By Andrew Tucker, thinc.
On 10th May 2024, the UN General Assembly adopted a resolution upgrading Palestine’s status in the UN. This is a political resolution that is intended to advance the Palestinians’ political claims and further pressure and isolate Israel but does not change the legal situation or realities on the ground. Worse, this resolution removes any incentive on the Palestinians to achieve what is probably the most important criterion of statehood: the establishment of a stable and effective government over the population.
The PLO should not be allowed simultaneously to call itself a “state”, while promoting terror and violence against Israel and its citizens, and also failing to establish effective institutions of government.
The “Palestinian” territories
The Palestinians claim statehood and sovereignty with respect to the ”Palestinian” territories – East Jerusalem, the West Bank and Gaza. However, these territories do not “belong” to the Palestinian people, nor are they part of a “State of Palestine”.
All of these territories were part of the Mandate for Palestine (1923) that envisaged the creation of a home for the Jewish people “in Palestine”. They were illegally invaded and occupied by Arab states (Egypt and Jordan) between 1948 and 1967 and regained by Israel in the 1967 Six Day war. From 1993, Israel and the Palestine Liberation Organisation (PLO) entered into the Oslo Accords, a series of treaties that are still effective and binding. Those agreements established the Palestinian Authority, and a complex set of transitional arrangements whereby Israel was to gradually withdraw from territories. Many issues remained to be negotiated, including the question of borders. The Oslo Accords did not stipulate that a Palestinian state would be established; they thus contemplated that Palestinian self-determination might be satisfied by less than a state.
This means that, until a permanent status agreement has been reached, the status quo is an interim one, and the only way that the Palestinians can achieve permanent sovereignty is through the difficult but essential process of negotiation with Israel of the complex range of issues that are needed to be agreed in order for two states to exist side by side in peace.
“Palestine” in the UN General Assembly
The Palestinian leadership (i.e., the PLO) claims the Palestinians have a right to statehood in all of the “Palestinian” territories. They are supported by about two thirds of the states in the world. In 2012, these UN member states adopted a resolution (67/19) granting “Palestine UN non-member observer status”.
Resolution A/ES-10/L.30/Rev.1 adopted on 10 May 2024, “upgrades” the rights of “the State of Palestine” at the United Nations as an Observer State.
It gives “Palestine” some procedural rights (e.g., Palestine can participate fully within UN as if it were a state, except it cannot vote in the UNGA or put forward candidates for UN organs). But it does not change the realities on the ground, nor does it affect the legal status of these territories. That is because the UNGA is a political body.
However the latest resolution does not make Palestine a state, nor does it grant Palestine membership of the UN.
The question of whether Palestine should be a state is a political question, about which UN members are free to discuss and adopt resolutions in the General Assembly. But whether Palestine is a state is not for the UN to decide.
Palestinian statehood
How states are created is a very complex issue, on which legal and political opinions differ. According to the Badinter Commission, ‘the state is commonly defined as a community which consists of a territory and a population subject to an organized political authority; that such a state is characterized by sovereignty”.
Some people (including the Palestinian leadership) argue that the Palestinians have a “right” to statehood, and that Palestine in fact is already a state. Others argue (a view we share) that Palestine cannot be a state until it (a) satisfies the conditions of statehood – a defined territory, a people, and an effective government and political independence – and (b) reaches a peace agreement with Israel pursuant to the (still binding) Oslo Accords.
Pending a final status agreement under the Oslo Accords, the Palestinian Authority only has exclusive authority in Area A. As was explained in detail by ICC Judge Péter Kovács in his Partly Dissenting Opinion on the question of the ICC’s jurisdiction over “the State of Palestine” in 2021, this means that, at best, “Palestine” qualifies as a state only in relation to Area A. Even there, the Palestinians do not yet have real sovereignty because their powers are dependent upon Israel’s consent.
Palestinian statehood and the Gaza conflict
The question of Palestinian statehood cannot be separated from the Gaza conflict. The UK Ambassador to the UN expressed this as follows: “We believe the first step towards achieving this goal [of Palestinian statehood] is resolving the immediate crisis in Gaza. The fastest way to end the conflict is to secure a deal which gets the hostages out and allows for a pause in the fighting. We must then work together to turn that pause into a sustainable, permanent ceasefire. Setting out the horizon for a Palestinian State should be one of the vital conditions from moving from a pause in fighting to a sustainable ceasefire. Recognising a Palestinian State, including at the UN, should be part of that process.”
UN membership
UN membership, on the other hand, is a matter on which the UN decides. Under the UN Charter, UN membership is only open to peace-loving states, and is decided by the UN Security Council (UNSC), not the General Assembly. So far, in the UNSC the United States has opposed every application by the Palestinians for UN membership. With the US elections in sight (November), it remains to be seen whether the Biden Administration will be able and willing to withstand the growing political pressure on the US to allow Palestine to become a UN member state.
International pressure
The May 10th 2024 UNGA resolution was intended to ratchet up that pressure. The General Assembly urged the Security Council to favourably consider Palestine’s application for full UN membership. According to the General Assembly, the State of Palestine is qualified for full membership in the United Nations in accordance with Article 4 of the Charter of the United Nations.
