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Views on a new Near East
Wednesday April 16th 2014

Poison Pill: How a US Law is Crippling America’s Ability to Protect Israel

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By Dylan J. Williams

Dylan J. Williams is Director of Government Affairs at J Street, and former counsel for Foreign Relations, Trade and Immigration to United States Senator Olympia Snowe (R-ME). He holds a law degree and bachelor’s degree in government from Cornell University.

The Palestinian bid for United Nations membership has spurred a forceful opposition campaign by many of the American-Jewish community’s institutions. Israel’s friends in the United States are right to be concerned that full Palestinian membership at the world body would expose Israel to a greater range and magnitude of diplomatic challenges. Their efforts have assured that the US administration will use its veto if necessary to prevent the Palestinian application for membership from proceeding beyond the Security Council.

Yet a much more serious threat to Israel’s interests looms from the interplay between US law and the easily achievable Palestinian gambit of gaining membership at more than a dozen UN-affiliated organisations with their own rules for admission. It is a diplomatic doomsday scenario that has already begun to destroy America’s influence in global affairs, and could ultimately leave Israel all but defenceless against international delegitimisation efforts, as well as more vulnerable to the threat of a nuclear-armed Iran.

This is the perverse outcome of two laws from the 1990s which independently operate to prohibit US funds from flowing to any UN organ that admits a Palestinian entity as a full member prior to the resolution of the Israeli-Palestinian conflict. The first of these laws, enacted in 1990, proscribes American payments to the “United Nations or any specialized agency thereof which accords the Palestine Liberation Organization the same standing as member states.1 A 1994 law further prohibited US funding of the United Nations or “any affiliated organization” of the UN, “which grants full membership as a state to any organization or group that does not have the internationally recognized attributes of statehood.”2

The notion that these provisions would help prevent an independent Palestinian push for international recognition of their statehood may have seemed plausible during the heady years of apparent American ascendance following the destruction of the Berlin Wall and the collapse of the Soviet Union. At a time when many regarded American hegemony as a pre-destined and permanent feature of the world order, UN-affiliated entities were particularly reticent to forgo active US participation and funding – typically constituting a quarter or more of its budget.

But by October 2011 – when an overwhelming majority of United Nations Educational, Scientific and Cultural Organisation (UNESCO) member states voted to admit Palestine as a full member – the fantasy of eternal American primacy had been obliterated. After a decade marked by military overreach, financial crisis and the rise of the BRICs, the United States is no longer regarded as the indispensible nation, and the laws that once acted as a potent deterrent to the Palestinians have become a poison pill threatening essential American and Israeli interests.

Events since the UNESCO vote bear out a scenario that could be repeated more than a dozen times at other UN-affiliated entities where the Palestinians may seek membership.

President Barack Obama’s administration acted swiftly in applying US law to suspend payments to UNESCO on the day of the vote, leaving the agency with a US$65 million shortfall in its 2011 budget. Among the first casualties of the cutbacks needed to fill this gap was a US-funded project to train Iraqi judges and the local media. They were to report on court proceedings to better ensure an impartial and transparent legal system in their home country. As the former American head of the UNESCO office in Baghdad lamented, “An Iraq at peace with itself and with its neighbours is in our national interest … A law that is no longer relevant threatens our security, undermines our national interest and relegates us to the bleachers when we have for so long been a leader on the world stage.”3

But frustration of American priorities, including those – such as the Iraqi example – that enhance Israel’s security, is merely the first of the poison pill laws’ troubling side effects. Sustained non-payment of US contributions will result in major budget shortfalls at UN-affiliated agencies that are likely to have far more serious consequences for the United States and Israel.

The United States would be subject to removal from nearly all UN-affiliated agencies after two years in arrears of its contributions. Supporters of Israel troubled by some of UNESCO’s actions – such as its March 2010 designation of Rachel’s Tomb in Bethlehem as a “Palestinian site” that is “home to the Bilal Ibn Rabah Mosque”4 – should expect the frequency and hostility of decisions against Israel’s interests to increase in the absence of the moderating influence of the American voice and vote.

