The UNGA Recognizes the State of PalestinePosted: December 3, 2012 Filed under: Nuclear 12 Comments
I’ve written a couple of posts lately on the Israel-Palestine conflict, the most recent of which is here, where I argued that the U.N. Security Council should step in to the situation and act under Chapter VII to legally determine the boundaries of a Palestinian state.
As all will now be aware, the UN General Assembly voted last Thursday to upgrade Palestine’s UN status to “non-member observer state.” I do think that this was a significant manifestation by a supermajority of states (138) of recognition of Palestine as a state, with borders defined by the 1949 Armistice (Green) line.
Of course, this was not the first such manifestation of recognition. To date, 131 of the world’s 193 states have formally recognized the statehood of Palestine. I’m very much a proponent of the constitutive theory of recognition in the law of statehood, so this fact is very influential in my opinion. It’s only the identity of the holdouts (the US and Europe) that keeps the situation at all questionable – though there should be no question in my opinion. In terms of the Montevideo Convention criteria (permanent population, defined territory, government, capacity to enter into legal relations), in addition to the steady stream of formal recognitions since 1988, the state of Palestine has almost certainly existed for decades, simply in a continuing situation of foreign military occupation.
I think that the numbers here are really striking – both in terms of the recent UNGA vote and in terms of formal recognitions. The US so often likes to get on its high horse about how other countries are out of step with, or flouting the “will of the international community” on some issue. Well on this issue, the shoe is most definitely on the other foot, and it’s the US and Europe that are out of step with the will and judgment of the international community – and decidedly so.
Over at opinio juris, Kevin Jon Heller has some excellent analysis of the International Criminal Court jurisdiction implications of the UNGA vote.
It appears that, in direct response to the UNGA vote, Israel has decided to take the perversely provocative and illegal step of moving forward with additional settlement building in East Jerusalem and the West Bank, in direct contravention of the ICJ’s 2006 determination that such settlements in occupied territory are in violation of international law. These actions threaten to make a two-state solution logistically impossible.
I think that all of these developments only support my argument that it’s time for the Security Council to step in and legally determine the boundaries of the state of Palestine. If it did so, and at the same time ordered Israel to withdraw from its military occupation of Palestinian state territory, it would clear the way for the Palestinians to set up, with international assistance, a working government for their state. Such a full and final disposition of the competing territorial claims of Israel and the Palestinians is the only way to move forward meaningfully toward a lasting, peaceful coexistence between the two nations.
Can you please represent the U.S. at the Security Council?
Somehow I think I’m not their first pick to succeed Susan Rice – wherever she ends up!
Rather than suggest that the UN Security Council “define the boundaries” wouldn’t it be a better idea to advocate that the UN Security Council define what it regards as “Palestinian Territory”?
That way you can’t have the Israeli supporters jumping up ‘n’ down yelling that The Green Line Is Only An Armistice Line! Only An Armistice Line, I Tell You!!
The ready-made response: I don’t care what you call that line. Heck, I don’t even care what colour you use. What’s *there* is “Israeli territory”, and what’s *their* is “Palestinian territory”, and check this out: you are sitting your Big Fat Arse on their turf.
Hey Johnboy, I’m certainly open to other ways of conceptualizing it. But I’m not sure I see the difference between defining boundaries and defining territory. Don’t you have to define a boundary in order to define a territory? Or are you saying to not necessarilu use the green line as the boundary, but some other line that the UNSC determines?
I’m basically saying that the UNSC should make an authoritative determination regarding “sovereignty” (which is an attribute of “territory”) and then leave it up to the two parties to argue what label they want to pin on the line that separates them.
I just think that fixating on “boundaries” is a sure-fire way of allowing obstructionists to obfuscate, which is a skill that they have honed to a fine art.
Discussing “territory” cuts through all that shit i.e. a “territory” has a “sovereign”, and *this* is the sovereign territory of Israel, and *that* is the sovereign territory of Palestine.
Queue the handwaving…..
Q: But wadda’ ’bout the Green Line?????
A: Well, what about it?
It’s a line, and it’s green, and feel free to argue till you turn blue in the face regarding what label you stick on it.
But none of that arguing – none of that obfuscation – can change the fact that *this* is the sovereign territory of Israel, and *that* is the sovereign territory of Palestine.
Of course the Security Council ordered the establishment of the permanent armistice lines of demarcation and required that the parties observe them pending a final settlement. That was a provisional measure adopted under the auspices of Article 40, Chapter VII of the UN Charter according to the terms of resolutions 62 and 73. The ICJ cited resolution 62 in its brief legal analysis which treated the Green Line as the legal boundary.
