The Status of Palestine at the General Assembly

A change in Palestine’s status to non-Member State Observer would not mean that Palestine thereby becomes a UN Member State. Palestine sought full UN membership in 2011, without success. According to Article 4(1) of the Charter, “[m]embership in the United Nations is open to all other peace-loving states which accept the obligations contained in the present Charter and, in the judgment of the Organization, are able and willing to carry out these obligations.” The text of this provision requires that a potential member be a State, which here is precisely the subject at issue. While a significant number of States in the world recognize Palestine as a State, there still remains disagreement as to whether the entity satisfies the legal and factual conditions for statehood. According to Article 4(2), “[t]he admission of any such state to membership in the United Nations will be effected by a decision of the General Assembly upon the recommendation of the Security Council.” Palestine’s application for full membership failed in 2011 because the Security Council had been unable to put forward a recommendation to the General Assembly. Nine out of fifteen votes in the Security Council are required to support a recommendation, including the concurring votes of the five permanent Members. Palestine was unable to garner this support in the Council, and consequently no recommendation to the General Assembly materialized. However, the change in status may affect Palestine’s position under Articles 32 and 35(2) of the Charter. Under Article 32 the Security Council may invite a State that is not a UN Member to participate without vote in a discussion relating to a dispute to which that State is a party. Under Article 35(2) a State that is not a UN Member may bring a dispute to which it is a party to the attention of the Security Council or of the General Assembly.

“Permanent Observer” status rests entirely on practice. The practice began in 1946. That year, the Secretary-General accepted “Permanent Observer” status as a designation for Switzerland. The status has no textual basis in the Charter. Those entities eligible for Permanent Observer status are non-Member States of the United Nations that are Members of one or more of the specialized agencies. Although Palestine has received a standing invitation to participate as an observer in the sessions and work of the General Assembly, it is characterized as an “entity” rather than as a non-Member State. Currently only the Holy See enjoys non-Member State status at the General Assembly. Palestine was accepted as a full member of UNESCO in October 2011, with a vote of 107 to 14, with 52 abstentions.

The reaction of UN Member States to Palestine’s bid has been mixed. The United States has voiced opposition. Interestingly, the European Union Member States have not agreed on a single position on the question. Certain European States including Germany have voiced reservations, though Germany’s foreign minister has now indicated that Germany would abstain from the vote rather than oppose the draft resolution. France has indicated that it would vote in favour of the draft resolution, and the United Kingdom announced it would abstain if Palestine did not agree to certain conditions.

One of these conditions was a pledge by the Palestinian leadership that it would not seek the prosecution of Israeli officials before the ICC for alleged war crimes arising out of Israeli actions in Gaza in 2008/9. This possibility posed a concern for other UN Member States as well. Article 125(3) of the Rome Statute provides that “[t]his Statute shall be open to accession by all States. Instruments of accession shall be deposited with the Secretary-General of the United Nations.” It does not restrict accession to UN Member States, to parties to the Statute of the International Court of Justice, or to members of any other UN agency. Palestine need not, according to this provision, be a UN Member State in order to accede to the Rome Statute, so long as it is a “State” within the meaning of Article 125. The term “State” within that provision must take its meaning from general international law. Only an entity that fulfills the accepted legal and factual conditions for statehood in general international law can be considered a “State”. This became clear in the context of a declaration made by the government of Palestine in April 2012 under Article 12(3) of the Rome Statute. Article 12(3) provides that a “State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question”. The Office of the Prosecutor of the International Criminal Court declined Palestine’s declaration on the basis that only a “State” was legally entitled to make such a declaration. The statement by the Office of the Prosecutor noted that “[i]n instances where it is controversial or unclear whether an applicant constitutes a “State”, it is the practice of the Secretary‐General to follow or seek the General Assembly’s directives on the matter. This is reflected in General Assembly resolutions which provide indications of whether an applicant is a “State”. Thus, competence for determining the term “State” within the meaning of article 12 rests, in the first instance, with the United Nations Secretary-General who, in case of doubt, will defer to the guidance of General Assembly.” With respect to Palestine’s declaration, the Office of the Prosecutor deemed itself to be without authority to adopt a method for defining the term “State” under Article 12(3) that would be at variance with the definition adopted for the purpose of Article 12(1). The Office deferred to the then ongoing discussions in the Security Council on Palestinian statehood, and to Palestine’s position at the General Assembly as a mere observer. The document however suggests that should Palestine’s status change from Observer to a non-Member State Observer, an Article 12(3) declaration may become a possibility.

