From the Editors
Palestine’s pending request for recognition in the United Nations (“UN”) has generated great international interest, both in what recognition will mean for Palestine and the Palestinians, and in whether anything will really change in the absence of territorial independence. I will address this question by way of a comparison between Palestine and South West Africa (Namibia), and what legal strategies were followed in both cases at the UN. I would like to particularly recognize the work done by Stephanie Koury, Victor Kattan, and John Quigley in his just-published book, The Statehood of Palestine: International Law in the Middle East Conflict (Cambridge University Press, 2010). I have drawn from their insights in this discussion.
It might seem strange to compare the Palestine and South West Africa/Namibia cases, but the comparison provides useful insight into the risks and benefits of the present Palestinian bid at the UN. Namibia and Palestine have parallel histories in terms of the way they began their campaigns towards self-determination and independence, and in the way their status was addressed at the League of Nations, and eventually in the UN. Comparing these histories helps to understand two issues: 1) the different ways in which law provides a framework for attaining statehood; and 2) whether independence is a necessary precondition to statehood. This discussion will illustrate the critical role legal strategies in the UN and elsewhere played in the Namibian bid for statehood in the absence of independence. It will also illustrate how the absence of a clear and sustained legal strategy on the part of the Palestinians has affected the bid for statehood in the absence of independence. Put simply, can Palestine achieve what Namibia achieved through the UN?
Strategies & Developments in the UN
At the end of World War I, the Allies adopted the Covenant of the League of Nations. Art. 22 of the League Covenant created the Mandate system, whereby the colonies of the defeated Powers—Germany, the Austrian-Hungarian Empire and the Ottoman Empire—were to be re-constituted as mandates of the League of Nations, and awarded to specific European countries. The plan created three classes of territories-- claimed to be at different stages of development-- and established that they would be under the Mandate, or supervision, of one of the great powers. The League of Nations Covenant placed Palestine, Iraq, Lebanon, Syria, and Transjordan among the “Class A” Mandates, or those most prepared for independence. The Covenant gave Great Britain mandatory power over Palestine. South West Africa (now Namibia), placed under South African mandate, was among the “Class C” countries, or those considered farthest from independence under the League of Nations Covenant. In fact, the League did not contemplate independence at all for the “Class C” territories.
On April 18, 1946, the League dissolved. The Mandate countries that had not yet become independent came under trusteeship of the UN. South Africa had sought to fully incorporate Namibia as South African territory, but the UN refused, and the General Assembly voted to put Namibia in trusteeship under Chapter XII of the UN Charter. South Africa however, refused, initiating a lengthy battle in the United Nations. Almost immediately, the General Assembly filed the first of three requests for Advisory Opinions from the International Court of Justice (“ICJ”) on various questions relating to the status of Namibia; the Security Council later filed another Advisory Opinion with the ICJ, and Liberia and Ethiopia filed a contentious case challenging South Africa’s apartheid policies and failure to comply with UN requirements towards South West Africa. [International Status of South West Africa, Advisory Opinion (ICJ Report 128,1950); Voting Procedure on Questions Relating to Reports and Petitions Concerning the Territory of South West Africa, Advisory Opinion (ICJ Report 67, 1955); The Admissibility of Hearings of Petitioners by the Committee on South West Africa, Advisory Opinion (ICJ Report 23, 1956); the Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion (ICJ Report 16, 1971); and South West Africa (Ethiopia vs. south Africa; Liberia vs. South Africa), ICJ Report 6, 1966)]
In October of1962, the UN terminated South Africa’s Mandate, placed Namibia under direct UN responsibility, and set up an Ad Hoc Committee for South West Africa to enable Namibia to gain independence. The Ad Hoc Committee was succeeded by the UN Council for Namibia, entrusted to administering the area until it achieved independence. Although South Africa did not recognize Namibian independence and did not withdraw from its territory until 1988, the world community, following the actions taken at the UN and at the ICJ, had created a defined legal framework for Namibia’s status. This framework enabled the UN to declare Namibia’s right to independence, impose sanctions on South Africa, and create the mechanisms to implement independence twenty years before independence was actually achieved. Through these mechanisms, Namibia was able to lay the foundation for independence, despite the fact that the Security Council never invoked Chapter VII authority to force South African withdrawal from South West Africa. Much of these developments occurred through a robust legal strategy consisting of early work within the UN General Assembly framework and multiple ICJ submissions.
