UN General Assembly “Uniting for Palestine”

THIS IS A GREAT ANALYSIS.

INSS Insight No. 251, April 11, 2011

By Robbie Sabel (Dr. Robbie Sabel lectures in international law at Hebrew University and is a former legal adviser to the Israeli Foreign Ministry.)

[..] Except on matters of procedure and budget, all General Assembly resolutions are only recommendations. The other main organ of the UN is the Security Council, which was granted the primary responsibility for matters of international security and peace. In contrast to the General Assembly, Council decisions are binding if adopted under Chapter VII of the UN Charter.

During the early years of the Cold War, the Soviet Union used its veto power in the Security Council to prevent decisions being taken against North Korea. At the time the UN General Assembly was dominated by the Western states, and in order to try and bypass the stalemated Security Council the United States initiated General Assembly Resolution 377, commonly referred to as the “Uniting for Peace Resolution.”

The resolution declared that where the Security Council could not reach a decision because of a veto, a special session of the General Assembly could be convened “with a view to making appropriate recommendations for collective measures…including the use of armed force when necessary.” Such resolutions require adoption by a two thirds majority at a specially convened emergency session of the Assembly. Because of the present automatic anti-Israel majority in the Assembly, “Uniting for Peace” resolutions have been used frequently for condemning Israeli policies. Resolutions adopted at such sessions, however, are still only recommendations and are not binding on states

There are reports that this September, the Palestinian delegation to the UN, which has observer status at the organization, will attempt to introduce a new “Uniting for Peace” resolution. There are a number of possible scenarios for such a resolution. The most likely possibility would by a call for recognition of a Palestinian state within the 1967 boundaries. In fact, a 2003 Arab sponsored General Assembly “Uniting for Peace” resolution has already called for “Affirming the necessity of ending the conflict on the basis of the two-State solution of Israel and Palestine living side by side in peace and security based on the Armistice Line of 1949.” If adopted, a new such resolution would grant the Palestinians further international support for their demand for a return to the 1967 lines. It would not however be binding on Israel or on any other state, not even for those states voting for the resolution. Under international law, except for cases where a former border is inherited by new states, borders can only be delimited by agreement between the states concerned. No UN organ has the authority to delimit boundaries.

A General Assembly resolution recognizing a Palestinian state would not mean acceptance of Palestine as a member of the UN. In order to be accepted as a member of the UN, the Palestinians would have to officially declare that they are a state, an act they have refrained so far from doing. Should the Palestinians unilaterally declare themselves to be a state, it would be a violation of the Oslo agreements and of the Middle East Roadmap, but it might have the salutary effect of changing the current image of the Israel-Palestinian dispute from that of a homeless people under military occupation into a fairly minor border dispute between two neighboring states.

Even if the Palestinians were to declare themselves as a state, the General Assembly could then only accept Palestine as a member of the UN if there is a recommendation to that effect from the Security Council. In a 1950 Advisory Opinion, the International Court of Justice explicitly stated that “The General Assembly can only decide to admit [a new member state] upon the recommendation of the Security Council” and the admission of a state to membership in the United Nations cannot be done “by a decision of the General Assembly when the Security Council has made no recommendation for admission.” The Security Council could make such a recommendation if it determines that Palestine fulfils the international law criteria for recognition. These requirements are that the presumptive state has an effective government, a permanent population, defined territory and an ability to conduct foreign relations. There is no need, however, for a state to have clearly defined boundaries provided there is at least some territory that is under its effective control. A Security Council recommendation cannot be adopted, however, if a permanent member of the Council vetoes it by voting against the resolution.

One other, less likely scenario, is that the General Assembly will call for a UN trusteeship to replace Israel in the West Bank and Gaza. The League of Nations mandate for Palestine could serve as a precedent, and the UN has undertaken such trusteeship functions in Namibia, East Timor, and Kosovo. For the Palestinians to propose such a trusteeship implies, however, that they do not see themselves as being ripe yet for statehood. It is unlikely that they will make such a statement. Furthermore many UN member states might be very reluctant for the UN to undertake such an expensive and thankless task. They have only to recall Britain’s unhappy record as the Mandatory power.

A third possible scenario is that the Assembly will request the International Court of Justice to give an advisory opinion confirming that the 1949 armistice lines are the boundaries of the Palestinian state. Requesting an opinion on the 1949 armistice lines might, however, be self defeating for the Palestinians as it would be extremely difficult for the World Court to find that a temporary Armistice Demarcation Line between Israel and Jordan is a binding international boundary. The Court in its 2004 advisory opinion on the “wall” in “Occupied Palestinian Territory,” an opinion that was requested under a UN Arab sponsored “Uniting for Peace” resolution, refrained from making such a ruling regarding the 1949 Armistice Line.

