The past year has been both tough and intriguing for the almost 10 million Palestinians living around the world and still striving to realise their human right to self-determination.
While the Arab Spring has shown that the Arab world has much to teach the rest of the world about democracy and the courage of people to take control of their own destiny, it was also a stark reminder of how some things don't change so easily. Regimes backed by Western governments and the world's commercial elites seemed particularly resilient to change.
Among those most notably denied their right to participate in their own governance are the Palestinian people. The Palestinians continued to be denied their human right to self-determination and many Palestinians continued to be treated as foreign enemies in their own land.
In 2011, dozens of Palestinians were slaughtered in cold blood by the Israeli occupying power. Millions of other Palestinians continue to live under inhumane conditions or in exile because of the occupiers. And thousands of Palestinians languish in Israeli prisons, by reason of their seeking their right to self-determination in a land that has been occupied by a foreign army for the better part of a century.
Despite the injustice, the carnage, and the inhumanity, there were some events that give Palestinians hope for 2012.
For example, at year's end the two Palestinian factions appeared to be moving closer together in a constructive manner. Hamas had toned down its rhetoric and openly opted for non-violent means to claim the human rights of the Palestinian people. Although this change had little direct effect on Israel, it did appear to force the Fatah faction of Palestinians to seriously discuss the unity of the Palestinian people. More importantly it forced both sides to publicly recommit to the cause of the Palestinian people's self-determination, including the right of return.
The September address to the United Nations General Assembly by Palestine Liberation Organisation (PLO) chairman and Palestinian Authority (PA) President Mahmoud Abbas, in which he called on UN member states to recognise Palestine as one of their rank, has led to more than 130 states publicly declaring they recognise the State of Palestine. While many of these states had already long recognised Palestine, the public reiterations were gratifying for many Palestinians who were wondering if the world had forgotten them.
When Abbas backed up his demand by a successful application for full membership in UNESCO — the UN's educational, scientific and cultural specialised agency — despite significant US pressure to withdraw the request, Palestinians had another reason to don faint smiles. But as the glee of the moment was still wearing off, questions began to arise about where these slight steps were going.
Sceptics point out that while the Palestinians sought membership in UNESCO, they seem to have by-passed or worse failed in their efforts with the World Health Organisation (WHO), the body often considered the most important of the UN's specialised agencies.
Instead of applying for membership to the regional body of WHO for the Middle and North Africa, the Palestinians remain silent. When asked why they did not apply, a Palestinian diplomat merely retorted that they already had a request to WHO main bodies. This reply, however, seemed to miss three salient points. First, each region decides its own members for the region. Second, all member states in the Middle and North Africa region of WHO already recognise Palestine as a state. And third, once a state is admitted to a regional body of the WHO, membership in the plenary bodies of the WHO is almost guaranteed.
Moreover, on closer inspection even the application to the UN proper seems somewhat half-hearted. There are several reason for this suspicion. The application was made to the UN Security Council where the Palestinians themselves seemed to think that it could be vetoed by any of the five permanent member states. As these states include the the United States, which is the military and financial maintainer of Israel, it seemed somewhat odd to afford them this privilege.
An alternative could have been to first go to the UN General Assembly and seek its recognition as an "observer state", an upgrade from an observer entity. This would not have then prevented Palestine from addressing itself to the Security Council, but this time with the express support of a declaration of its statehood by the overwhelming majority of the UN member states.
The Palestinians led by President Abbas did not choose this route. Instead they chose to approach the Security Council first. Having made this choice, it was also hoped that they would maximise it by doing everything in their power to ensure it succeeds. It does not appear that they did.
No effort was made to waive the formal process of referring the matter to the Committee on Admissions, which includes all Security Council member states, thus delaying the process for several months. Although such a request has been rare, since the parameters of the request have been known for decades and since the members of the committee are exactly the same as the council, allowing the referral seems to have primarily had the purpose of slowing down the process. Indeed, it is hard to believe that none of Palestine's allies on the council would have requested that the application be dealt with without a referral, had they been requested to do so. They were not.
If there was an interest in delaying the process it may have been the hope that the non-permanent member states of Security Council might be be more supportive of Palestine. Palestinian sources, however, say that the newly elected Security Council member states of Pakistan, Guatemala, Morocco, Togo and Azerbaijan are unlikely to be much different from Lebanon, Brazil, Nigeria, Gabon and Bosnia and Herzegovina, the states that they replaced. Indeed, the presence of Brazil and Nigeria, that are among the most powerful emerging states, could have been a substantial support to the Palestinian effort.
In any event, any real difference would depend on a decision not having to take into account the veto of one of the five permanent member states of the Security Council. According to UN practice, a recommendation by the Security Council concerning the admission of a state to membership in the UN could be vetoed by one of the five permanent members of the Security Council. But this practice is not conclusively settled.
The UN Charter states in the first paragraph of Article 4 that “Membership in the United Nations is open to all other peace-loving states which accept the obligations contained in the present Charter and, in the judgment of the Organisation, are able and willing to carry out these obligations.”
While these criteria leave some room for subjective interpretation, it would seem very inconsistent to find that Palestine is not a peace-loving state that is willing and able to carry out the obligations of the charter. Indeed, Palestine, as already noted, is currently a recognised state member of other international organisations — UNESCO, the Arab League and the Organisation of the Islamic Conference — and has both undertaken and been found willing and able to carry obligations of the same nature as those under the UN Charter.
In addition, more than one 130 states have recognised Palestine as a state. In part this is because it has met all four of the commonly cited elements of statehood that are articulated under customary international law and restated in the Montevideo Convention of 1933.
