Unilateral Declaration of an Independent Palestinian State and the Procedure of 'Uniting for Peace'

Key Palestinian Authority officials are increasingly threatening to declare statehood unilaterally, possibly by September 2011, while refusing to resume peace talks with Israel. Such a move would effectively end the Israeli-Palestinian peace process.

A unilateral declaration of Palestinian statehood is not a new idea. In 1988, the Palestinian National Council, meeting in Algiers, adopted the Palestinian Declaration of Independence. That declaration was later endorsed by an overwhelming majority of the United Nations General Assembly. It also led to the recognition of “Palestine” by well over 100 countries. Recently, several Latin American countries (Brazil, Argentina, Chile, Peru, Ecuador, Uruguay and Paraguay) have joined the list of countries which had already recognized “Palestine.”

It has been suggested that if the Palestinians decide, once again, to unilaterally declare statehood, they could seek international recognition for their new state in the UN General Assembly through a procedure known as “Uniting for Peace.” Some suggest that “Palestine” could use the same procedure to obtain membership in the UN. The purpose of this memo is to explain the procedure of “Uniting for Peace” and its possible implications regarding a Palestinian unilateral declaration of independence (UDI).

‘Uniting for Peace' – Historical Background


In 1950, the most pressing issue on the international agenda was the war in Korea. The Soviet Union, using its veto power, repeatedly blocked action by the Security Council, thus preventing the Council from exercising it responsibility for the maintenance of international peace and security. It was against this backdrop that the UNGA adopted, in November 1950, the historic resolution 377 A (V), titled “Uniting for Peace.”

The resolution said, inter alia, that “if the Security Council, because of lack of unanimity of the permanent members, fails to exercise its primary responsibility for the maintenance of international peace and security in any case where there appears to be a threat to the peace, breach of the peace, or act of aggression, the General Assembly shall consider the matter immediately with a view to making appropriate recommendations to Members for collective measures, including ... the use of armed force when necessary, to maintain or restore international peace and security. If not in session at the time, the General Assembly may meet in emergency special session within twenty-four hours of the request thereof. Such emergency special session shall be called if requested by the Security Council ... or by a majority of the Members of the United Nations.” This provision was subsequently incorporated into the Rules of Procedure of the General Assembly.

According to the Rules of Procedure, then, the convening of an emergency special session (ESS) requires the fulfillment of the following conditions:

a. Existence of a situation where there appears to be a threat to the peace, breach of the peace, or act of aggression;

b. Failure by the Security Council, because of lack of unanimity among the permanent members, to exercise its primary responsibility for the maintenance of international peace and security; and

c. Lack of a General Assembly regular session “at the time” of the failure of the Security Council to deal with the situation referred to in (a) above.

The U.S. and ‘Uniting for Peace'



The United States played a leading role in the adoption of the “Uniting for Peace” resolution. It did so because it was frustrated by repeated Soviet vetoes in the Security Council, and because it wanted to empower the General Assembly, where at that time it enjoyed a numerical advantage, to address issues relating to international peace and security. However, with the acceleration of the decolonization process and the admission of new member states from Asia and Africa to the UN, the parliamentary constellation in the General Assembly changed in short order – against the U.S. Since the mid-fifties, the General Assembly has been a bastion of the Non-Aligned Movement and a forum where anti-American sentiments are frequently and openly expressed.

This raises serious questions about the lack of foresight – or imagination – of post-War American diplomacy that sought to circumvent the Security Council and empower the General Assembly based on what proved to be a temporary advantage in the latter organ. The “Uniting for Peace” resolution continues to haunt the U.S., not only because it has become a tool in the Arab political campaign against Israel, but also because it could be used to undermine American foreign policy. In the months and weeks that preceded the American invasion of Iraq, for instance, American NGOs opposed to the war tried to mobilize the international community to convene an emergency special session to halt the impending American invasion.

However, while the resolution did empower the General Assembly to consider matters relating to international peace and security, it did not, nor could it, empower the UNGA to adopt binding and enforceable resolutions. According to the UN Charter, only the Security Council can adopt such resolutions. General Assembly resolutions, including those adopted in emergency special sessions, are only recommendations. As “Uniting for Peace” clearly states, “the General Assembly shall consider the matter immediately with a view to making appropriate recommendations….”