The underlying issue remains that the UN General Assembly can only adopt non-binding recommendations. The Assembly cannot determine boundaries nor can it confer statehood. A boundary between Israel and a future Palestinian state can only be determined by agreement between the two parties. The international community can encourage or hinder agreement, but it cannot replace the parties in this respect.

April 12, 2011 | 10 Comments »

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  1. being more of a map reader than most, I have been thinking that Saudi Arabia should build a new oil pipeline directly from the western fields, where their Shi’a minority live, through Jordan and along the Sinai border to the Mediterranean. Turn Gaza into an oil refinery wholly owned by the House of Saud.

    As I read about the overbuilt housing in Ireland and Spain, and the de-population of Detroit, it would seem there are several places to relocate millions of palestinians while simultaneously solving the housing crisis.

    guess you can tell I do not believe legalisms mean much when it comes to World versus Israel as a Jewish State.

  2. “[W]hat if the population of Jordan decided to move ([e.g., if] the Saudi Arabians, anxious to increase their Sunni population, induced the Hashemites and other Sunni Moslems in Jordan to go to Saudi Arabia)? Who would have the prime claim to the land? Under the Mandate, the Jews would.”

    Quite so, and an interesting & engaging proposition.

    As a practical political matter, however, it is, I would submit, most unlikely that the House of al-Sa’ud would view it as wise to encourage the return of the Hashemites (specifically) to the Arabian Peninsula. Arguably (from the Hashemi perspective anyway), the Sa’udi possession & sovereignty over the the bulk of the peninsula generally — and the Hijaz (containing the holy cities of Mecca & Medina) more specifically — constitutes a near century-long usurpation of rightful Hashemite domains extending as far back as the 7th century.

    A usurpation, moreover, accomplished thru stealth, violence and war (during the early 1920’s).

    From the Sa’udi viewpoint, why allow for the rise of a revanchist movement (or worse)?

    On the other hand, however, if a regional war (or some other upheaval of comparable dimension and import) were to break out which involved both the Sa’udis and the present Jordanian monarchy, then the overall configuration of forces and land would indeed go up for grabs — and your question (“Who would have the prime claim to the land [east of the River]?”) might very well be in play.

  3. Yoel is right as to the termination of the Mandate on May 14, 1948, when the State of Israel was created. The Mandate expired on that date for the simple reason that it fulfilled its temporary role, as defined in Article 22 of the Covenant of the League of Nations.

    What did not expire are the acquired rights bestowed by the Mandate on the Jewish people. These rights remain valid to this day, not only because of Article 80 of the UN Charter, but also as recognized in the Vienna Convention on the Law of Treaties (1969) which clearly states that “the termination of a treaty…does not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination.” (Art. 70, 1-b)

  4. Michael Chenkin says:
    April 13, 2011 at 5:05 pm

    We should bear in mind that the vagaries and treacheries of international law notwithstanding, the Jewish right to Eretz Israel pre-exists modern international law, the states that created that law, is not dependent on international law, and cannot be terminated by international law.

    This.

    I have a theory that until we Jews humble ourselves and as a united nation thank G-d for letting us return back to our homeland, G-d will let the whims of mankind box us into diplomatic and legal corner, which nothing else will help us get out of.

    “And if ye will not for all this hearken unto Me, but walk contrary unto Me; then I will walk contrary unto you in fury…”
    Leviticus 26 (excerpt)

  5. Joel states, the Mandate expired in 1948 with the declaration of the state of Israel.

    On what basis does Joel make this claim? I have never seen any lawful enactment that indicates the Mandate expired. It does not expire by its own terms.

    If Joel can document an enactment in which the Mandate was cancelled for the territory west of the Jordan River, let him share it with us.

    The Mandate is an enactment of the League of Nations (and taken over by the UN in Article 80 of its Charter). The British resigned from acting as Mandatory on May 15, 1948. That ends Britain’s role as the administrator of a “sacred” trust. It does not end the trust itself. Britain in her imperial arrogance and treachery, may have confused the trust and the trustee and regarded herself as both. She was trustee. The trust was an instrument entirely outside of England. She has done a good job of confusing public debate on this point. As the idea that the Mandate came to an end is a position that suits the Arab agenda, we should not be advocating this false position here.

    The creation of Israel represents a partial fulfillment of the purposes of the Mandate. Arguably the Mandate could be terminated for those areas under Israeli control, as its purpose has been fulfilled, and arguably the admittance of Israel into the UN could serve as a basis of terminating the Mandate in those areas the UN recognizes as Israeli territory, but for no other part of the Mandate.

