United Nations Resolutions and Position in the International community - Draiman

United Nations Resolutions and Position in the International community

Prior to the 2011 Annual Session of the United Nations General Assembly in New York, Arab-Palestinian Authority chairman Mahmoud Abbas announced his plan to formally request that a UN resolution be presented to the Security Council and assembled national delegations to "recognize" a unilaterally declared Arab-Palestinian State, with "East Jerusalem" as its capital, along with UN membership. The end result was that the Security Council, after extended consultations, was unable to reach a common position.

Threats of a veto on the part of the United States and of abstentions on the part of Britain and France were based on grounds that recognition of an Arab-Palestinian state at this time would undermine the prospects for a bilaterally negotiated settlement (as called for in the Oslo Accords - which is null and void due to flagrant violations by the Arab-Palestinians). Absent the needed support from these key representatives of the community of nations, the issue was not pressed to a vote—either in the Security Council or in the General Assembly—at the UN’s 66th Session in 2011. The issue, however, is still very much alive.

It should be pointed out that, had there been or were there ever to be such "recognition" of the "Arab-Palestinians" as a political/statal entity, this would not, in and of itself, constitute the creation of a State of Arab-Palestine under international law, any more than the 1947 Resolution 181 (II) (the UN Partition Plan) created the State of Israel.115 The recreation of the State of Israel was at the 1920 San Remo Treaty which adopted the 1917 Balfour Declaration and its adoption by the League of Nations and The Mandate for Greater Israel aka Palestine. (The UN has no authority to create or modify international treaties, it can only recommend).

Neither does membership in the United Nations per se create, confer or confirm statehood. UN membership requires nomination by the UN Security Council, with the unanimous support of the five Permanent Members (China, France, the Russian Federation, the United Kingdom and the United States). A contemporary example is that of Kosovo, which is recognized by at least seventy-five sovereign nations, yet its membership in the UN is precluded by the absence of the support of only one Permanent Member of the Security Council, namely, the Russian Federation.

According to the UN Charter, the General Assembly (GA) does not have the power to create legally binding decisions. It has only the power to recommend. UNGA resolutions are therefore not legally binding and the General Assembly lacks any and all competence to enact international law. In fact, the Charter does not authorize even the International Court of Justice (I.C.J.)—the principal judicial organ of the UN—to create, enact or amend international law.

According to one illustrious former president of the International Court, Professor Judge Schwebel stated:

The General Assembly of the United Nations can only, in principle, issue "recommendations" which are not of a binding character, according to Article 10 of the Charter of the United Nations.116

The venerable Judges Sir Hersch Lauterpacht and Sir Gerald Fitzmaurice similarly confirmed the lack of "legislative effect" or "legal power to legislate or bind its members by way of recommendation". Professor Arangio-Ruiz, who wrote what was considered "perhaps the most comprehensive" treatise ever compiled on the normative role of the UN General Assembly, went so far as to conclude that:

[T]he General Assembly lacks legal authority either to "enact" or to "declare" or "determine" or "interpret" international law so as legally to bind states by such acts, whether these states be members of the United Nations or not, and whether these states voted for or against or abstained from the relevant vote or did not take part in it.117

At least on one point, then—that of the non-binding character of UNGA resolutions—there is no room for interpretation.

In the final analysis, there is categorically no practicable solution other than two legitimate governing entities that recognize and respect one another’s rightful and legal existence, coming to the negotiating table and discussing all unresolved outstanding issues on permanent status, as per the relevant international legal commitments and binding instruments, with the aim of achieving a durable peace with secure and defensible borders.

YJ Draiman