U.S. Laws Lethal to Palestine’s Statehood Bid

By Kat Fina, Albany Government Law Review

On September 23, 2011, after a century of conflict and amid threats from the United States, Mahmoud Abbas, President of the Palestinian National Authority, submitted Palestine’s request for statehood to the United Nations.[1]  Mr. Abbas asked the United Nations General Assembly to stop the occupation of his country and to recognize the self determination of his people.[2]  Mr. Abbas declared Palestine’s request to allow for the independent state of Palestine with a capital of Jerusalem and territories consisting of the West Bank and Gaza Strip.[3]  As Mr. Abbas held a copy of the letter requesting membership, General Assembly members gave a standing ovation, and Palestinians gathered in the streets of the West Bank and the Gaza Strip to cheer their leader and wave the Palestinian flag.[4] 

Less than five weeks after Palestine submitted its bid to the United Nations Security Council, the United Nations Educational, Scientific and Cultural Organization (UNESCO), a United Nations organ, allowed the Palestinian Authority to become a member of the United Nations Organ.[5]  Though the Palestinian Authority saw this as a victory on the road to becoming a recognized state, the 107 to 14 vote[6] did not occur without repercussions.

In the days immediately following the vote and recognition by UNESCO, the U.S. Department of State announced that the U.S. would end funding to UNESCO due to two federal laws enacted in the early 90s.[7]  First, Public Law 101-246, Title IV, §414 provides that “[n]o funds authorized to be appropriated by this Act or any other Act shall be available for the United Nations or any specialized agency thereof which accords the Palestine Liberation Organization the same standing as member states.”[8]  Second, Public Law 103-236, Title IV, §410, provides:

The United States shall not make any voluntary or assessed contribution (1) to any affiliated organization of the United Nations which grants full membership as a state to any organization or group that does not have the internationally recognized attributes of statehood, or (2) to the United Nations, if the United Nations grants full membership as a state in the United Nations to any organization or group that does not have the internationally recognized attributes of statehood, during any period in which such membership is effective.[9]

The ramification on UNESCO because of U.S. enforcement of these laws was a loss of a $60 million check the U.S. had planned to pay UNESCO by the end of 2011.[10]  Continuing forward, UNESCO has lost twenty-two percent of its yearly budget, or $80 million per year, with the U.S. refusing to provide funding for the organization.[11] With these results and loss, the effect these laws could have, if enforced, on the United Nations as a whole, if Palestine were to become a full member state, would be devastating.  In 2009, the U.S. paid about twenty-two percent of the United Nations’ annual budget, which was more than any other State.[12]  Also, the consequence of the U.S. no longer funding the UN and possibly withdrawing its membership is an issue discussed by other papers.

There is a point of interest to discuss involving these two U.S. laws.  It is interesting to note that the latter law does not mention Palestine, but mentions “organizations or groups” that do not meet the internationally recognized attributes of statehood.  Under public international law, though, there is no concrete definition of a state or what criteria or attributes are required to be a state.[13]  Though there has been much discussion on the issue, there is still much debate on which factors to consider and the weight given to each when considering the facts at hand.[14]

The most widely accepted (and basic) criteria for statehood, though, is established by the Montevideo Convention on the Rights and Duties of States, 1933.  The Montevideo Convention set-out four main qualifications: 1. a permanent population; 2. a defined territory; 3. a government; and 4. Capacity to enter into relations with other states.[15]  These are also the four criteria utilized by the Security Council Subcommittee, which was formed to discuss the Palestinian statehood bid and make a recommendation to the Security Council.[16]

The permanent population criterion is easily defined as an “aggregate of individuals,” no matter how many or how few.[17]  There does not seem to be much debate as to Palestine meeting this requirement.  Palestinians are those ethnically homogeneous people, living on the West Bank and Gaza Strip land who consider themselves to be “Palestinians.”[18]The second, and basic criteria of statehood, is territory.[19]  The amount of territory is not an issue. Several states, including Monaco, Nauru, and San Marino, all have areas less than 100 square kilometers.[20]  Also, there is no requirement that there be contiguity.[21]  Also, just because an Entity’s territory is in dispute does not preclude the Entity from being a State.[22] There may be two different situations which may arise when territory is in dispute: first, part of a state’s territory is in dispute; second, the entire territory of a state is in dispute.[23]  Under this second instance, in which the entire territory is in dispute, the statehood of the Entity is less certain.[24]  But, just because the entire territory is in dispute, this does not mean an Entity is precluded from being a State.[25]

