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The Procedure of the UN Security Council, 4th Edition

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  Revision on 11 March 2019

Chapter 7:   DECISIONS AND DOCUMENTS

Section 6:   Decisions relating to UN membership

 

2019 application by Palestine for UN membership likely to have repeated history of earlier unsuccessful bid

 

On 26 December 2018, Palestinian Foreign Minister Riad al-Malki announced that the following year,  Palestine would present a new application for UN membership. 

 

The process of approving States for membership in the United Nations is governed by Article 4 of the Charter and by the Security Council’s procedural rules 58, 59 and 60.

 

Article 4 reads: 

 

1.  Membership in the United Nations is open to all other peace-loving states which accept the obligations contained in the present Charter and, in the judgment of the Organization, are able and willing to carry out these obligations.

 

2.  The admission of any such state to membership in the United Nations will be effected by a decision of the General Assembly upon the recommendation of the Security Council.

 

Procedural rules 58, 59 and 60, in excerpted[2] form, read as follows:   

 

Rule 58

Any State which desires to become a Member of the United Nations shall submit an application to the Secretary-General.  This application shall contain a declaration made in a formal instrument that it accepts the obligations contained in the Charter.

 

Rule 59

The Secretary-General shall immediately place the application for membership before the representatives on the Security Council.  Unless the Security Council decides otherwise, the application shall be referred by the President to a committee of the Security Council upon which each member of the Security Council shall be represented.  The committee shall examine any application referred to it and report its conclusions thereon to the Council . . .  

 

Rule 60

The Security Council shall decide whether in its judgement the applicant is a peace-loving State and is able and willing to carry out the obligations contained in the Charter and, accordingly, whether to recommend the applicant State for membership.

 

If the Security Council recommends the applicant State for membership, it shall forward to the General Assembly the recommendation with a complete record of the discussion. . . .

If the Security Council does not recommend the applicant State for membership or postpones the consideration

of the application, it shall submit a special report to the General Assembly with a complete record of the

discussion . . . .

 

It will be recalled that Palestinian President Mahmoud Abbas submitted a prior application for UN membership on 23 September 2011.  In his letter of that date (S/2011/592), Abbas stated that the application was

 

“submitted based on the Palestinian people’s natural, legal and historic rights and based on United Nations General Assembly resolution 181 (II) of 29 November 1947 as well as the Declaration of Independence of the State of Palestine of 15 November 1988 and the acknowledgement by the General Assembly of this Declaration in resolution 43/177 of 15 December 1988.”

 

Attached to the application was the declaration, required by Rule 58, that Palestine was a peace-loving nation and that it accepted the obligations contained in the Charter and solemnly undertook to fulfil them. 

 

As had been the Security Council’s practice since 1971, once the Secretary-General transmitted the application to the Council President (Lebanon), the President proposed during consultations that a formal Council meeting be convened to refer the application to the Council’s Committee on the Admission of New Members pursuant to Rule 59.  This the Council did on 28 September 2011.[3]

 

Beginning on 30 September 2011, the Committee on the Admission of New Members (comprised of all 15 Council members) held three formal meetings and five informal meetings, four of which were at expert level.  From the outset of the deliberations, it was clear that the members were deeply divided over the application.  According to the report subsequently submitted by the Committee (S/2011/705), in considering whether Palestine met all the requirements for UN membership set out in the Charter, reference was made during the discussions to the 1933 Montevideo Convention on the Rights and Duties of States, which declares that a State as a person of international law should possess a permanent population, a defined territory, a government, and the capacity to enter into relations with other States.  In the discussions, the view was expressed that Palestine met the requirements of a permanent population and that the lack of precisely settled borders was not an obstacle to meeting the criterion of a defined territory.

 

On the other hand, positions varied as to whether Palestine met the criterion of having the capacity to enter into relations with other States, as well as the criterion of being a peace-loving State.  Questions were also raised regarding Palestine’s control over its territory “in view of the fact that Hamas was the de facto authority in the Gaza Strip”.  In fact, a number of objections were raised concerning Hamas and its failure to renounce terrorism and violence.  However, reference was made to the 1971 Advisory Opinion of the International Court of Justice on Namibia, which stated that the only acts that could be attributable to a State were those of the State’s recognized authority.

 

As the discussions progressed, it is believed that a majority of members supported having the Committee recommend to the Security Council that it adopt a resolution recommending that the General Assembly admit Palestine to UN membership.  However, this stance was not shared by all.  According to the report, at least two members stated that they could not support a favourable recommendation at that time.  Since it had been the Council’s contemporary practice that any recommendation for UN membership decided within the Committee should be by consensus, consequently no draft resolution was transmitted to the Security Council.  Instead, pursuant to Rule 60, the Committee prepared a special report, “with a complete record of the discussion”, for submission to the General Assembly.  The report concluded by stating that “the Committee was unable to make a unanimous recommendation to the Security Council.”

