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The Legal Ramifications of Palestinian Statehood
Introduction The political context surrounding the Palestinian bid for statehood makes it a complicated question, and the UN procedures on the matter are unclear in spite of the fact that the international community has already accepted the political basis for the vote. The following study will focus on the legal ramifications of the recognition of a Palestinian state. At the time of publication, it is still unclear whether Palestine will be recognized as a full UN member state or a non-member observer state, the latter being the most likely outcome. Taking this uncertainty into account, the study will mainly focus on the consequences of statehood, UN membership or a rejection of either option. The legal ramifications of recognition of a Palestinian state, however, will differ according to which statehood status Palestine achieves at the UN, all of which will be addressed in the study. Further, given that much is still unclear with experts disagreeing on the important legal aspects of the statehood bid, this study is in part based on expectations and assumptions about what will happen when Palestinian statehood is recognized at the UN in the near future. Background The premises for a Palestinian state were created with UN Resolution 181, which was the result of the UN partition plan of 1947 to secure both the state of Israel and the state of Palestine. Furthermore, after 1967 the UN Security Council passed Resolution 242 demanding that Israel withdraw from the territory occupied in 1967. The resolution highlights the respect for sovereignty, territorial integrity and political independence of all states. In 1988 the Palestine National Council unilaterally declared independence, and has since then received bilateral recognition from some 120 states. After Palestinian–Israeli negotiations broke down a year ago in September 2010, the Palestinians adopted a new diplomatic strategy. Asking individual states to recognize a Palestinian state based on the pre-1967 borders, officials started working towards the bid for statehood now handed in to the UN. This led to bilateral recognition from 128 of the 193 UN-member-states. In addition to strengthening diplomatic relations, efforts have been made to support the Palestinian private sector and implement institutional reforms as preparation for statehood. Two years ago, Prime Minister Salam Fayyad announced a Palestinian state-building plan. The deadline for the plan coincides with the application for statehood recognition at the UN. The past two years of state-building have led to a well-functioning state with the institutions and economic policies required by the World Bank and the IMF. The latest reports on the economic situation in the Palestinian territory, however, show a lower economic growth and a drop in financial aid compared to previous years. Praising the PA for its efforts on creating the foundation of a state, the World Bank report highlights the weakening economy and deteriorating public finances. With the foundation for a state in place in time for the UN bid, the political circumstances in the region create another important frame for the application for a Palestinian state. Palestinian-Israeli negotiations have been at a standstill for more than a year because of the Israeli government’s refusal to stop expanding the settlements in east Jerusalem and the West Bank. Becoming a state Up until now, Palestine has held the status as an entity with observer-status in the UN; a non-member, non-state in other words. The Palestinian people have been represented in the UN by the PLO, which was granted observer-status in 1974. The PLO was henceforth invited to participate in the sessions and the work of the General Assembly as well as all international conferences convened under the auspices of the General Assembly and other UN organs, all in the capacity of observer. Statehood, membership in the UN and the recognition of Palestine as a state are three different things: Creating a state is neither conditioned by UN membership nor by recognition. Recognition is a political and often bilateral process, and it is therefore not a legal condition in creating a state under the auspices of the UN. This means that each individual state decides if they are going to recognize the Palestinian state or not. Parallel with the application for statehood in the UN, the Palestinians apply for bilateral recognition from as many countries as possible. Adopting a resolution that recognizes Palestine as a state within the 1967 borders only requires a simple majority of the votes in the General Assembly. However, such a resolution will not be legally binding. The question of recognizing Palestine as a state is more about strengthening the political basis of international legitimacy for the Palestinians rather than anything tangible on the ground. Such a resolution will not contribute to anything significantly new to international customary law and the already existing resolutions. In other words, the Palestinians can choose to apply for membership in other UN institutions such as the WHO and UNESCO where the US does not have the right to veto but where the political significance is much smaller. This has already proven to work as Palestine has been admitted as a full member of UNESCO with 107 member states voting in favor of Palestine, 14 states voting against and with 52 abstentions. Further, in regards to the General Assembly, the Palestinians also have the opportunity to apply for recognition as a non-member observer state and thereby go from being an ‘entity’ to being a state in UN terms. This will however only give them the status of an observer. The PLO already has an observer status in the UN, but that is as a representative of the Palestinian people, not as a state. This means that getting recognized as an observer state is an upgrade; however the goal is full recognition. When it comes to membership in the UN, Article 4 of the Charter of the United Nations states that membership “is open to all peace-loving States that accept the obligations contained in the United Nations Charter and, in the judgment of the Organization, are able to carry out these obligations”. Membership is admitted to the UN by decision of the General Assembly, (with a two-thirds majority, 129 member states) upon the recommendation of the Security Council. Nine of the 15 members of the Security Council must vote for the membership and none of the permanent members can use their veto if the application is to reach the General Assembly. Outcomes Terminology – what does it mean to be a state? If Palestine, in UN terminology, is a state, it will strengthen the arguments of the Palestinians against Israel as an occupying power according to international law. There