Understanding the Palestinians’ U.N. bid

Photo: Patrick Gruban

BY LARRY CARP

How does a country become a U.N. Member?

Membership in the United Nations, according to Chapter II, Article 4, Section 1., of the United Nations Charter “is open to all….peace-loving states which accept the obligations contained in the …..Charter and, in the judgment of the organization, are able and willing to carry out these obligations.”

The admission of “any such state” to membership in the U.N., according to Chapter II, Article 4, Section 2. “will be effected by a decision of the General Assembly upon the recommendation of the Security Council.”

But that’s not the total story.  There are lesser known “Provisional Rules of Procedure of the Security Council,” which were adopted in 1983.  These rules include Chapter X, Admission of New Members.

That chapter contains Rule 38, which explains that any state which desires to become a U.N. member “shall submit an application to the U.N. Secretary-General.” This application must contain “a declaration made in a formal instrument that it accepts the obligations contained in the Charter.”

Rule 59 of that Chapter provides that “The Secretary-General shall immediately place the application for membership before the representatives on the Security Council.” The President of the Security Council, unless it decides otherwise, refers the application to a committee of the Security Council made up of all 15 Security Council members.

The Committee then examines the application and reports its conclusions as to whether the applicant accepts the obligations contained in the Charter to the Security Council.

The Security Council, according to Rule 60, then decides whether in its judgments, “the applicant is a peace-loving state and is able and willing to carry out the obligations contained in the Charter.” (See Part 2 of this article in next week’s Light for an in-depth analysis of this requirement.)

The Security Council also decides, accordingly, whether to recommend to the General Assembly the applicant state for U.N. membership.

If the Security Council recommends the applicant state for membership to the General Assembly, it forwards to the General Assembly “the recommendation with a complete record of the discussion.”

The Security Council may decide not to recommend to the General Assembly the applicant state for membership.

It may also, interestingly, decide to postpone the consideration of the application. This provision is not for the Security Council to recommend that the General Assembly postpone the consideration of the application; the Security Council, itself, “postpones the consideration of the application.”

In either case, the Security Council submits a special report to the General Assembly with a complete record of the discussion.

Does the United States have the power to veto the application for U.N. membership if nine other members of the Security Council recommend the Palestinian Government for U.N. Membership?

Yes, it does. As stated in the U.N. Charter in Chapter V, Article 23, the Security Council consists of 15 members of the U.N.

There are five permanent members: China, France, the Russian Federation, the United Kingdom and the United States.  The other non-permanent members of the United Nations are elected by the General Assembly for a term of two years.

As stated in Chapter V, Article 27, every member of the Security Council has one vote.

Decisions of the Security Council on procedural matters are made by an affirmative vote of nine of its members.

Decisions of the Security Council on all other matters are also made by an affirmative vote of nine members, “including the concurring votes of the permanent members” (except that a party to a dispute must abstain from voting.)

Since membership in the U.N. is not a procedural matter, an affirmative vote of nine members, including the votes of the United States and the other four permanent members, is required.  Any one of the permanent members, accordingly, may veto an application for U.N. Membership.

If a vote  of the Security Council is approved by nine members, including all five permanent members,  and the Security Council recommends to the General Assembly an applicant for U.N. Membership, what happens next?

As set out in U.N. Chapter IV, Articles 9 and 18, the General Assembly consists of the (192) members of the U.N. each with one vote.

Decisions of the General Assembly “on important questions are made by a two-thirds majority of the members present and voting, including “the admission of new Members of the United Nations.”

In Chapter XIV Admission of New Members to the United Nations of the Rules of Procedure of the General Assembly to the United Nations, Rule 136 states that if the Security Council recommends an applicant State for membership, “the General Assembly shall consider whether the applicant is a peace-loving state and is able and willing to carry out the obligations contained in the Charter.”

It then decides, by a two-thirds majority of the members present and voting, upon the application for membership.

Rule137 then says that if the Security Council does not recommend the applicant State or (importantly) “postpones the consideration of the application, then the General Assembly may, after full consideration of the special report of the Security Council,” send the application back to Council, together with a full record of the discussions in the Assembly, “for further consideration and recommendation or report.”

Rule 138 of the Rules of Procedure (not the Charter) then states that the Secretary-General “shall inform the applicant State of the decision of the General Assembly.” It then provides that “if the application is approved, membership shall become effective on the date on which the General Assembly takes its decision on the application.”

If the United States or another permanent member vetoes an otherwise affirmative vote of the Security Council, is there still a way  for the application for U.N. membership by the Palestinian Government to reach the U.N. General Assembly?

In the event the application for admission to the United Nations is vetoed in the Security Council,  a sidestep might be attempted by means of the United Nations General Assembly Resolution 377, entitled “Uniting for Peace,” passed by the General Assembly on November 3, 1950.

The Resolution provides that in cases where the United Nations Security Council fails to act, owing to disagreement between its five permanent members, the matter shall be addressed immediately by the General Assembly, using the mechanism of an emergency special session.

The Uniting for Peace Resolution was initiated by the United States on November 3, 1950 as a means of circumventing Soviet vetoes of the Korean War.

But the Resolution is limited to “maintenance of international peace and security in any case where there appears to be a threat to the peace, breach of the peace, or act of aggression.”

There is absolutely no mention of the application of the Resolution to applications to become a Member of the United Nations.

The Resolution, accordingly, on its face does not apply to the application for U.N. membership.

It remains to be seen whether this sidestep will be an effective procedural device in the event the Security Council fails to recommend Palestinian statehood to the General Assembly.

Local commentary

Editor’s Note: Larry Carp, appointed by President Bill Clinton as a Public Delegate and Senior Advisor to the United Nations in 2000-2001, and confirmed by the Senate as Alternative Representative of the United States to the United Nations, is an attorney, practicing immigration law in Clayton. With a possible vote coming on Palestinian statehood at the United Nations in September, this article helps explain the processes the U.N. may utilize in acting on such a request. Part 2 of this article appears in next week’s Light.

 

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