First, Palestine's recognition and its diplomatic representation in both states and international organisations is unequivocal evidence of its ability to enter into international relations with other states.
Second, the territory of Palestine has been defined several times. While there are disputes over its exact dimensions, there are more than ample choices for resolving these disputes. Ironically, one of the bodies that defined the territory of Palestine is the same body that defined Israel's territorial boundaries. In fact, this was done in the same resolution. For any states, especially Israel or one of its allies, to argue that the territory of Palestine is not defined undermines Israel's own existence.
Third, Palestine has a significant population who are living in Palestine or who are descendants of people living in Palestine. Only a fool would believe Gingrich or Golda Meir's racist statements about the non-existence of the Palestinians. Indeed, these statements sound very similar to the racism expressed against American Indians and Blacks in the United States, and the racism against Blacks in South Africa in not so distant times. Not only do millions of Palestinians live in Palestine, million of others who have been forcibly displaced by a foreign occupying power who would like to live there but cannot are proud Palestinians, even decades after their displacement.
And fourth, while there have been divisions among the Palestinians, no one who has ever visited Palestine can doubt that the government exercises authority over the Palestinian people living in Palestine. The fact that there are two authorities with a large degree of autonomy does not significantly distract from their coordination and cooperation with the aim for freeing Palestine from its foreign and oppressive occupation. Both authorities are committed to this goal and their recent enhanced cooperation only underlines how central this goal is to both of them.
The commitment of all Palestinians to accepting the obligations contained in the UN Charter has been repeatedly indicated much to the embarrassment of Israeli authorities and their powerful allies who constant rail against the UN. For example, it was Palestine, not Israel who supported recourse to the International Court of Justice to determine the legality of Israel's action in Palestine. Similarly, it was Palestine and its allies that supported countless United Nations resolutions the overwhelming majority of which have condemned Israel's illegal occupation and denial of the right to self-determination of the Palestinian people.
It is the Palestinians who have constantly displayed their ability and willingness to carry out the obligations stated in the UN Charter, perhaps more than any other UN member state.
Substantively there seem to be few obstacles to Palestine's admission to the UN. Instead the obstacles are procedural.
Article 4, paragraph 2 of the UN Charter states that “The admission of any such state to membership in the United Nations will be effected by a decision of the General Assembly upon the recommendation of the Security Council.” In other words, the Security Council's involvement could be considered merely procedural.
If any member of the Security Council believes its non-binding recommendation to the General Assembly is merely procedure, but another member state objects, there must be a vote. The view with the simple majority will determine the vote.
Thus, if a Security Council member state declares that the vote on the decision to recommend Palestine is procedural and another state objects, perhaps because it considers the Security Council's decision on the recommendation more than merely procedural, then states vote on which view to accept.
As a consequence, if Security Council member states vote that their decision on the recommendation is merely procedural, then the actual decision on whether or not to recommend Palestine for admission needs the concurrence of nine states and the veto of the permanent member states does not apply.
So why has Palestine not encouraged any Security Council member state to put to the vote that their decision on the recommendation is merely procedural?
If Palestine did make such a request it is likely that it would be acceded to, and if a vote took place it is likely that nine states would vote to declare their decision on the recommendation as merely procedural.
Palestinians officials merely say that the UN Security Council's decision to recommend Palestine for admission will not be found procedural. This does little to clarify the law on the issue and seems like a weak position from a state seeking admission to the UN.
Finally, if Palestine pursues its application as it has to date and there is a vote on whether or not to recommend Palestine for admission in January, why are Palestinian diplomats merely saying they will seek observer status as a state in the General Assembly?
Little thought seems to have been given to the possibility of the General Assembly merely deciding to admit Palestine even contrary to the negative advice of the Security Council.
Article 4 is unambiguous in stating that the General Assembly decides and the Security Council merely recommends. It would seem that Palestine could merely ask the General Assembly to ignore the Security Council's recommendation and decide on the facts as it determines them as whether Palestine should be admitted to the UN. Why should Palestinian officials suggest that Palestine would settle for anything less?
Although the clear words of Article 4 of the UN Charter would seem to be sufficient to support Palestine's cause, there is also longstanding precedent. The "Uniting for Peace" resolution of the General Assembly. In the case of this precedent, the General Assembly overrode the Security Council's inadequate action concerning a matter related to the use of force, the Security Council's ability to create a peacekeeping mission.
It would indeed be very odd if the General Assembly could override the Security Council in relation to the one area in which it is given explicit primary competence in the UN Charter, while allowing the Security Council to block General Assembly action in an area where the General Assembly is explicitly given decision-making competence.
In other words, the Palestinians could, it would appear, easily ask the General Assembly to act on the overwhelming weight of authority in favour of their admission as a member state to the United Nations. The Palestinians merely do not seem to want to do so.
The Palestinian action might be justified in ways that they have been unwilling or unable to clearly articulate, but it is also cause for suspicion.
The new year, particularly the first 30 days, will be a test of Palestinian will. The leadership of President Abbas will be tested by threats and enticements that until now they have appeared able to withstand. Reconciliation with Hamas should strengthen this resolve.
The best indicator of their resolve to realise the self-determination of the Palestinian people may be the actions of the Palestinian representatives to the United Nations in New York. It is a test that could be extremely important for the future of Palestine.
The writer is professor of law at Webster University and the Geneva School of Diplomacy and International Relations, a practicing international lawyer, and the author of eight books on human rights and related topics.