II. PALESTINIAN STATEHOOD: TRAPPED BETWEEN RHETORIC AND REALPOLITIK
Published online by Cambridge University Press: 30 January 2013
On 23 September 2011, Mahmoud Abbas, in his capacity as the Chairman of the Executive Committee of the Palestine Liberation Organization and President of the State of Palestine, applied for full membership of the United Nations (UN) on behalf of the State of Palestine. In his letter of application (addressed to the UN Secretary-General Ban Ki Moon), Mr Abbas made reference to section F of the Plan of Partition in UN General Assembly Resolution 181(II) of 29 November 1947 (where sympathetic consideration of the application for membership of the UN of both the Arab and Jewish States was urged) as well as the Declaration of Independence of the State of Palestine of 15 November 1988 and the acknowledgement by the General Assembly (GA) of this Declaration in Resolution 43/177 of 15 December 1988.1
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1 See ‘Note by the Secretary General: Application of Palestine for admission to membership in the United Nations’ (23 September 2011) UN Doc A/66/371-S/2011/592. Annex I. See also Weiler, J, ‘The Birth of Israel and Palestine – The Ifs of History’ (2011) 22 EJIL 621–3Google Scholar (noting that Arab states voted against UNGA Resolution 181 and that Arab scholars spent much ink dismissing its legal significance).
2 Rule 59 reads: ‘The Secretary-General shall immediately place the application for membership before the representatives on the Security Council. Unless the Security Council decides otherwise, the application shall be referred by the President to a committee of the Security Council upon which each member of the Security Council shall be represented. The committee shall examine any application referred to it and report its conclusions thereon to the Council not less than thirty-five days in advance of a regular session of the General Assembly or, if a special session of the General Assembly is called, not less than fourteen days in advance of such session.’
3 UNSC Verbatim Record 6624th meeting (28 September 2011) UN Doc S/PV/6624.
4 See S Erlanger and S Sayre, ‘Unesco Approves Full Membership for Palestinians’ New York Times (1 November 2011) at A8 and H Sherwood, ‘Israel Rushes Settlement Growth after Unesco Accepts Palestinians’ The Guardian (2 November 2011) 20.
5 Decisions of the UNGA on important questions, including the admission of new Members to the United Nations, ‘shall be made by a two-thirds majority of the Members present and voting.’ Article 18(2) UN Charter.
8 ‘Observer status for the Palestine Liberation Organization’, UNGA Res 3237 (XXIX) (22 November 1974) UN Doc A/RES/3237 (XXIX) (voting record 95–17–19).
9 See Palestine National Council, ‘Political Communiqué and Declaration of Independence’ (15 November 1988) reprinted in (1988) 27 ILM 1660. For a debate on the legal effect of the Algiers Declaration on Palestine, see Boyle, FA, ‘The Creation of the State of Palestine’ (1990) 1 EJIL 301–6CrossRefGoogle Scholar and Crawford, J, ‘The Creation of the State of Palestine: Too Much Too Soon?’ (1990) 1 EJIL 307–13CrossRefGoogle Scholar. See also Crawford, J, ‘Israel (1948–1949) and Palestine (1998–1999): Two Studies in the Creation of States’ in Goodwin-Gill, GS and Talmon, S (eds), The Reality of International Law: Essays in Honour of Ian Brownlie (Clarendon Press 1999) 110–123Google Scholar.
10 ‘Question of Palestine’, UNGA Res 43/177 (15 December 1988) UN Doc A/RES/43/177 (voting record 104–2–36).
11 ‘Participation of Palestine in the work of the United Nations’, UNGA Res 52/250 (7 July 1998) UN Doc A/RES/52/250 (voting record 124–4–10). Only Israel, Marshall Islands, Micronesia (Federated States of) and the United States voted against Resolution 52/250. See UNGA 52nd Session, ‘89th plenary meeting’ Official Records (7 July 1998) UN Doc A/52/PV.89, at 5.
13 See, for example, ‘The situation in the Middle East, including the Palestinian question’, UNSC 6706th meeting (24 January 2012) UN Doc S/PV.6706.
14  ICJ Rep 57.
15 At 62.
16 At 62–3 (emphasis in original).
17 At 63.
18 See Provisional Rules of Procedure of the Security Council UN Doc S/96/Rev.7 <http://www.un.org/Docs/sc/scrules.htm> accessed 21 September 2012.
