By Attorney General Mark Shurtleff & Benjamin Ryberg
The Obama administration is pressuring Congress to waive the ban on U.S. funding of UNESCO (the United Nations Educational, Scientific and Cultural Organization), which immediately took effect when the organization recognized a Palestinian state. Specifically, a footnote in the administration’s proposed budget said that “The Department of State intends to work with Congress to seek legislation that would provide authority to waive restrictions on paying the U.S. assessed contributions to UNESCO.”
The correct decision to defund UNESCO was pursuant to two U.S. laws, adopted in 1990 and 1994. Public Law 101-246 bars appropriation of funds “for the United Nations or any specialized agency thereof which accords the Palestine Liberation Organization the same standing as member states.” Public Law 103-236 forbids the funding of “any affiliated organization of the United Nations which grants full membership as a state to any organization or group that does not have the internationally recognized attributes of statehood.” These laws apply equally to all UN agencies, including the International Atomic Energy Agency (IAEA), the World Health Organization (WHO), and the World Intellectual Property Organization (WIPO).
By a vote of 107−14 (with 52 abstentions), UNESCO admitted Palestine as a full member, the first time any UN organ has granted the Palestine Authority a right reserved for states. On November 23, 2011, the Palestinians signed and accepted UNESCO’s constitution and membership took effect and, on December 13, the Palestinian flag was raised at the Paris headquarters of UNESCO marking the admission of Palestine as the agency’s 195th member.
State Department spokeswoman Victoria Nuland called the vote “premature” and said it undermined “our shared goal of a comprehensive, just, and lasting peace in the Middle East.” U.S. envoy to the UN Susan Rice tweeted that the vote was “no substitute for direct negotiations” and is “deeply damaging to UNESCO.” We agree. Strangely, no one has called attention to the fact that granting full membership to Palestine violates the very same constitution.
UNESCO’s vote follows the Palestinian Authority’s unilateral declaration of statehood, an attempt to gain Security Council and General Assembly recognition as a UN member state that is likely to be quashed by a U.S. veto in the Security Council. This latest move is part of a broader “lawfare” strategy: the manipulation of international fora to redefine the concept of a “state” under international law.
International law is comprised of a series of established practices and precedents. Undoubtedly aware of this, the Palestinians have announced their plan to methodically seek admission to various UN agencies based on a claim of statehood. Palestinian official Ibrahim Kraishi declared, “It’s now precedent that we are a full member in one of the biggest and one of the most important UN agencies, UNESCO. So it will open the door for us now to go further.”
Consistent with lawfare stratagem of deception and manipulation, UNESCO’s grant of full membership to Palestine runs afoul of the agency’s own constitution. Article II limits full membership to UN member and non-member states, and provides that “[t]erritories . . . which are not responsible for the conduct of their international relations may be admitted,” but only as Associate Members. Neither the Security Council nor the international community has reached any consensus recognizing a Palestinian state and, under any objective analysis of customary international law, the Palestinians do not meet the requirements for statehood.
Admission of Palestine as an Associate Member might have been permissible, but granting full membership wrongly presupposes that Palestine is in fact a state. A UNESCO-“created” state is nothing more than a bureaucratic fiction. Like any other specialized UN agency, UNESCO is not authorized to independently grant statehood recognition. Nor does unilateral recognition of states fall within or further UNESCO’s mission, “to contribute to the building of peace, the eradication of poverty, sustainable development and intercultural dialogue through education, the sciences, culture, communication and information.” To the contrary, UNESCO’s decision has been called a “distraction” from the goal of restarting direct negotiations between Israel and the Palestinians.
This isn’t the first time UNESCO has contributed to hostilities while attempting to alter facts on the ground. Recall UNESCO’s October 2010 decision to “reclassify” Rachel’s Tomb, the third holiest place in Judaism and a Jewish pilgrimage site, as a mosque and an “integral part of the occupied Palestinian territories.” Ironically, the move followed UNESCO’s claim that any unilateral Israeli attempt to rehabilitate the site constituted a “violation of international law” and the UNESCO Convention. Not surprisingly, the Palestinian Authority intends to use its UNESCO membership to accomplish similar ends. Days after admission, PA minister for Jerusalem affairs Hatem Abdel Qader proclaimed, “Now that we have joined UNESCO, we will take Israel to court for systematically destroying and forging Arab and Islamic culture in Jerusalem” based on accusations that Israel had stolen Palestinian antiquities and changed the Arab and Islamic character of holy sites. The Palestinians also reportedly intend to ask UNESCO to recognize other sites in the West Bank and Jerusalem, including the Cave of the Patriarchs at Hebron, as international heritage sites that belong to Palestine, not Israel.
Both Canada and Israel have reportedly said that they would also discontinue funding UNESCO. In response to the Obama administration’s request for waiver, Rep. Gary Ackerman (D-Queens-Nassau) voiced his commitment to upholding the funding ban, and Rep. Ileana Ros-Lehtinen (R-Fla.), chairwoman of the U.S. House of Representatives Foreign Affairs Committee, said, "Any effort to walk back this funding cutoff will pave the way for the Palestinian leadership’s unilateral statehood scheme to drive on, and sends a disastrous message that the U.S. will fund UN bodies no matter what irresponsible decisions they make.”
The Palestine Authority clearly fails to meet UNESCO’s constitutional requirements for full membership. Still, it has expressly declared its strategy to use this membership as a tool in pursuit of admissions to UN agencies. Hopefully the strategic manipulation at play and the “anti-peace” implications of the UNESCO vote will be spotted, and the decision will be treated as an error rather than accorded legal precedent.
The Honorable Mark Shurtleff is the current attorney general of the state of Utah. Benjamin Ryberg is Director of Research at The Lawfare Project and an admitted attorney in the state of New York.