In contrast, Palestine was the only “Class A” Mandate territory not to achieve independence by the time the League terminated in 1946. In 1946, the Arab states objected to continuing Palestine’s UN trusteeship territory status. Similar to South Africa’s Mandate over Namibia, the UN accepted Britain’s commitment to its Mandate obligations rather than putting Palestine under direct UN trusteeship. It is important to note the inconsistencies in Great Britain’s own role as mandatory power: Great Britain had, on the one hand, committed to bringing Palestine to independence, while simultaneously committing to securing a national home for the Jewish people in Palestine through the Balfour Declaration. In comparison to Namibia, however, the General Assembly and the Security Council have neither jointly developed the actual foundation for recognition, nor the legal framework for Palestinian independence. Moreover, in the Palestinian case, there has been very limited effort to obtain rulings from the ICJ in support of self-determination.
The General Assembly’s AD Hoc Committee to study proposals on the future government of Palestine rejected the Arab and other states’ initial proposals to seek an ICJ Advisory Opinion and, instead recommended Partition. The General Assembly then passed UNGA Resolution 181 in November 1947, recommending partition of Palestine into two states, which the Jewish Agency accepted and the Arab High Committee rejected. [UNGA Res 181 29 Nov. 1947] Israel declared its state in May 1948, gaining control of 77% of historic Palestine, beyond the borders demarcated in Resolution 181. The General Assembly passed Resolution 194 [UNGA Res 194 (III), 11 Dec. 1948] a year later. This key Resolution incorporated the individual rights of refugee return, restitution and compensation, and conditionally accepted Israel into the UN in 1949 pending compliance. Israel did not comply after admission. Surprisingly, after Resolution 181 passed, the Security Council first asked the General Assembly members to study partition of Israel, but then backed away, subsequently requesting the General Assembly to reconsider alternatives, including a possible trusteeship for Palestine.
However, soon after the passage of Resolution 181, the General Assembly and Security Council began to act in very different and inconsistent ways towards Palestine. The General Assembly developed a significant body of Resolutions affirming both individual rights-- such as refugee return, property restitution and compensation-- and collective rights such as those of self-determination, statehood, and independence. It has since insisted on this framework as the one for peace negotiations. In contrast, the Security Council’s framework has almost exclusively focused on UN Resolutions 242 and 338 as the basis of a negotiated solution. [UNSC Res 242, 22 Nov. 1967; UNSC Res 338, 22 Oct. 1973]. These two Resolutions create the “land for peace” formula that suggests that the only legal framework necessary to resolve the conflict is some exchange of territory for a permanent peace.
Most critically, the Security Council has failed to affirm the inalienable Palestinian rights—self-determination and statehood, right of refugee return, and Israeli withdrawal from the 1967 territories—that have been the focus of the General Assembly’s framework for resolution of the conflict. The Security Council has also blocked UN sponsored conferences by vetoes or by refusing to consider General Assembly recommendations. The Security Council’s approach has been framed by the “land for peace” political formula as a basis for negotiations, with almost no reference to legal rights. Moreover, in marked contrast to Namibia, there has been only one submission to the ICJ over a sixty-year period, the Advisory Opinion on the Wall of 2004 [Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Rep. 136 (2004)]. It is my contention that it is the absence of ICJ and other legal law-making, of the sort that allowed Namibia to achieve statehood in the absence of independence, that may prevent Palestine from achieving the benefits of full statehood in the absence of independence after it obtains formal recognition in the UN.
Comparing Namibian and Palestinian Legal Strategies
In the mid-1960’s, in response to the decolonization efforts within the UN of the African states, the Palestinian Liberation Organization (“PLO”) made a very deliberate change in its UN strategy. By 1969, the resolutions proposed and passed at the UN on the Palestine question had changed their language from that of individual rights to calling for rights of the Palestinian people—collective rights. This may have seemed like an appropriate strategy at the time, but by failing to merge the individual rights with the collective, the PLO has been forced at the negotiating table to exchange one set of rights for another. The Palestinian strategy has focused on ending occupation and effecting international humanitarian law protections rather than a combined strategy of demanding fulfillment of both individual rights and the collective rights of self-determination and independence. Moreover, the Security Council’s position has been consistent in reaffirming only Resolutions 242 and 338 as the basis for a negotiated peace. In turn, the negotiation framework from The Oslo Accords onward has referenced only Resolutions 242 and 338 and none of the General Assembly’s individual rights resolutions. This has resulted in a deliberate omission of law in favor of a purely political solution.