During the Security Council’s 433rd meeting, Abba Eban, stated that the armistices were “a provisional settlement which can only be replaced by a peace agreement” and that “They do not prejudice the final territorial settlements. On the other hand, the provisional settlement established by the Armistice Agreements is unchallengeable until a new process of negotiation and agreement has been successfully consummated. http://www.un.org/ga/search/view_doc.asp?symbol=S/PV.433
General Assembly resolution 2625 (XXV), “The Declaration On Principles Of International Law Concerning Friendly Relations And Co-Operation Among States In Accordance With The Charter Of The United Nations” reflects the applicable customary law and treaty obligations on the subject. It provides that:
Every State… has the duty to refrain from the threat or use of force to violate international lines of demarcation, such as armistice lines, established by or pursuant to an international agreement to which it is a party or which it is otherwise bound to respect.
The Security Council also adopted the Middle East Quartet Road Map, which imposed a Phase II obligation on the Quartet to promote international recognition of the Palestinian state and possible UN membership, before the Phase III final status negotiations begin. The Charter really doesn’t prescribe any particular format for the Security Council recommendation on membership in the UN. It’s powers are strictly limited to proposing possible membership. So, the General Assembly could always cite SC resolutions 73 and 1515 as the necessary basis to admit Palestine as a full member state – in much the same way it created a solution to the obstacles posed by Article 12 and Security Council intransigence. It could also remind the Security Council and Israel, that negotiations and agreements concluded as a result of the threat or use of force are null and void.
Thank you for your comment.
I) The statement by Mr. Eban is in a somewhat circular fashion, describes that
1.The armistice line (provisional/temporary) is not final: until execution of a peace agreement, this line is valid.
2.No peace agreement has been reached thus far.
3.Though no such agreement (in 2) has been reached, and given the fact that this line cannot be challenged, this line is still temporary but valid.
This line of argument, this statement (like many others) is part of the problem, not the solution; it only refers to future process (Road Map etc.) but does not solve anything itself. And, by this way, it does not help restore the peace and security, it consumes them by rhetorics.
“60 years” is a quite short piece of time with regard to humankind, but not for the peoples of the region, and, in my opinion, instrumentalizing international law betrays its own promiss.
II) Admission of Palestine as a Member to the UN requires the affirmative vote of UNSC to that respect, it cannot be “assumed” by interpretation of UNSC Res. 1515 regarding the Road Map. In my opinion, it would also be illegal to interpret the mentioned UNSC Res. so as to assume UNSC’s approval beforehand, in which case, the Charter would be interpreted/applied in fraudem legis agere: UNSC Res. resolves that the Map shall be followed, and it would be the UNSC to decide thereupon. Furthermore, the Road Map itself requires consensus among the Quartet.
III) With regard to threat to use, or use of force, it would be over-simplification if it is purported that only Israel is acting against the peace and security. It is also the obligation of, of course and under the Road Map itself, Palestine state to refrain from, and avert terrorist activities directed against Israel from its territory and population, which also violates several principles under UNGA Res. 2625.
Thank you again.
There is a discussion if the UN Security Council could “determine” boundaries of states as such and whether that would not be ultra vires under the Charter. I remember serious discussions raging about this with regard to Kosovo and Iraq/Kuwait border after the First Gulf War. I suppose Palestine situation is a bit different, since the UN still has mandate-related responsibilities under the Charter.
From the top of my head, I remember Judge Fitzmaurice elaborating on the whole UN SC discussion in one of his separate opinions in one of the Southwest Africa cases. Now, if I could only remember which one…
Judge Fitzmaurice’s opinion is available at:
Click to access 10789.pdf
I would like to comment on Mr. Joyner’s sincere comments and suggestions, based on a passage from his latest message whereby it was put forward that:
“…I’m very much a proponent of the constitutive theory of recognition in the law of statehood, so this fact is very influential in my opinion. It’s only the identity of the holdouts (the US and Europe) that keeps the situation at all questionable – though there should be no question in my opinion. In terms of the Montevideo Convention criteria (permanent population, defined territory, government, capacity to enter into legal relations), in addition to the steady stream of formal recognitions since 1988, the state of Palestine has almost certainly existed for decades, simply in a continuing situation of foreign military occupation…”
1.The constitutive theory of recognition ignores that “states” are “facts”, but this theory uses elements from so called “declarative theory”, and vice-versa. “Recognition” is and uses a beautifully designed term (concept) and terminology (language) in such a way to avoid any possible interference in the “global” power politics.
E.g. Switzerland (v. EU) claimed: “neither a political unit needs to be recognized to become a state, nor does a state have the obligation to recognize another one. At the same time, neither recognition is enough to create a state, nor does its absence abolish it.” This statement is not a solution. It rather (re)defines the question.
2.Montevideo criteria (which may be read as “declarative theory of recognition”) are unsustainable in many aspects. Let me try to reverse the criteria.
2a.In this “global” world, no territory is defined without the consent of states concerned; moreover there are many spatial disputes in between States combined with other “legal” concepts, e.g. succession (please also look at no.3).
