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Tuesday, August 16, 2011

Q&A on the September UN stunt (Avi Bell)

JTA has a backgrounder that they call "A Primer for Palestinian Statehood."

Distinguished international law scholar Avi (Abraham) Bell says that JTA's version is misleading and/or wrong, so he answered the same questions, correctly. I received this via email.


What do the Palestinians want the United Nations to recognize?
The Palestinians want to become a "member state" of the United Nations. This requires winning votes in the Security Council and the General Assembly. Since the Palestinians can't win in the Security Council if the US vetoes, they are apparently going to aim for one or both of two secondary options: either a non-binding resolution in the General Assembly "recognizing" a state of Palestine and its territorial sovereignty over Gaza and the West Bank and east Jerusalem or, alternatively, an upgrade of the observer status of the “Palestine” delegation from being the representative of the Palestine Liberation Organization to the representative of the "non-member state of Palestine." Each of these secondary options requires votes only in the General Assembly, which the Palestinians can win handily.

What’s the legal process for becoming a state?
Under customary international law, there is no fixed procedure for becoming a state. International law recognizes a state when it has the required ingredients of territory, a permanent population, a government with effective control and the capacity to carry on international relations. UN recognition is not part of a legal process for becoming a state. Although the Palestinians appear not to have the requisite ingredients, more than one hundred states in the world already recognize the “state of Palestine.”

The UN has a legal procedure for becoming a member, assuming one is a state. Membership requires a recommendation by the Security Council (which is subject to veto by the permanent members), and then a two-thirds vote by the General Assembly

Is there a way for the Palestinians to overcome a U.S. veto?
There is no way to get around a US veto in the Security Council. The Palestinians’ two options for UN votes that don't require Security Council approval — a non-binding "recognition" and upgrade of observer status — are immune from a US veto, but mainly symbolic in effect. Incidentally, the Palestinians have already won "recognition" of the state of Palestine in the General Assembly in the past.

Is there any benefit short of full statehood recognition that the Palestinians can obtain at the United Nations?
Yes, but none connected with the "statehood" initiative.

The Palestinians already have all the non-member rights that are possible, and will not gain any additional rights in the UN even if the observer status is now attached to a "non-member state" rather than an organization. The Palestinians already enjoy generous financial and political support from the United Nations, including dozens of non-binding anti-Israel resolutions every year, and the services of organs of the UN such as the UN Division of Palestine Rights that put out anti-Israel propaganda. The UN already reflexively adopts Palestinian political positions, and it treats the Palestinians as having sovereign territorial rights to the West Bank, Gaza and east Jerusalem.

The Palestinians can use their automatic super-majority in the General Assembly to add new anti-Israel resolutions to the annual list, such as ones calling for legal, economic and other sanctions against the Jewish state. Irrespective of the procedure used for proposing and adopting the resolutions, the resolutions would be non-binding.

Additionally, the Palestinians can use their effective control over UN bodies to create new anti-Israel “fact-finding” and other investigative missions, like the Goldstone Mission. And the Palestinians can use their majority in the General Assembly to request new anti-Israel advisory decisions from the International Court of Justice.

The Palestinian aim appears to be a symbolic victory that can be used in its ongoing diplomatic, legal and political warfare against Israel.

Why are the Palestinians seeking statehood recognition from the United Nations rather than negotiating directly with Israel?
The Palestinians have explained that they do not see the UN move and negotiations as either-or propositions.

The Palestinians pulled out of negotiations with Israel after Abbas received Prime Minister Olmert’s peace offer in 2008, in anticipation of elections in Israel and the United States. In light of Abbas’s rejection of Olmert’s offer, Palestinian President Abbas explained to a Washington Post interviewer shortly after President Obama’s inauguration in May 2009 that the Palestinians have little to gain from direct negotiations with Israel considering that Obama is likely to pressure Israel for unilateral concessions, and life is otherwise fairly good for the Palestinians. Other than a brief surrender to American pressure in September 2010, when Abbas agreed to negotiations for a few weeks on the eve of the expiration of Israel’s unilateral 10-month settlement freeze, Abbas has been true to his word; as he promised the Washington Post, he has refused even to “begin negotiations” or help “confidence-building measures” unless Israel meets several new preconditions.

The UN-Palestinian statehood initiative was born during those few weeks in which Abbas agreed to negotiate. In September, 2010, President Obama announced in the General Assembly that “when we come back here next year [in September, 2011], we can have an agreement that will lead to a new member of the United Nations – an independent, sovereign state of Palestine, living in peace with Israel.” The Palestinians subsequently adopted the idea of seeking membership in the UN as a state by September, 2011. President Abbas explained in an op-ed in the New York Times that the goal of the UN statehood initiative is “the internationalization of the [Palestinian] conflict [with Israel] as a legal matter, not only a political one.”

What tools does Israel have to respond to the Palestinian bid?
The Palestinians have long enjoyed an automatic majority in the General Assembly, so Israel has no way to block any anti-Israel or pro-Palestinian initiative in that body. By contrast, US vetoes of anti-Israel resolutions in the Security Council are not guaranteed, so Israel has to continue lobbying the Obama Administration for the requested vetoes. In addition, Israel is lobbying other states in order to reduce the symbolic victory for the Palestinians in the General Assembly by increasing the minority of votes in favor of Israel’s position.

Israel and allies of Israel have also considered steps outside the General Assembly for responding to the Palestinian initiative. Israel has considered sanctioning the Palestinian Authority in some manner, though the Israeli government has not pointed yet to any specific steps. The U.S. Congress has threatened to ban financial assistance to the Palestinian Authority if it pursues recognition of statehood at the United Nations in violation of its commitment to resolve outstanding disputes with Israel in direct negotiations.

What’s the plan for the day after the U.N. vote?
If Israel or the Palestinians have a concrete plan, they have not revealed it.

Among steps that the Palestinians have publicly considered are diplomatic and political steps to encourage European states to impose economic and political sanctions on Israel, legal measures against Israelis in courtrooms in Europe, and large-scale civil unrest. Israelis have worried that the civil unrest might quickly devolve into violence and terrorism, like previous Palestinian campaigns. However, recent reports suggest that the Palestinian Fatah leadership itself fears civil unrest lest it turn into a popular uprising against the corruption of the ruling Fatah authorities.

Israel is reported to have prepared for potential Palestinian violence, and the potential for sympathetic disturbances along the Syrian and Lebanese borders. There is little indication that Israel is prepared for the internationalized legal and political warfare promised by Abbas.