By Konstantinos D. Magliveras, Attorney at Law; Professor of Public International Law, University of the Aegean, Greece

On 10 May 2024, the UN General Assembly (UNGA) adopted Resolution ES-10/23, titled ‘Admission of new Members to the United Nations’, by 143 votes in favour, nine against and 25 abstentions. The Resolution, whose draft (UN Doc. A/ES-10/L.30/Rev.1) was introduced by the United Arab Emirates on behalf of the Arab Group, has three principal goals, which are interconnected in the sense that the second goal follows from the first and the third follows from the first and second goals. In particular: (a) to opinionate that the State of Palestine should be admitted to UN membership; (b) to recommend that the UN Security Council (UNSC) reconsider the matter favourably, presumably meaning that it should adopt a recommendation advising admission, this being one of the procedural conditions in Article 4 UN Charter; and (c) until then, to upgrade the circumstances of the State of Palestine’s presence and participation in the UNGA by adopting the modalities set out in the Resolution’s Annex and to request that ECOSOC does the same.

Despite the colourful reaction of the representative of Israel, who destroyed the cover of an UN Charter with a pocket-sized shredder, and his arguably offensive utterance that the UNGA is a ‘shameless body [that] has chosen to reward the modern-day Nazis’, Resolution A/RES/ES-10/23 does raise several legal matters, whose consequences are bound to come up in the future. It is the purpose of this short article to address them.

First, Resolution ES-10/23 was not adopted at the ongoing 78th UNGA Session but in the context of the 10th UNGA Emergency Special Session, first convened in April 1997 at the request of Qatar. Titled ‘Illegal Israeli actions in occupied East Jerusalem and the rest of the Occupied Palestinian Territory’, the last document it adopted on 12 December 2023 was Resolution ES-10/22, ‘Protection of civilians and upholding legal and humanitarian obligations’. It concerned the armed hostilities in the Gaza strip since 7 October 2023 and, inter alia, demanded a humanitarian ceasefire and the unconditional release of all hostages. It also adjourned the 10th Emergency Special Session temporarily and authorized the UNGA President to resume it upon request from any Member State. Following the US veto cast on 18 April 2024 on a draft UNSC resolution recommending Palestine’s admission, on 24 April 2024 Saudi Arabia, Mauritania and Uganda requested by letter its resumption by invoking the ‘Uniting for Peace Resolution’, under the terms of which, the UNGA will meet in emergency special session within 24 hours if it is not in session (see also Rule 8b UNGA Rules of Procedure). But the 78th UNGA Session was still in session (e.g. Resolutions 78/272-78/276 were adopted on 24 April 2024).    

Second, the title and content of Resolution ES-10/23 do not match: it does not deal generally with the admission of new Member States but with one specific application, that of Palestine, while its text says that it shall not to apply to any other membership application. Therefore, an accurate title would have been ‘The Question of the Application of the State of Palestine for Admission to the United Nations’.

Third, while the preamble of Resolution ES-10/23 stresses the UNGA’s ‘conviction’ that Palestine is fully qualified for membership pursuant to Article 4 UN Charter, it does not (a) mention any source proving it, and (b) allude to a document that specifically determines that the applicant is able and willing to carry out all UN Charter obligations, a conditio sine qua non as explained in a previous blog. This is a serious omission and arguably it cannot be considered covered on the ground that 143 Members approved Resolution ES-10/23.

Fourth, operative paragraph three of Resolution ES-10/23 is also problematic. It adopted ‘on an exceptional basis and without setting a precedent’ the modalities set out in the Annex that augment Palestine’s modes of participation in UNGA sessions and work as well as in international conferences convened under UNGA and other UN organs’ auspices. But it fails to explain if the latter shall be only the six principal organs envisaged in Article 7(1) UN Charter or also the subsidiary organs established under Article 7(2) or further any organ that falls within the ambit of the so-called ‘UN Family of Organizations’. Moreover, some of these modalities, which incidentally shall apply from the 79th UNGA Session onwards (it will open on 10 September 2024), have been practiced by Palestine for several years now, e.g. the right to co-sponsor proposals and amendments. Practically, this has been facilitated because Palestine is a member of the League of Arab States (LAS) and whenever a UN Member submits a draft resolution or decision on behalf of LAS, automatically this makes Palestine a co-sponsor and, in that capacity, it may address the relevant UNGA Committee. A very good example is draft decision A/C.1/73/L.22/Rev.1, which in October 2018 recommended convening a conference under UNGA auspices to establish a Middle East zone free of nuclear weapons and weapons of mass destruction; it was promptly approved as UNGA Decision 73/546.   

Fifth, even though these modalities are exceptional, arguably they constitute a further de facto amendment of the UN Charter, given that the latter contains no provisions on granting permanent observer status. While the whole process has been based purely on practice that goes back to the 1940s, the legal background is a short opinion published in the 2008 United Nations Juridical Yearbook, which cites UNGA Decision 49/426 of 19 December 1994 and Resolution 54/195 of 17 February 2000. However, in an international organization with universal membership it is imperative that what constitutes practice should be applied in the same way vis-à-vis the same category of entities, in casu UNGA permanent observers. Which brings us to the future: what will happen if in a forthcoming membership application the UNSC is again deadlocked and the UNGA is asked that all the modalities of Resolution ES-10/23 be applied to the applicant state in question? Would this request be denied because it will be recalled that Resolution ES-10/23 sets no precedence?

This scenario is not exactly fictional. It is based on the possibility that, after the Republic Kosovo accedes to the Council of Europe (on 16 April 2024, the Parliamentary Assembly recommended that it be invited to become a Member State), it could submit an application to join the UN – strengthened by the fact that in June 2009 it became the 186th member of the International Monetary Fund – another candidacy that might lead to the UNSC becoming gridlocked.

In conclusion, there is no doubt that the majority of UN members (including most of the G5) are frustrated by having only one member effectively blocking the State of Palestine’s accession, an incident revealing how ‘un-democratic’ the UN can be. To counteract, they have voted modalities that would allow Palestine to partake in UN activities as if it were a member (obviously without the right to vote or to stand for election). Since UNGA Resolution 3237(XXIX) adopted in 1974, Palestine has sought to join the UN, a process which for other states lasted a week, even though their ability to carry out all their obligations was rather questionable. Suffice to mention the Republic of South Sudan, whose membership application was approved in five days. Presumably, one day Palestine with join the UN. But until then, the UN and its authority as the sole universal political organisation might have suffered a lot.       

Credit: UN Photo/Manuel Elías (Unique ID UN71039786).