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On membership of the United Nations and the State of Palestine: A critical account

Published online by Cambridge University Press:  27 August 2021

Ardi Imseis
Ardi Imseis*
Affiliation:
Faculty of Law, Queen’s University, Kingston, Ontario, Canada, K7L 3N6 Email: a.imseis@queensu.ca
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Abstract

Against the context of pending judicial proceedings between the State of Palestine and the United States of America (US) at the International Court of Justice (ICJ), this article critically examines the United Nations (UN) commitment to the international rule of law through an examination of its consideration of Palestine’s 2011 application for membership in the organization. The universality of membership of the UN is a foundation upon which the organization rests. The international law governing UN admission has accordingly been marked by a liberal, flexible and permissive interpretation of the test for membership contained in the UN Charter. In contrast, an assessment of the UN’s consideration of Palestine’s application for membership demonstrates that it was subjected to an unduly narrow, strict and resultantly flawed application of the membership criteria. An examination of the contemporaneous debates of the Council demonstrates that the main driver of this was the US, which used its legal authority as a permanent member of the Council to block Palestine’s membership. The principle argument used against membership was the US’s view that Palestine does not qualify as a state under international law. Notwithstanding, the State of Palestine has been recognized by 139 member states of the UN and has acceded to a number of treaties that furnish it with access to the ICJ. While a number of articles have been written about Palestine’s statehood, little has been written on the UN’s consideration of Palestine’s 2011 application for membership. Palestine v. USA provides a renewed opportunity to do so.

Keywords

membershipPalestinerule by lawstatehoodUnited Nations
Type
ORIGINAL ARTICLE
Information
Leiden Journal of International Law , Volume 34 , Issue 4 , December 2021 , pp. 855 - 878
Copyright
© The Author(s), 2021. Published by Cambridge University Press

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Footnotes

*

Assistant Professor, Faculty of Law, Queen’s University. I am grateful to Reem Bahdi, John Dugard, Richard Falk, Victor Kattan, Michael Lynk, and Alice Panepinto for comments on earlier drafts of this article. All errors are mine.

References

1 International Court of Justice, ‘The State of Palestine Institutes Proceedings Against the United States of America’, 28 September 2018, Press Release No. 2018/47, available at www.icj-cij.org/public/files/case-related/176/176-20180928-PRE-01-00-EN.pdf (accessed 28 June 2021).

2 Relocation of the United States Embassy to Jerusalem (Palestine v. United States of America), Order, 2018 ICJ General List No. 176, 15 November 2018 (hereinafter ‘Palestine v. USA’).

3 In 2020, similar arguments were unsuccessfully advanced by a number of states parties of the Rome Statute of the International Criminal Court appearing before the Pre-Trial Chamber (PTC) on the issue of the scope of the Court’s territorial jurisdiction in the situation in Palestine. See infra note 4; A. Imseis, ‘State of Exception: Critical Reflections on the Amici Curiae Observations and Other Communications of States Parties to the Rome Statute in the Palestine Situtation’, (2020) 18 Journal of International Criminal Justice 905.

4 On 22 January 2020, the Prosecutor of the ICC requested a ruling from the Court on the scope of the territorial jurisdiction of the ICC in Palestine. On 5 February 2021, the PTC ruled that the ICC’s territorial jurisdiction in the situation in Palestine, a State Party to the Rome Statute, extends to the Palestinian territories occupied by Israel since 1967. The PTC underscored that it was not competent to determine matters of statehood binding upon the international community as a whole, but rather focused only on the scope of its jurisdiction in the territory of a State Party under the Rome Statute. See Decision on the ‘Prosecution requrest pursuant to article 19(3) for a ruling on the Court’s territorial jurisdiction in Palestine’, ICC-01/18, Pre-Trial Chamber 1, 5 February 2021, available at www.icc-cpi.int/CourtRecords/CR2021_01165.PDF (accessed 29 July 2021).

5 See J. Moussa, ‘Atrocities, Accountability and the Politics of Palestinian Statehood’, (2016) XIX Pal. YB Int’l. L. 42; J. Crawford, ‘Israel (1948–1949) and Palestine (1998–1999): Two Studies in the Creation of States’, in G. Goodwin-Gill and S. Talmon (eds.), The Reality of International Law: Essays in Honour of Ian Brownlie (2012); J. Quigley, The Statehood of Palestine: International Law in the Middle East Conflict (2010); V. Kattan, ‘Palestinian Statehood’, in H. Sayed and T. Skouteris, Oxford Handbook of International Law in the Arab World (forthcoming).

