Monday, July 11, 2011

What The UN Vote Means--And Does Not

My friend Alvaro de Soto, the former Special Ambassador of the United Nations's Secretary-General to the Middle East peace process, is a legend in the UN, from which he is now retired. Peruvian by birth, an aide to Secretary-General Javier Pérez de Cuéllar, Alvaro was an indispensable mediator in talks that resolved the bloody crisis in El Salvador during the early 1990s, and was later called in to help manage crises in Myanmar, Cyprus and Northwest Africa. He resigned his Middle East post in May 2007, frustrated by the inaction of the Bush Administration; and his End of Mission Report, leaked to The Guardian, was famously frank and incisive, sparing neither the Israeli government nor Palestinian rivalries. He now teaches international relations in Paris. You can hear him speak about his mission here.

Alvaro wrote me yesterday about the impending UN vote on Palestine, frustrated by the simplifications he reads in the media, laying out what actions the UN can and cannot take. With his permission, I reprint his email in full:

The annual September gathering at the UN is being portrayed as a showdown between Israel and Palestinian aspirations for statehood. I haven't seen a draft of the much touted Palestinian initiative which will, by some accounts, be Israel’s undoing. Without this, it is hard to tell what the Palestinians--or at least those headquartered in Ramallah--are seeking. David Shulman posits the prospect of a US Security Council veto. Others speak of the Palestinians obtaining between 120 and 150 votes--which, of course, would be in the General Assembly.

These are two quite different approaches. If the idea is to bring the Palestinians up to par with Israel by pushing forward a mirror image of the resolution that led to the creation of Israel, it should be a General Assembly resolution as was the case in 1947. But as a matter of international law, neither the UN nor any other international organization can give legal validity to the creation of a state. The UN is not in the recognition business; only states can recognise states.

Contrary to widespread belief, (except in a metaphorical sense) the UN did not create Israel; rather, Israelis used the approval by the UN General Assembly in resolution 181 of the partition plan as the basis for proclaiming the creation of Israel, which was then recognised by states. In 181 the General Assembly approved the partition plan (stage 1), within hours Israel proclaimed its independence (stage 2) and this was followed by recognitions (stage 3), including quickly those of the US and the then USSR. Israel's application for membership in the UN was subsequent to these separate and discrete stages. Of course at the time it made its proclamation Israelis had reason to believe that they would receive recogniton from these important players.

The Palestinians would likely get widespread recognitions--arguably it already has a large number and the PLO is represented by ‘ambassadors’ in some of them, but they do not have, to my knowledge, advance certainty that if they proclaim a state they will receive the recognition of key players that can make the difference between UN membership and continued second-tier status--certainly the US is in doubt. Thus while they may improve their standing with a view to the continuing struggle to break free of Israeli occupation, they seem destined to fall short of what Israel achieved in 1947.

If the Palestinians were to pursue UN membership, a different procedure would apply. Ultimately UN membership is granted by the General Assembly if 2/3 of the members present and voting so decide, but the opportunity to take such a decisión only arises if the Security Council puts its positive stamp on a membership application. There is no bypass mechanism, no uniting-for peace procedure in case of Council deadlock: The drill is that a state aspiring to membership writes to the Secretary-General signifying its desire to be accepted. The Secretariat’s Office of Legal Affairs prepares a report on whether the basic formal legal requirements are met--including, presumably, whether the applicant actually constitutes a state. This report goes to the Security Council which makes a political assessment regarding whether the applicant meets the substantive requirements spelled out in the UN Charter--whether it is peace-loving and otherwise committed to the obligations arising from UN membership under the Charter, including its financial obligations, and whether the Council judges that it has the capacity to meet those obligations. The Council votes, with the usual requirements of 9 votes in favour and no permanent members voting against. If it is approved it goes to the General Assembly. If it is not, there will be no General Assembly vote.

Thus until there is clarity regarding what Ramallah wants, discussion of the import of a UN decision on the subject is speculative. Could they be seeking, for example, some sort of general statement by which the bulk of the international community expresses the view that, all efforts to date having failed, they will henceforth consider that unless the parties conclude otherwise, they will not accept that Israel has any rights beyond the 4 June 1967 lines?

On the face of it that should garner a robust majority: I don't know of any state which today recognizes that Israel has any such rights. In fact, the UN is repeatedly on record as regarding the occupation--of territory captured starting on 5 June 1967--as illegal. The principle of inadmissibility of acquisition of territory by war is enshrined in Security Council resolution 242. So it is not clear whether anything new would be achieved nor what effect it would have. Yet Israel seems to be letting out all the stops in its effort to stymie the as yet unspecified initiative. Smoking out the reason for such strong opposition, which absent a draft remains a mystery, may be sufficient grounds for such an otherwise nugatory initiative.

It has been said that one of the reasons that have led Ramallah to pursue unification or reconciliation with Hamas is that without it its case at the UN come September will be weakened. Hamas, however, has been silent at best on the Palestinian démarche, originally a Salam Fayyad initiative. Thus the question of what the Palestinians are pursuing is not a matter of detail. It is the crux of the matter.

Bottom line: What the UN vote would occasion is not the creation of a state, but the various decisions of existing states to recognize Palestine and possibly sanction Israel, in bilateral trade, say, for violating international law. The real question is, what countries significant to Israel would recognize Palestine, and what would they be prepared to do to back up recognition with economic action? Indeed, what do Palestinian leaders really want?


Y. Ben-David said...

Dr Avishai, you really put your finger on it with the last sentence: "Indeed, what do the Palestinian leaders really want"?
The so-called Israeli "peace camp" has been telling us for years that the Palestinians want exactly what the Israeli Left wants..."two states (Jewish and Arab) living side-by-side in peace and prosperity, blah, blah, blah". Except that the Palestinians have never said any such thing. We have to remember the Palestinian insistence (and, by Palestinian, I mean mainline FATAH-Palestinian Authority people) on implementation of the "Right of Return" of the refugees INSIDE Israel (they will NEVER agree to having the refugees return to a West-Bank Palestinian state, knowing it would ignite a civil war there).
I suggest everyone pay attention to HAMAS, who is a major player here, no matter what Fayyad may want. They are an anti-nationalist Islamist movement. So they don't want the "2-state" solution either. They say so quite openly. So we seem to be at an impasse.

Jerry Haber said...

" In 181 the General Assembly approved the partition plan (stage 1), within hours Israel proclaimed its independence (stage 2) and this was followed by recognitions (stage 3), including quickly those of the US and the then USSR. "

This, of course, is a case of "misremembering." The resolution passed on 29 November 1947; Israel declared its independence on May 14, 1948. A lot occurred between the two dates.

Potter said...

Nice catch Jerry Haber. The ambassador's email is for me welcome reasoning never the less.

I think there are questions as to whether the current Palestinian aspiring state meets the requirements for UN membership. Some of the causes preventing that must be Israel's occupation and it's obstruction of progress towards that end as well as perhaps a Hamas-Fatah split. So Palestinian unity agreement and a unified government is important if it is real and sticks. As well, Hamas must be willing to end armed struggle against Israel and accept Israel once the occupation ends.

There may still have to be a war of independence between Israel and Palestine before Palestine can become a state though. That would follow the Israel template too. I am hoping that non-violent methods and pressures from the international community work so that these ends can be achieved more peacefully. Perhaps this move in the UN in September will help towards that goal. Something needs to move Israel's leadership from their present path.

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