UN Cannot Unilaterally Declare A Palestinian State Because Of--The UN (Updated)

I have written before about the issues standing in the way of the PA going ahead with their threat to go to the UN and unilaterally declare a Palestinian state.

Arlene Kushner has written about another angle altogether, where she describes how one of the things standing in the way of the UN recognizing a Palestinian state may be the UN itself. First she clarifies just what it is involved in the UN recognizing a new country:

I've been doing some checking with regard to the Palestinians taking their theoretical state-in-the-making to the UN. It is a complicated business, and the complications are compounded by the fact that within the international arena theoretical rules are one thing, while in reality states often act as they damn please, in accordance not with law but political whim-- as we well know.

What is basic fact is that the Security Council does not "endorse" states, or -- whatever the term -- bring them into being by virtue of a resolution: there is no mechanism for this within international law via any agency. The PA would have to declare a state first. (And if this declaration is unilateral it would render Oslo null and void.)

So let's assume that the PA declares a Palestinian state--apparently there are certain basic requirements:

According to the Montevideo Convention on the Rights and Duties of States of 1933, there is a basic “definition” of a state, which has been adopted by the international community. In order to qualify as a state, an entity must:

[] have a permanent population
[] have a defined territory
[] be under the control of its own government
[] have the capacity to enter into relations with other states

Does the PA qualify? No way. Consider, just for one example, that the PA seems bent on declaring a state that includes Gaza, where its government would have no control. Would it (wink wink) be considered to have met the required criteria in the course of its declaration, or be laughed out of the international arena?

As to whether to recognize this new state once it is declared, each nation would make its own decision. Recognition of a nascent state by other nations does seem to be an important part of creating the legal reality.

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This new state would then apply to the Security Council for UN membership. This membership does not create the state, but simply accords the state, which already exists, the rights and protections conferred upon member states.

What's important here, is this, from the International Judicial Monitor (as of this summer):

"...the Security Council must decide to submit a state’s application for admission to the General Assembly for a two-thirds majority vote. The two-thirds requirement means that a state may not be granted admission to the UN if it is not recognized by a two-thirds majority of the General Assembly. This is the case for Kosovo which will likely not be able to join the UN in the near future because it is only recognized by sixty-two UN members."

And so this new Palestinian state, were it to be declared, might be stopped right there. Which would render moot the entire discussion about Resolution 242.

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Granted that there are number of countries in the UN who are in a hurry to see a Palestinian state established, there is still more to take into account:

This is not what analysts are looking at, however. For them the real sticking point has to do with borders, which the PA quite obviously intends to set as the Green Line (everything that was not under Israeli control before the Six Day War of 1967).

If the SC were to accept "Palestine" as a member state, does this mean it would be sanctioning or endorsing those borders as unilaterally claimed?

If the answer is yes, this would mean setting up a conflict with SC Resolution 242, which, basically, says that Israel does not have to withdraw from all territories acquired in 1967, and is entitled to safe and recognized borders that are arrived at via negotiations. And Israel does not have to pull out of any territory until this negotiation occurs. The Green Line is not considered a safe border -- strategic depth is required. (This sets foolish Obama's statement about settlements not bringing security into conflict with this resolution as well.)

The concern is that the PA is seeking to overturn or override this resolution.

The Jerusalem Center for Public Affairs held a conference on 242 a couple of years ago (I was in attendance and learned a great deal). For detailed information from that conference see:

http://www.jcpa.org/JCPA/Templates/showpage.asp?DBID=1&LNGID=1&TMID=84&FID=452&PID=3111

Read the whole thing.

True, the Arab has always claimed that UN Resolution requires Israel to withdraw from all of that territory, but there is abundant proof that is not the case--including what the authors of the resolution themselves have written.

Meanwhile, the PA has already backtracked on the idea of a unilateral declaration of a state:

The Palestinians will not unilaterally declare an independent state, but rather seek a UN Security Council resolution endorsing a two-state solution along the pre-1967 lines, Palestinian Authority negotiator Saeb Erekat told The Jerusalem Post on Tuesday.

Israeli officials said Erekat was backtracking on earlier statements calling for a unilateral declaration of independence, even as he said that Israel was "twisting his words."

The Palestinians want the Security Council to set the borders of their future state and those of Israel along the pre-1967 lines, Erekat said.

"What we are seeking is to preserve the two-state solution," he said. "One state is not an option."

However, even just asking the UN to set the borders of a Palestinian state to the pre-1967 lines comes into the same problem: those border lines must be negotiated with Israel and cannot be unilaterally declared.

We still have to wait and see if the UN Security Council will uphold Resolution 242 in accordance with its actual intent.

UPDATE: Evelyn Gordon expands on the actual meaning of Resolution 242:

While most of the world already believes the 1967 lines should be the final border, the formal basis for the talks remains Security Council Resolution 242, which says no such thing. This resolution purposefully required an Israeli withdrawal only from “territories” captured in 1967, not “the territories” or “all the territories.” As Lord Caradon, the British UN ambassador who drafted 242, explained, “It would have been wrong to demand that Israel return to its positions of June 4, 1967, because those positions were undesirable and artificial.” America’s then UN ambassador, Arthur Goldberg, similarly said the two omitted words “were not accidental …. the resolution speaks of withdrawal from occupied territories without defining the extent of withdrawal.” This was equally clear to the Soviet Union and Arab states, which is why they unsuccessfully pushed to include those extra words.

Formally, therefore, the final border is subject to negotiations: The Palestinians can seek the 1967 lines, but Israel is free to seek to retain parts of the territories. However, should the council endorse “a two-state solution based on the June 4, 1967 borders,” this would no longer be true: Instead, the world would have formally adopted the Palestinian position in a binding resolution — thereby blatantly prejudicing the outcome of the talks.

Rick Richman documents that historically, neither the Roadmap nor the US have considered the 1967 borders to be the defining boundary for a second Palestinian state:

The Roadmap calls for final-status negotiations in Phase III “based on UNSCR 242.” It does not mention the June 4, 1967, lines, much less endorse them as “borders.” The U.S. has at least three times formally assured Israel of “defensible borders” as the outcome of the peace process: (1) in the January 16, 1997, letter from Secretary of State Warren Christopher to Israeli Prime Minister Benjamin Netanyahu; (2) in the April 14, 2004, letter from President George W. Bush to Israeli Prime Minister Ariel Sharon; and (3) in theJanuary 16, 2009, Memorandum of Agreement between the U.S. and Israel. Only such borders meet the Resolution 242 requirement that Israel’s borders be not only recognized but also secure.

Technorati Tag: Palestinian State and UN.