6 United Nations Charter, Art. 4(1), (‘UN Charter’).

7 For further exposition of the international rule by law, and the condition of international legal subalternity it has spawned see A. Imseis, The United Nations and the Question of Palestine: Rule by Law and the Structure of International Legal Subalternity (forthcoming).

8 K. Ginther, ‘Membership: Article 4’, in B. Simma et al. (eds.), The Charter of the United Nations: A Commentary, vol. II (2002), at 178.

9 Poland did not sign until October 1945. U. Fastenrath, ‘Membership: Article 3’, in Ibid., at 173–4.

10 UN Charter, Arts. 3, 4.

11 Because of the lack of political independence of some original members (e.g., Belorussia, India, Philippines, and Ukraine), Higgins argues that inclusion of these states in the organization was sui generis. She cites various reasons for the inclusion of these members. Yet this does not square with the ordinary meaning of the term ‘state’ as used in Art. 3. This is particularly so because (as Higgins herself notes) the Charter’s drafters consciously chose to use the term ‘state’ over ‘nation’, when the latter had been proposed by the Philippine delegation. R. Higgins, The Development of International Law Through the Political Organs of the United Nations (1963), 15–16.

12 Conditions of Admission of a State to Membership in the United Nations (Article 4 of the UN Charter), Advisory Opinion of 28 May 1948, [1948] ICJ Rep. 57, at 62 (‘Conditions of Admission’).

13 This was affirmed by the ICJ in Competence of the General Assembly for the Admission of a State to the United Nations, Advisory Opinion of 3 March 1950, [1950] ICJ Rep. 4, at 10.

14 Ginther, supra note 8, at 179.

15 Ibid.

16 See, e.g., Higgins, supra note 11, at 14; J. Crawford, The Creation of States Under International Law (2006), 179, 182; Quigley, supra note 5, at 236.

17 UNSCOR, 1st Yr., 54th Mtg., UN Doc. S/PV.54 (1946), at 44.

18 Ibid., at 41–2.

19 See, e.g., UN General Assembly, Res. 187B, UN Doc. A/RES/197B (1948); UN General Assembly, Res. 506A(VI), UN Doc. A/RES/506A (VI) (1952); UN General Assembly, Res. 718(VIII), UN Doc. A/RES/718(VIII) (1953).

20 UN, Repertory of Practice of United Nations Organs, UN Charter, Art. 4, Vol. 1 and Supplements 1–10 (1945–2009) (‘Repertory of Practice’).

21 Conditions of Admission, supra note 12, at 58.

22 Ibid., at 62.

23 Ibid., at 63.

24 Ibid., at 65.

25 Ibid., at 62–3.

26 Conditions of Admission, supra note 12, at 71.

27 T. Grant, Admission to the United Nations: Charter Article 4 and the Rise of Universal Organization (2009), 244.

28 Higgins, supra note 11, at 14.

29 Ginther, supra note 8, at 180.

30 Crawford, supra note 16, at 180, puts the figure at 85 successful applicants between 1963 and 2005. Montenegro and South Sudan have since been admitted to membership without objection.

31 Ibid. at 180.

32 Ginther, supra note 8, at 180.

33 Grant, supra note 27, at 52.

34 Ginther, supra note 8, at 180.

35 Crawford, supra note 16, at 19–28.

36 Convention on the Rights and Duties of States, Montevideo, 165 LNTS 19 (1933), Art. 1 at 25 (‘Montevideo Convention’). Although UN practice consistently refers to the Montevideo criteria when assessing an entity’s statehood, some scholars have questioned the validity of the criteria themselves. See, e.g., Crawford, supra note 5, at 113.

37 Crawford, supra note 16, at 46, 62–89; Higgins, supra note 11, at 25.

38 Crawford, supra note 5, at 95.

39 UN General Assembly, Res. 491(V), UN Doc. A/RES/491(V) (28 September 1950); UN General Assembly, Res. 1492(XV), UN Doc. A/RES/1492(XV) (1960); Yugoslavia was an original member.

40 Crawford, supra note 16, at 52; UN General Assembly, Res. 55/1, UN Doc. A/RES/55/1 (2000); UN General Assembly, Res. 54/2, UN Doc. A/RES/54/2 (1999); UN General Assembly, Res. 49/63, UN Doc. A/RES/49/63 (1994).