Unlike in Namibia, the General Assembly and Security Council approaches have been in conflict over Palestine, with the Security Council disregarding the legal framework articulated by the General Assembly. In the Namibia case, the General Assembly and Security Council ended up with an agreement on the underlying legal framework. Though the Security Council came to an agreement reluctantly and late because of the actions of several of the permanent members, it ended up having no choice because the ICJ’s four Advisory Opinions (one in response to the Security Council itself) consistently articulated what the law required. Namibia’s relationship to the Security Council was similar to the Palestinians’ in the sense that the Security Council did not enforce the sanctions demanded by the General Assembly or call for intervention due to French, US, and United Kingdom vetoes. Yet because of the ICJ’s endorsement of sanctions against South Africa, and the Court’s insistence on member state obligations to bring about Namibian independence, the sanctions regime was “legalized” to support individual states’ actions. In other words, while Palestine’s efforts appear to have been defeated by the veto of permanent members of the Security Council, in Namibia’s case, the legal strategies were not defeated by similar permanent member vetoes at the Security Council.
Prior to and following the request for the Advisory Opinion on the Wall issued in 2004, there has been little or no effort by the Palestinian delegation at the UN to work on additional Advisory Opinions as a distinct strategy. This is surprising, given the PLO’s solid support in the General Assembly, especially with the Group of Non-Aligned States. In contrast to the four Advisory Opinions and the contentious case litigated over decades for Namibia, Palestine has obtained only one Advisory Opinion, with very little follow-up to use it as an effective tool. Additionally, the PLO and Palestinian Authority (“PA”) appear not to have aggressively worked within the European Union (“EU”), utilized regional and other mechanisms, or facilitated the filing of lawsuits in domestic courts similar to those filed by the Namibian Council to protect its resources and interests. The Palestinian leadership appears to have failed to incorporate careful legal strategies in its negotiations frameworks. For example, it has failed to insist that Resolution 194, in addition to Resolutions 242 and 338, must be incorporated in all negotiation frameworks. It has also failed to insist on inclusion of the West Bank, Gaza Strip and East Jerusalem as a single territorial entity in all negotiation proposals.
In fact, the Palestinians have taken an almost entirely political, rather than a law-based, approach to the UN. A few key events are important to appreciate the level of support that exists within the UN towards the Palestinian cause, support that has been underutilized by the Palestinian leadership in achieving its goals. On November 22, 1974, the General Assembly adopted Resolution 3237, which granted the PLO ‘Observer’ status within the UN, allowing it to participate in all the sessions and the work of the UN, effectively as a ‘quasi-state.’ In 1975, the General Assembly passed Resolution 3376, establishing the Committee on the Exercise of the Inalienable Rights of the Palestinian People, entrusted to work towards Palestinian independence and sovereignty, and implement the individual rights spelled out in prior General Assembly resolutions. The Committee was also tasked to work with civil society organizations to accomplish its goals. Subsequently, on 2 December 1977, the Division for Palestinian Rights was set up by General Assembly Resolution 32/40B, to support and assist the Committee in its work, and to be a liaison with civil society organizations working on Palestinian issues. Over the years, a wide network of well over a thousand such organizations have cooperated in various ways with the Committee to help pursue these goals. Despite this broad support within and outside the UN, it can safely be said that the Palestinian leadership has not been committed to using these entities to pursue a legal strategy in the UN. This is most evidenced by a lack of collaboration between the PA and the civil society groups working with the Palestine Committee and the Division to expand and build on the roles of these UN institutions. On the contrary, the PA has frequently been at odds with these organizations and with civil society activists engaged with the UN, preventing the kind of deep collaboration necessary to put a multi-pronged, solid legal strategy in place. At the negotiations level, too, there has been a critical lack of a robust legal approach. No legal department advised the PLO-PA until after the Oslo Accords, when the Adam Smith Institute established the first legal affairs department for the PLO. Even since, it appears that the PA has not incorporated much of the legal affairs unit’s work at the international level. One can safely conclude that the Palestinian leadership has failed to see the importance that legal strategies have alongside political, negotiation, media, civil society collaborations, and the armed struggle.
Defining the Issue: The Scope of the Statehood Question and UN Membership
The Palestinian leadership will be raising two issues at the UN: 1) recognition of Palestine as a state, and 2) a request for membership in the UN. These two issues must be defined and understood differently, as they are independent of one another.
