Vol. 37 Online Content Editor
Vol. 36 Associate Editor
The United Nations Security Council has five permanent members (“P5”): China, the United Kingdom, Russia, France, and the United States. According to the predominant theory, and a recent ICJ advisory opinion, the General Assembly has the power to admit a new state only if the state has received a favorable recommendation from the Security Council.[i] A positive recommendation requires nine affirmative votes, including the concurring vote of each of the five permanent members, which essentially gives each member of the P5 a veto over a petition for statehood.[ii] This veto power has been exercised by China against Taiwan and the U.S. against Palestine. The use of the veto power by the U.S. and China, for reasons other than those found in the Charter, represents an abuse of power that needs to be remedied.
According to the Montevideo Convention criteria for statehood, Taiwan and Palestine arguably both possess all of the qualifications (a permanent population, a defined territory, government, and the capacity to enter into relations with other states).[iii] It is for political reasons that China and the U.S. stand in opposition to these non-states achieving recognition from the U.N. China has a “one-China” policy and refuses to recognize Taiwan’s independence, despite clear evidence to the contrary.[iv] Taiwan makes an extremely strong showing of the Montevideo criteria and has for many years: Taiwan has 23 million citizens, the islands compose a well-defined territory, it possesses its own democratic government, and Taiwan’s government maintains diplomatic relations with numerous U.N. members and is a member of the World Trade Organization.[v] Palestine’s case is somewhat murkier given the conflict with Israelis over the territory, but the rest of the factors are undoubtedly met: Palestine has a permanent population, its territory is recognized as demarcated by the 1967 borders (although under Israeli control), there is a functional government, and Palestine has non-member state status in the U.N. and is a member of UNESCO.[vi] The U.S. takes the position that Palestine achieving statehood would only worsen the situation between Palestine and Israel.[vii] The U.S. believes that the only solution is for Israelis and Palestinians to negotiate and come to the mutual understanding that Palestine is a state.[viii] However, these “negotiations” have been continuing for years without any agreements coming to fruition. It is possible that granting Palestine statehood and international recognition would actually help – the ICJ or other institutions may be able to assist in addressing the issues between Israel and Palestine in a more formal manner.
In most cases, the veto power is probably desirable. It recognizes the prominence of the permanent states on the U.N. Security Council while also creating an additional institutional bar that ensures the current proposal is legitimate and deserving of passing. However, in this instance, when “non-states” are trying to achieve official statehood in the eyes of the international community, the veto power is unfair. Allowing the U.S. and China to indefinitely veto the proposed statehood of Palestine and Taiwan seems like an abuse of power. Taiwan and Palestine have been and are actively trying to prove that they are independent and effective states – they have done their part and deserve international recognition. At some point, China is going to have to recognize that Taiwan is independent and relinquish its claims to the State. And eventually the U.S. is going to have to admit that another approach is necessary to remedy the disputes between Israel and Palestine.
Of course politics will always underlie the actions and decisions at the U.N. These countries are not impartial judges – they each have their own agenda that they are constantly angling to advance.[ix] But the decisions should not hinge on an individual country’s political viewpoints; there should be some basis in the Charter and general legal principles. The Montevideo Convention is viewed as the customary international law authority defining statehood, and unless there is some valid legal hook within the Convention, statehood should be recognized by the P5 for the sake of international stability. In the case of Taiwan and Palestine, these criteria appear to be met. The U.S. and China cite purely political reasons for their vetoes, which unfortunately seems to be the dominant reasoning.[x] Palestine and Taiwan should not be deprived the advantages of internationally recognized sovereignty based on the political fancies of the U.S. and China. The Security Council should strive to take a more legal stance on statehood recognition.
Perhaps a different solution would be to allow the General Assembly to overrule the P5 veto on statehood petitions through a supermajority. The problem with this would be that the concurring vote of each of the five permanent members is required for all non-procedural issues. It is highly unlikely that the P5 will all agree that they should cripple their own power. It is not clear what the solution would look like to this stalemate of sorts, but the current policy isn’t working.
[i] Competence of the General Assembly for the Admission of a State to the United Nations, Advisory Opinion, 1950 I.C.J. 4 at 10 (Mar. 3).
[ii] U.N. Charter art. 27, para. 3.
[iii] Convention on Rights and Duties of States art. 1, Dec. 26, 1933, 49 Stat. 3097, 165 L.N.T.S. 19.
[iv] Reimann, Mathias W. et al., Transnational Law 255-62 (2013).
[vi] Id. at 266-7.
[vii] Lorenzo Ferrigno, Security Council rejects Palestinian statehood resolution, CNN, Dec. 30, 2014, available at http://www.cnn.com/2014/12/30/world/palestinian-statehood-draft-vote/.
[ix] Bridget L. Coggins, Secession, Recognition & The International Politics of Statehood 350 (The Ohio State University, 2006).
[x] Reimann supra note 4; Ferrigno, supra note 6; Coggins, supra note 8.