41 Grant, supra note 27, at 240.

42 UN General Assembly, Res. 45/1, UN Doc. A/RES/45/1 (1990); UN General Assembly, Res. 47/231, UN Doc. A/RES/47/231 (1993); UN General Assembly, Res. 46/231, UN Doc. A/RES/46/231 (1992); but see also Grant, ibid., at 240–4, who discusses the concern, in principle, of some member states as to the ability of microstates, in general, to assume their obligations as full members.

43 North Sea Continental Shelf, Judgment, [1969] ICJ Rep. 3, at 32 (‘North Sea Continental Shelf’).

44 UN General Assembly, Res. 273(III), UN Doc. A/RES/273(III) (1949); Higgins, supra note 11, at 17–18; see also text accompanying infra notes 128–134.

45 Higgins, ibid., at 18–19. UN General Assembly, Res. 1872(S-IV), UN Doc. A/RES/1872(S-IV) (1963); UN General Assembly, Res. 1631(XVI), UN Doc. A/RES/1631(XVI) (1961).

46 Higgins, ibid., at 21.

47 UN General Assembly, Res. 1480(XV), UN Doc. A/RES/1480(XV) (1960); Crawford, supra note 16, at 56. The conflict made it impossible for the Assembly to identify which warring faction should be allocated a seat at the UN. See UNGAOR, 15th Sess., 864th Plen. Mtg., UN Doc. A/PV.864 (1960), at 6. On Belgium’s continued presence and the deployment of UN forces, see UN Security Council, Res. 143 (1960), UN Doc. S/RES/143 (1960); see also UN Security Council, Res. 145 (1960), UN Doc. S/RES/145 (1960); UN Security Council, Res. 146 (1960), UN Doc. S/RES/146 (1960).

48 See UN General Assembly, Res. 1746(XVI), UN Doc. A/RES/1746(XVI) (1962); UN General Assembly, Res. 1748(XVII), UN Doc. A/RES/1748(XVII) (1962); UN General Assembly, Res. 1749(XVII), UN Doc. A/RES/1749(XVII) (1962). Higgins, supra note 11, at 23.

49 UN General Assembly, Admission of the Republic of Guinea-Bissau to membership in the United Nations, UN Doc. A/RES/3205(XXIX), 17 September 1974; Quigley, supra note 5, at 239.

50 Quigley, ibid., at 236–7.

51 Ibid., at 239.

52 Ibid., at 236–7.

53 UN General Assembly, Res. 47/231, UN Doc. A/RES/47/231 (1993); Treaty Establishing the Relations of France with the Principality of Monaco, 981 UNTS 359 (1918), Arts. 1 and 2, at 364. Quigley, supra note 5, at 239–40.

54 UN General Assembly, Res. 46/2, UN Doc. A/RES/46/2 (1991); UN General Assembly, Res. 46/3, UN Doc. A/RES/46/3 (1991); Compact of Free Association, United States-Federated States of Micronesia-Marshall Islands, U.S. Congress, 99 Stat. 1770, 1822, at §311(a); Quigley, supra note 5, at 240–2.

55 See, generally, Grant, supra note 27.

56 Ginther, supra note 8, at 182.

57 Ibid.

58 Ibid.

59 Ibid.

60 In the debates on Israel’s application for admission in May 1949, these factors did not preclude a finding that Israel was peace-loving for the purposes of Art. 4(1). See UNGAOR, 3rd Sess., 207th Plen. Mtg., UN Doc. A/PV.207 (1949), at 306–36; see also text accompanying infra note 175. See generally, ‘Egypt-Israel, General Armistice Agreement, Rhodes’, UN Doc. S/1264/Corr.1 (1949); ‘Lebanon-Israel, General Armistice Agreement, Ras Naqura’, UN Doc. S/1296 (1949); ‘Hashemite Jordan Kingdom – Israel, General Armistice Agreement, Rhodes’, UN Doc. S/1302/Rev.1 (1949); ‘Israel-Syria, General Armistice Agreement, Hill 232’, UN Doc. S/1353 (1949).

61 See text accompanying supra note 47.

62 UN General Assembly, Res. 46/237, UN Doc. A/RES/46/237 (1992).

63 UN Provisional Rules of Procedure of the Security Council, UN Doc. S/96/Rev. 7 (1983), (‘SC Provisional Rules of Procedure’); UN Rules of Procedure of the General Assembly, UN Doc. A/520/Rev 15. (1984), Rule 134; Repertory of Practice, supra note 20.