The United States’ forced abandonment of UN-affiliated entities will not merely deprive Israel of its most powerful protector in world bodies, it could also invite countries often at odds with American and Israeli vital interests to fill the leadership vacuum created by the loss of the primary funder. In the case of UNESCO, there has been discussion of Arab states making up the budget shortfall.5 It is hard to imagine Israel getting a fairer shake from a UNESCO whose largest funding bloc consists of states that do not recognise its existence. Nor should American Jews or Israelis feel comfortable leaving one of UNESCO’s two global priorities – gender equality – in the hands of countries with troubling records on the treatment and rights of women.

The poison pill laws could prove toxic to US and Israeli interests vis-a-vis more than a dozen other UN-affiliated agencies following the same disastrous pattern already at work in UNESCO. Take for example the case of the World Intellectual Property Organisation (WIPO). WIPO is the primary forum in which countries deliberate and decide on mechanisms to protect Intellectual Property Rights (IPR). The State Department argues that it is essential to have an American voice at the organisation, which “helps U.S. companies protect their intellectual property around the world.”6

Yet the Palestinians now have the ability to join WIPO as a matter of right following their successful UNESCO bid. Should they do so, the poison pill laws would trigger US defunding and likely extrication from the organisation. A diminished and ultimately silenced American voice at WIPO could negatively impact global IPR protection and IPR-dependant industries in the United States and Israel, imperilling the livelihoods of millions of their workers and investors in precarious economic times. Recalling Arab states’ overtures to take up American slack in UNESCO, would the innovative, high-tech Israeli companies forming the economic backbone of the “Start-up Nation”7 really benefit from opening the door to, say, Chinese primacy at WIPO?

It is a disastrous scenario that could be played out at a diverse range of UN-affiliated agencies, including the International Telecommunications Union (which coordinates international communications connectivity), the International Civil Aviation Organisation (which prevents air collisions and accidents by setting standards and regulations necessary for aviation safety, security, efficiency and regularity) and the World Health Organisation (which helps coordinate international responses to transnational health crises and provides guidance to countries on preparing for and responding to chemical and biological warfare attacks).

Maintaining American influence and unfettered Israeli participation in the multilateral organisations that keep us in touch with the outside world, planes in the sky and deadly pandemics at bay is inarguably a vital interest of both allies. Yet the risks to US influence and Israeli security posed by the poison pill laws are perhaps most clear in the context of one organisation that many do not even realise is an UN-affiliated entity: the International Atomic Energy Agency (IAEA).

The IAEA is a multilateral body charged with ensuring the peaceful development and use of nuclear energy sources. Among its better-known responsibilities is monitoring individual countries’ nuclear energy programmes, “independently verif[ying] the correctness and the completeness of the declarations made by States about their nuclear material and activities.”8 Of primary importance to the United States and Israel is the IAEA’s performance of these duties with respect to Iran’s nuclear program.

A nuclear-armed Iran would pose a very serious security threat to the United States, and even an existential threat to its ally Israel. The absolute centrality of the IAEA’s monitoring function to efforts aimed at preventing Iran from obtaining nuclear weapons capability was demonstrated in November 2011, when the IAEA released a report detailing troubling steps taken by Iran in connection with its nuclear programme – steps which US intelligence agencies had reportedly missed. The report catalysed the United States and other western allies behind new sanctions and other efforts intended to undermine further Iranian progress toward nuclear arms.9

It is a chilling realisation that these facts may not have come to light had the Palestinians opted to join the IAEA at any point in the last two decades, triggering the US poison pill laws. Should the Palestinians decide to do so in the future, we can expect the same dangerous pattern of waning US influence to play out, unacceptably imperilling our and Israel’s most essential shared security interests.

