include a declaration that the nation-state accepts the principles of the UN Charter. I’ve search the Internet to see if I could find a copy of any letter. So far, I have been unsuccessful. I don’t think the letter has been delivered yet, which is interesting in its own right. Is this whole thing a negotiation ploy by the Palestinians? As a side note, one wonders how President Abbas can speak for Hamas in accepting the UN Charter on behalf of all Palestinians. Since Hamas is dedicated to the destruction of Israel, which would seem to be a violation of the UN Charter, its hard for me to see how the letter can legally be received as a good faith declaration of intent of all Palestinians. But that is a side issue.
When the UN secretary-general receives the letter, he is required to forward it to the current president of the Security Council, which in this case, is Germany. The president must convene a committee to study the request and submit a report to the UN Security Council.
The UN Security Council, upon receipt of the request and the report, debates the issue and votes to approve it or not. In this case, the US, bowing to Israeli political pressure, will veto the request.
If, by some miracle, the Security Council approved the request, the matter would be referred to the General Assembly where the request must be approved by a two-thirds vote. As of early September 2011, that vote would seem assured as 135 out of 196 members have indicated approval of membership for the Palestinians.
If the Security Council does not approve the request, the UN Assembly may pass a resolution approving the request, but the resolution has no force of law.
In essence, the Palestinian application for membership into the UN is a legally futile act. Politically, however, it may require the US to exercise veto power against the will of the vast majority of the members of the General Assembly in favor of Israel. One must wonder about the wisdom of that strategy from both the Israeli and the Palestinian perspective. The US, which is the largest, most significant financial supporter of both regimes, will be the biggest loser.
In summary, if the Palestinians apply for membership in the UN, they will fail. The process will polarize the US Congress in an election year. It will alienate Israel. It will leave the Obama Administration with yet another foreign policy mess. And, it will do nothing to change the status in the region. This looks like another dollar auction situation being played out by President Abbas against the advice of his senior advisors. (See my September 5, 2011 post Libya Needs a New Diplomacy for a description of The Dollar Auction.)
One last interesting point that has escaped the media’s attention: If the Palestinians were admitted to membership in the UN, they would have access to the International Criminal Court. Cables released by Wikileaks seem to indicate that Israel considers this possibility, indictment of senior Israeli officials for crimes against humanity, a significant security threat such that Palestinian pursuit of an indictment would “constitute an act of war” against Israel. The existential and primal fear implied by this statement suggests that peace is a distant prospect in the region.