64 Ginther, supra note 8, at 183.

65 UN General Assembly, Res. 506A(VI), UN Doc. A/RES/506A(VI) (1952); Grant, supra note 27, at 59–60.

66 Repertory of Practice, supra note 20.

67 Grant, supra note 27, at 79.

68 S. Chesterman, I. Johnstone and D. Malone, Law and Practice of the United Nations: Documents and Commentary (2016), 196.

69 Application of Palestine for Admission to Membership in the United Nations, UN Doc. A/66/371-S/2011/592 (2011) (‘Application for Membership’).

70 See, e.g., UN Security Council, Res. 2334 (2016), UN Doc. S/RES/2334 (2016) and UN Security Council, Res. 1515 (2003), UN Doc. S/RES/1515 (2003) where, insofar as the Council endorses a two-state solution as per S/RES/242(1967), it is implied that the Palestinian people has a right to self-determination in an independent State of Palestine and that the OPT is the self-determination unit within which such right is to be exercised.

71 See, e.g., UN General Assembly, Res. 2672(XXV)(C), UN Doc. A/RES/2672(XXV)(C) (1970); UN General Assembly, Res. 3236(XXIX), UN Doc. A/RES/3236(XXIX) (1974); UN General Assembly, Res. 70/141, UN Doc. A/RES/70/141 (2015).

72 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, [2004] ICJ Rep., para. 118 (‘Wall’).

73 Application for Membership, supra note 69.

74 UN Security Council, Report of the Committee on the Admission of New Members Concerning the Application of Palestine for Admission to Membership in the United Nations, UN Doc. S/2011/705 (2011), (‘Report of the Committee’).

75 Some suggest consensus is required, e.g., Moussa, supra note 5, at 60. But practice suggests otherwise. When the Committee recommended the Republic of Nauru’s admission of membership, China indicated it was unable to associate itself with that recommendation. See Report of the Committee on the Admission of New Members Concerning the Application of the Republic of Nauru for Admission to Membership in the United Nations, S/1999/716, 25 June 1999. See also Chesterman et al., supra note 68, at 205.

76 UNSCOR, 66th Sess., 6636th Mtg., UN Doc. S/PV.6636 (2011), at 12, Statement of Ms. Rice (USA).

77 Ibid., at 24, Statement of Mr. Barbalić (Bosnia and Herzegovina).

78 Ibid., at 28, Statement of Mr. Osorio (Colombia).

79 Ibid., at 22, Statement of Mr. Messone (Gabon).

80 Ibid., at 15, Statement of Mr. Berger (Germany).

81 Ibid., at 21, Statement of Mr. Arnaud (France).

82 Ibid., at 28–9, Statement of Mrs. Ogwu (Nigeria).

83 Ibid., at 27, Statement of Mr. Moraes (Portugal).

84 Ibid., at 18–20, Statement of Mr. Lyall Grant (United Kingdom).

85 Bosnia and Herzegovina (1992); Gabon (1988); and Nigeria (1988). See also correspondence with Deputy Permanent Observer of the State of Palestine, United Nations, New York, 25 May 2018 (on file with author).

86 UN Doc. S/PV.6636 (2011), supra note 76, at 16, Statement of Ms. Viotti (Brazil).

87 Ibid., at 16, Statement of Mr. Li Baodong (China).

88 Ibid., at 13, Statement of Mr. Ahamed (India).

89 Ibid., at 25, Statement of Mr. Salam (Lebanon).

90 Ibid., at 18, Statement of Mr. Churkin (Russian Federation).

91 Ibid., at 23, Statement of Mr. Gumbi (South Africa).

92 See text accompanying supra notes 17–18.

93 After a failed December 1948 application, Israel was admitted in May 1949. See UN General Assembly, Res. 273(III), UN Doc. A/RES/273(III) (1949).