19 UN Doc A/66/371-S/2011/592, Enclosure.
20  ICJ Rep 4.
21 See UNGA 65th session, 11th plenary meeting (23 September 2010) UN Doc A/65/PV.11, at 12.
22 H Cooper, ‘Obama Says Palestinians Are Using Wrong Forum’ New York Times (22 September 2011) at A12.
23 Press Briefing by Press Secretary Jay Carney and Deputy NSA for Strategic Communications on the President's Meetings at the UN (21 September 2011) <http://www.whitehouse.gov/the-press-office/2011/09/22/press-briefing-press-secretary-jay-carney-and-deputy-nsa-strategic-commu> accessed 21 September 2012.
24 UNGA 66th session, 11th plenary meeting (21 September 2011) UN Doc A/66/PV.11, at 12.
25 UNGA 66th session, 19th plenary meeting (23 September 2011) UN Doc A/66/PV.19, at 36–41.
26 Of the then members of the UNSC, China, France, Russia Brazil, Gabon, Lebanon, India, Nigeria and South Africa voted in favour of UNESCO membership for Palestine. The United Kingdom, Bosnia and Herzegovina, Columbia and Portugal abstained and the United States and Germany voted against.
27 N MacFarquhar, ‘Palestinians Inch Closer to Rejection at U.N. Body’, New York Times (3 November 2011), at A10.
28 See ‘Report of the Committee on the Admission of New Members concerning the application of Palestine for admission to membership in the United Nations’ (11 November 2011) UN Doc S/2011/705 (hereinafter ‘Palestinian Admission Report’).
29 UNGA 66th session, 11th plenary meeting (21 September 2011) UN Doc A/66/PV.11, at 23. See also N MacFarquhar, ‘France Breaks with Obama on Palestinian Statehood Issue’, New York Times (21 September 2011) <http://www.nytimes.com/2011/09/22/world/middleeast/france-breaks-with-obama-on-palestinian-statehood-issue.html> accessed 21 September 2012. See also Palestinian Admission Report (n 28) para 20.
30 J Rudoren, ‘Year After Effort at U.N., New Aim for Palestinians’, New York Times (21 September 2012) at A10.
31 UNGA 67th session, 12th plenary meeting (27 September 2012) UN Doc A/67/PV.12.
32 Higgins, R, The Development of International Law Through the Political Organs of the United Nations (Oxford University Press 1963) 17Google Scholar.
33 Article 1 of the Convention on Rights and Duties of States (adopted 26 December 1933, entered into force 26 December 1933) (Montevideo Convention) 165 LNTS 19 stipulates that ‘The State as a person of international law should possess the following qualifications: (a) permanent population; (b) defined territory; (c) government; and (d) capacity to enter into relations with the other States.’ See also Palestinian Admission Report (n 28) para 9 (‘On the criteria of statehood, reference was made to the 1933 Montevideo Convention’). For criticism of the so-called Montevideo criteria see, inter alia, TD Grant, ‘Defining Statehood: The Montevideo Convention and its Discontents’ (1999) 37 ColumJTransnatlL 403–57 and Quigley (n 12) 205–8. But see also Lowe, VInternational Law (Oxford University Press 2007) 153CrossRefGoogle Scholar (‘The definition was a child of its time … [b]ut … while its four criteria have been added to, no-one has suggested that any of them is dispensable.’).
37 UNGA 66th session 19th plenary meeting (23 September 2011) UN Doc A/66/PV.19, at 30.
38 See, for example, Deutsche Gas Gesellschaft v Polish State (1929) 5 Annual Digest 11, at 15 and North Sea Continental Shelf Cases  ICJ Rep 3, at 32 (para 46).
39 Office of the United Nations Special Co-ordinator for the Middle East Peace Process, ‘Palestinian State-Building: A Decisive Period’, Ad Hoc Liaison Committee Meeting Brussels, 13 April 2011 <http://domino.un.org/UNISPAL.NSF/0/19e5539f9124ab2085257870004d8264?OpenDocument> accessed 21 September 2012. See also Palestinian Admission Report (n 28) para 13.
40 SJ Rosen, ‘The Palestinians’ Imaginary State’ <http://www.foreignpolicy.com/articles/2011/08/03/the_palestinians_imaginary_state?page=full> accessed 21 September 2012.
41 See also F Akram and E Bronner, ‘A Nervous Hamas Voices Its Issues With a Palestinian Bid for U.N. Membership’, New York Times (18 September 2011) at A6.
42 G Goodwin-Gill, ‘Palestine, Statehood and the Challenges of Representation’, the revised text of a talk given on 28 November 2011 at the seminar ‘Discussing the Palestinian bid for Statehood’ <http://www.ejiltalk.org/palestine-statehood-and-the-challenges-of-representation/#more-4249> accessed 21 September 2012. See also Palestinian Admission Report (n 28) paras 11–12.
