Introduction

As the International Court of Justice (ICJ) at the Hague, The Netherlands has given its decisions on provisional measures applied by South Africa, many countries in the world have been pushing for Palestine’s full membership at the United Nations (UN). This includes both Malaysia and Indonesia. These two nations have been staunch supporters towards Palestine’s independence and sovereignty by strongly condemned Israel’s actions, particularly in Gaza, called for an immediate ceasefire an end to the collective punishment of Palestinians. Malaysia’s Foreign Minister, Dato’ Seri Utama Haji Mohamad bin Haji Hasan made these remarks at the United Nations Security Council (UNSC) Ministerial-Level Open Debate on the Situation in the Middle East, including the Palestinian Question. The Vice Minister for Foreign Affairs of Indonesia, Pahala Nugraha Mansury who led the Indonesian delegation at the 19th Summit of the Non-Aligned Movement (NAM) held in Kampala, Uganda on last week also urged NAM to, among others, strive for full membership for Palestine in the United Nations.

Highlighting the urgency of the situation, Malaysia urged the UNSC to take concrete steps to stop the ongoing violence and ensure the safety of Palestinian civilians. It also emphasised the importance of allowing humanitarian aid to reach those in need, as the conflict has had a devastating impact on Gaza's infrastructure and population. Reiterating its support for the two-state solution, Malaysia believes that a lasting peace can only be achieved through a negotiated settlement that addresses the legitimate aspirations of both Israelis and Palestinians.

Doubling down on its unwavering support for Palestine, Malaysia and Indonesia pledge to continue championing their cause on the global stage. Both nations’ commitments, particularly Malaysia, take a concrete step forward with its upcoming participation in a momentous hearing at the ICJ next month. Set to commence on 19 February 2024, the historic hearing at the Peace Palace in Hague, Netherlands will see the ICJ weigh in on the legal consequences arising from Israel’s policies and practices within the occupied Palestinian territory, including East Jerusalem. This marks a pivotal moment in the ongoing struggle for Palestinian rights, with Malaysia poised to play a leading role in pushing for accountability and justice.


Current Status of Palestine at the UN

Palestine, despite being recognised by 138 nations, is currently granted observer status at the UN but not full membership. This status is due to the ongoing Israeli settlements and disregard for international law, which erodes Palestinian sovereignty, fuels human rights violations and casts a long shadow over the two-state solution. The international community must finally grant Palestine its rightful seat at the UN table and pave the way for a just and lasting peace. Statehood is determined by meeting four criteria: a permanent population, defined borders, a governing body, and the ability to forge relationships with other states as stipulated under Article 1 of the Montevideo Convention 1933. Even unrecognised states have the right to defend themselves, govern their people, and act independently, as long as they respect the rights of other nations pursuant to Article 3 of the Montevideo Convention 1933.

Though misconstrued as a fleeting entity, Palestine embodies the unyielding spirit of statehood. Its permanent population, a tapestry of faiths united in their yearning for sovereignty, fulfils the first Montevideo criterion. Decades of conflict have etched scars on its defined territory, repeatedly violated yet stubbornly enduring. A functioning government navigates the complexities of international relations, while embassies, the silent language of acceptance, stand as testaments to its capacity for external relations.

The fall of the Ottoman Empire marked the end of the Caliphate system and Palestine became one of the lands that was affected but never asked for independent status because it was never colonised nor conquered by British but simply administered by the latter. This is due to the kingdoms or nations under Ottoman Empire were concluded in Balfour Declaration in 1917 due to British Mandate after decision was made by League of Nations. In 1947, the UN proposed to terminate the mandate and make both countries into two independent states. However, one of the envisaged states proclaimed its independence as Israel, but not Palestine.

In the aftermath of the 1967 war, the UN Security Council adopted Resolution 242, outlining a path towards a peaceful resolution. This included Israeli withdrawal from occupied land, a solution to the Palestinian refugee crisis, and an end to hostility. Following renewed conflict in 1973, Resolution 338 pushed for peace talks, and Palestine was granted non-member observer state status in the UN on 29 November 2012.

As non-member observer states, the Holy See (Vatican City) and Palestine have a strong voice in global debates, the ability to propose solutions, and access to critical meetings. However, they lack the ultimate strength of a vote, restricted participation in certain activities and dependence on member states’ approval. Struggle for Palestinian statehood continues until today. The Israeli occupation, the expansion of settlements, and the ongoing humanitarian crisis present formidable challenges. But the Palestinians remain committed to their goal of achieving full sovereignty and independence. The granting of non-member observer state status was a crucial milestone on their path and it serves as a reminder of the struggles of Palestine.

Benefits and Hurdles for Palestine

Becoming a full member of the UN will provide Palestine with numerous benefits. It would provide formal recognition as a sovereign state, so increasing legitimacy and access to critical international institutions and resources. Palestine’s legal and diplomatic position would improve, allowing it to participate in more treaties, vote in the UN General Assembly (UNGA), be part of the UNSC Non-Permanent Members and potentially seek justice before the ICJ, in which why Palestine could not by itself appear before the ICJ against Israel but South Africa. This could lead to increased security via international pressure on Israel and perhaps peacekeeping actions. Furthermore, UN membership would be a significant symbol of optimism and togetherness for Palestinians, strengthening their national identity and morale.

Membership in the UN is open to all other peace-loving states which accept the obligations contained in the UN Charter and are able and willing to carry out such obligations in accordance with Article 4(1) of the UN Charter. Nonetheless, the admission of any such state to membership in the UN will be effected by a decision of the UNGA upon the recommendation of the UNSC as stipulated under Article 4(2) of the UN Charter. As we all know that the United States (US), the United Kingdom and France are among the UNSC Permanent Members with veto powers. The former particularly is one of the closest allies to Israel and such admission of Palestine in the UN might be vetoed and not recommended by the UNSC, especially by the US.


Conclusions

Throughout history, the State of Palestine has been facing the atrocities of the Israel Zionist state. Israel action has claimed many innocent lives including woman and children, despite being a country that constantly breaking the international law, they are considered as a member of the UN and yet being called as a “peace-loving state”. Unfortunately, it is not the same thing with the State of Palestine that for now remains as a non-member observer state. Throughout the decades, Palestine has experienced the horror of war without any significant rest. Some say about seize fire, but usually it is only for a few days before Israel broke the agreement. There are no true winning side in war, both loses. Life of thousands, piles of gold or wealth turn to ashes and traumatic experience embedded in the soul of those who involved in it. Although there are bumps on the road, Malaysia, Indonesia and other nations will support and help Palestine in upholding justice and become a full-fledged member in the UN.




Muhammad Fakrurrazi Md Suhada is a Third Year LL.B and Shariah student at the Faculty of Syariah and Law, Universiti Sains Islam Malaysia, Dr. Fareed Mohd Hassan is a Senior Lecturer at the Faculty of Syariah and Law, Universiti Sains Islam Malaysia and Muhammad Rusli Arafat is a lecturer in Public Law at the Faculty of Law, Universitas Singaperbangsa Karawang, Indonesia.

** The views and opinions expressed in this article are those of the author(s) and do not necessarily reflect the position of Astro AWANI.