94 Report of the Committee, supra note 74, paras. 4, 6.

95 Ibid., para. 6.

96 Ibid., para. 7.

97 UN Doc. S/PV.6636 (2011), supra note 76.

98 Ibid., at 28, Statement of Mr. Osorio (Colombia).

99 Ibid., at 15, Statement of Mr. Berger (Germany).

100 Ibid., at 27, Statement of Mr. Moraes (Portugal).

101 Conditions of Admission, supra note 12, at 62.

102 Ibid., at 62–3.

103 Ibid., at 63, 65.

104 Report of the Committee, supra note 74, para. 5.

105 Ibid., para 7.

106 Ibid.; this was the position taken by Lebanon, whose ambassador articulated it publicly in the Security Council debate of 24 October 2011; see UN Doc. S/PV.6636 (2011), supra note 76, at 25, Statement of Mr. Salam (Lebanon).

107 These are: Jerusalem, refugees, settlements, security, and borders. See 1993 Declaration of Principles on Interim Self-Government Arrangements (Israel–Palestine Liberation Organization), 32 ILM 1525 (1993) (‘DOP’). The issue of water was added later; see UN Doc. S/PV.6636 (2011), supra note 76, at 8, Statement of Mr. Mansour (Palestine).

108 Ibid., at 6.

109 UNSCOR, 3rd Yr., 383rd Mtg., UN Doc. S/PV.383 (1948), at 13–14. Jessup was given wide latitude by Washington to frame his government’s arguments on Israel’s admission. See P. Jessup, The Birth of Nations (1974), 294.

110 This was a matter that would have been well known to Jessup, as the issue was actively being discussed in the Assembly which, only nine days after he delivered his remarks to the Security Council, passed its own resolution affirming, inter alia, the right of the refugees to return to their homes. See UN General Assembly, Res. 194(III), UN Doc. A/RES/194(III) (1948); see also the statement of the representative of Syria, at UNSCOR, 3rd Yr., 384th Mtg., UN Doc. S/PV.384 (1948), at 25; and text accompanying infra notes 176, 184–186.

111 See text accompanying supra notes 35–55.

112 See UN Doc. S/PV.383 (1948), supra note 109, at 10.

113 M. Wählisch, ‘Beyond a Seat in the United Nations: Palestine’s UN Membership and International Law’, (2012) 53 Harvard Int’l. L. J. Online 226, at 241.

114 Report of the Committee, supra note 74, para. 10.

115 Palestinian Central Bureau of Statistics, Estimated Population of the Palestinian Territory Mid-year by Governorate 1997-2016, available at www.pcbs.gov.ps/Portals/_Rainbow/Documents/gover_e.htm (accessed 30 June 2021).

116 See UN Doc. S/PV.383 (1948), supra note 109, at 10.

117 Montevideo Convention, supra note 36, Art. 1.

118 See UN Doc. S/PV.383 (1948), supra note 109, at 11; Jessup’s position did not go unchallenged. In response to the US position that Israel had a permanent population, the Syrian representative pressed him: ‘[W]here are the people? Half the people of the territory which they [i.e., the Zionists] occupy have been expelled and dispersed throughout the country. They are now homeless, starving and dying. These are the people of the territory which they are occupying … How can he [i.e., Jessup] say that [t]his people [i.e., those of Israel] are peace-loving and are complying with the requirements of Article 4 of the Charter?’; see UN Doc. S/PV.383 (1948), ibid., at 19.

119 P. Jessup, A Modern Law of Nations: An Introduction (1949), 46.

120 Report of the Committee, supra note 74, para. 10. See text accompanying supra notes 43–45.

121 Report of the Committee, ibid., para. 11.

122 See UN Doc. S/1264/Corr.1 (1949), supra note 60. See UN Doc. S/1302/Rev.1 (1949), supra note 60.

123 UN General Assembly, Res. 43/177, UN Doc. A/RES/43/177 (1988).

124 This view was also affirmed by some members of the Committee; Report of the Committee, supra note 74, para. 11.

125 King Hussein Amman, ‘Address to the Nation’, 31 July 1988, available at www.un.org/unispal/document/auto-insert-202739/ (accessed 14 August 2021).

126 Quigley, supra note 5, at 210.

127 E.g., Anglola, Azerbaijan, Brunei Darusasalam, East Timor, Oman, United Arab Emirates, and the US.

128 See UN Doc. S/PV.383 (1948), supra note 109, at 19.

129 Ibid., at 11.

130 Ibid.

131 Ibid.

132 For example, even though the Zionists were expanding their control over a greater portion of Palestine than had been allotted the Jewish State under the partition resolution, the Soviet Union took the view that Israel’s territory had been sufficiently defined through UN General Assembly, Res. 181(II), UN Doc. A/RES/181(II) (1947); ibid., at 22–3.