would no longer be any doubt as to the law governing the relations between Israel and Palestine. The Palestinian territory remaining under Israeli control would be occupied for the purpose of the Fourth Geneva Convention. With the status of a state, Palestine would become party to international conventions and international courts. This would give the Palestinians new tools to uphold their rights in line with all other recognized states. Access to international institutions, organizations and courts Applying for recognition as a state can enhance Palestine’s prospects for becoming member of various international organizations, institutions, courts, trade agreements and UN bodies. Further, Palestine could get the opportunity to accede to international treaties and human rights instruments. An internationally recognized Palestinian state (through the UN General Assembly) would be able to join international organizations such as the IMF and the World Bank, become a signatory party to important multilateral treaties, especially those protective of human rights, have standing in the International Criminal Court, the International Court of Justice and domestic courts of countries that recognized the Palestinian state. The International Court of Justice is the primary judicial organ of the UN. The ICJ has been involved in UN membership issues in the past (most recently in Kosovo, 2010). The ICJ only deals with member state disputes, but has already accepted jurisdiction of certain Palestinian issues. UN member states and specialized agencies could make a series of referrals to the ICJ that could help move along the Palestinian case. With the involvement of the ICJ the internationalization of the conflict as a legal matter would increase which would further help enable the Palestinian leadership to pursue claims against Israel in human rights treaty bodies and the International Criminal Court. Unlike the International Court of Justice, the International Criminal Court is legally and functionally independent from the UN; however, the Security Council has certain powers in some instances. As a recognized state (full UN member or non-member observer state that has ratified the Rome Statute), Palestine will have the right to become a member of, and appeal to the International Criminal Court in The Hague. This will make the Palestinians able to accuse central persons from the Israeli military of violations of international law during military operations on Palestinian territory. Evidence proves numerous present and past Israeli officials liable for crimes of war and against humanity, as well as other offenses. This jurisdiction, however, can most likely not be extended to the period prior to the state’s existence. Nevertheless this may have far-reaching implications for the Israelis; in addition to exposing members of the Israeli military to investigation and prosecution it could raise the issue of the settlement project which constitutes a war crime under the ICC Statue. This would implicate not only the military but tens of thousands of civilians. Important to bear in mind is that with statehood comes obligations to respect human rights and other international conventions. This means that as a state, the responsibilities of Palestine towards its citizens, other states and their citizens will also change. As a part of the path to statehood, Palestine has gained and is expected to gain membership in the following organizations and institutions (among others):
Recognition as a state will further allow Palestine to become party to various international conventions. Main human rights conventions do not require UN membership as a condition for becoming party to them, and many are open to any state invited by the UN General Assembly. The International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights do not require UN membership as a condition for ratification, but do require an invitation from the General Assembly. Other conventions allow states to become party to them on easier terms (without invitations from the General Assembly), such as the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW); the Convention Against Torture (CAT); the Convention on the Rights of the Child (CRC); and the Geneva Conventions and additional Protocols. Becoming party to these conventions would impose certain obligations on the Palestinian state in relation to the people under its authority. Further, the Palestinian state would become subject to UN monitoring mechanisms, such as the committees that monitor implementation of these conventions. In addition, it could affect the relations between the Palestinian state and Israel and West Bank settlers. None of this will solve conflicts with Israel over security, violence and borders. But it will give the Palestinians more leverage in the UN and in eventual peace talks. Representation of the Palestinian people Representation of the Palestinian people on the international arena and the role of the PLO, the PA and the future Palestinian State is an important and much discussed issue when it comes to the legal ramifications of the statehood bid. The question is (and it is still unclear): In establishing a Palestinian state, would the representation of the Palestinians be limited to those who are under the effective jurisdiction of the Palestinian Authority, that is, living on Palestinian territory? In that case the majority of the Palestinians would be unrepresented and their inalienable rights to “self-determination”, “national independence” and “right of return” might be seriously compromised. It is to be assumed, however, that all measures that secure representation of all Palestinians will be taken, and all protections and safeguards of inalienable rights of all Palestinians will be put in place. In international law, the representational scope and capacities of a body can vary. This will depend on the purpose (why) and the institutional context (where) in which the body seeks to present claims. International law is as such not concerned with the legitimacy of the representation of a state’s nationals. It does, however, differentiate between the representative capacities of different types of bodies, be it a state or a non-state actor like the PLO. This means that states can only represent their nationals. In the Palestinian case, this could limit the Palestinian state’s ability to make claims on behalf of Palestinians living outside of Palestine, a role currently held by the PLO in the UN. On the other hand, this is only relevant when it comes to representation of such claims before international tribunals and in bilateral relations with other states. The state is still able to bring forward human rights claims on behalf of those who are not nationals through participation in the UN system. Under international law, every state has the