Does Politics Override Law?


Against the background of upcoming General Assembly votes at the UN on granting Palestinian statehood, one wonders whether politics supersedes law. The issue of statehood is very much linked to international politics rather than customary law, codified by 1933 Montevideo Convention on Rights and Duties of States.

The reality on the ground is that recognition gets complicated because it combines international politics and international law. There are many examples of states failing to obtain recognition as power politics creeps in, fulfillment of four criteria set forth in Article 1 of Montevideo Convention nevertheless. The convention explicitly states that to be recognized as state, an entity must have permanent population, a defined territory, a government and capacity to enter into relations with other states.

As opined by Steven J. Rosen, the Palestinians fail to meet the convention-set above criteria for statehood and therefore recognizing Palestine as a state is tantamount to an illegitimate act. To him Palestine does not meet international law’s minimum standard for nationhood. Montevideo Convention’s Article 1 which sets out four criteria for statehood sometimes have been recognized as an accurate statement of customary international law.

Empirical evidence shows that there are handful of Limbo World States. These states meet above-mentioned four criteria to be approved as states but the situation is otherwise due to power politics.  Taiwan was expelled from UN membership and thus stripped of its international legitimacy in 1971 when the UN took a decision to that effect. But everyone knows that the People’s Republic of China would not have succeeded Taiwan had the then U.S. administration not cultivated Beijing for strategic gain in Vietnam War. Recently, Kosovo presents a glaring example of power politics, which despite  recognition from some European countries and U.S., has not even attempted to obtain UN membership owing to likely veto by the Russians.

Stefan Talman, Professor of Public International Law at Oxford University and Author of Recognition in International Law, says, “When you are admitted to UN, that’s a form of approval. It’s like a stamp that says you are now a full member of the international community”. This clearly speaks for the efforts by the Palestinian Authority to seek UN recognition for statehood.

Power politics remains the strongest obstacle to any endeavor to get nationhood. At least Two-Thirds of the total members of the UN General Assembly must support the membership resolution. More importantly, such resolution should have tacit approval of the UN Security Council. Non-endorsement from any one of the P-5(permanent members of the Security Council) will automatically kill the proposal. Taiwan’s repeated failed bids to obtain UN membership highlights the key role assigned to the UN Security Council by the Charter on membership.

Were it not for the international politics, the two Koreas i.e. DPRK and ROK would have gained UN membership long before the end of Cold War. Seen against this backdrop the UN vote on Palestinian statehood is very likely to be complicated albeit a large majority of members seem to favor its membership drive.

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