The United Nations and its powers
Any attempt to impose the creation of a Palestinian state might well constitute an ultra vires act in violation of the UN Charter and international law.
See the latest opinion pieces on our page
The scheme for a new UN initiative would hardly warrant much attention were it not for the fact that US President Barack Obama has hinted on more than one occasion that he would find it difficult now to veto such a scheme, although he had previously stymied such ideas. He has based his new attitude on a number of incidents during the recent Israeli election campaign and on the “character” of the new Israeli government that Prime Minister Benjamin Netanyahu has formed. These are flimsy excuses to warrant a sea change in American policy that endorses a wild gamble for peace that will only result in disaster. But given the new attitude of the White House, it is essential to examine the supposed basis of UN authority to impose a settlement without the consent of both parties. The General AssemblyChapter IV of the UN Charter establishes clearly that the General Assembly is basically limited to issuing non-binding resolutions. It has no power to adopt binding resolutions. This, however, raises the question of the competence of the General Assembly to adopt the 1947 Partition Resolution. Indeed, some scholars have maintained that resolution was not binding, since Palestine was not the property of the UN to dispose of in any manner. It was, in this view, an enabling resolution which legally facilitated the establishment of two states.Another opinion maintains that in the case of a Mandate, the General Assembly was qualified to adopt a binding resolution under international law. This conclusion is based on the 1950 advisory opinion of the International Court of Justice on the international status of South West Africa. The court ruled there that termination of the Mandate could be effected by the joint action of the Mandatory Power and the United Nations. In the case of the Palestine Mandate, this is precisely what took place. The United Kingdom turned to the UN to resolve the question, and the solution – partition – was accepted by the Mandatory Power. With that act, the General Assembly had completed its task and had become, in legal terms, functus officio, an organ whose competence has lapsed.Any attempt to revive the General Assembly as a continuing authority over the Palestinian Mandate is quite illusory.The Security Council In contrast to the General Assembly, the Security Council has both advisory powers under Chapter VI (Pacific Settlement of Disputes) and binding authority under Chapter VII (Action with respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression).However, it must be borne in mind that even the powers of the Security Council are defined by the purposes for which the United Nations was established.As Article 24 of the UN Charter states: “In discharging these duties the Security Council shall act in accordance with the Purposes and Principles of the United Nations”; and the UN’s primary purpose is “to maintain international peace and security.” It was a great British judge on the International Court of Justice, Sir Gerald Fitzmaurice, who had occasion to note that the Security Council, even when acting genuinely for the preservation of peace, may not “in the guise of peace-keeping order transfers or cessions of territory.” The Security Council is not empowered to effect legal changes “in territorial rights, whether of sovereignty or administration. ...It was to keep the peace, not to change the world order, that the Security Council was set up.”Any attempt to impose the creation of a Palestinian state might well constitute, in accordance with the words of Judge Fitzmaurice, an ultra vires act in violation of the UN Charter and international law.The author is professor of American Studies, emeritus, at the Hebrew University of Jerusalem and author of South West Africa and the United Nations (Johns Hopkins University Press) and Jerusalem in America’s Foreign Policy (Kluwer Law International).
Jerusalem Post Store
`; document.getElementById("linkPremium").innerHTML = cont; var divWithLink = document.getElementById("premium-link"); if (divWithLink !== null && divWithLink !== 'undefined') { divWithLink.style.border = "solid 1px #cb0f3e"; divWithLink.style.textAlign = "center"; divWithLink.style.marginBottom = "15px"; divWithLink.style.marginTop = "15px"; divWithLink.style.width = "100%"; divWithLink.style.backgroundColor = "#122952"; divWithLink.style.color = "#ffffff"; divWithLink.style.lineHeight = "1.5"; } } (function (v, i) { });