133 Higgins, supra note 11, at 20.

134 Ibid.

135 Report of the Committee, supra note 74, para. 13.

136 See text accompanying supra notes 69–72. As noted by Quigley, supra note 5, at 214, ‘a decree issued May 20, 1994 recites that “the laws, regulations and orders in force before June 5, 1967 in the West Bank and the Gaza Strip shall remain in force until unified”’.

137 Quigley, ibid., at 215.

138 Permanent Observer Mission of the State of Palestine to the United Nations, New York, ‘Government of the State of Palestine’, available at www.palestineun.org/about-palestine/government-of-the-state-of-palestine/ (accessed 30 June 2021).

139 Quigley, supra note 5, at 214.

140 Report of the Committee, supra note 74, para. 12.

141 Ibid., paras. 11–12.

142 See text accompanying supra note 47. See also Higgins, supra note 11, at 21–2.

143 Quigley, supra note 5, at 216.

144 Ibid., at 217.

145 Ibid.

146 Moussa, supra note 5, at 58.

147 Ibid.

148 UN Doc. S/PV.384 (1948), supra note 110, at 25.

149 UNSCOR, 3rd Yr., 385th Mtg., UN Doc. S/PV.384 (1948), at 12.

150 Ibid.

151 See text accompanying supra notes 48–55.

152 See, e.g., UN General Assembly, Report of the Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied Since 1967, UN Doc. A/72/43106 (2017).

153 See text accompanying supra note 106. Writing in 1999, prior to the Palestinian state-building effort established by 2011, Crawford took the view that Palestine could not be a state because its occupation by Israel deprives it of independent government. Yet he offered this qualification: ‘[t]here may come a point where international law (like English equity) is justified in regarding as done that which ought to have been done, if the reason it has not been done is the serious default of one party, and if the consequence of its not being done is serious prejudice to another, innocent, party. The principle that a state cannot rely on its own wrongful conduct to avoid the consequences of its international obligations is capable of novel applications, and circumstances can be imagined where the international community would be entitled to treat a new state as existing on a given territory, notwithstanding the facts’. See Crawford, supra note 5, at 24.

154 Report of the Committee, supra note 74, para. 14.

155 See text accompanying supra notes 52–55.

156 See, e.g., UN General Assembly, Res. 3210I(XXIX), UN Doc. A/RES/3210I(XXIX) (1974); UN Doc. A/RES/3236(XXIX) (1974), supra note 71; UN General Assembly, Res. 3237(XXIX), UN Doc. A/RES/3237(XXIX) (1974); UN Doc. A/RES/43/177 (1988), supra note 123.

157 See, e.g., DOP, supra note 107.

158 Interim Agreement on the West Bank and the Gaza Strip Annex II: Protocol concerning Elections (Israel–Palestine Liberation Organization), (1995), Art. IX(5), at 561.

159 Higgins, supra note 11, at 42.

160 Report of the Committee, supra note 74, para. 14. As at the date of writing this figure has increased to 139 states. Permanent Observer Mission of the State of Palestine to the United Nations, ‘Diplomatic Relations’, available at www.palestineun.org/about-palestine/diplomatic-relations/ (accessed 30 June 2021).

161 Quigley, supra note 5, at 211–13.

162 See UN Doc. S/PV.383 (1948), supra note 109, at 10.

163 Ibid.

164 Report of the Committee, supra note 74, para. 16.

165 UN Human Rights Council, Report of the United Nations Fact-Finding Mission on the Gaza Conflict, UN Doc. A/HRC/12/48 (2009).

166 Indeed, at the time of Palestine’s application for membership, Israel had just negotiated an exchange of prisoners with Hamas. See UN Doc. S/PV.6636 (2011), supra note 76, at 14, Statement of Mr. Ahamed (India).

167 See text accompanying supra notes 56–62.

168 Application for Membership, supra note 69; see UN Doc. S/PV.6636 (2011), supra note 76, at 7, Statement of Mr. Mansour (Palestine).

169 Wall, supra note 72.

170 Report of the Committee, supra note 74, para. 15.

171 Ibid.

172 See UN Doc. S/PV.6636 (2011), supra note 76, at 17, Statement of Ms. Viotti (Brazil).

173 Ibid.

174 See text accompanying supra notes 59–60.

175 See UN Doc. A/PV.207 (1949), supra note 60, at 313–14, Statement of Mr. Austin (USA). Israel remains at war with Lebanon and Syria.

