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Analysis: Why the president was right

Oct. 13, 2011 9:58 A.M. (Updated: Oct. 14, 2011 12:02 P.M.)
By John Quigley and Gabi Fahel

President Mahmoud Abbas' decision to request UN membership for Palestine at the Security Council is the right decision.

It is the right decision if you believe in two states. It is the right decision if you believe in one state. It is the wrong decision if you believe in the status quo.

The status quo is the continuing occupation of Palestine and its people, daily human rights violations, denial of access to Jerusalem and Palestinian holy sites, as well as settlement construction without end. The status quo also means no tangible remedy for Palestinian refugees.

Abbas has clearly exhausted every bilateral avenue to responsibly move the peace process forward and he has now prudently reached the conclusion that international consensus is not enough. He has concluded that it is now time for active international engagement beyond the confines of the bilateral negotiations box.

Even if one believes in one state in historic Palestine, the initiative at the United Nations for membership must first be exhausted before a credible case can be made for one state. Therefore, the attempt at UN membership is a necessary step for achieving a two-state or one-state solution.

Today there are at least 127 states recognizing the sovereignty of Palestine. The initiative to seek bilateral recognitions from South America was the first warning to an otherwise unresponsive Israeli administration that Abbas was not going "to come down from the tree."

The response in diplomatic circles was that the president was not serious: "The Palestinian leadership will do as the Americans tell them, and they will buckle as they always do." This assumption was an incorrect one.

Moreover, the Israelis were now dealing with a president who publicly announced that he was not seeking re-election. Abbas was empowering the Palestine national cause as his legacy. With the Arab Spring and other political shifts in the region, it was time for Israel, at a minimum, to come down from its tree with a settlement freeze in line with the international consensus on that issue reflected in the 2003 Roadmap. It did not.

The next warning signal came in May. The president announced that Palestine was planning on going to the United Nations. Again, diplomats did not take Abbas seriously: "The Palestinian leadership will do as the Americans tell them, and they will buckle as they always do." Again, that assumption was incorrect.

Up until September, relevant capitals were still not taking the president's determination to seek Palestine's membership seriously. Public statements and backroom negotiations were taking place to persuade Abbas not to proceed, without proposing any meaningful alternatives to persuade Israel to implement a genuine settlement freeze.

The Palestine membership application may not proceed to a vote in the Security Council any time soon. The US is likely to play an obstructionist role. Palestine's membership application may be "studied" by a Security Council committee for months if not years.

If it is sent to a vote, the US may succeed in ensuring that no favorable recommendation is made to the General Assembly for Palestine’s admission to membership. At that point, the General Assembly may take time to study the Security Council action and may then seek clarification from the Security Council on why Palestine does not meet the requirements for membership.

What will become very clear is that US opposition at the Security Council is contrary to international law and contrary to international political consensus. When this is made clear, it becomes debatable whether the General Assembly may ignore the Security Council's recommendation and admit Palestine as a member state.

While Palestine's membership application may take time to make its way through the Security Council and General Assembly, Palestine could benefit by securing Observer State status for its UN mission. The General Assembly has the power to confer such status and would be likely to vote overwhelmingly in favor. Only a simple majority vote is required for an upgrade.

An upgrade to Observer State status for Palestine will make clear, if it is not so already, that the General Assembly considers Palestine qualified for UN membership on the criterion of statehood. This will make it more difficult for Security Council members to assert that Palestine is not a state.

And if the Security Council fails to adopt a favorable recommendation, the upgrade to Observer State status will pre-determine that issue when the membership application reaches the General Assembly, thereby arguably making it easier for the General Assembly to admit Palestine in the face of no favorable recommendation from the Security Council.

By obtaining an upgrade to Observer State, Palestine could advance permanent status issues in international venues, especially in the face of Israel's refusal to negotiate bilaterally in good faith. Prominently, the maintenance of settlements in occupied territory -- one of the sticking points in the final status negotiations -- is a war crime. Confirmation by the General Assembly of Palestine's statehood would make it clear to the International Criminal Court that Palestine’s 2009 declaration conferring jurisdiction on the Court is valid.

The settlement issue would no longer be solely a matter of bilateral negotiation. Beyond negotiating with Palestine, Israeli officials might have to negotiate their way out of potential criminal liability.

Another example: Last year the Minister of Tourism and Palestine’s Ambassador to UNESCO began the process for membership in UNESCO. Accession to UNESCO prior to Palestine’s admission to the U.N. would require a two-thirds majority in a vote of the UNESCO membership, but that would not be a problem.

Accession to UNESCO would allow for the internationalization of issues relating to Jerusalem. Israel would have to negotiate with an international body, under clear international rules, over its illegal excavations and construction in one of the world's most important heritage sites.

Palestine would also be able to seek world heritage recognition and protection for additional sites in Bethlehem, Hebron and Nablus.

A confirmation of Palestine statehood via an upgrade to Observer State would also improve Palestine’s chances for membership in the International Telecommunications Union. Like UNESCO membership, ITU membership for Palestine would require a two-thirds majority in a vote, but again this would not be a problem.

Participation in the ITU would mean international regulation of Palestine's airwaves and frequencies. That regulation would be legally wrested from Israel's control. The electromagnetic sphere is a natural resource being exploited by Israel's mobile companies and generating hundreds of millions of dollars in profits and tax revenues.

Once the ITU regulates Palestine's frequencies, Israel will no longer be able to demand legal control over Palestine’s airwaves at the negotiation table and share prices for Israel's mobile companies would likely be reassessed.

Beyond these few examples, a confirmation of Palestine statehood could advance Palestinian access to dozens of international organizations governing such rights and responsibilities as human rights protection, underground water, fiscal and monetary matters, maritime boundaries, natural gas off-shore Gaza, international post, agriculture, transportation, health, among many others.

Pursuing these international avenues will not only maintain momentum behind the President's UN initiative, but will also give new momentum to Salam Fayyad's government's state-building plan in Palestine.

In addition, such international efforts have the potential to create a serious challenge to an otherwise cost-free Israeli policy to continue its occupation and settlement enterprise.

And Israel's allies could also be taken to task to reassess whether any good-will created during the Arab Spring should be used to extinguish Israel's diplomatic flare ups every few months at numerous international organizations.

So is Abbas on the right side of history for seeking Palestine's international engagement? Absolutely.

John Quigley is a professor of law at Ohio State University. Gabi Fahel is an international lawyer and former advisor to Palestinian ministers and negotiators on issues concerning Palestine's membership of international organizations.

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