This chapter critically examines Palestine’s unsuccessful 2011 UN membership bid. It examines the report of the UN Committee on the Admission of New Members which, under US pressure, could not unanimously recommend Palestine’s membership to the Security Council after examining whether Palestine satisfied the criteria for membership as set out in article 4(1) of the UN Charter. Propelled by this unsuccessful bid, Palestine turned to the General Assembly which upgraded its status to that of a non-Member Observer State in 2012. Although the legal consequences of this upgrade have been considerable, including allowing the State of Palestine to accede to a host of international treaties and multilateral organizations, its juxtaposition against the refusal of the Committee on the Admission of New Members to recommend membership to the Security Council in accordance with the international rule of law is demonstrative, yet again, of the international rule by law principle at work. Although the UN has allowed for a gradual and qualified recognition of Palestinian legal subjectivity over time, its failure to provide the legal and political foundation upon which those rights may actually be realized, namely membership in the Organization, has continued to disenfranchise Palestine and its people.

Issues of legality were discussed when the Provisional Government of Israel applied for membership for Israel in the United Nations. Membership requires that an entity be a state, and that it be peace-loving. An initial application made in December 1948 was rejected. An application made in March 1949 gained approval from the Security Council, over objection by Britain, in a resolution which stated that Israel was a peace-loving state. That application then moved to a committee of the General Assembly, which conducted hearings that focused on the peace-loving criterion. Israel’s representative was asked whether Israel claimed sovereignty in Jerusalem, in light of the fact that the General Assembly’s resolution on partition had contemplated that Jerusalem would fall under the sovereignty of neither the Arab nor the Jewish state. Israel’s representative replied that the status of Jerusalem remained an international issue. On repatriation, Israel’s representative said that this was an internal matter for Israel. The committee reported favorably on admission, noting the representations made by Israel’s representative. The General Assembly then admitted Israel to membership in a resolution that recited that Israel was a peace-loving state.