The mounting diplomatic tension over the upcoming UN vote on Palestinian statehood is somewhat puzzling since this vote already took place twice. On December 15, 1988, the UN General Assembly passed a resolution with an overwhelming majority (104 in favor, 2 against, and 36 abstentions) calling for the establishment of a Palestinian state on the entire West Bank and Gaza Strip. The General Assembly passed a similar resolution on December 18, 2008. The new resolution expected to pass in the General Assembly will thus be redundant.
It will also be irrelevant since General Assembly resolutions are not binding in international law. They are mere recommendations. The UN Charter does not grant the General Assembly the power to establish states, and the idea that Israel owes its existence to a UN vote is a misconception. On November 29, 1947, the General Assembly endorsed the recommendation of UNSCOP (United Nations Special Committee on Palestine) to divide the British Mandate between a Jewish state and an Arab state. This was a mere recommendation that became moot as soon as it was passed since the Arab League rejected it flatly and since the Arab armies attacked the nascent Jewish state.
Nor can the General Assembly accept a new member state without the Security Council’s recommendation. Kosovo (which is recognized by 75 countries) is not a UN member because Russia is blocking its membership at the Security Council. The US Government has already announced that it will veto the admission of “Palestine” at the UN without a prior peace agreement with Israel. France and Britain, for their part, are wavering. Yet, even without a US veto, how can the Security Council accept a state that has not been declared and therefore doesn’t exist?
States need to be declared by their leaders. Were Abbas to do so, he would blatantly violate Article 31 of the Oslo Agreement ("Neither side shall initiate or take any step that will change the status of the West Bank and the Gaza Strip pending the outcome of the Permanent Status negotiations"). Once the Oslo Agreement is officially cancelled by the Palestinian Authority (PA), Israel will be free to act unilaterally as well (it probably will).
The PA does not meet all the legal criteria to become a state (i.e. a permanent population; a defined territory; a government; the ability to interact diplomatically with other governments). The PA’s territory is not defined; it is disputed. There never was a Palestinian state before; there never was a border between Israel and Jordan between 1949 and 1967 but a “temporary armistice line” defined as such in the Rhodes Agreements; and UN Security Council Resolution 242 does not require from Israel a withdrawal to those arbitrary and indefensible lines. Moreover, there isn’t one Palestinian government but two: a PLO government in Ramallah and a Hamas government in Gaza. This is why Abbas tried to reach a deal with Hamas, but this deal fell through.
A Palestinian statehood declaration at this point would thus be illegal, and a General Assembly resolution will be both redundant and meaningless.
And yet, the expected UN vote will have far-reaching political and moral consequence, especially if European countries decide to endorse it.
The PA Chairman complains about the absence of negotiations with Israel while he is the one who has refused to talk to Israel for the past two years. His behavior is remindful of the famous anecdote in which a man murders his parents and then asks the Judge for mercy on the ground that he is an orphan.
The true reason why Abbas has opted for unilateralism is that he has come to realize that Israel will not sign a peace agreement that includes the so-called Palestinian “right of return.” Abbas also knows that Western governments stand with Israel on that issue, because the Palestinian definition of the so-called “right of return” would turn Israel into a bi-national state with an Arab majority, while the Palestinian state will not tolerate a single Jew (Abbas explicitly said so recently). The “two-state solution” and the “right of return” are mutually exclusive.
Unilateralism will enable the Palestinians to obtain statehood (even virtually and illegally) without having to pay the price demanded by Israel and the West, i.e. making peace with Israel and abandoning the so-called “right of return.” Unilateralism, then, will perpetuate the conflict and will legitimize the idea that accepting and recognizing Israel as the nation-state of the Jewish people is no longer a condition and a requirement for the establishment of a Palestinian state.
UN members who will vote in favor of the Palestinian move at the General Assembly will in effect be accomplice to the perpetuation of the conflict and to the de facto denial of the Jewish people’s right to self-determination.