Membership has its Privileges: Palestinians’ Attempt to become a Non-member Observer State to the United Nations

On November 29, 2012, the Palestinians will ask the United Nations to upgrade their status from “permanent observer” status to a “non-member observer state.” This follows a failed bid to join the United Nations as a full member state in 2011 because of a lack of support in the UN Security Council. In addition to the current 193 member states, the United Nations welcomes some international organizations, entities, and non-member states as observers. Non-member observer states are recognized as sovereign states, can participate in the debates at the United Nations General Assembly, and are free to submit a petition to join as a full member at their discretion.

What are the Palestinians asking for and why?

The Palestinians argue that admission even as a non-member observer state at the UN will strengthen their hands in peace talks with Israel on core issues that divide them: the status of Jerusalem, the fate of the settlements, the precise location of borders, the right of return of Palestinian refugees, water rights and security arrangements. However, there are more substantial benefits for Palestinians in becoming a non-member observer state to the UN than their being allowed to participate in UN General Assembly debates. Becoming a non-member observer state would improve the Palestinians’ chances of joining the UN agencies and the International Criminal Court (ICC).

Although the process would be neither automatic nor guaranteed, if they are allowed to sign the ICC’s founding treaty, the Rome Statute, the Palestinians could take legal action in the court and accuse the Israeli government of violating the Geneva Conventions’ prohibition on forced displacement of populations by establishing settlements on occupied territory. The Palestinians might also seek to have the ICC investigate war crimes allegations from the 2008-2009 Gaza war.

Just a few months ago, the chief prosecutor of the ICC rejected a declaration by the Palestinian Authority unilaterally recognizing the court’s jurisdiction, and stated that the ICC could not act because Article 12 of the Rome Statute established that only a “state” could confer jurisdiction on the Court. While Palestinian chances of joining the ICC would be neither automatic nor guaranteed as a non-member observer state, allowing them to join the ICC could open a new door of legal possibilities in the international arena for the Palestinians against the Israeli government.

The chances of the Palestinians obtaining non-member observer state status are almost certain, as a resolution need only be passed by a simple majority at the 193-member UN General Assembly, and there is no threat of veto as there would be at the Security Council. The states that oppose recognition of Palestinians as a non-member State worry that if they attempt to seek membership to the International Criminal Court (ICC), and move to extend the jurisdiction of the court over the occupied territories, it would derail any chance of peaceful resolution of the Israeli-Palestinian conflict. The US and Israel oppose the move citing concerns that the Palestinians are trying to seek full statehood via the UN, rather than through negotiation as set out in the 1993 Oslo peace accords under which the Palestinian Authority was established.

Is the fear expressed by the opposing states to the Palestinians becoming an observer non-member state to the UN well founded?

Assuming the Palestinians were able to obtain admission to the ICC, should we trust the legal authority of the ICC to resolve disputes fairly?

The United States alleges that they oppose the Palestinians becoming a non-member observer to the UN because seeking statehood through the UN would contravene the 1993 Oslo peace accords under which the Palestinian Authority was established, but are there other political reasons behind the United States’ opposition?




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