The United States currently contributes US$110 million annually to the IAEA – as is typical, about a quarter of its budget. The sudden loss of its largest source of income would dramatically limit the IAEA’s ability to perform its core functions, including the monitoring of nuclear programs. As happened in the case of UNESCO, one could expect functions of particular importance to the United States and Israel – such as the monitoring of Iran’s nuclear programme – to be among those scaled back, if not suspended outright. As Ploughshares Fund’s (and a predecessor at J Street) Joel Rubin argued, “It’s hard to imagine a more self-destructive policy for American efforts to stop an Iranian bomb.”10

While limiting the IAEA’s ability to monitor the Iranian nuclear program would in itself provide a dangerous opening for Iran to advance its work with a greatly reduced threat of detection, the next event in the pathology of the poison pill would be catastrophic for the United States and Israel: the loss of the American voice and vote at the agency. It would mean the inconceivable extrication of the world’s most powerful anti-proliferation champion from the body tasked with preventing the spread of nuclear weapons at a time when Israel’s already tumultuous neighbourhood stands on the precipice of an atomic arms race. Moreover, it would leave Israel utterly exposed to more frequent and intense pressure over the nature of its own applications of nuclear technology from which it has long been shielded by the United States.

And there is little doubt which countries have the means to fill the budgetary and associated leadership vacuum that would be created by the US departure. The third and final assault of the poison pill on the IAEA could well be to seat Russia or China – historically Iran’s chosen purveyors of nuclear fuel and technology, as well as its reliable blocking backs in the UN Security Council – at the head of the IAEA’s table.

This is an outcome that Israel and its American supporters cannot accept. Yet with the stakes set so high, it is astonishing that US law has put the switch to set these events in motion squarely in Palestinian hands. Should Congress decline to change these laws, it will cede to the very Palestinian government it seeks to outmanoeuvre the power to set the timeline for American retreat and Israeli vulnerability in the United Nations.

It is therefore incumbent on pro-Israel Americans and the communal institutions which represent them to campaign for the modification or repeal of the poison pill laws. In doing so, US Jewish leaders can draw upon a deep understanding in our community of the strategic necessity of continued American engagement at the United Nations. More than two-thirds of American Jews view the United Nations as playing a “very” or “somewhat important” role “in promoting international peace and security, developing friendly relations among nations, and promoting social progress, better living standards, and human rights.”11

This community is rightly loathe to abdicate leadership in the United Nations to the detriment of their country and the national homeland of their people. It is the responsibility of their institutional leaders in Washington to urgently convey that message to Congress, and put their full weight behind an effort to change the law.

1. Pub. L. 101-246, title IV, Sec. 414, February 16, 1990, 104 Stat. 70.

2. Pub. L. 103-236, title IV, Sec. 410, April 30, 1994, 108 Stat. 454.

3. George Papagiannis, “Outdated Law Blocks US Funding UNESCO,” Roll Call, December 1, 2011, http://www.rollcall.com/issues/57_67/george_papagiannis_outdated_law_blocks_us_funding_unesco-210670-1.html

4. UNESCO Executive Board Report, “Tomb of the Patriarchs, Rachel’s Tomb,” March 19, 2010, http://unispal.un.org/UNISPAL.NSF/0/8F8CBDCA74D7D20385257721007157CF

5. Steven Erlanger, “Palestinian Bid to Join UNESCO Could Imperil U.S. Funds,” New York Times, October 23, 2011, http://www.nytimes.com/2011/10/24/world/middleeast/palestinian-bid-to-join-unesco-could-imperil-us-funds.html?pagewanted=2&_r=2&ref=middleeast

6. U.S. Department of State WIPO Briefing, October 31, 2011, http://www.state.gov/r/pa/prs/ps/2011/10/176417.htm

7. Senor, Dan, and Saul Singer. Start-up Nation: the Story of Israel’s Economic Miracle, (Twelve Books, 2009), http://www.amazon.com/Start-up-Nation-Israels-Economic-Miracle/dp/044654146X

8. See: http://www.iaea.org/OurWork/SV/Safeguards/what.html

9. Implementation of the NPT Safeguards Agreement and relevant provisions of Security Council resolutions in the

Islamic Republic of Iran, IAEA, November 8, 2011, http://www.iaea.org/newscenter/focus/iaeairan/bog112011-65.pdf

10. “Why does Congress want to make us blind in Iran?” Joel Rubin, The Jewish Chronicle, November 17, 2011, http://thejewishchronicle.net/view/full_story/16466637/article-Why-does-Congress-want-to-make-us-blind-in-Iran-?instance=news_style

11. J Street National Survey of American Jews, July 7-12, 2011, http://2011poll.s3.amazonaws.com/J_Street_Survey_July%202011_Final_Results.pdf

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