Some legal consequences of UN membership for Palestine

Today the Palestinian Authority’s request to be accepted as a UN member state will be submitted to the Security Council.

So far, this has proved a good tactical move to embarrass Israel. Strategically, though, in the long run it could make life harder for Abbas and the PA. Guy Goodwin-Gil has already pointed out that a succesful bid would mean that the PLO would lose its status as representing all Palestinians. This is one reason why pro-Palestinian groups around the world are deeply suspicious of the bid. But there are many other potential legal problems and contradictions.

Article 51 of the UN Charter

If the UN recognises Palestine as a state then it has to accept that many Israeli actions will be protected by Article 51 of the UN Charter, which states:

“Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations”.

The famous 2004 International Court of Justice Advisory Opinion on the West Bank Barrier says that Israel couldn’t use Article 51 because Palestine isn’t a state:

“Article 51 of the Charter, the Court notes, recognizes the existence of an inherent right of self-defence in the case of armed attack by one State against another State. However, Israel does not claim that the attacks against it are imputable to a foreign State”

If the UN does recognise Palestine then it seems Article 51 is back on the table and the 2004 ICJ opinion may have to be revisited too.

UN Resolutions

If Palestine becomes a UN member state it becomes itself bound by the UN Charter and UN resolutions – for example, here’s UN Security Council resolution 1373, passed unanimously in the aftermath of the September 11th attacks in 2001:

“Acting under Chapter VII of the Charter of the United Nations,

“1. Decides that all States shall:

“(a) Prevent and suppress the financing of terrorist acts;

“(b) Criminalize the wilful provision or collection, by any means, directly or indirectly, of funds by their nationals or in their territories with the intention that the funds should be used, or in the knowledge that they are to be used, in order to carry out terrorist acts;

“(c) Freeze without delay funds and other financial assets or economic resources of persons who commit, or attempt to commit, terrorist acts or participate in or facilitate the commission of terrorist acts; of entities owned or controlled directly or indirectly by such persons; and of persons and entities acting on behalf of, or at the direction of such persons and entities, including funds derived or generated from property owned or controlled directly or indirectly by such persons and associated persons and entities;

“(d) Prohibit their nationals or any persons and entities within their territories from making any funds, financial assets or economic resources or financial or other related services available, directly or indirectly, for the benefit of persons who commit or attempt to commit or facilitate or participate in the commission of terrorist acts, of entities owned or controlled, directly or indirectly, by such persons and of persons and entities acting on behalf of or at the direction of such persons;

“2. Decides also that all States shall:

“(a) Refrain from providing any form of support, active or passive, to entities or persons involved in terrorist acts, including by suppressing recruitment of members of terrorist groups and eliminating the supply of weapons to terrorists;

“(b) Take the necessary steps to prevent the commission of terrorist acts, including by provision of early warning to other States by exchange of information;

“(c) Deny safe haven to those who finance, plan, support, or commit terrorist acts, or provide safe havens;

“(d) Prevent those who finance, plan, facilitate or commit terrorist acts from using their respective territories for those purposes against other States or their citizens;

“(e) Ensure that any person who participates in the financing, planning, preparation or perpetration of terrorist acts or in supporting terrorist acts is brought to justice and ensure that, in addition to any other measures against them, such terrorist acts are established as serious criminal offences in domestic laws and regulations and that the punishment duly reflects the seriousness of such terrorist acts;

“(f) Afford one another the greatest measure of assistance in connection with criminal investigations or criminal proceedings relating to the financing or support of terrorist acts, including assistance in obtaining evidence in their possession necessary for the proceedings;

“(g) Prevent the movement of terrorists or terrorist groups by effective border controls and controls on issuance of identity papers and travel documents, and through measures for preventing counterfeiting, forgery or fraudulent use of identity papers and travel documents;

Unless the PA substantially changes its practices, it will be in breach of that resolution the day that a State of Palestine is recognised. There are probably loads of other examples too.

Jerusalem

The UN officially considers Jerusalem to be a corpus separatum that is neither in Israel or in any other territory. East Jerusalem is not considered part of the West Bank. Because of this, most countries won’t acknowledge that Jerusalem is Israel’s capital, and will not have Embassies there.

Will the state of Palestine that the PA ask to be regognised include Jerusalem? If it doesn’t, then it looks like they aren’t that bothered about East Jerusalem being the capital of a Palestinian state. If it does, then this implies recognition that West Jerusalem is a full part of Israel, and everyone can stop pretending that it’s Tel Aviv and move their Embassies.

These are some consequences that I noticed. There are doubtless hundreds of others, too. Abbas might be secretly glad that the bid looks certain to fail.