Palestine's admission to UNESCO: consequences within the United Nations?

• Author: Johnson, Larry D.

BACKGROUND

On October 31, 2011, the General Conference of the United Nations Educational, Scientific and Cultural Organization (UNESCO) voted to admit Palestine as its 195th Member State. The vote was 107 in favour, 14 against with 52 abstentions. Among those voting against was the United States, which issued a press statement that the vote was "regrettable" and "premature" and undermined the "shared goal of a comprehensive, just, and lasting peace in the Middle East." (1) The statement also stated that while the U.S. would maintain its membership and commitment to UNESCO, Palestinian membership triggered longstanding legislative restrictions which compelled the United States to refrain from making contributions to UNESCO. Palestine's admission to UNESCO membership was effected by its signature and deposit of its instrument of acceptance of the Constitution of UNESCO on November 23, 2011, at the National Archives of the United Kingdom, the depositary of the Constitution.

Palestine had applied for membership in the United Nations on September 23, 2011. (2) In November 2011, the Security Council's Committee on the Admission of New Members concerning the application of Palestine submitted its report. (3) The report indicates that the Committee considered, inter alia, whether Palestine met the criteria for statehood, was a peace-loving State, and was willing and able to carry out the obligations contained in the Charter. Its Chair, in summing up the debate, stated that the Committee was unable to make a unanimous recommendation to the Security Council. As of the writing of this comment, no further action has been taken in the Council regarding Palestine's application.

This comment will not survey the various repercussions of Palestine's admission to UNESCO membership in general nor its efforts to become a member of the UN. Rather, it surveys several ways in which the membership of Palestine in UNESCO might have consequences within the United Nations. The three main areas where there might be consequences are: a) observer State status in the General Assembly, b) participation as a State in United Nations conferences and meetings and c) deposit of treaty instruments with the Secretary-General as depositary of treaties.

1. Observer State status in the General Assembly

   Neither the Charter nor the rules of procedure of the General Assembly refers to observers. Allowing non-members to observe and participate in the meetings of the Assembly arose purely from practice and ad hoc decisions of the Assembly. (4)

   As far as "standing" invitations to intergovernmental organizations and other entities to participate in the work and sessions of the General Assembly, this is always done by specific decision of the General Assembly. More than 80 such organizations and entities have received such standing invitations.

   With regard to non-member States, the Secretary-General's practice of providing observer "facilities" began in 1946 when Switzerland was provided such facilities. This unforeseen development was reported by the Secretary-General to the General Assembly in a 1949 report, which noted that four non-member States (Austria, Italy, the Republic of Korea and Switzerland) had appointed observers to follow the work of the organization at its headquarters. The Secretary-General stated in the report that he had welcomed the observers and that he had given their missions every possible facility "though their status [had] not yet been determined." (5) The Assembly did not react and has never systematically dealt with non-Member State observers. As stated in a 1994 legal opinion, "[i]n the case of observer States, the General Assembly does not take any action; rather it is the Secretary-General who provides observer facilities to non-Member States which establish permanent offices at Headquarters." (6)

   The "facilities" accorded to such observers in the Assembly were basically a nameplate and seat at the rear of the meeting room, separated from Member States. Observers also receive access to unrestricted documents as well as access to open meetings of the Assembly, its Main Committees and subsidiary bodies. (7) As far as any right to participate in meetings, such as making speeches, interventions and the like, "[t]he function of an observer is defined by his title, that is his role is essentially to 'observe' ... he may not automatically take part in the discussion." (8) Rather, the observer made statements only after making a request to the presiding officer who consults with the body whether to grant the request (normally speaking after Member States). In the practice of the Assembly in the early years, requests of observer States to speak were normally limited to speaking in the Main Committees of the Assembly, not in the plenary, and were granted by Committees if the observer State had a direct and immediate interest in the matter under discussion. (9)

   It may be noted here that this is in contrast to the practice that began in the 1970s by which organizations, which by virtue of Assembly decision had been given a standing invitation to participate, began speaking in the plenary on matters of direct concern to them. Observer States soon followed to a limited extent, but in each instance, the President of the Assembly would consult the Assembly by informing its members that he or she had received a request from the non-Member State observer to make a statement and if there were no objections, he would grant the request and give the Permanent Observer the floor. (10)

   Over the years, over a dozen non-Member States establishing offices at Headquarters have been provided observer facilities. (11) But in providing such facilities, the Secretary-General had to make a judgment whether the entity concerned was in fact a State. He made that judgment on the basis of the following:

   ...[T]he Secretary-General is not in a position to alone decide whether or not a given entity possesses all the attributes of a sovereign State acting on the international plane. It has...