Daphne Anson: Palestine's Continuing Membership Of UNESCO In Jeopardy Following Legal Ruling

Eretz Israel is our unforgettable historic homeland...The Jews who will it shall achieve their State...And whatever we attempt there for our own benefit will redound mightily and beneficially to the good of all mankind. (Theodor Herzl, DerJudenstaat, 1896)

We offer peace and amity to all the neighbouring states and their peoples, and invite them to cooperate with the independent Jewish nation for the common good of all. The State of Israel is ready to contribute its full share to the peaceful progress and development of the Middle East. (From Proclamation of the State of Israel, 5 Iyar 5708; 14 May 1948)

With a liberal democratic political system operating under the rule of law, a flourishing market economy producing technological innovation to the benefit of the wider world, and a population as educated and cultured as anywhere in Europe or North America, Israel is a normal Western country with a right to be treated as such in the community of nations.... For the global jihad, Israel may be the first objective. But it will not be the last. (Friends of Israel Initiative)

Monday, 16 April 2012

Palestine's Continuing Membership Of UNESCO In Jeopardy Following Legal Ruling

One of my favourite Middle East watchers, whose outlook will be not unfamiliar to regular readers of this blog, is Sydney lawyer and international affairs analyst David Singer. He has written another important and thought-provoking article regarding UNESCO and Palestine.

This latest article concerns the implications of a decision made earlier this month by an arm of the International Criminal Court.

Coming as usual via the antipodean J-Wire service, the article is entitled "Palestine in UNESCO – Ending The State Of Confusion".

Writes David Singer:

'Palestine’s continuing membership of UNESCO has become far more tenuous and now faces increased scrutiny following a decision by the Office Of The Prosecutor (OTP) of the International Criminal Court (ICC) that Palestine is not a State.

Only States can be admitted as members of UNESCO under Clause II Paragraph 2 of UNESCO’s Constitution.

The OTP decision now casts grave doubt on Palestine legally continuing to remain a member of UNESCO.

Alarm bells should be ringing at UNESCO calling for it to urgently approach the International Court of Justice (ICJ) to determine whether:

1. Palestine is a State and if so
2. Whether the number of votes required to admit it as a member under UNESCO’s Constitution is 129 – not the 107 actually obtained

The OTP decision was announced on 3 April – more than three years after Palestine had first sought to become a State party to the Rome Statute of the ICC.

Sixteen legal opinions were submitted to the OTP – arguing both for and against the claim that Palestine was a State.

I am pleased the OPT has now confirmed my opinion that Palestine is not a State. However I am fully cognisant of the fact that the ICJ needs to confirm the correctness of that opinion for it to have any binding effect. Still it is comforting to be on the same wavelength as the OTP and many others who expressed the same opinion in their submissions to the OTP.

Hopefully UNESCO might at least now take the issues I have raised concerning Palestine’s admission to UNESCO more seriously – and not sit pat and smugly refuse to address my concerns.

I have sought in vain for the last five months to have UNESCO produce any documents which its Executive Board may have considered before concluding that Palestine was a State – qualifying to be admitted to UNESCO.

My requests to produce copies of such documents have been ignored. UNESCO has made it clear the matter is closed and is not to be the subject of any further discussion with me. [Emphasis added.]

In contrast to UNESCO’s lack of transparency – the sixteen legal opinions lodged with the OTP can be viewed on the ICC website. The legal opinions or other documents UNESCO relied on (if any) are being withheld from public scrutiny.

Has UNESCO something to hide? I don’t really know at this stage – but its arrogant and high handed conduct needs to be exposed and justified. [Emphasis added.]

Significantly some UNESCO documents have now come to light – from a source other than UNESCO – that make the decision of the 58 members of the Executive Board of UNESCO to recommend the admission of Palestine very intriguing

Palestine’s request for admission to UNESCO was first made in 1989 and has been reiterated at every General Conference since then.

At the time of Palestine’s initial application in 1989 – Israel had submitted an opinion arguing that Palestine was not a State. Given that the 1993 Oslo Accords were then only a twinkle in someone’s eye – Israel’s viewpoint could not be seriously challenged – notwithstanding Yassar Arafat‘s vacuous Palestinian Declaration of Independence made on 15 November 1988.