There are two views of exactly when a territory or people become a “state” as a matter of international law, and states themselves have not acted consistently on the issue. One position is that statehood is a function of declaration and recognition by other states; the other is that statehood is a function of recognition plus other factors, which may or may not include independence. So far, over 100 countries have recognized Palestine as a state, and that number may reach 150. Is this enough to designate Palestine a state? The common arguments against Palestinian statehood are that 1) it was not historically a state; 2) it does not meet modern-day statehood criteria; and 3) Palestine has not been recognized as a state by the international community. John Quigley, in his book The Statehood of Palestine, argues that there are four errors in these claims. First, as to historical statehood, facts show that Palestine was a state from the Mandate period onwards. Second, Palestine is being asked to meet criteria for statehood more extreme than those required by other states in the world. Third and closely related, these criteria do not take into account the effects of prolonged occupation. Fourth, Palestine has already been recognized as a state both explicitly and implicitly for several decades.
The most commonly accepted standard for the elements of statehood is the Montevideo Convention on the Rights and Duties of States (1933, Uruguay). This Convention defines the criteria for “a state” as a permanent population, with a defined territory, government, and the capacity to enter into relations with other states. Since Montevideo, it has been widely claimed that an additional element is required for statehood, that of independence. Quigley advances the case for Palestinian statehood with a sharp critique of the criteria set out in the Montevideo Convention. He argues that the Convention was intended to clarify that independence was not a prerequisite to statehood, and that state practice has not changed to require this. He then makes the case that Palestine presently satisfies all the conditions in that Convention—a permanent population, defined territory, government, and the capacity to enter into relations with other states, and that Palestine does not have to be territorial independent to be a state
As cited in Quigley’s book, there are many examples of states that have been recognized without having territorial independence, our primary illustration, Namibia, being just one example. Other examples are the previous Soviet satellite states Belorussia (now Belarus) and the Ukraine; Bosnia, admitted as UN member without having control over territory or independence; Monaco, a mini-state widely recognized as a state even though France controls its domestic and foreign policy; and the U.S.- Marshall Islands, which are UN Members even though its defense and security are controlled by the United States.
Under the framework that was established in April 2002 by the ‘Quartet’-- comprising the Russian Federation, the United States, the European Union and the UN— a Palestinian state could be established prior to the conclusion of final status negotiations with Israel (Letter from the Secretary-General Containing a Joint Statement by the Quartet, 10 April 2002). The Quartet’s framework is that, based on negotiated agreements, the PA can assert its claim to statehood with provisional borders and attributes of sovereignty even before a full Israeli withdrawal. This framework was also the basis of the Oslo Accords. Aside from the 100-plus countries exercising diplomatic relations with Palestine, Palestine has a functioning government in the West Bank and Gaza Strip with a president, prime minister, cabinet, legislative council, and ministers, voted by open elections held in 1966. It has a civil service comprised of thousands of employees. There is an established court system, with first impression and appellate courts as well as a High Court. Perhaps there will be a unified government following the recent Hamas-Fatah accord, but even a divided government does not defeat statehood. Most notably, Korea, Vietnam, and Yemen have been divided states for decades, yet are still recognized as states. Thus, if Palestine gains formal recognition by a majority of states in the UN, it will fit the requirements for statehood with the exception of territorial independence.
Statehood and membership in international organizations are entirely separate matters. Article 4(2) of the UN Charter says that a state may be admitted to membership by a decision of the General Assembly upon receiving a recommendation from the Security Council. In its Admissions case, the ICJ made it clear that the UN Charter places the responsibility for admission of state membership in the UN squarely on the Security Council, and that the General Assembly cannot act on state admission without Security Council recommendation. [Admission of a State to the United Nations, Advisory Opinion, ICJ Rep. 57 (1948)] U.S. opposition to Palestine’s membership in the UN would not necessarily affect Palestine’s statehood if a majority of states recognized Palestine at the UN. If the U.S. vetoes Palestine’s application for membership, then Palestine will not become a UN member. Instead its position will be similar to that of Kosovo (whose membership is being blocked by Russia), and Taiwan (whose membership is being blocked by China).
Implications of Statehood
Assuming that the 120 or so states which the Palestinians believe will vote for statehood do recognize Palestine as a state, does the Namibia case tell us that Palestine can effectively become a full-fledged state even without independence? If so, what are the ramifications of such a situation?
