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Dore Gold

 
DORE GOLD: Countdown to September: Israel, the Palestinians, and the UN General Assembly

by Dore Gold, posted August 19, originally posted at www.jcpa.org

 

[written May 2011] Dore gold is a former  Israeli Ambassador to the U.N.

Summary:The public debate in Israel over the Palestinian plan to seek UN support for statehood in September is based on a fundamental misconception: the UN General Assembly cannot by itself establish or recognize a Palestinian state. It can admit new members to the UN only after they have been nominated first by the UN Security Council, where any of the five permanent members could veto the nomination.

The current Palestinian effort at the UN, moreover, seems redundant. The UN General Assembly already recommended the creation of a Palestinian state on December 15, 1988, and has even insisted on the 1967 lines. The 1988 resolution was backed by 104 countries; only the U.S. and Israel opposed it. But this and other past resolutions (including one as recently as December 18, 2008) did not create a new legal reality, nor did they change anything on the ground.

In 1998, when Prime Minister Benjamin Netanyahu was confronted with a plan by Yasser Arafat to declare a state in 1999, the Israeli government warned that such a move would constitute "a substantive and fundamental violation of the Interim Agreement" between Israel and the Palestinians (the Oslo II agreement). It issued a formal statement saying that if such a violation occurred, then Israel would be entitled to take all necessary steps, including the application of Israeli law to settlement blocs and security zones in the West Bank.

Oslo II clearly established that "Neither side shall initiate or take any step that will change the status of the West Bank and the Gaza Strip pending the outcome of the Permanent Status negotiations" (Article 31). The European Union actually signed Oslo II as a witness. Can EU countries then become active participants in changing the status of the territories whose fate is supposed to be determined only by negotiations?

Israel must firmly oppose the September initiative in the General Assembly, even if the Palestinians already have the votes. It must make absolutely clear that this move is no less than a material breach of a core commitment in the Oslo Agreements, as the Israeli government asserted in 1998. Only a strong Israeli response will deter Abbas from going further down the road of unilateralism.

The UN General Assembly Cannot Establish a Palestinian State

The public debate in Israel over the Palestinian plan to seek UN support for statehood in September is based on a fundamental misconception: that the UN General Assembly can decide about the existence of new states. Contrary to widespread beliefs, it was not the UN General Assembly that formally established the State of Israel. UN General Assembly Resolution 181, also known as the Partition Plan, from November 29, 1947, only recommended the establishment of a Jewish state. It was an important moral boost for the Jewish people. But the actual legal basis for the creation of the State of Israel was the declaration of independence by David Ben-Gurion on May 14, 1948.

Meanwhile, the Palestinians speak about the UN "recognizing" a new Palestinian state this September. Nabil Shaath, a senior Fatah Central Committee member, referred to the PA gaining recognition for a Palestinian state from two-thirds of the UN member-states.1 In early 2011, Riad Malki, the Palestinian foreign minister, expanded on the idea of UN recognition: "Such recognition would create political and legal pressure on Israel to withdraw its forces from the land of another state that is recognized within the 1967 borders by the international organization."2 Indeed, because Abbas wants international recognition to cover both the West Bank, where his government rules, and Hamas-controlled Gaza, he felt driven to seek a reconciliation between Fatah and Hamas, just recently.

Yet, the General Assembly does not recognize new states either. It can admit new members to the UN only after they have been nominated first by the UN Security Council. If one of the five permanent members of the Security Council refuses to support the admission of a new state to the UN, then there is nothing the General Assembly can do about it. Kosovo is recognized by at least 75 states, but Russia refuses to support its admission to the UN, so it is not a UN member state. The General Assembly has recognized the right of self-determination of national movements; it has accepted different national movements as representing peoples with national aspirations. But the UN General Assembly cannot by itself establish or recognize a Palestinian state. It can only make recommendations for other states to follow in their bilateral contacts.

It should be pointed out that the current Palestinian effort at the UN seems redundant. The UN General Assembly has already recommended the creation of a Palestinian state in the past. It even insisted on the 1967 lines. On December 15, 1988, the General Assembly adopted Resolution 43/177 which acknowledged "the proclamation of the State of Palestine" by Yasser Arafat at the Palestine National Council meeting in Algiers on November 15, 1988. It was a virtual state, since it did not meet any of the minimal conditions that international law has determined must be met in order for a political community to be recognized as a state. Nonetheless, the UN went ahead and tried to grant some sort of status to Arafat's declaration. 

The 1988 UN resolution affirmed "the need to enable the Palestinian people to exercise their sovereignty over their territory occupied since 1967." It was backed by 104 countries; only the U.S. and Israel opposed it (36 countries abstained). Since that time, other UN General Assembly resolutions, as recently as December 18, 2008, reaffirmed the rights of the Palestinians to an independent state. But all these past resolutions did not create a new legal reality, nor did they change anything on the ground. Moreover, they did not alter the fundamental fact that UN Security Council Resolution 242 from November 1967 still stood out as the only agreed basis for every Arab-Israeli peace agreement since 1979. Resolution 242 did not demand of Israel to pull back to the 1967 lines.


Abbas Hopes to be Handed a State

There are several reasons why the Palestinian leadership is pursuing this UN strategy. First, Mahmoud Abbas has been convinced that the UN route allows him to obtain a Palestinian state on a silver platter without having to actually stand up in a hall in Ramallah and issue a declaration. He told Newsweek's Dan Ephron, in an interview published on April 24, that he is not prepared to declare a state by himself, if the UN General Assembly adopts a resolution on Palestinian statehood. Abbas prefers to be passive and let the international community do all the work. He is not following the sequence of state-creation practiced by Israel's leader, David Ben-Gurion, in 1947-48. 

Abbas knows there are risks if he decides to  unilaterally declare a state. In 1998, when Prime Minister Benjamin Netanyahu was confronted with a plan by Yasser Arafat to declare a state, when the five-year Interim Agreement was to expire in 1999, the Israeli government warned that such a move would constitute "a substantive and fundamental violation of the Interim Agreement" between Israel and the Palestinians (the Oslo II agreement). It issued a formal statement on November 11, 1998, sayin

 
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