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Introduction
Resolutions issued by the General Assembly are not per se legally binding.
The General Assembly, unlike the Security Council, only issues binding
resolutions in the area of budgetary matters regarding the allotment and
collection of dues. Therefore, the Resolution A/67/L.28 will have a largely
symbolic effect without any real, immediate impact on the on-the-ground
situation in Palestine.
However, while General Assembly resolutions are not legally binding on
United Nations member States, they can contribute to the creation of binding
international law. Resolutions of the General Assembly are a means through
which States express their opinions about the status of international
questions. A resolution that receives widespread support may therefore
shape the content of customary international law, a source of international
law. When a legal principle becomes customary international law, it becomes
binding on States to the extent that they do not repeatedly and publicly
announce opposition to the principle.
Moreover, the resolutions and declarations of international organizations,
including the United Nations, may constitute opinio juris, one of the five
sources of international law. While opinio juris is not itself a source of law, it
serves as a subsidiary means for the determination of rules of law under
article 38 of the Statute of the International Court of Justice.
Therefore, while Resolution a/67/l.28 is not itself binding, it may contribute to
and shape the content of binding international law.
3.
Does the Resolution Mean that Palestine Is Now a State?
a)
Overview
Conclusion
Although the Resolution does not constitute binding international law, it does
bring Palestine one step further towards statehood under both the
constitutive and declarative theories. The vote shows that Palestine has
significant recognition by the international community as a State, thus
fulfilling the criterion of the constitutive theory, which while being flawed is
still adhered to by some contemporary theorists. Moreover, with Palestines
formal recognition by 138 countries, it will be able to effectively enter into
relationship with other States, which is one of the four elements of the
declarative theory test. Thus, while the General Assembly Resolution is not
dispositive of Palestines statehood, it is evidence of a growing recognition of
Palestine as a State.
4.
What Rights does the General Assembly Resolution Confer on
Palestine?
Many commentators have rightfully pointed out that even with Resolution
a/67/l.28, the on-the-ground situation will remain largely unchanged. For
example, Israel continues to withhold recognition of Palestinian statehood,
retains its occupation of the West Bank and on December 20, 2012,
announced the construction of new settlements in East Jerusalem. The fifty
nations that voted against or abstained from the Resolution will continue to
refuse recognition of Palestinian statehood and future Palestinian diplomatic
missions and consulates.
However, there is one important consequence that the recognition of
Palestinian Statehood will have: it will grant Palestine access to United
Nations agencies and international organizations, including the International
Criminal Court. This will enable Palestine to initiate claims against Israel at
the International Criminal Court. Unlike in the past, where countries could
only pursue Israel at the International Criminal Court with Israels consent to
the Courts jurisdiction, if Palestine becomes a member of the International
Criminal Court, the Court would have jurisdiction against Israel as to conduct
that occurred on Palestinian territory, even without Israels consent. Under
article 12.2 of the Statute of the International Criminal Court, the Court has
jurisdiction whenever a State on whose territory crimes occurred (Palestine)
is a member, even if the defendant State (Israel) is a non-member.
Therefore, if Palestine claims that Israel committed crimes against humanity
or war crimes on Palestinian territory, the Court would have jurisdiction over
the matter.
This right was perceived as so significant that some nations, including Great
Britain, sought a commitment from Palestinian leadership that they would
not file a claim against Israel before the International Criminal Court as a
precondition to voting for the Resolution. However, the right is not as
vigorous as it is perceived. Even if Palestine were to join the International
Criminal Court and file a claim against Israel, Israel would immediately
retaliate with a counterclaim. Palestine would quickly find its membership
with the Court to be a double-edged sword: Palestine would not only enjoy
the right to bring actions before the Court but would also be vulnerable to
actions brought against it. Of the claims over which the Court holds
jurisdiction, one could make the argument that Palestine, through its Gaza
Strip arm ruled by Hamas, is far more vulnerable to claims brought against it
than is Israel.
For example, it would be difficult to characterize the blockade of the Gaza
Strip or Israels disproportionate counterattacks as crimes falling under the
Courts jurisdiction, such as murder or extermination committed as part of a
widespread or systematic attack directed against any civilian population,
with knowledge of the attack (art. 7.1 of the Statutes of the Court). Israel
would argue that the blockade and attacks were never aimed at civilians, but
rather at Hamas militants who have repeatedly fired rockets into civilian
areas of Israel. Other supposed crimes such as collective punishment of
Palestinians and the settlements are, in the words of Kevin Jon Hellers
November 29 Opinio Juris commentary, fraught with ambiguity and difficult
This is countered by the argument that even before the occupation the West
Bank and Gaza Strip were not sovereign, so the assumption that an
occupying force has no effect on sovereignty is not applicable in this case.
d) A capacity to enter into relations with other states: there is disagreement
about whether Palestine has this capacity. On the one hand it is argued that
the Palestinians have signed and ratified a range of international agreements
such as the Arab Charter on Human Rights and the UNESCO Cultural
Heritage Charter. In addition, the Palestinian government is holding talks with
other states. On the other hand the argument is that the Oslo Accords
excluded certain basic functions of statehood from the Palestinian
governments area of responsibility, such as the decision on the
establishment of Palestinian diplomatic missions abroad or international
diplomatic missions in the West Bank and Gaza Strip.
Recognition by other States
This purely declarative theory has, however, been widely questioned. The
fact that a country meets the requirements of the Montevideo Convention is
meaningless if it is not internationally recognised. The constitutive theory of
sovereignty requires recognition by other states as a prerequisite for
statehood. Reference is often made to the fact that Palestine has already
been recognised by a number of states (129, as of January 27 2012), is a
member of many different international organisations and has diplomatic
status in various different countries. And the fact that the General Assembly
recognised the Declaration of Independence by the Palestinian National
Council of November 15, 1988 in Resolution 43/177 is seen as further
evidence of recognition of the state. Only the USA and Israel had voted
against recognition, Germany abstained.
The opposing argument is that there is still a significant number of states
within the international community which have not granted their recognition.
Supporters of this view claim that it is also important that the territorial unit
in question actually feels ready to claim statehood, but that the Palestinian
National Authority is not yet convinced of its own statehood. Instead it uses
the concept of statehood as something it hopes to achieve in the future.
These arguments may not be so persuasive in future, as the Palestinians are
indeed trying to have their status changed through their application to the
United Nations for acceptance and recognition.
Historical Considerations
linked to statehood. In short, if you act like a state and are treated like a
state, then you are a state. One thing surely does not state a hindrance: the
internal preconditions of a state: the United Nations and the World Bank have
both attested to the fact that the National Authority is now in a position to
govern a stable Palestinian state. According to a report by Robert Serry, the
UN Special Coordinator for the Middle East, published on April 12, 2011, the
Palestinian National Authority is functioning like a state in all areas such as
health, education, energy, justice and security. The World Bank announced
at the beginning of April that the Palestinian Leadership had improved their
financial administration and the health and education systems were now at a
similar level to those of other countries in the region.