The United Nations Security Council Subcommittee stated that Palestine fulfilled both of these requirements and “it was stressed that the lack of precisely settled borders was not an obstacle to statehood.”[26]

As with both the government criterion and capacity to enter into relations, the Security Council Subcommittee Report stated that “the view was expressed that Palestine fulfilled [these] criterion.”[27]  The Report claimed Palestine Liberation Organization (PLO) is the government and representative of the Palestinian people, and the Palestine Authority has the capacity to enter into relations, as evidenced by Palestine’s recognition as a Sovereign State by over 130 other States, its membership in UNESCO, the Non-Aligned Movement, the Organization of Islamic Cooperation, the Economic and Social Commission for Western Asia, and the Group of 77.[28]

Therefore, Palestine, as it would seem, meets the generally accepted principles of defining a State, which is supported by the fact that over 130 other States have recognized Palestine as a Sovereign State.[29]  This being true, Public Law 103–236 does not apply, or at least, should not apply.  But then the question arises how does the U.S. define the “internationally recognized attributes of statehood”[30] under the law.  There would be no surprise if the U.S. came up with its own criteria for statehood, or, at the very least, would analyze Palestinian statehood under the Montevideo Convention criteria much differently than the Security Council Subcommittee.  Not that this problem needs to be solved or this analysis required; Public Law 101–246 explicitly prohibits funding to any agency which allows the PLO to have “the same standing as member states.”[31]  This law could be the barrier between Palestine and statehood, between Palestine and full UN membership.

[1] Tarek el-Tablawy, et al., Palestinian UN Statehood Bid: Mahmoud Abbas Submits Formal Request for Member State Status, Huffington Post (Sept. 23, 2011), http://www.huffingtonpost.com/2011/09/23/palestinians-submit-un-statehood-bid_n_977891.html.

[2] Id.

[3] Id.

[4] Id.

[5] Angela Charlton, et al., Palestine Statehood Bid: U.S. Cuts Off UNESCO Funding After Palestine Vote, Huffington Post (Oct. 31, 2011), http://www.huffingtonpost.com/2011/10/31/us-unesco-funding_n_1067628.html  (allows “States” to become members in process separate from UN).

[6] Id. (with 52 Abstentions).

[7] Colum Lynch, UNESCO Votes to Admit Palestine; U.S. Cuts Off Funding, Wash. Post (Oct. 31, 2011), http://www.washingtonpost.com/world/national-security/unesco-votes-to-admit-palestine-over-us-objections/2011/10/31/gIQAMleYZM_story.html.

[8] Foreign Relations Authorization Act, Fiscal Years 1990 and 1991, Pub. L. No. 101–246, §414, 104 Stat. 70 (1990).

[9] Foreign Relations Authorization Act, Fiscal Years 1994 and 1995, Pub. L. No. 103–236, §410, 108 Stat. 454 (1994).

[10]Lynch, supra note 7.

[11] Id.

[12] U.N. Secretariat, Assessment of Member States’ Contributions to the United Nations Regular Budget for the Year 2009, U.N. Doc. ST/ADM/SER.B/755.

[13] Thomas D. Grant, Defining Statehood: The Montevideo Convention and Its Discontents, 37 Colum. J. Transnat’l L. 403, 413 (1999).

[14] See Id.

[15] James Crawford, The Creation of States in International Law, 45–46 (2d ed. 2006).

[16] U.N. S.C., Report of the Committee on the Admission of New Members Concerning the Application of Palestine for Admission to Membership in the United Nations, ¶ 8, U.N. Doc. S/2011/705 (Nov. 11 2011).

[17] Crawford, supra note 15, at 52.

[18] John Quigley,The Statehood of Palestine: International Law in the Middle East Conflict, 209 (2010).

[19] Crawford, supra note15, at 46.

[20] Id. at 47.

[21] Id.

[22] Id. at 48.

[23] Id.

[24] Id.

[25] U.N. S.C., supra note 13, at ¶ 10.

[26] Id.

[27] Id. at ¶¶ 12, 14.

[28] Id. at ¶ 14.

[29] Id.

[30] Lynch, supra note 7.

[31] Foreign Relations Authorization Act, Fiscal Years 1990 and 1991, Pub. L. No. 101–246, §414, 104 Stat. 70 (1990).

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