43 Israel-Palestine Liberation Organization: Declaration of Principles on Interim Self-Government Arrangements, signed 19 September 1993, reprinted in (1993) 32 ILM 1525.
44 Israel-Palestine Liberation Organization: Interim Agreement on the West Bank and the Gaza Strip, signed 28 September 1995, reprinted in (1997) 36 ILM 551.
45 Article I (2) of the Interim Agreement notes that ‘the term “Council” throughout this Agreement shall, pending the inauguration of the Council, be construed as meaning the Palestinian Authority.’
46 18 USC sections 2331–2338.
47 Gilmore v The Palestinian Interim Self-Government Authority 422 F Supp 2d 96 (DDC, 2006) at 101 and Ungar v Palestinian Liberation Organization 402 F 3d 274 (CA 1 (RI), 2005) at 291–2.
49 According to Restatement (Third) of Foreign Relations section 201 (1987) a State is ‘an entity that has a defined territory and a permanent population, under the control of its own government, and that engages in, or has the capacity to engage in, formal relations with other such entities.’
50 See Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion)  ICJ Rep136, at 182–3 (para 118).
51 See also Crawford, J, The Creation of States in International Law (2nd edn, Clarendon Press 2006) 442–8Google Scholar.
52 See, for example, the Omani recognition of the ‘State of Palestine’ in 1988 as quoted in Talmon, S, Recognition of Governments in International Law: With Particular Reference to Governments in Exile (Clarendon Press 1998) 41–2Google Scholar.
54 See <http://www.fco.gov.uk/resources/en/pdf/3706546/3892723/TrUNESCO> accessed 21 September 2012.
55 US Department of State Press Statement ‘Palestinian Admission to UNESCO’ (31 October 2011) <http://www.state.gov/r/pa/prs/ps/2011/10/176418.htm> accessed 21 September 2012.
56 Public Law 10–246 Title IV . See also Public Law 103–236 Title IV .
57 See ‘Contributions to International Organizations’ 582 fn 1 <http://www.state.gov/documents/organization/181130.pdf> accessed 21 September 2012.
58 On the issue of the potential US international responsibility for withholding UNESCO membership dues see C Ahlborn, ‘UNESO Approves Palestinian Membership Bid – A Case for US Countermeasures Against the Organization’ EJIL: Talk! (8 November 2011) <http://www.ejiltalk.org/unesco-approves-palestinian-membership-bid-%e2%80%93-a-case-for-us-countermeasures-against-the-organization/#more-4052> accessed 21 September 2012.
59 See R Sperry, ‘The Situation in the Middle East, including the Palestinian Question’, UNSC Verbatim Record 6662nd meeting (21 November 2011) UN Doc S/PV/6662.
60 See, for example, J Rudoren, ‘Israel Retroactively Legalizes 3 Settlements in West Bank’ New York Times (25 April 2012) at A9 and Associated Press ‘Israel to Build West Bank Settlements’ The Guardian (7 June 2012) 20.
61 Article IX (5)(b)(4) of the Interim Agreement also provides that: ‘[d]ealings between the Council and representatives of foreign states and international organizations, as well as the establishment in the West Bank and the Gaza Strip of representative offices other than those described in subparagraph 5.a above, for the purpose of implementing the agreements referred to in subparagraph 5.b above, shall not be considered foreign relations.’
63 M Kearney and S Denayer, ‘Al-Haq Position Paper on Issues Arising from the Palestinian Authority's Submission of a Declaration to the Prosecutor of the International Criminal Court under Article 12(3) of the Rome Statute’ (14 December 2009) 13 (para 26) <http://www.alhaq.org/attachments/article/273/position-paper-icc-(14December2009).pdf>.
64 The operative part of the Palestinian declaration reads: ‘In conformity with Article 12, paragraph 3 of the Statute of the International Criminal Court, the Government of Palestine hereby recognizes the jurisdiction of the Court for identifying, prosecuting and judging the authors and accomplices of acts committed on the territory of Palestine since 1 July 2002.’ For the full text of the declaration, see <http://www.icc-cpi.int/NR/rdonlyres/74EEE201-0FED-4481-95D4-C8071087102C/279777/20090122PalestinianDeclaration2.pdf> accessed 21 September 2012.
65 Letter by ICC Registrar (Silvana Arbia) to the Minister of Justice, Palestinian National Authority dated 23 January 2009 (ICC Ref 2009/404/SA/LASS) <http://www.icc-cpi.int/NR/rdonlyres/74EEE201-0FED-4481-95D4-C8071087102C/279778/20090123404SALASS2.pdf> accessed 21 September 2012.
