Loading ...Beyond the Security Council: How the General Assembly Can Grant Palestine UN Membership
By: John Quigley / Arab America Contributing Writer
Palestine’s effort at United Nations membership need not rise and fall on what is done by the Security Council. Enough momentum has been generated that the UN General Assembly may be able to admit Palestine without the Security Council. The European firewall against Palestine’s UN membership has been breached for the first time. Spain, Ireland, and Norway have said they recognize Palestine as a state.
The General Assembly can admit Palestine independently if it decides to take that initiative. Under UN Charter Article 4, admission to the organization “will be effected by a decision of the General Assembly upon the recommendation of the Security Council.” Whether that recommendation has to be favorable, or simply a recommendation in either direction, is not specified.
At the conference where the UN Charter was drafted in 1945, an Advisory Committee of Jurists who worked with the prospective member states explained that the draft of Article 4 provided for a “right of the Assembly to accept or reject a recommendation for the admission of a new Member, or a recommendation to the effect that a given State should not be admitted to the United Nations.” That explanation was accepted by the states doing the drafting as what Article 4 meant.
When the Security Council has refused to make a favorable recommendation, however, the General Assembly has backed off. It has asked the Security Council to reconsider, as it did in May on Palestine, but it has never gone ahead to admit a state in that situation. At the same time, the General Assembly has never said that deferral to the Security Council is required. The only reason for a Security Council role is that a state must be “peace-loving” before it can be admitted, and the Security Council deals with war and peace. So it has the limited role of advising the General Assembly whether a state is “peace-loving.”
The other oddity in the situation is that when the Security Council votes on whether to recommend a state, the veto is not supposed to apply. At the 1945 drafting conference, the five states that would become permanent members of the Security Council jointly issued a memorandum in which they said that the veto would apply only to war and peace issues. The purpose of the veto was to ensure that the United Nations could go to war only if all the major powers were on board. Otherwise, a UN force could have run up against a major army. The veto was not supposed to apply to organizational issues at the United Nations, like membership for new states.
In the Security Council’s first years, the permanent members other than the USSR agreed informally not to vote in the negative on admissions that were supported by the requisite qualified majority. When Israel’s application came to the Security Council in 1949, Britain said that it opposed the application because Israel refused to repatriate Palestine refugees and because it was encroaching on Jerusalem. Nonetheless, Britain abstained rather than vote in the negative. It explained that it would not use its “privileged vote to block the admission of any State which obtains the requisite majority.”
The Biden Administration denies even that Palestine is a state, contradicting a position the Bush Administration adopted in 2003 in the Performance-based Roadmap, which assumed that Palestine was a state. The Biden Administration insists that Palestine can become a state only when it comes to terms with an Israeli government that, judging from its recent statements, is unwilling to come to terms with it.
Approval of Palestine’s application in the General Assembly would stand a good chance. A two-thirds vote is required, but only of states “present and voting.” Under the General Assembly’s rules, states that abstain and states that do not vote are not counted in the total. On May 10, when it voted to ask the Security Council to reconsider, it said that Palestine is fully qualified for membership. Voting in favor were 143 states. So that number thinks that Palestine is a state and that it is “peace-loving.” Only 9 states voted against. With so few states being opposed to Palestine membership, a vote in the General Assembly would stand a good chance of passing.
John B. Quigley is a Professor Emeritus at the Moritz College of Law of the Ohio State University where he is the Presidents’ Club Professor of Law Emeritus. In 1995 he was recipient of the Ohio State University Distinguished Scholar Award. Active in international human rights work, his numerous publications include books and articles on human rights, the United Nations, war and peace, east European law, African law, and the Arab-Israeli conflict.
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