    We should bear in mind that the vagaries and treacheries of international law notwithstanding, the Jewish right to Eretz Israel pre-exists modern international law, the states that created that law, is not dependent on international law, and cannot be terminated by international law.

  6. To be a little more precise, the Mandate for Palestine expired in 1948 with the declaration of the State of Israel. It is true that the UN acted illegally in not negotiating a trusteeship agreement with the interested parties, but rather recommending partition – which violated the Mandate which was still in force when the Partition Resolution was adopted. It is true that the Jewish State owes its legal basis to the San Remo Resolution which was then translated into the Mandate, and it is also true that Jewish rights to the entire area of Mandated Palestine, including what was then “Transjordan” are still valid. The only thing we are missing is the Israeli ruler willing to assert those rights in the name of all of us. May he make his appearance soon.

  7. I hope this analysis of the legal situation is true, but its description of the Korean situation sounds strange. Wasn’t the UN an active participant in the Korean War? How did that happen if the USSR blocked all attempts to pass a binding resolution on the matter? And wasn’t the USSR boycotting the Security Council at that time, making it impossible for the USSR to use its veto?

  8. Robbie Sabel is not a reliable source of information.

    In “International Legal Issues of the Arab-Israeli Conflict An Israeli Lawyer’s Position” Sabel states: “The League of Nations, taking into account the existing Arab population of Palestine, ordered that the Jewish national home be created only in Western Palestine. This excluded the whole of Palestine East of the River Jordan, comprising two thirds of the original mandated territory of Palestine, from being part of the Jewish national home.”

    This is not correct. Article 25 of the Mandate allowed Great Britain, in regards to eastern Palestine and with permission of the League of Nations, to “postpone or withhold application of such provisions of this mandate as he considers inapplicable to existing local conditions….”

    Upon a request from Great Britain the League of Nations passed a resolution pursuant to Article 25 declaring those parts of the Mandate that established the Jewish homeland to be “inapplicable” in eastern Palestine. What the resolution did not do was terminate or render inapplicable Article 25 (or any other provision of the Mandate, save those specifically related to the Jewish national home.) Accordingly, the scope of “inapplicable” is only “postpone or withhold,” but not cancel or eliminate the Jewish homeland provisions of the Mandate for territory east of the Jordan River.

    Article 5 of the Mandate states:. “no Palestine territory shall be ceded or leased to, or in any way placed under the control of, the Government of any foreign Power.” As eastern Palestine was ceded to the control of Abdullah, the Sherif of Mecca, Saudi Arabia, the creation of Jordan is illegal.

    There are two important reasons for making this point. First, a great mistake of Israelis is to gratuitously forsake Jewish rights to Palestine (as defined in the Mandate). Sabel made the above quoted remarks apparently under the auspices of the Israeli Foreign Ministry. Second, what if the population of Jordan decided to move (the Saudi Arabians anxious to increase their Sunni population induced the Hashemites and other Sunni Moslems in Jordan to go to Saudi Arabia. Who would have the prime claim to the land. Under the Mandate, the Jews would. Theoretical perhaps, but why gratuitously and falsely claim the Jews do not have a right they do have.

    In this article Sable assumes (and he stated elsewhere) that the Mandate for Palestine no longer is in force. This is entirely untrue. The Mandate is a treaty between the League of Nations and Great Britain actualizing a “sacred trust.” In the case of Palestine, the “sacred trust” is to enable the Jews to “reconstitute” their national home in all of Palestine. The sources of authority for the Mandate are not the Mandate itself, but Article 22 of the League of Nations Charter (which is kept in force through Article 80 of the United Nations Charter) and the San Remo Resolution. As the Mandate is a trust, the resignation of the trustee (Great Britain) does not in any way diminish the rights of the beneficiary of the trust (the Jewish people). Further, the trust was not established by Great Britain. It was established by the League of Nations and assumed by the United Nations. This means the trust document still has lawful force (and arguably the rights of the Jews under international law would survive even the termination of the trust, though that has not happened.) And still further, this trust did not bestow upon the Jews a right, it recognized a pre-existing right of the Jewish people, and incorporated into international law a mechanism and obligation to assist the Jews in realizing their right of “reconstituting” their home land. The United Nations, acting as the successor to the League of Nations, cannot take away that which it never bestowed in the first place, namely the rights of Jews to Eretz Israel.

    Additionally, the status of the administered territories is contested only because Jordan, Egypt, Syria and others illegally attacked and conquered the land of the Mandate. The prior lawful status of the administered territories is that they are part of the homeland of the Jews. Israel is free to set her borders, and she is free to determine what lands she will use force and other instruments of international power to keep under her control. But not even Israel is free to relinquish the historical and sacred right of Jews to their homeland.