Professor Alexander Orakhelashvili
Owing to the US veto on 18 April 2024, the UN Security Council failed to adopt a decision on admitting Palestine to the United Nations membership. The debate in the Council (S/PV.9609) has overwhelmingly endorsed the view that Palestine as a State meets the criteria for admission. In response to the outcome in the Council, the General Assembly has passed a resolution in which it determined that “the State of Palestine is qualified for membership in the United Nations in accordance with Article 4 of the Charter of the United Nations and should therefore be admitted to membership in the United Nations”. The Assembly further suggests “that the Security Council reconsider the matter favourably, in the light of this determination and of the advisory opinion of the International Court of Justice of 28 May 1948, and in strict conformity with Article 4 of the Charter” (paragraphs 1 and 2).
According to the US representative in the Council, “there are unresolved questions as to whether the applicant meets the criteria to be considered a State”. In addition, the presence of Hamas in Gaza was among the chief reasons “the United States voted against this draft Security Council resolution” (S/PV.9609, p.4). It seems that the US representative speaks here both of the statehood of an entity and of the same entity meeting Article 4 criteria. These issues are not the same thing. Whether an entity such as Palestine is a State it is a matter of general international law and the Security Council can neither re-open or revise this position. On the other hand, it is possible for an entity to be a State yet be judged not to meet the membership criteria under Article 4. In the Advisory Opinion to which the above General Assembly resolution refers, the International Court of Justice has emphasised that “Article 4 does not forbid the taking into account of any factor which it is possible reasonably and in good faith to connect with the conditions laid down in that Article.”
Taken on its own, the Hamas factor seems to be within the range of those that the American delegate was entitled to invoke to justify his negative vote. On the other hand, at least 12 other members of the Council (i.e. at least 80 percent of the Council’s membership) did not share the American point of view. This is relevant given that both the above Advisory Opinion and Rule 60 of the Council’s Provisional Rules or Procedure emphasise the element of political appreciation or the Security Council’s judgment in assessing whether the relevant State meets Article 4 criteria. It is, moreover, not clear that the Hamas factor was the sole or main reason behind the American veto or that, had the situation on the ground or state of the armed conflict been different, the US would not have vetoed the draft resolution by reference to the alleged failure of Palestine to meet the statehood criteria. The validity of the American invocation of the Hamas factor could have been more incontestable had the American explanation of vote made it clear that they would have alluded to it even if they did not see the statehood issue as a problem. But that is not what obviously follows from reasons stated by the American delegate. The political motive of the US in not leaving the statehood issue aside most probably was the reluctance to endorse Palestine’s statehood at this point of time and to deviate from the general position it takes on this issue. It is precisely that tactic, however, that casts doubt on the reasonable connection between the US veto and Article 4 criteria as interpreted in the ICJ’s Advisory Opinion.
Overall, it seems that while any criterion reasonably connected to the text of Article 4 of the Charter could be invoked to support or oppose a State’s membership in the UN, no such criteria are carved in stone and the matter could be reassessed in future given the situation on the ground. A factor or consideration that is seen to be pressing at one point of time could be seen as less pressing at a different point of time if the situation on the ground, for instance the state of fighting or dynamics of a peace process would warrant making such assessment. But while the criteria under Article 4 are somewhat open-ended, they do not give member-States an unlimited freedom to rely on any factor they choose. The statehood issue, in particular, is outside the remit of discretion that could be validly used in this context. The Security Council can neither confer statehood to an entity nor deny statehood to a State which possesses it according to criteria of general international law. In terms of legal assessment, political deterrent and moral judgment alike, it would have been far more rewarding if the delay of or damage to Palestine’s bid to UN membership has been connected to the role of Hamas in the attacks of 7 October 2023, rather than to Palestine’s alleged overall lack of eligibility to be a State.
Be that as it may, it is not surprising that the General Assembly was undeterred in the face of blanket and uncompromising attitude of the US, especially as the US position on Palestinian statehood obviously clashes with the position the Assembly took in 2012 when it endorsed Palestine’s observer State status. Through its above latest resolution, the Assembly has responded by upgrading Palestine’s rights in the United Nations, conferring to it a number of rights including “The right to be seated among Member States in alphabetical order”, to make statements, (co)sponsor proposals, in short to do pretty much everything except voting or getting elected to other United Nations organs.
Kosovo’s case is more straightforward, in the legal sense at least, because the issue of statehood per se could be raised in an international organisation when an entity aspiring that organisation’s membership is not a State as a matter of general international law. This is obvious in the case of Kosovo, whose application to join the Council of Europe has been progressing within that organisation and the Parliamentary Assembly recommended that the membership invitation be extended to Kosovo. Kosovo proclaimed independence in 2008 and has been recognised by many States (though not as many as Palestine), even though its secession from FRY/Serbia has not been an agreed or authorised one (see here, here, and here). Instead of being a State, Kosovo remains under the interim governance regime operating under Security Council resolution 1244(1999).
The report by eminent lawyers appointed by the Bureau of the Council of Europe’s Assembly suggests that “We are not tasked to comment on matters of statehood and recognition. Nor is such examination necessary for us to complete our task of assessing compliance with Council of Europe standards” (para. 15). Yet, the Opinion of the same Assembly’s Committee on Legal Affairs and Human Rights refers to the eminent lawyers’ report and deals with this matter as one of the criteria of statehood (para.8). The report concludes that “The committee considers that Kosovo is a ‘European State’ for the purposes of Article 4 of the Statute of the Council of Europe and [meets?] the criteria of statehood under international law” (para. 4).
The committee report professes, in a footnote, that “Throughout this text [of the report], all reference to Kosovo, whether to the territory, institutions or population shall be understood in full compliance with United Nations Security Council Resolution 1244 and without prejudice to the status of Kosovo.” That said, the Report pays no attention to the content of or requirements arising under resolution 1244, or to the International Court’s Advisory Opinion on Kosovo (discussed here). The outcome endorsed both by the Security Council and the International Court is that Kosovo cannot be a State while it is legally under the Security Council’s interim governance regime. Regardless of the vagaries of the facts on the ground, the 1244 regime can be abolished only by the Security Council itself. During the proceedings before the International Court, the US and the UK have insisted that the 1244 regime was timed out or rendered obsolete by developments or realities on the ground. The Court has nevertheless re-affirmed the continuing effect of the 1244 regime.
This is not the first case where an international organisation endorses Kosovo’s status on political basis and through the circumvention of the applicable legal standards and the relevant evidence that stand in the way of the political agenda pursued, as has already been witnessed by a decision of the European Court of Justice. By acting on political agenda regardless of legal restrictions, international institutions are increasingly becoming part of the political struggle that the unilateralist support of Kosovo’s independence has generated. Promoting and supporting Kosovo’s independence regardless of the objections of the territorial State (FRY/Serbia) has been widely seen as manifestation of selective and hegemonic policy by a group of Western States led and dominated by the United States in its perceived role of the unipolar hegemon. For, an involuntary detachment of territory from a State and a consequent redrawing of boundaries cannot be sensibly considered to be divorced from the bid to exercise hegemonial authority. This has only served to enhance or perpetuate the chain reaction that the unilateralism originating with the endorsement of Kosovo independence has created, the current Ukraine crisis being only the latest manifestation of that chain reaction. It has from the outset been a political miscalculation to overlook the fact that if basic legal concepts and standards remain only on paper, political price the relevant political stakeholders end up paying will also have to be reckoned with. The progression of Kosovo’s current membership bid in the Council Europe will certainly not make that political price any lower.