Can the United Nations General Assembly make Palestine a state? The answer is no, and yes.
It appears that the Palestinians initially thought they could become a UN member state even if the United States vetoed their efforts in the Security Council. There was discussion a few months ago of a "Uniting For Peace" resolution in the UNGA, a procedure allowed by the UN Charter for action when the Security Council is tied in knots and unable to act. But UN lawyers soon clarified what is obvious on reading the Charter: that provision may be available for certain actions, especially dealing with threats to peace, but does not override the Charter provisions relating to membership. Chapter II, Article 4 says that “peace-loving states” that accept their obligations under the Charter are eligible for membership, but “The admission of any such state to membership in the United Nations will be effected by a decision of the General Assembly upon the recommendation of the Security Council.” Membership thus requires an affirmative recommendation by the Security Council and as well as an affirmative vote in the General Assembly. As the United States has told the Palestinians there would indeed be a veto, there will be no opportunity for "Palestine" to become a UN member state next Fall.
But the Palestinians may have a trick up their sleeve that could get them much of what they seek. While the General Assembly cannot alone grant UN membership to states, it can grant “permanent observer” status—something never mentioned in the Charter but now accepted by long practice. And indeed the PLO is an observer, elected in 1974, but its exact (and unique) UN status is as an “entity” that is a permanent observer. By contrast the Vatican has the status of being the sole "non-member state" that is a permanent observer. While the Vatican alone holds this status today, in the past Switzerland, Austria, Finland, Italy, and Japan have held it before becoming full members of the UN. The General Assembly has the ability to accord that “non-member state permanent observer” status to the PLO or to "Palestine." And that may now be precisely the Palestinian objective.
Within the UN, the change in Palestinian status would not matter much. All permanent observers, member states or not, have the same “standing invitation to participate as observers in the sessions and the work of the General Assembly.” The Palestinians can already attend and speak at meetings (as Yasser Arafat so memorably did in 1974, a gun holstered on his hip), and even with the new and elevated status would not have a vote.
But outside the UN, the change in status might matter a good deal. Today the Palestinians are unable to bring cases against Israel at the International Criminal Court, because only states can do so. If they try again after a UN vote gives them "non-member state" status, they can claim that the General Assembly has recognized them as a state and the ICC should follow that precedent. Governments that do not accord them full diplomatic status today might be tempted to follow as well. Campaigns against Israel for "occupying the territory of another state" might gain strength, and indeed the whole "BDS" or boycott, divestment, sanctions movement could.
Moreover, the Palestinians would have at least something to show for this year’s diplomatic campaign--besides frustration and some resentment in Washington and a few European capitals. They would have failed in their original goal but could claim at least a partial victory, even if real statehood continued to elude them.
That’s the rub, of course-- it would. Indeed it might be even further away, if the main effect of their campaign were to delay serious negotiations and further alienate Israelis and Americans. For in the end, it isn’t just the UN Charter that tells us the General Assembly cannot create a Palestinian state. Reality teaches the same lesson.
That the PLO is following this path suggests a lack of interest in the genuine negotiations that are the only real path to statehood. This is not surprising at a moment when Palestinian attention is mostly focused on domestic politics--Fatah vs. Hamas--and the PLO’s leader, Mahmoud Abbas, has his sights set on retirement next year. It may yet be possible for the United States to come up with a form of words that brings the two parties to the negotiating table this summer and thereby allows Abbas to back away from the UN shenanigans. But this entire episode reveals a lack of Palestinian seriousness about negotiations and suggests that, while talks may commence and avoid the September UN confrontation, they will go nowhere. Like the talks the United States engineered in September 2010, such negotiations might start with hoopla and ceremony, but would most likely break down in the subsequent few months.