66 Article 12(3) of the ICC Statute reads (in part): If the acceptance of a State which is not a Party to this Statute is required under paragraph 2, that State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question.
67 See <http://www.icc-cpi.int/NR/rdonlyres/D3C77FA6-9DEE-45B1-ACC0-B41706BB41E5/282852/PALESTINEFINAL201010272.pdf> accessed 21 September 2012.
68 The Office of the Prosecutor, International Criminal Court, ‘Situation in Palestine’ (3 April 2012) <http://www.icc-cpi.int/NR/rdonlyres/C6162BBF-FEB9-4FAF-AFA9-836106D2694A/284387/SituationinPalestine030412ENG.pdf> accessed 21 September 2012.
69 ibid at para 7. For a comprehensive discussion of the legal issues regarding the Palestinian Declaration pursuant to Article 12(3) see Meloni, C and Tognoni, G (eds), Is There a Court for Gaza? A Test Bench for International Justice (TMC Asser Press 2012)CrossRefGoogle Scholar. See also Kearney, M and Reynolds, J, ‘Palestine, and the Politics of International Criminal Justice’ in Schabas, WA et al. (eds), The Ashgate Research Companion to International Criminal Law: Critical Perspectives (Ashgate 2013) forthcomingGoogle Scholar.
71 Letter by 30 international legal scholars to the President of the Assembly of States Parties to the Rome (ICC) Statute (Ambassador Tiina Intelmann) dated 7 August 2012. See D Akande, ‘ICC Assembly of States Parties Urged to Decide on the Status of Palestine’ (EJIL: Talk! 24 September 2012) <http://www.ejiltalk.org/icc-assembly-of-states-parties-urged-to-decide-on-status-of-palestine/>.
73 See Article I of the Israel-Palestine Liberation Organization: Declaration of Principles on Interim Self-Government Arrangements, signed 19 September 1993, reprinted in (1993) 32 ILM 1525 (‘a transitional period not exceeding five years’).
74 See Preamble para 5 of the Israel-Palestine Liberation Organization: Interim Agreement on the West Bank & the Gaza Strip, signed 28 September 1995, reprinted in (1997) 36 ILM 551 (‘a transitional period not exceeding five years from the date of signing the Agreement on the Gaza Strip and the Jericho Area (hereinafter ‘the Gaza-Jericho Agreement’) on May 4, 1994’).
75 See I Kershner, ‘Financial Strains Said to Threaten Stability of Palestinian Authority’ New York Times (18 September 2012) at A10. See also EU DG Trade Statistics, Occupied Palestinian Territories: EU Bilateral Trade and Trade with the World’ (21 March 2012) <http://trade.ec.europa.eu/doclib/docs/2006/september/tradoc_113382.pdf> accessed 21 September 2012.
77 See, for example, H Sherwood, ‘Britain Urges Palestinians not to Press for a Vote on UN status’, The Guardian (18 October 2012) 24.
78 I Kershner, ‘Israel Heightens Warnings over Palestinians’ U.N. Bid’, New York Times (14 November 2012) <http://www.nytimes.com/2012/11/15/world/middleeast/israel-heightens-warnings-over-palestinians-un-bid.html> accessed 10 December 2012.
79 D Kirkpatrick and J Rudoren, ‘Israel and Hamas Agree to a Cease-Fire, after a U.S.-Egypt Push’, New York Times (22 November 2012) at A1.
80 ‘Status of Palestine in the United Nations’, UNGA Res 67/19 (29 November 2012) UN Doc A/RES/67/19) (voting record 138–9–41). The nine States who voted against the resolution were: Canada, the Czech Republic, Israel, Marshall Islands, Micronesia (Federated States of), Nauru, Panama, Palau and the United States of America.
81 See C McGreal, ‘Israel Steps up Settlement Programme after UN Recognises Palestinian State’, The Guardian (1 December 2012) 40. See also J Rudoren and M Landler, ‘Israel Advances Settlement Plan near Jerusalem’, New York Times (1 December 2012) at A1.
82 H Sherwood, ‘Israel Seizes $120m in Taxes after UN Vote, The Guardian (3 December 2012) 26.
83 H Sherwood and K Willsher, ‘Israel Rejects European Criticism over Expansion of Settlements’, The Guardian (4 December 2012) 20.
84 H Sherwood, ‘Israel Settlements: UK Considers “Further Steps” over Expansion’, The Guardian (4 December 2012) <http://www.guardian.co.uk/world/2012/dec/04/uk-israeli-expansion-hague-settlements?INTCMP=SRCH> accessed 10 December 2012.