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Palestinian statehood—coming soon? Professor Cerone comments on UNESCO vote

(Boston Revised 01/10/12) New England Law | Boston: Palestinians are pressing their case before the United Nations, and statehood is but one of several possible outcomes. Professor John Cerone, director of the Center for International Law and Policy, commented on the impact of the October 31 vote to admit Palestine to membership in UNESCO.

"While the UNESCO vote is not insignificant, the numbers do not necessarily bode well for Palestine’s quest for statehood.  Palestine’s membership application received 107 yes votes at the UNESCO General Conference.  Even though there are 185 UNESCO member states entitled to vote, the 107 yes votes were sufficient to meet the two-thirds bar for membership, since the two-thirds calculation is based on UNESCO member states present and voting.  Of the 173 eligible member states present, 52 states abstained, meaning that Palestine only needed 81 yes votes to be admitted. 

"In other words, Palestine’s membership bid attracted the support of less than 60 percent of the total UNESCO Membership.  If this reflects what would be the result of a vote in the UN General Assembly, then even if a General Assmbly resolution is adopted, it is unlikely to be sufficient to independently confirm the statehood of Palestine."

Professor Cerone also commented on the United States's announcement that it would cut funds to UNESCO in response to today's vote.  "The U.S has had a difficult relationship with UNESCO over the decades, leading to withdrawal from the organization in the mid-80s," Cerone noted.  "On a somewhat ironic note, it was under the George W. Bush administration that the U.S. re-joined UNESCO, which ran counter to that administation's general stance on multilateral institutions–so it would be even more ironic if the U.S. again withdew during a Democratic administration."

Professor Cerone reviewed The UN and the Status of Palestine in a September 13, 2011, American Society of International Law (ASIL) “Insight” article that clarifies the complex legal issues surrounding the anticipated UN debate.

Professor John Cerone Professor John Cerone

Professor Cerone distinguishes the legal issues of statehood and UN membership, and discusses the implications of Palestinian statehood, including the possibility of International Criminal Court jurisdiction over the conduct of Israelis and Palestinians in Gaza and the West Bank.
The Palestinian Authority submitted a formal membership application in late September.   The U.S. and Israel have condemned the bid as "unilateral,' a characterization that strikes Professor Cerone as odd.  "You can't get more multilateral than the UN.  The U.S. and Israel trying to make the point that the statehood issue should be settled in cooperation with Israel, but 'unilateral' it clearly is not."

If the Security Council approves the application by an affirmative vote of nine members (and without a veto from a permanent member, such as the United States), the application will be forwarded to the General Assembly for approval, where a two-thirds vote is required.  

"General Assembly approval is highly likely," believes Professor Cerone, "but the application is unlikely to reach that stage of the process given the United States's vow to wield its veto in the Security Council.  At the moment the application is being considered by a Security Council committee and will likely sit there for some time to allow Israel, Palestine, the U.S., and others to hammer out a deal."

If a compromise is not reached, Professor Cerone predicts that the Palestinian delegation will turn to the General Assembly to seek 'affirmation of the statehood of Palestine.'  "Affirmation of statehood, as opposed to mere UN membership, is actually the more significant legal issue," he notes.  "It would have a number of legal consequences that concern Israel, including the possibility of ICC prosecution.

"With respect to this last issue, the Israelis may indeed have cause for concern," says Professor Cerone, who observes that the Cook Islands, an entity in free association with New Zealand, acceded to the ICC treaty in 2008.  "Even though not a fully independent state, its accession to the Rome Statute was met with zero protest from other States Parties.  This precedent may support the legality of Palestine’s consent to ICC jurisdiction even if its status as an independent state is not fully established."

The Insight article also examines UN practice regarding Palestine since 1974, when the General Assembly invited the Palestine Liberation Organization ("PLO") to participate as an observer, and possible forms of UN deliberation and their implications for statehood.

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