How the UN will harm both Israel and the Palestinians

The UNGA can hold a special session regarding the Palestinian question if there is a veto on a UNSC resolution. Yet the int’l community does not realize that while non-binding resolutions passed at the latter may harm Israel, they will also do a massive disservice to the Palestinians themselves.

By ROBBIE SABEL
March 31, 2011 14:43
4 minute read.
The United Nations headquarters in New York.

United Nations 311. (photo credit: REUTERS)

The UN General Assembly is not known to be a friendly forum for Israel. At the Assembly, member states vote in blocs, the largest of which is the Muslim one, totaling 57 members. In order to obtain support for their issues, other blocs court the votes of the Muslim bloc.

While some of the Muslim states have fairly affable relations with Israel on a bilateral basis, the tone within the bloc is set by radical Arab countries. As a result, any resolution condemning Israel that is supported by the Muslim bloc is guaranteed a majority in the GA. The only exception is when a resolution attempts to deny Israel's right to exist or questions its UN membership.

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As well as meeting regularly every September, in extraordinary circumstances the UN General Assembly can convene at other times for a special session. This happens when the UN Security Council fails to come to a decision because of the imposition of a veto by a permanent member or even the threat of such an imposition. In such a session, the GA will deal with political or security issues normally handled by the Security Council.

Referred to as "uniting for peace" sessions, these have been initiated in the past by Arab states for the purposes of condemning Israeli actions. For example, the 2003 request by the GA for an international court opinion on the security barrier originated at a “uniting for peace” session. At present, and should the occasion present itself as a result of a UNSC veto, the Arab states will not even be required to call for the convening of a “uniting for peace” session. This is because the most recent GA special session on the "Palestine" question never drew to a close, and was suspended with a view to be reconvened at any time.


General Assembly resolutions, however, are not binding and even those made in "uniting for peace" sessions have no more authority than regular ones. Neither does repeating them year after year magically make them binding. French jurist Prosper Weil wrote pithily that there is no "warrant for considering that by dint of repetition, non-normative resolutions can be transmuted into positive law through a sort of incantatory effect."

As far as states are concerned, GA resolutions have the status of recommendations only, and the states involved can choose not to comply with them. Nevertheless, they are never meaningless as far as Israel is concerned. First of all, the UN Secretary General and his staff are obliged to comply with such resolutions. Second, the International Court of Justice will often treat them as directives; following the aforementioned special session concerning the security barrier, the ICJ indeed dispensed an advisory opinion. 

Thirdly, these resolutions tend to have an extraordinarily long shelf life. Once again, although they were never legally binding, the 1947 partition plan and the 1948 right of return for refugees are resolutions that are still oft-quoted whenever legal rights are discussed in negotiations surrounding the Arab-Israel conflict.

Adding fuel to the fire is the fact that diplomats from all over the world who spend time on their country’s delegation at the UN invariably absorb the vitriolic anti-Israeli atmosphere of the GA. Much of the prevailing attitudes in Europe regarding Israel can also be attributed to the pernicious effects of the annual anti-Israel hate fest at the General Assembly, further documented by the antipodean resolutions that are passed.

At the upcoming General Assembly session in September, the Palestinians may try and take advantage of the automatic majority to obtain a resolution recognizing a Palestinian state within the 1949 Armistice Demarcation Line. However, borders between states cannot be determined by GA resolutions and require consensual agreement only between the states concerned. Therefore, Israel and the Palestinians have no alternative but to negotiate their future common border.

A resolution recognizing the 1949 line as a border may give the Palestinians a feeling of satisfaction, but it would do little to advance their cause. This is because negotiations would have to include issues such as Jerusalem and the traffic between Gaza and the West Bank - neither of which can be dealt with through a simplistic and unworkable call to adopt the 1949 armistice line.

Another alternative raised by some Palestinians would be requesting the GA to impose UN trusteeship over the West Bank and Gaza pending the formation of a Palestinian state. Namibia, East Timor and Kosovo serve as precedents for this. However, such a trusteeship implies that the Palestinians are not yet ready for statehood. It is also not clear whether the majority of member states would be enthusiastic about the UN taking upon itself such an onerous and expensive task.

So despite the fact that GA resolutions are not binding, in this case they may still cause damage to both the Israelis and Palestinians. Regarding the latter, any international action that serves to delude the Palestinians into believing that they can avoid negotiations is doing a disservice to them and ultimately harms any chances of reaching a two-state solution to the conflict.

The writer teaches international law at the Hebrew University and is the former legal adviser to the Israel Foreign Ministry.


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