[Published 16 November 2011]
Palestine’s membership of UNESCO could be under serious legal threat - as the vote approving such admission comes under increasing scrutiny.
The decision to admit Palestine has come at great financial cost to UNESCO and has threatened the abandonment or postponement of many of its worthy and worthwhile programs.
UNESCO notes in a Press Release on 10 November:
"The U.S has withheld its contributions following the admission of Palestine to UNESCO on 31 October. They were required to do so by U.S. laws dating from the 1990s. This leaves UNESCO with an immediate shortfall of US$65m to the end of 2011, and a further gap of 22 percent in its US$653m budget for 2012-2013. Israel has now followed suit and withheld its contribution of US$1.5m (0.3 percent of UNESCO’s budget) for 2012-2013.
UNESCO Director General Irina Bokova has now launched an Emergency Multi-Donor Fund to help find the very large shortfall resulting from dues withheld by the United States. It has left an enormous black hole to fill - given the financial crisis enveloping the European Union and its members."
One way of rescuing UNESCO from its current predicament would be to approach the International Court of Justice seeking an Advisory Opinion on the legality of Palestine’s admission to UNESCO.
Two questions need to be answered - even more urgently now - following the UN Admissions Committee failing to agree on whether Palestine qualified for membership of the UN as a “peace-loving State” as specifically required by Article 4 (1) of the UN Charter.
I. Is Palestine a State enabling it to be admitted to UNESCO under Article II 2 of the UNESCO Constitution?
Article II 2 provides:
"Subject to the conditions of the Agreement between this Organization and the United Nations Organization, approved pursuant to Article X of this Constitution, states not members of the United Nations Organization may be admitted to membership of the Organization, upon recommendation of the Executive Board, by a two-thirds majority vote of the General Conference."
Palestine’s applications to both UNESCO and the UN required that in each case it be a State to qualify for membership.
The UN Admissions Committee appears to have been divided on whether it so qualified.
One could reasonably infer that this was also one of the issues that was uppermost in the minds of the UNESCO General Conference where only 51 out of the 137 non-Islamic states voted in favor of Palestine’s admission to UNESCO.
In customary international law as codified in the Montevideo Convention 1933 - it would appear that Palestine did not possess the four necessary legal requirements to call itself a State.
UNESCO is required to ensure its Constitution is faithfully observed at all times.
Since the UN interpretation appears to contradict the UNESCO interpretation - legal clarification by approaching the International Court of Justice for an Advisory Opinion is justified and indeed necessary.
II. Was Palestine’s admission to UNESCO unconstitutional because the majority vote required for its admission under Article II 2 of the UNESCO Constitution was not reached?
The vote for Palestine’s admission to UNESCO was 107 for, 16 against and 52 abstentions (which do not count as votes).
There are 194 members of the UN - so a two thirds majority vote required would be 129. As only 107 votes were in favour - Palestine’s admission to UNESCO did not satisfy the provisions of the Constitution and should be declared invalid.
This viewpoint is further strengthened by the provisions of Article II 3 :
"Territories or groups of territories which are not responsible for the conduct of their international relations may be admitted as Associate Members by the General Conference by a two-thirds majority of Members present and voting, upon application made on behalf of such territory or group of territories by the Member or other authority having responsibility for their international relations. The nature and extent of the rights and obligations of Associate Members shall be determined by the General Conference."
Clearly the Constitution makes a significant distinction in the specific section of the Constitution dealing with Membership between the vote needed to admit Members and the vote needed to admit Associate Members
This clear difference is however clouded by the provisions of Clause IV B 8(a):
"Each Member State shall have one vote in the General Conference. Decisions shall be made by a simple majority except in cases in which a two-thirds majority is required by the provisions of this Constitution, or the Rules of Procedure of the General Conference. A majority shall be a majority of the Members present and voting."
The International Court of Justice needs to be urgently approached to reconcile the apparent inconsistencies and uncertainties posed by these contradictory provisions in UNESCO’s constitution.
I put some questions on these issues to UNESCO’s Director of Liaison Office in New York ten days ago - but have been met by a wall of silence despite sending him a reminder.
Approaching the International Court of Justice could prove to be the financial lifeline UNESCO so desperately needs - since a ruling that Palestine’s admission was unconstitutional would assuredly restore America’s financial commitment to UNESCO.
Will political or financial pressure win the day? Will the political fallout involving the possible removal of Palestine from UNESCO dissuade UNESCO from approaching the International Court of Justice for its advisory opinion - thereby allowing its financial woes to continue and its projects to founder ?
Either way UNESCO cannot be seen to create the impression that any of its actions are not in strict accord with its Constitution and that it is prepared to act in possible contravention of its own Constitution.
To do so - whilst the above two questions remain definitively unanswered by the International Court of Justice - could well persuade those 86 non-Islamic member states who did not vote for Palestine’s admission to UNESCO to also cut or withhold their financial contributions to UNESCO until the Court’s ruling is obtained.
That would surely be the beginning of the end for UNESCO- which cannot be seen as a law unto itself and certainly cannot financially afford to do so.