By Balakrishnan Rajagopal
- The author is a Professor of Law and Development, Massachusetts Institute of Technology, and UN Special Rapporteur on the Right to Housing.
ISTANBUL (AA) - Palestine is already a state, recognized by 146 states as of now. Simultaneously, Palestine is also a full member of several specialized agencies and bodies of the UN and a full member of the League of Arab States, the Non-aligned Movement, the Group of 77, the Organization of Islamic Cooperation (OIC), and the Group of Asia-Pacific States.
The glaring exception is that it is not yet a full member of the UN. Although the UN General Assembly adopted an important resolution [1] on May 10, 2024, offering several additional rights and privileges to Palestine and overwhelmingly backing its bid to become a full member, Palestine remains an observer state member of the UN, short of full membership. As a result, the divergence between overwhelming state recognition of Palestine and the failure to admit Palestine as a full member of the UN continues.
- All states have a duty to recognize Palestine as a full member of the UN
In the light of the International Court of Justice (ICJ) advisory opinion [2] of July 19, 2024 on the legal consequences arising from continued Israeli occupation of Palestinian territory, which clearly reaffirmed the right to self-determination of the Palestinian people, one might ask whether the divergence between overwhelming state recognition of Palestine and its lack of full UN membership is any longer justifiable. Indeed, in light of the ICJ ruling and the resolution by the UN General Assembly, all states have a duty to admit Palestine as a full member of the UN. In the case of states such as the US, this duty includes a duty to desist from exercising its veto at the Security Council. Indeed, the ICJ ruling and the duties incumbent on the US with regard to the right to self-determination of the Palestinian people impose an obligation on the US to admit or not prevent the admission of Palestine to the UN.
This duty was clear back in 2011 when the Palestinian Authority (PA) submitted its formal application for a full UN membership. The application was put on hold due to the fear of a potential US veto, which would have derailed the process. Now, on a second attempt by Palestine for full membership, the US has formally vetoed its application. The US continues to be one of a few holdouts blocking Palestine’s full membership and, due to its veto power, the most significant barrier to the full realization of Palestinian rights to self-determination.
There are two preliminary issues: the meaning of the right to self-determination and the limits on the right of veto. The right to self-determination has an internal and an external element. The internal element consists of the right of a people to freely pursue their political, economic, social, and cultural development, including through their permanent sovereignty over all natural resources.
The external element consists of the right of a people to fully define their place within the international community, including their ability to engage in relations, as a state, with all other states and international organizations, and to fully exercise, as a state, its rights and privileges under international law without interference. The right to full membership of the UN is therefore a fundamental part of the external dimensions of the right to self-determination of the people of Palestine, as clearly recognized by the General Assembly resolution of May 10, 2024.
It is groundless for the U. or other states opposing Palestine’s full membership at the UN to deny the right to this external dimension of the right to self-determination. The US repeatedly proclaims its commitment to a two-state solution and yet is unwilling to recognize that Palestine is indeed a state already. Since there is no official definition of a "state" in the UN Charter, the US can claim [3] that Palestine is yet to fulfill certain criteria of being a state and is therefore ineligible for full membership. But this position is untenable in international law.
The ICJ, in its 1948 advisory opinion [4] on Article 4 of the UN Charter, which defines the conditions for membership in the UN, was clear that no extraneous consideration beyond what was already mentioned in Article 4 can be used as a criterion to reject membership. Since the UN Charter does not define a "state", the US and other states must strictly go by the criteria mentioned in Article 4 and not try to inject their own subjective elements into each criterion, especially when there is overwhelming state support for admission of a state.
The US or other states that are unwilling to recognize Palestine bilaterally at this time are under no obligation to do so under the reasoning offered here. It must be clearly recognized that the recognition of a state bilaterally is different from admission to the UN. A state may be admitted to the UN by the votes of many other states, some of whom may not recognize the existence of the member bilaterally and may not have the intention of establishing diplomatic relations. There is ample international practice to prove this, stretching all the way back to the League of Nations. Therefore, even an affirmative vote of the US in favor of admitting Palestine to the UN does not imply recognition of Palestine as a state by the US.
- The Palestinian people have the right to self-determination
But international law does compel the US and other states to do two other things: first, it imposes a duty on states not to recognize as lawful a situation created by the illegal occupation of Palestine by Israel, its gradual use of force and annexation of territory, or other serious breaches of jus cogens (peremptory norms) obligations such as the practices of apartheid and racial discrimination, as recognized by the ICJ. This duty was also previously recognized in other authoritative legal findings, including by the International Law Commission and the International Court of Justice in their 2004 advisory opinion on the legality of the Israeli wall. This means that no state may recognize the occupation as a whole or recognize as lawful any acquisition of territory by Israel in territories outside the borders as they existed in 1967.
There is a second duty imposed on the US and other states unwilling to support a full membership of Palestine in the UN. States are also under a duty to support the exercise of Palestine's right to self-determination under international law. Contrary to the first negative duty above, which is a duty not to recognize illegal acts, there is a concomitant positive duty to support legal acts. A main legal channel for the exercise of self-determination is to seek membership in international organizations like the UN, as already pointed out. This is precisely what the Palestinians are seeking.
This duty of states to support the exercise of self-determination has many aspects: a duty to support admission to the organizations of which one is a member, a duty not to prevent admission (including through the use of veto), and a duty to assist the people and government of the new state to fulfill the duties and purposes of the UN, including how they could safeguard all human rights and freedoms.
By using its veto to block membership admission to Palestine, the US is in serious breach of international law. The obligation to support the Palestinian people’s right to self-determination means, at the very least, that the US should not prevent a positive vote in the Security Council by other states. Such a vote or abstention, as the case may be will in no way amount to a legal recognition of Palestine by the US as already indicated.
To the extent that the duty to support the right to self-determination of Palestinian people incurs these concomitant obligations, the right of the US to veto Security Council resolutions must be seen to be limited to that extent. In other words, Palestine’s quest for full membership of the UN has opened the related question of whether vetoes of Security Council members are limited in certain cases. It is my submission that the only defensible conclusion one can draw from the ICJ rulings, the UN Charter itself, along with the jus cogens status of the right to self-determination, is that veto power under the UN Charter is not unlimited. That is due, among others, to the erga omnes nature of the obligations that flow from the right to self-determination.
The use of veto to block Palestine’s membership notwithstanding, Palestine now has many additional rights and privileges at the UN, many unprecedented for any observer state. The progress of Palestine toward full membership of the UN appears inevitable. Palestine’s full membership in the UN at this time is extremely important, as we stand at a critical time when the entire post-World War II UN Charter-based system seems to be tottering and needs all the legitimacy that it can muster.
[1] https://www.un.org/unispal/document/admission-of-new-members-10may24/
[2] https://www.icj-cij.org/node/204176
[3] https://usun.usmission.gov/remarks-at-a-un-general-assembly-debate-on-the-u-s-veto-of-a-un-security-council-resolution-on-palestinian-membership/
[4] https://www.icj-cij.org/sites/default/files/case-related/3/003-19480528-ADV-01-00-EN.pdf
*Opinions expressed in this article are the author’s own and do not necessarily reflect Anadolu's editorial policy