The United States of America is preparing to use its veto in order to block Palestine's admission to the United Nations as an independent state. However, it is doubtful if this vote will have the effect desired by the US State Department because the Americans have renounced using the veto in this way. Not only that, but the vote for membership is based on conditions which don't allow for such a prohibitive move.
Membership of the UN has to follow a two-stage procedure: a recommendation adopted by the Security Council and then a vote at the General Assembly. In the Security Council the adoption of the proposal must be reached by a special majority of 9 to 15 voting states, including all the permanent members.
In the past, the US has declared that it won't use its veto privilege to block the admission of a state when its candidature is supported by a correct majority of the Security Council. This was stated in very clear terms: "[t]he United States representative said that his Government shared the general agreement that the permanent members of the Council should not exercise their right of veto to block the admission of a candidate which had received seven [at that time there were only 11 members in the Security Council] or more votes in the Security Council" (United Nations, General Assembly, 25 June 1953, Report of the Special Committee on Admission of New Members , A/2400, p. 9, § 49). When such a position is taken in front of the international community in terms of a legal obligation, it cannot be interpreted other than as a waiver of the veto in the same circumstances. Therefore, if Palestine obtains nine Security Council votes in favour of its membership, the United States will not be able to stop a positive recommendation proceeding to the General Assembly. An American veto would have questionable validity.
Following the conditions for admission set forth by the UN constitutive treaty, the Security Council has to decide if the candidate entity is a "peace loving" state able and willing to carry out its obligations under the UN Charter. The International Court of Justice has underlined that a member state couldn't make its consent depend on conditions other than those set forth in the Charter (Advisory Opinion of 28 May 1948 on the Conditions of Admission of a State to Membership in the United Nations – Article 4 of the Charter). It is only through those required conditions that a state can decide freely if it will give its consent to the admission of the candidate entity. The United States has already made many statements concerning the way it intends to vote on the application by the Palestinian Authority.
President Obama stated clearly before the General Assembly that the request for admission will be unacceptable to the United States because it will remove the Palestinians from the negotiation process with Israel. Regardless of the unconvincing character of such a position, this clearly disregards the UN Charter in introducing an unsettled condition for the US vote. The United States is certainly not entitled legally to make Palestine's admission to the UN dependent on conditions not expressly provided for in the UN Charter. As was explained by the United States representative more than fifty years ago, "I submit that, in drafting the Charter of the United Nations, it was never intended that one State should have the power to keep out of the Organization, for reasons not contained in the Charter, States which, in the judgment of most Members, are qualified for membership. This is surely an exercise of the veto which constitutes an abuse of that power." (Security Council official records 1947 n° 81, 190th and 191st meetings, 21 August 1947, p. 2133)
Hence, an American veto in the Security Council won't be able to stop the admission recommendation if 9 of the 15 members of the Security Council vote for it. The United States has renounced the use of a veto in such conditions and can't superimpose conditions upon those enumerated by the UN Charter. As a result, the General Assembly should consider itself as competent to pronounce the admission of an independent Palestine as a member state, not least because we know already that 126 states in the Assembly have already recognised the State of Palestinian.
Yves Nouvel is a Professor of Law at University of Paris II (Panthéon-Assas)
The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Monitor.