 

The fact that the Committee did not transmit to the Security Council a draft resolution recommending the admission of Palestine did not preclude submission directly to the Council by one or more Council members, acting independently, of such a draft resolution.  The relevant rules of procedure provide for the referral of applications to the Committee “[u]nless the Security Council decides otherwise”, but the rules do not state that a favourable decision by the Committee is a prerequisite for a decision by the Council.  Rather, pursuant to Article 4 and Rule 60, it is the Security Council itself which shall decide whether to recommend the applicant State for membership.

 

In the case of Palestine’s 2011 application, no draft resolution was brought independently before the Security Council.  A decision by the Council, as contrasted to the Committee, would not have required full consensus, but only the minimum of nine affirmative votes, which would probably have been attainable.  However, throughout the Council’s existence, the decision to recommend a State for UN membership has been considered a substantive matter and therefore subject to veto.  In fact (as noted in another article on this website), out of the total 284 vetoes cast in the Council's history, 59 were imposed in order to block applications for UN membership.[4]  In 2011, it was considered certain that if a draft resolution recommending Palestine’s admission had been submitted to the Council, the United States would have vetoed it.

 

As an alternative to recommending Palestine for UN membership, it was noted in the Committee report that a suggestion had been made that, “as an intermediate step, the General Assembly should adopt a resolution by which Palestine would be made an observer State.”[5]  This the Assembly did on 29 November 2012 by its resolution 67/19.  In that resolution, the Assembly also expressed the hope “that the Security Council will consider favourably the application submitted on 23 September 2011 by the State of Palestine for admission to full membership in the United Nations”.

 

Two months after the General Assembly vote, it was underscored that the “suggestion” in the report of the Committee on the Admission of New Members that the Assembly accord observer State status to Palestine had not been supported by all Council members.  On 23 January 2013, the Council convened its first open debate on “The situation in the Middle East, including the Palestinian question” since the adoption of Assembly resolution 67/19.  After the Council President (Pakistan) extended an invitation to participate in the meeting to “Riad Malki, Minister for Foreign Affairs of the Observer State of Palestine to the United Nations”, Malki was seated at the Council table behind a nameplate reading “State of Palestine”.  In her intervention, the representative of the United States, which had voted against the 2012 Assembly resolution, affirmed that

 

“The United States does not consider that the resolution bestows Palestinian statehood or recognition . . .  In our view, therefore, any references to the State of Palestine in the United Nations, including the use of the term ‘State of Palestine’ on the placard in the Security Council, or the use of the term ‘State of Palestine’ in the invitation to this meeting or in other arrangements for participation in this meeting, do not reflect our acquiescence to the view that Palestine is a State.  That statement of our position shall apply to Palestinian participation in meetings of the Security Council or other United Nations meetings, regardless of whether the United States specifically intervenes on this matter in the future.” (S/PV.6906)

 

In the eight years since Palestine submitted its 2011 application for UN membership, little has occurred to suggest that a new application in 2019 would receive the necessary support of the Security Council. 

 

In this regard, it is well to recall that it was under the Obama administration that the United States withheld its support for Palestine’s 2011 application and made its 2012 statement in the Security Council concerning Palestinian statehood.  The Trump administration, since its inauguration in 2017, has taken a harder stance on the Palestinians, notably cutting off American contributions to UNRWA and redirecting US Economic Support Funds originally designated for the West Bank and Gaza.  It also recognized Jerusalem as the capital of Israel in disregard of Palestinian claims to East Jerusalem.  Thus there is every reason to believe that the United States would not join in a consensus to have the Committee on the Admission of New Members forward a favourable recommendation to the Security Council.  

 

In addition to the United States, none of the other Security Council members from the Western European and Other States Group (Belgium, France, Germany and the United Kingdom) have recognized Palestinian statehood.  Accordingly, at least some of these might also withhold their approval of any consensus in the Committee to forward a favourable recommendation to the Council. 

 

Should a draft resolution supporting the Palestinian application be brought independently to a vote in the Security Council, it potentially might receive the required minimum of nine affirmative votes.  Of the present Council members, ten have recognized the State of Palestine.  These include all of the members from the Africa Group (Côte d’Ivoire, Equatorial Guinea, South Africa), the Asia-Pacific Group (China, Indonesia, Kuwait), the Group of Latin American and Caribbean States (Dominican Republic and Peru) and the Eastern European Group (Poland and the Russian Federation).  However, a United States veto of such a resolution would virtually be a certainty. 

 

Given that a new Palestinian application for UN membership in 2019 is not likely to succeed, the question arises as to what political value might be gained from such an initiative.  In part, it may be viewed as an effort to bring greater attention to the Palestinian Authority’s ongoing quest for ever wider recognition from international bodies.  In this regard, at the same time Al-Malki announced the forthcoming UN application, he also said that Palestine would request the International Criminal Court to open an official inquiry into Israeli settlements construction.[6]

 

Moreover, as noted in the book (pages 299 and 311), in some instances, sponsors of a draft resolution

 

“may know in advance that a veto will be cast, but decide that the point must be made publicly that a majority of Council members are in favour of a certain course of action, and are blocked from effecting it owing to the opposition of one or more permanent members.”