While an entity’s status within the General Assembly neither ensures nor undermines that entity’s possible status as a State under general international law, it may, especially in cases of uncertainty, offer evidence of an entity’s status. Moreover, where the availability of membership in one international institution depends on an entity’s status in another international institution, the latter may have legal significance. In the case of the International Criminal Court that may well be a possibility, either by Palestine’s becoming a party, or by virtue of an Article 12(3) declaration. That said, while it may be institutionally prudent for the Office of the Prosecutor to defer to the Secretary-General’s or General Assembly’s determination of Palestine’s status, there is strictly-speaking no requirement to defer to an entity’s status within the UN rather than making an independent appreciation of its status under general international law.

Another concern for UN Member States has been the possibility that Palestine may, if accepted by the General Assembly as a non-Member State Observer, initiate proceedings before the International Court of Justice. The Statute of the ICJ is annexed to the Charter and forms part of it. According to Article 93(1) of the Statute, “[a]ll Members of the United Nations are ipso facto parties to the Statute of the International Court of Justice.” According to Article 34(1) of the ICJ Statute, “[o]nly states may be parties in cases before the Court.” Article 35(1) provides conclusively to this effect that “[t]he Court shall be open to the states parties to the present Statute.” Article 93(2) of the Charter provides that “[a] state which is not a Member of the United Nations may become a party to the Statute of the International Court of Justice on conditions to be determined in each case by the General Assembly upon the recommendation of the Security Council.” Currently there are no States parties to the Statute that are not also UN Member States. There are also no States not party to the Statute that may be entitled to bring proceedings before the Court. Japan, Liechtenstein, San Marino and Switzerland became parties to the ICJ Statute before becoming UN Member States. Further, Nauru became a party to the ICJ Statute in 1988, and a UN Member State in 1989. It has been the practice that the government of such a State must issue a declaration accepting the conditions determined by the General Assembly upon recommendation by the Council, and deposit it with the Secretary-General. A recommendation by the Security Council, acceptance of this recommendation by the General Assembly and acceptance of the determined conditions by Palestine would consequently be necessary in order for Palestine to become a party to the ICJ Statute. This process consequently differs little from the acceptance of a State as a full UN Member State. In light of Palestine’s failure to obtain a Security Council recommendation for full UN membership last year, it currently seems unlikely that it could muster the support necessary for a recommendation to become a party to the ICJ Statute. Notice further that in all previous cases a State’s becoming a party to the ICJ Statute was followed by full UN membership. This is a circumstance that the governments of other UN Member States would likely bear in mind.

The concern in this connection has been that Palestine could, if it should become a party to the ICJ Statute, initiate proceedings before the Court with a view to settling territorial disputes. Israel has not submitted to the Secretary-General of the UN a declaration under Article 36(2) of the ICJ Statute recognizing the jurisdiction of the Court “as compulsory ipso facto and without special agreement, in relation to any other State accepting the same obligation, the jurisdiction of the Court”. Thus even in the currently unlikely event that Palestine could become a party to the ICJ Statute, the Court would, as things currently stand, only have jurisdiction to hear a dispute between Palestine and Israel on the basis of a special agreement.

The concern expressed by certain foreign ministries is less that this new status for Palestine would result in statehood for Palestine under international law, but rather that it may offer a potential path to statehood that risks bypassing bilateral negotiations with the government of Israel. The new status is primarily relevant within the institutional setting of the General Assembly, and possibly within certain other UN bodies or international institutions. The new status will not, by itself, result in statehood for Palestine under international law. The governments of many States may consider this point to be moot, since a majority already recognize Palestine as a State. The vote would not even make Palestine a “State” for the institutional purposes the UN Charter, because the non-Member State Observer status enjoys no textual basis in the Charter and relies solely on the practice of the General Assembly. Nevertheless if other international institutions require that an entity be a “State” in order to become a party or a member, and they defer for this purpose to an entity’s status at the General Assembly, Palestine’s status as a “State” in the General Assembly may, even where this status stems merely from that body’s practice and was voted upon by simple majority through a resolution not backed by a Security Council recommendation, have legal significance. However, by itself this status it is no substitute for the other criteria for statehood. In international law, an entity’s status at the United Nations and its status in general international law are not the same thing. What ultimately counts is whether the conditions of statehood have been fulfilled, and this is a matter that is both legal and factual.

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