After 1993 and more particularly after the Bush Roadmap saw the light of day in 2002 – Palestine’s request for membership in UNESCO continued to be reiterated at every General Conference meeting without success.

The question that UNESCO now needs to answer is – what facts or circumstances changed in 2011 to enable the Executive Board of UNESCO to conclude that Palestine was a State and qualified to become a member of UNESCO?

There appears to be one document that may provide some assistance - the summary record of the sixth plenary meeting of the session of the Executive Board.

Perhaps a copy of this document will now fall off the back of a truck and end up in my hands.

Whether Palestine is a State must surely now be decided by the ICJ.

The legal uncertainty introduced by the OTP decision and the divergent opinions expressed in the submissions made to the OTP cannot possibly be ignored by UNESCO.

That kind of dismissive and contemptuous conduct might work against the expressed opinion of any individual like myself.

But it cannot and should not be tolerated when UNESCO is now faced with a formidable body of legal opinions that Palestine is not a State. [Emphasis added.]

Whilst Palestine remains a member state of UNESCO – the following flow on effects are guaranteed

1. The loss of 22% of UNESCO’s funding to the end of 2013 – totalling $260 million in suspended American dues – that is unlikely to be fully replaced

2. The abandonment or curtailment of many UNESCO global humanitarian programs in areas such as literacy, water purification, gender equality, AIDS and HIV education and prevention – affecting the lives of scores of millions of people world wide

3. The end of negotiations for the two-state solution envisaged by the Oslo Accords and the Bush Roadmap – with manifold implications for resolving the long running conflict between Arabs and Jews.

UNESCO can of course continue to stick its head in the sand and ignore all calls for it to seek an advisory opinion from the ICJ on the legality of its decision to admit Palestine.

87 of the 194 countries in UNESCO did not vote to admit Palestine into UNESCO. They have remained silent for the last five months and by their conduct have accepted the legal right of Palestine to sit alongside them as an equal and member State. They can hardly claim that Palestine is not a State whilst they accept that Palestine remains a member of UNESCO.

The OTP decision should make all 194 member states think again.

The fact that Palestine might not legally be a State should surely see some of those 87 naysayer states proposing that UNESCO submits a brief to the ICJ seeking its advisory opinion on whether Palestine’s admission to UNESCO does comply with UNESCO’s Constitution – or does not.

Failure to do so can only result in foreseeable and possibly unforeseeable consequences – not only for the hopes and aspirations of Jews and Arabs in the Middle East – but for UNESCO’s global community.

The OTP decision serves as a clarion call for UNESCO to open its records and approach the ICJ without further delay.'

4 comments:

Anonymous16 April 2012 at 14:23
The OTP referred the decision to the UN. No Alarmbells here. The UN can now decide whether Palestine is a state. Why this fear and concern about statehood ? Becaue Israle's occupation can be legally challened.
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david singer17 April 2012 at 12:52
You are completely wrong. The OTP has referred nothing to the UN.

Why would the UN want to decide if Palestine is a state - if UNESCO has already made that decision on 31 October 2011?

Palestine represented it was a State when it sought to join UNESCO. UNESCO recognized that claim when the Executive Committee recommended to the General conference that Palestine be admitted to UNESCO as a member state. Not one country since has challenged the vote to admit Palestine to UNESCO as being unlawful or contrary to UNESCO's Constitution.

Only states can be admitted to UNESCO.

Palestine has been recognized as a state by 194 countries in UNESCO and the Palestinians are no longer stateless.

I personally do not agree that Palestine is a state - but until the decision is reversed - it stands.

Palestine can take such legal action as it may be advised. Doing so does not guarantee success.

I would like to see UNESCO seek an advisory opinion from the International Court on whether Palestine is a state. That it fails to do so says oodles about its fear that the Court will say "NO" - as did the Prosecutor's Office of the International Criminal Court.
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Anonymous19 June 2012 at 16:09
The only thing that strikes me is what determines UNESCO to take a stand in conserving crucificators memorial houses if not a lack of legitimity of oposition in supranational structures. Palestina is a viable candidate to such opposition on the same supranational rather than statal basis. Pls take not of little religious knowledge not available to improvements therefore this opinion is open for further advancements.
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