List of Emergency Special Sessions

To date, ten emergency special sessions have been convened, in response to the following crises: (1) the Suez crisis (1956); (2) the Soviet invasion of Hungary (1956); (3) the Lebanon crisis (1958); (4) the Congo crisis (1960); (5) the Six-Day War (1967); (6) the Soviet invasion of Afghanistan (1980-82); (7) the Israeli-Palestinian conflict (1980-82); (8) the South African invasion of Namibia (1981); (9) the Israeli occupation of the Golan Heights (1982); and (10) the Israeli-Palestinian conflict (1997- ). Six of the ten emergency special sessions held so far were on the Middle East, of which five related directly to the Israeli-Arab conflict. (To be sure, the first emergency special session was not only about the 1956 war between Israel and Egypt but also about the French and British attack on the Suez Canal.)

The 10th ESS first convened in April 1997, following the decision of the Israeli Cabinet to build a new residential neighborhood in Har Homa in East Jerusalem. Bias against Israel is evident in the session’s title: “Illegal Israeli Actions in Occupied East Jerusalem and the Rest of the Occupied Palestinian Territory.” Since its first meeting, the 10th session has resumed 15 times, each time adopting resolutions censuring various actions and policies of Israel, most of them unrelated to the issue that instigated the 10th session in the first place. In fact, in each of these resumed sessions at least one of the conditions for the convening of an ESS was not fulfilled. It was either resumed without a preceding veto in the Security Council or while the regular session was still meeting, or both. The last resumed session took place in January 2009, in response to Israel’s Operation Cast Lead against Hamas in the Gaza Strip.

Admission of New Members to the UN

Some have expressed concerns that the Palestinians might use the “Uniting for Peace” procedure to obtain membership in the UN. However, the UN Charter clearly states (Article 4 (2)) that, “The admission of any ... state to membership in the United Nations will be effected by a decision of the General Assembly upon the recommendation of the Security Council.” The UNGA, either in a regular session or in an emergency special session, may endorse a unilateral declaration of independence by the Palestinians, but it cannot admit “Palestine” to the UN without a prior recommendation (meaning a resolution) of the UNSC.

It also must be noted in any analysis of the Palestinians’ political options and obligations that the PA fails to satisfy the traditional criteria for statehood: it does not have effective governmental control in the areas in which a Palestinian state is presumed to exist, or effective control over a permanent population; is not in possession of defined territory; does not have the capacity to freely engage in foreign relations. Further, any unilateral Palestinian attempts to acquire the attributes of statehood outside of the negotiating process would violate existing Israeli-Palestinian agreements, which clearly state that permanent status issues are subject to agreement between the parties.

Conclusion

“Uniting for Peace” was initiated with a view to circumventing the UNSC, but this objective has never been achieved. Resolutions adopted by emergency special sessions have the same power as all other resolutions adopted by the UNGA, meaning that they are just recommendations. Only resolutions adopted by the UNSC are binding, and only those adopted under Chapter VII of the UN Charter are both binding and enforceable.

This is not to suggest that emergency special secessions, or just regular sessions, of the UNGA should be taken lightly. The UNGA is the main deliberative organ of the world organization and, as such, a major forum for providing, or denying, international legitimacy. Indeed, Israel’s Declaration of Independence bases the Jewish state’s very legitimacy, among other things, “on the strength of the resolution of the United Nations General Assembly” (resolution 181 of November 29, 1947, the “partition resolution”). Conversely, when, in November 1975, the UNGA adopted the infamous resolution equating Zionism with racism, Israel and her friends regarded it as a serious challenge to Israel’s legitimacy and were greatly relieved when that resolution was revoked 16 years later.

If the Palestinians decide to issue a unilateral declaration of statehood, a UNGA endorsement won’t amount to admission of the Palestinian state to the UN, unless it is preceded by a recommendation of the UNSC; but it would significantly boost the international legitimacy of such a proposed state.

Aaron Jacob
AJC Associate Director of International Affairs

Copyright 2013/2014 AJC