right to invoke the responsibility of another state for violations of human rights. This means that the State of Palestine could raise international claims with regards to serious human rights violations committed against any Palestinian, beyond nationality or citizenship. If the Palestinian state was to take a seat in the UN either as an ‘observer state’ or a full member state, it would replace the PLO which, up until now has been the sole legitimate representative of the Palestinian people in the UN. This would without doubt mean that the status and the role of the PLO in the UN would be radically altered. The PLO will, however, most likely be able to continue to fully exercise its mandate outside the UN system, while also ensuring the representation of its claims on behalf of all the Palestinian people through the States position in the UN. The PLO is internationally recognized as the sole legitimate representative of the Palestinian people and its mandate is based on the will of the people. Hence, the dissolution can only happen in accordance with its own structures and the will of the Palestinian people whom it represents. The emergence of a Palestinian state on the international level does not annul other elements of the PLO’s mandate, such as the pursuit of means to exercise the right to self-determination by all Palestinians and the right of return of the Palestinian refugees. With the admission of the State of Palestine to the UN, the PLO would continue to function as the State’s representative in external relations. Further, the PLO would continue to act in its other capacities as the internationally recognized representative of all the Palestinian people in exercising their right to self-determination. The Refugees A main concern in the debate leading up to the Palestinian statehood application has been what this will mean for the rights of the some five million Palestinian refugees in the Middle East. A durable and peaceful solution to the conflict will not be obtainable without addressing these rights. The statehood bid does not, however, deal directly with the question of the refugees. There have been questions of whether the rights of the refugees will continue to be effective after the establishment of a Palestinian state and what that would mean for UNRWA (United Nations Relief and Works Agency) that has provided emergency assistance and services to the Palestinian refugees since 1949. A Palestinian UN membership or observer status would not change the right of return or any other rights of the Palestinian refugees, as these are personal rights and not determined by the status of the Palestinian state. UN General Assembly Resolution 194 from 1948 maintains the right of return of the Palestinian refugees. The Geneva Conventions – prisoners Palestinian combatants who are apprehended by Israeli soldiers are at present treated as if they are civilians unlawfully engaged in combat. They are detained or imprisoned by Israel in a criminal proceeding in the framework of administrative detention or the Incarceration of Unlawful Combatants Law. With a Palestinian state being party to the Geneva Conventions, Israel could be obligated to modify its treatment of Palestinian combatants who are part of the regular forces or acting in the name of the state, and to recognize them as entitled to prisoner-of-war status according to the Third Geneva Convention. This provides the prisoners with various protections, above all legal immunity from criminal charges because of their participation in combat. The settlements If the Palestinian state becomes party to the International Criminal Court, Article 8 of the Statute of the Court is of particular interest in relation to the Israeli occupation. This article states that transfer, direct or indirect, of the population of the occupying power into occupied territory constitutes a war crime. This could make the settlement issue a matter for an international criminal tribunal, which would create opportunities to prosecute Israelis responsible for establishing or expanding settlements. Further, the Advisory Opinion of the International Court of Justice concerning the Separation Barrier (Wall) states that, as an act that strengthens the settlements and makes them permanent, the construction of the wall in areas where it surrounds settlements constitutes an illegal act and violates the Geneva Convention. Jerusalem If Palestine is recognized as a state according to the 1967 borders, the area will include east Jerusalem. As distinct from other parts of the West Bank, east Jerusalem was unilaterally annexed by Israel, which since has applied its law, jurisdiction and administration to the area. Although internal Israeli law defines east Jerusalem as part of the Israeli state, this has been rejected by the international community, which views it as part of the area held by Israel as an occupying power. From an international perspective, the laws that apply to the rest of the West Bank also apply to east Jerusalem. This means that the authority of the International Criminal Court would also extend to Israel’s actions here, to constructions of new, Israeli settlements in the eastern sector of the city for example. The Occupation When determining whether a territory is occupied or not, according to international law, statehood is irrelevant. This means that the recognition of a Palestinian state would not affect Israel’s standing as an occupying power per se. According to international law, a territory can be classified as occupied if a foreign military force is able to exercise effective control over the lives of the local population. Occupation is therefore not a function of a permanent military presence, but of the ability to control the territory. Israel controls the territory of the West Bank and many aspects of life in the Gaza Strip. Conclusion While any outcome of the Palestinians’ bid for statehood will not have an impact on the presence of the Israeli occupation itself, it could make a significant difference in terms of access to international courts and institutions. Status as a state would mean that Palestine has a lot more leverage and many more arenas to fight the occupation. Being recognized as a state in the UN will not have any immediate impact for the average Palestinian in Gaza, the West Bank or for the refugees and Palestinians in the diaspora. However, the strengthened political position could potentially create the international support and political will needed to create a durable solution for everyone involved.
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Julie Holm is a Writer for the Media and Information Department at the Palestinian Initiative for the Promotion of Global Dialogue and Democracy (MIFTAH). She can be contacted at mid@miftah.org.
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