|by Dr. Ruwantissa Abeyratne
( December 1, 2012, Montreal, Sri Lanka Guardian) The United Nations General Assembly, on 29 November 2012, endorsed an upgraded U.N. status for the Palestinian Authority. The resolution elevates their status from “non-member observer entity” to “non-member observer state”.
The Charter of the United Nations does not address the issue of observer status. The issue has been dealt with purely on the basis of practice which has been ascribed an inarticulate legal basis through discussions and decisions in the General Assembly. There are various types of observer, including non-member states (such as Palestine now); intergovernmental organizations; and national liberation movements. Observers have the right to speak at United Nations General Assembly meetings, but no vote. Various other rights (e.g., to participate in debates, to submit proposals and amendments, the right of reply, to raise points of order and to circulate documents, etc.) are given selectively to some observers only. The only international organisation to be accorded these rights is the European Union. There is a distinction between state and non-state observers. Non-Member States of the United Nations, which are members of one or more specialized agencies, can apply for the status of Permanent Observer State. The non-state observers are the international organizations and other entities.
From a historical perspective, it can be observed that national liberation movements have been given some recognition by the United Nations which has granted observer status to them. Policies of decolonization, particularly in regions such as Africa, have been a compelling precursor to this trend. However, economic and social perspectives and issues have also propelled the United Nations to admit observers in addition to national liberation. Such entities admitted on the above grounds have been looked at as future authoritative governments that will be responsible for the social and economic well-being of their people. This was the commencement in the United Nations of the “proto-state” approach. Hence Resolution 3237 (XXIX) adopted in 1974, granted the Palestine Liberation Organization (PLO) observer status in the United Nations. The Resolution, inter alia, admitted of the right of the PLO to participate in the sessions and the work of the General Assembly in the capacity of observer and invited the PLO to participate in the sessions and the work of all international conferences convened under the auspices of the General Assembly in the capacity of observer. The Resolution also gave the PLO entitlement to participate as an observer in the sessions and the work of all international conferences convened under the auspices of other organs of the United Nations.
Although 138 States voted to recognize Palestine as a ”State” the question arises as to whether it is a State within the legal definition contained in the Montevideo Convention of 1933 which defines a State as being required to have a geographically defined territory; a permanent population; a government; and the ability to enter into arrangements with other States. In the case of Palestine, the main issue would be the first one concerning land boundaries which have been subject to some contention. It is submitted that although the majority of members in the General Assembly voted for the recognition of Palestine as a “nonmember observer State”, if the legal requirement for the recognition of Palestine as a State is not satisfied, there would be some contention at law, since membership in the United Nations and Statehood are two different things. For instance, it is entirely possible for a sovereign State to be a non-member of the United Nations as was Switzerland for a considerable number of years; and for a State which was not fully independent, as was India then, to be a member of the United Nations.
Articles 3 to 6 of the United Nations Charter govern membership in the United Nations. As stipulated in Article 4(1) of the Charter, UN membership is open to all peace-loving States which accept the obligations contained in the Charter and, in the judgment of the United Nations, are able and willing to carry out such obligations. The admission of any such state to membership is effected by a decision of the General Assembly upon the recommendation of the Security Council.
The recommendation of the Security Council is essential for a state to gain admission to the United Nations. China, France, the Russian Federation, the United Kingdom, and the United States, as permanent members of the Council, each wield a veto, and any one veto can effectively preclude admission. In an instance where the Security Council recommends admission, it is then up to the General Assembly to decide whether to admit the candidate as a Member State. Article 18(2) of the Charter prescribes that the admission of new Members to the United Nations must be decided by the General Assembly by a two-thirds majority of the members present and voting. Each of the United Nations’193 Member States gets one vote in the General Assembly, and no Member State has veto power.
One commentator says: “If Palestine is accepted as a State by the UN General Assembly, then UN agencies such as the ILO, WHO, FAO, and ICAO would also regard Palestine as a state, and no US veto power could prevent Palestine’s acceptance as a full member of such organizations. However accepting Palestine would mean an automatic cut-off of US funding to the organization, as occurred with UNESCO, which lost some $60 million in US contributions when it agreed to accept Palestine as a full member. Other organizations will presumably be very reluctant to commit financial suicide in order to satisfy Palestinian political aims”. (See http://www.canadafreepress.com/index.php/article/51293).
This statement, although seemingly acceptable in principle, has to be viewed with some caution with regard to Palestine’s vying for membership of Specialized Agencies of the United Nations such as ICAO. ICAO membership is acquired by a State through adherence to the Chicago Convention of 1944. Article 92 of the Convention states that it will be open for adherence by members of the United Nations and States associated with them, and States which remained neutral during the present world conflict (2nd World War). Adherence is effected by a notification addressed to the Government of the United States of America. Since Palestine is currently not a member State of the United Nations, its only recourse would be under Article 93 which provides that States other than those provided for in Articles 91 (referring to signatory States to the Chicago Convention, which Palestine is not) and 92 (a) may, subject to approval by any general international organization set up by the nations of the world to preserve peace, be admitted to participation in the Convention by means of a four-fifths vote of the ICAO Assembly and on such conditions as the Assembly may prescribe.
For the present, the recognition as a non-member observer State is a step forward for Palestine, as it is now recognized as a State and is no longer regarded as a mere “entity” within the United Nations. This upgrade prima faciesatisfies the basic requirement of Article 18(2) of the Charter – that a new member must be a State. It must now receive a two-thirds majority of the members present and voting in the General Assembly to eventually become a full member. However, Palestine has to clear the hurdle of the Security Council first, and that would require divine intervention or a lasting peace settlement with Israel that would satisfy all member States of the Security Council.