First, a great deal depends on what those states do with their recognition. Will they vote for full recognition or agree only on representative status? Will they establish full ambassadorial relations? Where will the recognizing countries’ embassies be, in Ramallah, or Jerusalem? Israel is likely to block the establishment of embassies to the state of Palestine in East Jerusalem. Will all recognizing states accept Palestinian passports, issue visas, allow full freedom of movement, and allow consular intervention when Palestinians require it?
Second, what will be the recognized population? Will it only be Palestinians in the Occupied Territories, or could it include Palestinians within Israel and the diaspora? What about Palestinian refugees? If they become Palestinian citizens, do they cease being refugees? And if so, do they lose their rights as refugees to insist on return and other rights attached to refugee status? How will the PA implement the rights of refugees as citizens of Palestine? These questions have not been addressed through UN Resolutions, legal decisions, or opinions from relevant international fora. There are, for example no definitive legal decisions resolving the highly contested question of who constitutes a Palestinian refugee, when the status of ‘Palestine refugee’ ceases for international protection purposes, or who may hold a Palestinian passport. Yet the consequences of such decisions are enormous for the global Palestinian population of roughly 10 million persons.
Third, even if we assume that Palestine will be treated as a state among equals on the diplomatic front and enjoy full relations with the states that recognize her, she will not with those who do not recognize her, like Israel and the US. What will that mean for recognition at the ICJ or other international organizations if the US and Israel oppose? This will be determined on a case-by-case basis, but at each venue where Palestine takes her place as a “state” Israel and the US could object and block admission.
Fourth, and again on questions of consequences: what can Palestine do to enforce the territorial integrity of the West Bank and Gaza Strip in the absence of a withdrawal by Israel? What can Palestine do to enforce withdrawal of settlements? Can it even implement a uniform legal system in its territory in the absence of an Israeli withdrawal and US backing? Answers to these questions could help the community of states define a legal framework to respond to future problems, but none of these issues have been addressed through Resolutions, ICJ Opinions, or other law.
New avenues will surely become available to Palestine, enabling it to pursue legal remedies against Israel in various international fora. The question pending at the International Criminal Court (“ICC”) of whether Palestine can be treated as a state for purposes of acceding to the Rome Statute and the ICC will be resolved through recognition of statehood. But with Israel refusing to be a party and the US certain to veto any attempt by the Security Council to refer a case against Israeli defendants, what are the practical advantages of such a determination? On another front, in domestic courts where Palestine and Palestinian leaders face criminal prosecutions or other lawsuits, Palestine will be able to assert sovereign immunity, but if the US does not recognize Palestinian statehood, U.S. courts will not recognize sovereign immunity for Palestinian defendants such as those being charged on terrorist-related grounds.
Of course, Palestine’s statehood should also mean its security forces would become a legitimate military force, with all the attendant benefits that entails. However, if Israel controls the ability to receive arms and military equipment, army and police may be unequipped and ineffective. Additionally, if Israel refuses to recognize Palestinian soldiers as part of a duly constituted state army, it will continue the status quo of designating captured armed Palestinians as “terrorists” rather than prisoners of war..
Palestine is already a member of international organizations and as a recognized state could join the full panoply of international organizations. However, Palestinian attempts to increase trade and obtain the benefits of these organizations remain in the effective control of Israel, making it very difficult for Palestine to actually attain these benefits. Theoretically, if Palestine became a member of the UN, it would be able to draft, propose, table, and vote on its own resolutions at the UN. However, the PLO and Palestinian delegation have enjoyed most of these rights since receiving full observer status at the UN in 1974. Since UN membership is unlikely to be forthcoming, the issue to be considered is whether the risks of going to the Security Council outweigh the benefits of the marginal upgrade membership will provide to Palestine’s current status along with the statehood recognition that is certain to pass.
These examples, illustrating the consequences of statehood without independence, and show that in the absence of a clear body of soft and hard law to support Palestinian statehood recognition, continued Israeli and US opposition may make recognition an exercise in futility. The Palestinian people will not get what they deem most important: the fulfillment of their individual rights to return, restitution of their properties, collective rights of full recognition as a people connected with their own land, and all the freedoms such recognition ordinarily brings. Over 20 years before actual independence, Namibians and their supporters combined a strong legal strategy with the political and armed struggle. This strategy resolved many of the key issues and allowed the non-rejectionist states to make statehood meaningful by the time actual independence came about. Yet in the absence of an analogous legal framework for Palestinians, the outcome of their UN bid for statehood is highly uncertain.
[This is a modified version of a talk delivered by Susan Akram in Beirut, Lebanon in July 2011]
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