ASKED & ANSWERED: Brad Roth

By Jo Mathis Legal News The historic Palestinian bid for statehood went before the United Nations Security Council this week, three days after Palestinian Authority President Mahmoud Abbas made the bid for the United Nations to recognize an independent state of Palestine. The Legal News talked to Wayne State University Law School Professor Brad Roth, an authority on international law, about the issue. Mathis: How would international law be affected by this resolution? Roth: First, the United Nations does not have the formal authority to create a state. Full admission of Palestine to the UN -- through a vote of 9 out of 15 Security Council members with no vetoes from any of the Permanent Five, followed by a two-thirds vote of all General Assembly members present and voting -- would nonetheless be a virtually conclusive indication that Palestine possesses those rights, obligations, powers, and immunities that are possessed by states and only by states. In voting affirmatively for full membership, states would be expressing a legal judgment that Palestine fulfills the membership criteria set out in the UN Charter. There is thus an indirect sense in which full membership can be thought of as "creating" statehood, even though statehood status is supposed to be ascertained from objective criteria. Mathis: What happens if the Security Council rejects the bid for statehood? Roth: Assuming that Security Council approval is not forthcoming -- and the U.S. has pledged to veto it -- the General Assembly could still go forward with a resolution of some sort, most likely one that would elevate Palestine to "observer state" status (from its current "observer" status). That slightly enhanced status itself would have almost no practical significance, but the resolution would provide the occasion to express a legal judgment that Palestine bears the rights, powers, obligations, and immunities of statehood. The General Assembly attempted such an articulation in the past, with respect to a "people" that it similarly deemed to have the "right of self-determination," where the people's recognized national liberation movement had gained partial control of the officially designated "non-self-governing territory." This was the case of the Portuguese colony of Guinea-Bissau in 1973, in the midst of its anti-colonial war. Despite continued Portuguese military control of population centers, the General Assembly resolution in that year ascribed sovereignty to Guinea-Bissau, thereby casting the Portuguese in the role of unlawful occupiers. The vote was 93 in favor to 7 opposed, with 30 abstentions, though none of the major Western states voted in favor. This example serves as an illustration of the possibilities and limits of General Assembly authority: On the one hand, a majority of countries (the Socialist and Non-Aligned states, otherwise known as the "Second" and "Third" Worlds) indicated their legal judgment that Guinea-Bissau possessed the rights, powers, obligations, and immunities of statehood. But the General Assembly has no legislative authority; a substantial part of the international community withheld this legal judgment, and the legal judgment of the majority was powerless to establish legal obligations of the minority toward Guinea-Bissau. A broad cross-section of the international community, indicating a near-consensus insisting on adherence to non-derogable obligations owed to Guinea-Bissau as a state, might have succeeded in changing the legal status quo, but this was not achieved. Thus, the General Assembly resolution fell short of its goals. The point became moot the following year, when Portugal relinquished the territory. An analogous Palestine resolution in the General Assembly may have a similar outcome, strengthening the Palestinian position but falling short of establishing new legal obligations for non-consenting states. Mathis: What do you think about the United States' position? What options are available to countries such as the United States who oppose creating a Palestinian state in this manner? Roth: The Palestinian proposal highlights the increasing isolation of the United States on this issue. A veto will have unfavorable public relations consequences at a moment of political change and uncertainty in the Arab world. This situation gives the Palestinians a modicum of leverage vis-à-vis the U.S. for the potentially substantial time period between the moment of the proposal's submission and the Security Council vote. Eager to avoid a vote, the U.S. will undoubtedly make one last push to restart negotiations. A sufficiently bold effort in this respect might be of greater significance than the actual Security Council vote, and Palestinian President Abbas may be counting on just this. If the Israeli Government were led by an Ehud Olmert or a Tzipi Livni, one might forecast this dynamic to be potentially productive. Benjamin Netanyahu, however, has shown a deep commitment to his hard-line coalition partners (led by his highly provocative Foreign Minister, Avigdor Lieberman), and seems unwilling -- despite the opportunities afforded by the weakness and fragmentation of rival parties -- to reconfigure his government in a manner that would enable significant concessions. Moreover, Netanyahu seems to believe that he can outlast President Obama, or at least defy him with little serious adverse consequence. In this regard, he has been bolstered by expressions of support from the U.S. Congress. Mathis: Can you explain your stance, as outlined in your book, "Sovereign Equality and Moral Disagreement," that sovereignty is central to pluralism in the emerging global order? Roth: The international legal order is properly understood as a moral project, but not as a project designed primarily to facilitate the pursuit of justice, and especially not justice within states. Rather, that order is best understood as embodying an accommodation among actors bearing both disparate interests and disparate moral principles. Despite considerable convergence of opinion about standards of public order over the past two decades, there remains persistent disagreement about fundamental aspects of political morality. Public law--international and domestic--functions to confer on the exercise of power a legitimacy that transcends disagreement about substantive justice. A sovereign-equality-based international legal order serves as a constraint on self-help, denying the strong license to pursue justice as they perceive it. At issue, in particular, are the inviolabilities of weak states, and the extent of any licenses for supposedly enlightened great powers to intervene coercively in the affairs of weak states. The book attempts to counter demands for the expansion of unilateral measures, such as non-Security-Council-authorized humanitarian intervention and extraterritorial prosecution of foreign-state officials and ex-officials in domestic courts. While the book endorses both humanitarian intervention in cases of impending humanitarian catastrophe and extraterritorial prosecution of perpetrators of uncontroversial barbaric acts, it cautions against efforts to broadly redefine sovereignty "as responsibility" and to sweepingly disallow "impunity." Although widely viewed as progressive, these efforts represent, in a horizontal system, potential threats to constraint on untrusted and untrustworthy implementers of a supposed universal justice. In demanding that nothing be allowed to stand in the way of justice, advocates for desired outcomes confront international mechanisms that operate primarily on the basis of sovereign state consent and consensus. They thus generate demands that exceed the institutional capacities of the international system. The quest for a justice that transcends sovereign equality leads to a fork in the road: one path leading to frustration and disillusionment; and the other leading to an unbounded recourse to unilateralism. It is my goal to steer away from this fork in the road by promoting a more realistic understanding of the inherent nature, potential, and limitations of the international legal order. Published: Fri, Sep 30, 2011

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