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THE PALESTINIAN UN GAMBLE - IRRESPONSIBLE AND ILL-ADVISED

by Alan Baker

  

Palestinian Leaders Say the Peace Process Is Over

The international community has recently witnessed a series of widely publicized and authoritative declarations voiced by Palestinian leaders, according to which "the current peace process as it has been conducted so far is over" (Palestinian Authority Foreign Minister Riad Malki, March 22, 2011), and "the Palestinian leadership institutions (PLO and Fatah) have decided to submit a request to the UN for recognition of a Palestinian state within the 1967 borders, with its capital in East Jerusalem" (Sa'eb Erekat - AFP, March 20, 2011).

These declarations join an earlier plan by Palestinian Authority Prime Minister Salam Fayyad, announced in August 2009, to unilaterally declare a Palestinian state upon completion of the preparations for Palestinian governing institutions by September 2011.

A "Uniting for Peace" Resolution?

In the face of a probable U.S. veto of any further attempts by the Palestinian observer delegation to the UN to attain a Security Council resolution recognizing a Palestinian state, the Palestinians are aiming to bring about the adoption of a "Uniting for Peace" resolution in the September 2011 session of the UN General Assembly. This resolution would be based on a procedure established in 1950 at the initiative of then-U.S. Secretary of State Dean Acheson in the context of the Korean crisis as a means of overcoming a lack of unanimity among the permanent members of the Security Council which was preventing the Council from fulfilling its duty to maintain international peace in the event of a perceived "threat to the peace, breach of the peace or act of aggression."[1]

In such a case, the General Assembly "shall consider the matter immediately" in an emergency special session with a view to adopting a General Assembly resolution that could recommend collective measures and other possible action to deal with a perceived threat to international peace and security.

Emergency special sessions of the General Assembly have been convened under this procedure in over ten instances, including the Korean crisis (1950-1953), the Suez crisis (1956), Hungary (1956), Congo (1960), Afghanistan (1980), and Namibia (1981). The procedure has frequently been used regarding Middle East issues, as in 1967, 1980-82, and in the 10th emergency Special Session which, at the behest of the Palestinians and Arab states, has in fact been continuously active since 1997 to this very day.

Clearly, the factual and legal situations regarding each case are unique and thus cannot be seen as indicative of the outcome or content of any possible future "Uniting for Peace" resolution. In this light, the legal and political background to any Palestinian attempt to unilaterally declare a state and to have it recognized by the UN is quite different from any previous use of the "Uniting for Peace" procedure.

A General Assembly resolution adopted through the "Uniting for Peace" procedure would not provide the General Assembly with any powers beyond the recommendatory powers that it exercises in any other routine resolution. It would not be a mandatory resolution, but could only recommend collective or individual actions by states. It would not have the power to change the status of the territories, nor, in and of itself, to alter Israel's status vis-á-vis the territories.

Voiding the Oslo Agreements

The projected action by the Palestinians of declaring void the agreed-upon negotiation process, and proceeding to a unilateral process with the approval of the UN, could have a number of very negative consequences for the Palestinians and for the peace process, as well as for the international community.

With respect to the Palestinians:

Voiding the Credibility of the International Community

With respect to the peace process and the international community:

Impact on Jerusalem

The international community has consistently refused to recognize Israel's right to establish its capital city in Jerusalem pending a negotiated agreement on the status of the city. Hence, diplomatic missions are not located in Jerusalem, Israel's capital. In light of this, one might ask how member states of the UN will be able to support a Palestinian resolution affirming a Palestinian right to establish its capital in Jerusalem.

This would be a clearly one-sided act by the international community in violation of all declarations and commitments directed toward a negotiated settlement regarding Jerusalem. Furthermore, it would undermine the commitment between Jordan and Israel in Article 9 of the Jordan-Israel Peace Treaty, according to which: "In accordance with the Washington Declaration, Israel respects the present special role of the Hashemite Kingdom of Jordan in Muslim Holy shrines in Jerusalem. When negotiations on the permanent status will take place, Israel will give high priority to the Jordanian historic role in these shrines."[6]

Impact on the Refugee Issue

Similarly, if, as the Palestinians have been intimating, they will seek to include a provision in a "Uniting for Peace" resolution affirming and imposing the right of return of the Palestinian refugees, this would, in fact, conflict with the relevant provision of Resolution 242 calling for "achieving a just settlement of the refugee problem."[7] Assuming that the "refugee problem" refers also to the issue of Jewish refugees resulting from the Middle East crisis, then the unilateral determination regarding Palestinian refugees only would be discriminatory and violate Resolution 242.

It would also violate the relevant undertakings in the Oslo Accords, specifically the 1993 Declaration of Principles on Interim Self-Government Arrangements (Article V(3)) which determines that the final status issues to be negotiated (and not imposed by the UN) "shall cover remaining issues, including: Jerusalem, refugees, settlements, security arrangements, borders, relations and cooperation with other neighbors, and other issues of common interest."

Imposing a UN determination regarding the refugee issue would be incompatible with and undermine the agreement between Jordan and Israel in Article 8 of their 1994 bilateral Treaty of Peace, according to which the refugee issue will be dealt with "in negotiations, in a framework to be agreed, bilateral or otherwise, in conjunction with and at the same time as the permanent status negotiations."[8]

The potential confusion, disorder, and substantive damage of a Palestinian-motivated UN resolution - to the Palestinians themselves, to the peace-negotiation process, and to the credibility and reliability of the United Nations and international community in general - is likely to be immeasurable. While the beginnings of such a process might be clear, there can be no foreseeing the final outcome and the concomitant consequences.

The question remains whether the members of the UN who are being drawn by the Palestinians into this irresponsible and ill-advised exercise are fully aware of the damage it may cause.  

End  Notes

1. http://www.un.org/en/ga/sessions/emergency.shtml

2. http://www.mfa.gov.il/MFA/Peace+Process/Guide+to+the+Peace+Process/ Israel-PLO+Recognition+-+Exchange+of+Letters+betwe.htm

3. http://www.mfa.gov.il/MFA/Peace+Process/Guide+to+the+Peace+Process/ THE+ISRAELI-PALESTINIAN+INTERIM+AGREEMENT.htm

4. http://www.mfa.gov.il/MFA/Peace+Process/Guide+to+the+Peace+Process/ UN+Security+Council+Resolution+242.htm

5. http://www.mfa.gov.il/MFA/Peace+Process/Guide+to+the+Peace+Process/ UN+Security+Council+Resolution+338.htm

6. http://www.mfa.gov.il/MFA/Peace+Process/Guide+to+the+Peace+Process/ Israel-Jordan+Peace+Treaty.htm

7. http://www.mfa.gov.il/MFA/Peace+Process/Guide+to+the+Peace+Process/ UN+Security+Council+Resolution+242.htm

8. See note 6 above.
 

Ambassador Alan Baker, Director of the Institute for Contemporary Affairs at the Jerusalem Center for Public Affairs, is former Legal Adviser to Israel's Foreign Ministry and former Ambassador of Israel to Canada. He is a partner in the law firm of Moshe, Bloomfield, Kobo, Baker & Co. He participated in the negotiation and drafting of the various agreements comprising the Oslo Accords. This article appeared April 3, 2011 in Jerusalem Center for Public Affairs (JCPA) Vol. 10, No. 34.

 

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