Thursday, October 29th | 11 Heshvan 5781

September 5, 2011 1:48 am

Palestinian State Illegal Under UN Charter?

avatar by Eli Hertz

Joaquin Fernandez Y Fernandez, Minister for Foreign Affairs and Chairman of the delegation from Chile, signing the UN Charter at a ceremony held at the Veterans' War Memorial Building in San Francisco on 26 June 1945.

The Palestinian Authority is expected to seek recognition as a sovereign state in the coming General Assembly of 2011, but it will not find the law to support such a move via the General Assembly. The Charter of the UN does not grant the General Assembly or the International Court of Justice (ICJ) the authority to enact or amend international law.

Professor, Judge Schwebel, stated, “The General Assembly of the United Nations can only, in principle, issue ‘recommendations,’ which are not of a binding character, according to Article 10 [see below] of the Charter of the United Nations”

He also cited Judge Sir Hersch Lauterpacht, a former member judge of the International Court, who stated,  “The paramount rule of the Charter is that the General Assembly has no legal power to legislate or bind its members by way of recommendation.”

Sir Gerald Fitzmaurice, another former ICJ judge, was as resolved in rejecting the “illusion” that a General Assembly resolution can have “legislative effect.”

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Referencing Professor Arangio-Ruiz’s work, “The Normative Role of the General Assembly of the United Nations and the Declaration of Principles of Friendly Relations,” Professor Julius Stone called it “perhaps the most comprehensive and up-to-date treatise on this matter.” He [Professor Arangio-Ruiz] is led to conclude that the General Assembly lacks legal authority either to enact or to “declare” or “determine” or “interpret” international law so as legally to bind states by such acts, whether these states be members of the United Nations or not, and whether these states voted for or against or abstained from the relevant vote or did not take part in it.

Articles of the Charter of the United Nations

UN Article 10

“The General Assembly may discuss any questions or any matters within the scope of the present Charter or relating to the powers and functions of any organs provided for in the present Charter, and, except as provided in Article 12, may make recommendations to the Members of the United Nations or to the Security Council or to both on any such questions or matters.”

UN Article 12

“While the Security Council is exercising in respect of any dispute or situation the functions assigned to it in the present Charter, the General Assembly shall not make any recommendation with regard to that dispute or situation unless the Security Council so requests.

“The Secretary-General, with the consent of the Security Council, shall notify the General Assembly at each session of any matters relative to the maintenance of international peace and security which are being dealt with by the Security Council and shall similarly notify the General Assembly, or the Members of the United Nations if the General Assembly is not in session, immediately the Security Council ceases to deal with such matters.”

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