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November 30, 2015 / 18 Kislev, 5776
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The UNESCO Fiasco

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With surprising swiftness, almost immediately after UNESCO granted full membership to the Palestinian Authority on Monday, the United States announced it was cutting off all funding to the UN’s major cultural agency.

State Department spokeswoman Victoria Nuland said the vote triggered a longstanding congressional restriction on funding to UN bodies that recognize Palestine as a state before an Israeli-Palestinian peace deal is negotiated. While the legal requirements are significant, it would be a mistake to focus on the imperatives of the various laws rather than the political context and overall need for political solutions. There will not always be legal requirements to drive the decisions that have to be made in America’s interests.

The Palestinians have turned to the UN and some of its agencies in an attempted end-run around negotiations with Israel by securing approval of statehood. The U.S. and several Western countries strenuously oppose the Palestinian gambit, arguing that peace can only come from a negotiated settlement from which a Palestinian state would emerge.

But despite the fact that the rules objectively applied would deter the Palestinians’ various applications, they have a pocket majority of Third World countries willing to do their bidding in confronting the United States and Israel.

Aside from following the mandates of American law, it is critical that the U.S. put teeth into its opposition to the Palestinians at the UN as a political matter even when the law is not all that clear. This is not only a matter of Israel’s national interest but also of America’s standing in the world.

Public Law 103-236, Title IV, bars U.S. contributions to “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.”

It was to this law that Ms. Nuland was referring in her announcement of the funding cutoff. It would seem to be a compelling point. But there is also the matter of the pending Palestinian application for recognition by the UN Security Council. President Obama has announced he will invoke U.S. veto power to defeat the effort.

The PA, however, has said if it fails in its Security Council effort it will seek recognition in the General Assembly, where the U.S. has no veto power. Indeed, the same configuration of votes that emerged at UNESCO will obtain at the General Assembly.

At that point, another law would seem to come into play. Public Law 101-246, Title IV provides: “No funds authorized to be appropriated by this act or any other act shall be available for the United Nations or any specialized agency thereof which accords the Palestine Liberation Organization the same standing as member states.”

Is General Assembly action regarding Palestinian statehood “UN action?” According to the UN Charter, it is the Security Council, not the General Assembly, that accords recognition and membership status. Only a convoluted and purely subjective application of the Charter would permit General Assembly action on Palestinian statehood.

And then there is the issue of America’s treaty obligations to the UN. The U.S. contributions to UNESCO are largely voluntary, so the U.S. is not bound by treaty to provide the suspended funds to UNESCO. On the other hand, it could be argued that U.S. contributions to the UN is governed by treaty and cannot be limited by American law.

These are things that will doubtless occupy lawyers should the PA effort proceed. But as noted, the more important concern is how the U.S. should proceed politically in the face of this challenge to its place in the world. The Palestinians and their supporters in UNESCO knew exactly the gauntlet they were throwing down in America’s direction.

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