2b.States do “not” have permanent population today. The human beings are too active (refugees, displaced persons, asylum seekers, nationals, legal illegal “combatants”, guerillas, terrorists, military personnel…) that “legally” we assume that it is the State which defines its population itself (Cf. inter alia Nottebohm case, or Barcelona Traction case).
2c.Governments define States. The dichotomy of continuity/succession allows jurists to comment on rule-free. E.g. might we assume that Iran has been the same with and without Shah? E.g. may we believe that the RF has been “automatically recognized” as the successor of USSR in “legal” terms?
2d.The first 3 of the criteria may we logically sustainable, however it is the 4th which disturbs the first three: “Capacity” v. others. By allowing “capacity” therein, we contradict with our first and foremost premise. I’d like to remind you that the “Montevideo Convention” was concluded bw already independent American states which were “fact”s. They defined themselves and the others recognized therefrom. The typical example is Haiti in the past, TRNC at this moment.
2e.I would like to remind you that Wall Opinion, in its proper sense, was/is an “opinion” although it (self-evidently) asserted that (because it was a response to a question forwarded in a UNGA resolution) Israel violated international law (Cf. e.g. Reservations Opinion, Kosovo Opinion). Like UNSC, UNGA has been a political body, and the Court, in its opinions, formulates responses to UNGA’s programmatic questions e.g. “whether declaration of independence by the entity in Kosovo violates international law?” which prompted the Court to go through relevant corpus of int’l law to find an adverse norm, which did not exist.
3.In sum, defining borders via UNSC resolutions under Chapter VII, which are binding for members of UN (which Palestine is not currently, and was vetoed by the US in UNSC nearly a year ago) would require a recognition by Palestine or another solution would be sought.
Furthermore, this would also mean that UNSC is the global executive (in a way, in Rawlsian terms) donated with unlimited power (e.g. by allowing any situation, fact or dispute falling under Chapter VII of the Charter in UNSC’s sole discretion). What if UNSC resolves that Israel would not be regarded as a (persistent violator of the Charter, in terms of Article 6) State anymore, and recommends the UNGA to expel her therefrom? And, more importantly, what if UNSC makes a mistake (which is a commonplace for boundary delimitations)?
Recognition is neither constitutive nor declaratory, it is but the mixture of the two, and depends on our strategy. And, in my opinion, it is that strategy itself which needs to be fixed and clearly termed first.
Re:3.In sum, defining borders via UNSC resolutions under Chapter VII, which are binding for members of UN (which Palestine is not currently, and was vetoed by the US in UNSC nearly a year ago) would require a recognition by Palestine or another solution would be sought.
Not really. The Armistice Lines are an Article 40, Chapter VII provisional measure, that Palestine has already accepted as the basis for any future negotiations. Abba Eban told the Security Council that:
The armistice lines do not merely separate armed forces. They mark the clearly defined areas of full civil jurisdiction. The Government, the courts, the legislatures, the security authorities of each respective State operate smoothly and unchallenged up to the appropriate armistice line. These lines thus have the normal characteristics of provisional frontiers until such time as a new process of negotiation and agreement determines the final territorial settlement. They are also stabilized by the mutual undertakings of the parties and by the fullest international sanction for as long as the Armistice Agreements are valid.
The Armistice Agreements are not peace treaties. They do not prejudice the final territorial settlements. On the other hand, the provisional settlement established by the Armistice Agreements is unchallengeable until a new process of negotiation and agreement has been successfully consummated.
In the Iraq/Kuwait conflict the Security Council enforced an existing memorandum of agreement between the two countries which had established the boundary. Nothing prevents the Security Council from enforcing resolution 73 until Palestine agrees to modifications to its jurisdiction.
Re:I’m basically saying that the UNSC should make an authoritative determination regarding “sovereignty” (which is an attribute of “territory”) and then leave it up to the two parties to argue what label they want to pin on the line that separates them.
The only tangible manifestation of sovereignty is jurisdiction. The armistice agreements already defined the limits of the respective jurisdictions in this case – and the Security Council did adopt them under the auspices of a Chapter VII resolution. The terms of a final settlement might be negotiable, but until then the terms of the provisional settlement are not.
Thank you for your comment. I’d like to remind you that I commented on the concept of recognition with regard to comments by Mr. Joyner.
I agree with you that the recognition by Palestine (in a similar way that of Albania in the Corfu Channel Case) is important. Your comment rather approves this. However, in my opinion, the real problematique is: since it is generally accepted that recognition (as it is “declaratory” rather than “constitutive”) cannot be revoked what if circumstances change and Palestine deny such recognition (which is unlikely to happen, but it is a possibility, e.g. given the fact that M. Abbas himself regretted that in the past Palestinians and the Arab world denied the UN Parititon Plan of 1947)? The answer is not so easy, and most probably, does not exist.