176 See generally B. Morris, The Birth of the Palestinian Refugee Problem Revisited (2004).

177 See UN Doc. S/PV.6636 (2011), supra note 76, at 14, Statement of Mr. Ahamed (India); and see UN Doc. S/PV.6636 (2011), supra note 76, at 23, Statement of Mr. Gumbi (South Africa).

178 See text accompanying supra notes 63–66.

179 Report of the Committee, supra note 74, para. 18.

180 Ibid.

181 Application for Membership, supra note 69.

182 Report of the Committee, supra note 74, para. 17.

183 Ibid.

184 See Morris, supra note 176.

185 S. Hadawi, Palestinian Rights and Losses: A Comprehensive Survey (1988), 81.

186 UN Doc. A/RES/194(III) (1948), supra note 110.

187 Ad Hoc Political Committee, UNGAOR, 3rd Sess., 45th Mtg., (1949); Ad Hoc Political Committee, UNGAOR, 3rd Sess., 46th Mtg., (1949); Ad Hoc Political Committee, UNGAOR, 3rd Sess., 47th Mtg., (1949); Ad Hoc Political Committee, UNGAOR, 3rd Sess., 48th Mtg., (1949); Ad Hoc Political Committee, UNGAOR, 3rd Sess., 49th Mtg., (1949); Ad Hoc Political Committee, UNGAOR, 3rd Sess., 50th Mtg., (1949); Ad Hoc Political Committee, UNGAOR, 3rd Sess., 51st Mtg., (1949).

188 Ad Hoc Political Committee, UNGAOR, 3rd Sess., 45th Mtg., (1949), at 236.

189 Ibid., at 239–40.

190 Ibid., at 243. The head of the Lehi group, Yitzhak Yezernitzsky (later Shamir) was never brought to justice for the Bernadotte assassination. He would eventually become Israel’s seventh Prime Minister (1983–1984; 1986–1992).

191 See UN Doc. S/PV.383 (1948), supra note 109, at 12.

192 Ibid.

193 Ibid.

194 UN Doc. A/PV.207 (1949), supra note 60.

195 Ibid.

196 Ibid.

197 Ibid.

198 See, e.g., Statements of: Mr. Ignatieff (Canada), ibid., at 317; Mr. Garcia Bauer (Guatemala), ibid., at 320; Mr. Berendsen (New Zealand), ibid., at 322; Mr. Fabregat (Uruguay), ibid., at 324–5; Dr. Zaydin (Cuba), ibid., at 327–8.

199 Significantly, in June 1948, one month after Israel’s admission to the UN, repatriation of the Palestine refugees was barred by a war-time decision of the Israeli cabinet.

200 Chesterman et al., supra note 68, at 195.

201 UN General Assembly, Res. 67/19, UN Doc. A/RES/67/19 (2012).

202 UNGAOR, 66th Sess., 11th Plen. Mtg., UN Doc. A/66/PV.11 (2011), at 23, Statement of Mr. Sarkozy (France).

203 Ibid. For sources of PLO gains in the UN, see resolutions referred to at supra note 156.

204 Quigley, supra note 5; Crawford, supra note 5.

205 UN General Assembly, The Status of Palestine in the United Nations, Report of the Secretary General, UN Doc. A/67/738 (2013), at 3, (‘The Status of Palestine’).

206 This includes treaties operating under both the ‘Vienna’ and ‘all states’ formulas. See Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties, UN Doc. ST/LEG/7/Rev.1 (1999), para. 79.

207 See S. Sakran and M. Hayashi, ‘Palestine’s Accession to Multilateral Treaties: Effective Circumvention of the Statehood Question and its Consequences’, (2017) 25 J. Int’l. Coop. Stud. 81.

208 Ibid.

209 Moussa, supra note 5, at 95.

210 Ibid., at 59.

211 UN General Assembly, Res. 52/250, UN Doc. A/RES/52/250 (1998).

212 The exception is the International Residual Mechanism for Criminal Tribunals, the Statute of which provides that non-member states maintaining permanent observer missions at UN headquarters have the right to submit nominations for and to vote in the elections of the permanent and ad litem judges of the Residual Mechanism, The Status of Palestine, supra note 205, at 2.

213 Ibid.

214 Grant, supra note 27, at 244.

215 Ginther, supra note 8, at 180.

216 Moussa, supra note 5, at 43.