 

However, as regards the Palestinian question, the isolation of the United States, in particular, has already been amply demonstrated.  On 1 June 2018, in two related Middle East votes in the Security Council, the United States was the only member to oppose one draft resolution, and the only member to vote in favour of a second draft resolution.  Far from seeing this solitariness as damaging, it would appear that the Trump administration seeks to highlight its independent stance on the Middle East.

 

Overall, however, there are risks to the Palestinian leadership in submitting a new application for membership at this time, when positions on the Middle East are nuanced and variable among UN Member States in general, and among Security Council members in particular. 

 

Three votes during the General Assembly’s 73rd session are indicative of this.  One was cited in a 14 December 2018 letter from Palestine’s Permanent Observer (S/2018/1114).  He referred to resolution 73/89, presented by Ireland, by which the Assembly reiterated its call for the achievement, without delay, of a comprehensive, just and lasting peace in the Middle East on the basis of the relevant UN resolutions, including Security Council resolution 2334 (2016), the Madrid terms of reference, including the principle of land for peace, the Arab Peace Initiative and the Quartet road map, and an end to the Israeli occupation that began in 1967, including of East Jerusalem, as well as the international community’s support for the two-State solution.  The Assembly resolution was adopted by a vote of 156-6-12.  Of the present Security Council members, the United States voted against; Côte d’Ivoire and Equatorial Guinea abstained; and the Dominican Republic did not participate.  The other eleven Council members voted in favour.

 

A second resolution, 73/5, adopted on 16 October 2018, granted the Palestinian Observer special rights and privileges in the Assembly and at certain conferences during 2019, in view of Palestine’s chairing the Group of 77 for that year.  The resolution was adopted by a vote of 146-3-15.  Of the present Security Council members, the United States voted against; Poland abstained; and Côte d’Ivoire and Equatorial Guinea did not participate.  The remaining eleven Council members supported the resolution.

 

A third draft, presented by the United States and entitled “Activities of Hamas and other militant groups in Gaza”, was voted upon on by the Assembly on 6 December 2018 and received 87 votes in favour, but failed because it fell short of the two-thirds adoption requirement.  Of the present Council members, voting in favour were Belgium, the Dominican Republic, France, Germany, Peru, Poland, the United Kingdom and the United States.  Voting against were China, Indonesia, Kuwait, the Russian Federation and South Africa.  Côte d’Ivoire and Equatorial Guinea abstained.

 

On 15 January 2019, both Palestinian President Mahmoud Abbas and Al-Malki said that the application would be forthcoming within a few weeks.  However, on 28 January, the Associated Press cited the Palestinian observer at the UN as saying that the day will come when "obstacles" in the Security Council to full UN membership will be removed, "but that day is not today."

 

(This update supplements pages 417-420 and 422-423 of the book.)

___________________________

[1] Israel’s UN representative, accusing Palestine of continuing to support terrorism and encourage violence, immediately announced that his government would work to block favourable action by the Security Council on the application.

[2] The provisions in these rules relating to the timing of the Security Council’s action on applications have not been included because the Council has shown flexibility in that regard, as is allowable in “special circumstances” under Rule 60.

[3] See S/PV.6624.  On the Council’s monthly programme of work, as is customary, the description “Public meeting” was used instead of the meeting nomenclature set out in S/2017/507, para. 21.  The agenda item used for such referral meetings is the generic “Admission of new Members”, rather than an agenda specifically indicating the applicant.

[4] Of those vetoes, 51 were cast by the Soviet Union, six by the United States, and two by China.  The Soviet Union voted against UN membership for Austria, Cambodia, Ceylon (Sri Lanka), Finland, Ireland, Italy, Japan, Jordan, Kuwait, Laos, Libya, Mauritania, Nepal, Portugal, the Republic of Korea, Spain and Vietnam.  The United States voted against membership for Angola, the Republic of South Vietnam, and the Democratic/Socialist Republic of Vietnam.  China voted against membership for Bangladesh and Mongolia.

[5] At a Security Council meeting on 24 October 2011, the French representative, commenting on the Palestinian application, observed that everyone knew “the path to admission to the United Nations is strewn with obstacles.”  Accordingly, he recalled that the President of France proposed on 21 September 2011 “an intermediate stage that could generate concrete progress for the Palestinians by elevating the status of Palestine in the United Nations to that of Observer State.”  Such an approach, he added, was “the best way currently available to emerge from the impasse.”

[6] In addition to membership in the International Criminal Court, Palestine has gained membership in the UN Industrial Development Organization (UNIDO), the UN Conference on Trade and Development (UNCTAD), the UN Educational, Scientific and Cultural Organization (UNESCO), the Organization for the Prohibition of Chemical Weapons (OPCW), and INTERPOL.