The Assembly adopted the resolution entitled “Admission of new Members to the United Nations” (document A/ES-10/L.30/Rev.1) by a recorded vote of 143 in favour to 9 against (Argentina, Czech Republic, Hungary, Israel, Federated States of Micronesia, Nauru, Palau, Papua New Guinea, United States), with 25 abstentions.
So, we have a situation where about 2/3 of countries in the world insist that the Palestinians should have a state (and some think they already have one), and about 1/3 disagree (for different reasons). And international lawyers and political scientists are also divided on the issue.
International courts
This same majority of states is also actively mobilizing the International Court of Justice (ICJ) and International Criminal Court (ICC) to put pressure on Israel’s and its allies (the most important one being the USA) to force Israel to abandon these territories and hand them over to “the Palestinians”. In other words, they are seeking to by-pass the Oslo Accords.
In the ICJ, these states argue that under international law Israel must withdraw completely from these territories and that the Palestinians have a right to statehood in the whole – a right that overrides any commitments the Palestinians made to Israel in the Oslo Accords.
Israel and a smaller (but still very significant) number of states strongly oppose those views. In essence, they argue that Israel has strong rights to keep control of these territories, that these territories do not “belong” to the Palestinians, and that the only way for the Palestinians to exercise their right to self-determination is through negotiation with Israel, as was agreed in the Oslo Accords. They strongly oppose the idea that the Palestinians have a right to use force to enforce their self-determination claims.
How the ICJ will respond to these opposing claims remains to be seen. It is expected that the ICJ will issue an Advisory Opinion in the coming months.
The reality on the ground
The situation on the ground, however, is very different, and it is that very harsh reality – not the international legal niceties or political utopias presented in the UN – that Israel has to deal with. Quite simply, and appropriately, Israel’s main task is to make sure that its citizens can live in safety. And it is to the use of terrorism from within the Palestinian territories that Israel has to respond.
There is consensus in Israel that the “two-state solution” is as good as dead. There is virtually no-one who is willing to allow the Palestinians to have a state if that means they can possibly commit a repeat of 7th October.
Until such time as the Palestinian Authority and PLO are able to prevent terror attacks against Israeli citizens, third states should not be supporting Palestinian claims to statehood.
Jerusalem: Israel controls (and exercises sovereignty) over the whole city of Jerusalem, having re-unified the city after 1967. For many reasons, and for a long time to come, Israel will not agree to give up full control over the city (although it gives special rights to the Muslim and Christian communities to ensure freedom of religion and worship, and it allows the Islamic Waqf under control of Jordan to control the Temple Mount). Palestinian claims of sovereignty over East Jerusalem thus confllict directly with Israel’s claims. Israel has, however, undertaken in the Oslo Accords to negotiate concerning the governance of Jerusalem (note: this does not mean Israel has agreed to abandon sovereignty).
West Bank: The West Bank falls under the Oslo Accords and is partly under government of the Palestinian Authority (Area A), partly under joint Israel/PA control (Area B), and partly under Israeli control (Area C). In Areas A and B, the Palestinian Authority (PA) is struggling to retain authority, and Hamas, Palestinian Islamic Jihad and other Islamist groups (some supported by Iran) have obtained strongholds in places like Jenin. Israel also regularly intervenes in Areas A and B to prevent terror attacks. The future of the West Bank remains to be seen. The events of 7th October have shown Israel that it cannot afford to give up control of the West Bank.
Gaza: And then there is Gaza. Israel withdrew completely from Gaza in 2005 but is now in control of Gaza and fighting to destroy Hamas there. Views in Israel on the future of Gaza differ (some believe Israel should withdraw completely once the war is finished; others argue for some kind of ongoing Israeli presence). The Israeli government published a clear plan for the future of Gaza on May 3. The plan has three phases. The first phase lasts 12 months and focuses on restoring humanitarian aid and creating safe zones without Hamas. A coalition of six Arab countries, including Saudi Arabia, is supposed to oversee the delivery of humanitarian aid. The second phase will last five to 10 years and is aimed at reconstructing Gaza, also under the direction of the Arab coalition, but it will be carried out by a new body: the Gaza Rehabilitation Authority. Local citizens will have to staff this body. At the same time, there will have to be a “Marshall Plan” for Gaza, and a denazification program. Only then could there be renewed autonomy. The huge investments in Gaza should create thousands of jobs and will have to end poverty there.
Conclusion
UN General Assembly resolution adopted on 10th May 2024 upgrades Palestine’s status in the UN. This is a political resolution that is intended to advance the Palestinians’ political claims and further pressure and isolate Israel. But it does not change the legal situation or realities on the ground.
The Palestinians are bound by the Oslo Accords. Accordingly the only pathway to achieving Palestinian statehood is through negotiations. Palestinian-driven initiatives like the UNGA’s application to the ICJ for an Advisory Opinion and the recent UNGA resolution on Palestinian statehood only serve to create confusion, and – worse still – remove any incentive on the Palestinians to achieve what is probably the most important criterion of statehood: a stable and effective government over the population. The PLO should not be allowed simultaneously to call itself a “state”, while also failing to establish effective institutions of government and promoting terror and violence against Israel and its citizens.
