Editorial: Repeal or Revise the anti-Palestine Legislation

The law which now requires U.S. funds to be withheld from UNESCO should be repealed or revised because it is outdated, ineffective, unnecessary, counterproductive, unclear, and potentially unenforceable. Its application to UNESCO has diminished U.S. diplomatic effectiveness, will in fact hurt the Israeli interests it was designed to protect, and -- most important -- will hurt a lot of innocent people. Readers are encouraged to contact their representatives in Congress and call for the law's repeal or revision.

The General Conference of UNESCO voted to invite Palestine to become a member state of the Organization on October 31, 2011. The actual membership is to take effect when Palestine submits its accession papers.

As the members of the General Conference had been warned, that action triggered two parts of U.S. law (US Code - Title 22: Foreign Relations and Intercourse / 22 USC 287 - Sec. 287e. Authorization of appropriations; payment of expenses):

• Pub. L. 101-246, title IV, Sec. 414, Feb. 16, 1990, 104 Stat. 70, provided that: "(a) Prohibition. - 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. "(b) Transfer or Reprogramming. - Funds subject to the prohibition contained in subsection (a) which would be available for the United Nations or any specialized agency thereof (but for that prohibition) are authorized to remain available until expended and may be reprogrammed or transferred to any other account of the Department of State or the Agency for International Development to carry out the general purposes for which such funds were authorized." 
• Pub. L. 103-236, title IV, Sec. 410, Apr. 30, 1994, 108 Stat. 454, provided that: "The United States shall not make any voluntary or assessed contribution - "(1) 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, or "(2) to the United Nations, if the United Nations grants full membership as a state in the United Nations to any organization or group that does not have the internationally recognized attributes of statehood, during any period in which such membership is effective."

The first provision is found in the Foreign Relations Authorization Act, Fiscal Years 1990 and 1991 and the second in the Foreign Relations Authorization Act, Fiscal Years 1994 and 1995. Those are unusual in that they do not provide the President the ability to wave the provisions if he determines doing so would be in the national interest.

The U.S. Government has announced that it is consequently withholding contributions to UNESCO. Both assessed contributions and voluntary contributions are being withheld. The United States remains a member state of UNESCO, and has in fact been newly elected to its Executive Board. If the United States continues to withhold all contributions until the next meeting of the UNESCO General Conference, it will not be allowed to vote in that conference.

Here are some reasons that the law should be revised or repealed.

The legislation is outdated: Since these provisions became law, the role of the Palestine Liberation Organization has changed, the Palestine National Authority has come into being, the Oslo accords and the Israeli-Palestinian Interim Agreement have been signed, and Palestine is reported to be recognized as a state by 127 UN member states. The United States and the other members of the Quartet are maintaining that a two state solution should be negotiated to settle the Israel-Palestine issues. 

The law is ineffective: It was intended to deny Palestinians membership in UN agencies until or unless a peace settlement was reached with Israel. UNESCO's General Conference voted membership for Palestine in full knowledge of the law. Several other UN agencies have constitutions that grant automatic membership on request from any national already a member of any UN agency. It seems likely that other UN agencies would also elect Palestine to membership if they received such a formal request.

The law is unnecessary: The Congress has the power of the purse and can vote to withhold funding from any UN agency as part of the annual appropriations legislation. Even without this law Congress has the power both to warn UN agencies of the consequences of admitting specific organizations or states to membership and withholding funds from agencies that do so in spite of the warnings. When the Palestinian membership was coming to the General Conference, letters were in fact sent from the House of Representatives to UNESCO informing the Secretariat and permanent representatives of member states to UNESCO that key committees would oppose funding UNESCO if it admitted Palestine. 

The law is counterproductive: As Representative Keith Ellison has pointed out, UNESCO activities "include core U.S. interests like literacy education for the Afghan National Police, supporting a free press in countries like Iraq, Tunisia and Egypt, and promoting Holocaust education in the Middle East." Some of these activities will be stopped specifically because already promised voluntary contributions for their support must now be withheld. (See also "Cutting Off Unesco, U.S. May Endanger Programs in Iraq and Afghanistan")

The meaning of the law is unclear: Does the United States withhold contributions forever from UNESCO now that it has voted to accept Palestine as a member state? Does the United States continue to withhold funding from UNESCO even if a peace treaty is successfully concluded and Palestine is successful in meeting all of the internationally recognized standards of statehood. If existing member states of UN agencies for some reason no longer meet all of those standards but are not ejected from membership, must the United States withhold funding from those agencies.

The law may not be enforceable. The Congress ratified the accession document to UNESCO which I am told has the force of a treaty. In joining UNESCO, the United States agreed to abide by its Constitution (which was largely an American creation) and that Constitution requires member states to pay their assessed contributions; the obligation to pay overdue contributions does not go away even if a member state withdraws from the Organization. The United States is a signatory to other UNESCO Conventions which have been ratified by the Congress, such as the World Heritage Convention which also requires funding from member states. Thus, if the U.S. Government is taken to court it may have to stop withholding assessed contributions in spite of the law cited above. I have been informed that those concerns actually resulted in the United States not withholding contributions from UNESCO when it was proposed to do so during the 1970s.

Final Comments: As the law applies to UNESCO

The United States Government is forced by this law to act like the kid who takes his ball home when he is not elected captain of the football team. Diplomats of other countries see this "poison pill" of a law as a bullying tactic by the United States. They not only see it as anti-democratic but as politicizing UNESCO debates that should not be politicized. As a result, the influence of U.S. diplomats in UNESCO governance and other international forums is weakened.

Perhaps surprisingly, while the law was intended to protect Israel, Israel may suffer from its application. The United States has been the most important defender of Israel's interests in UNESCO as well as in other UN venues. U.S. influence is greater as the respect accorded to our diplomats and their tactics is greater. As the threat of withdrawing funding is disliked so our influence is decreased and thus our influence in protecting Israeli interests from unfair attacks by other member states.

In my mind, the most important reason for restoring funding to UNESCO is that if we do not do so, innocent people will suffer. Kids who would have gotten to school because of UNESCO's influence will remain uneducated. People who could have been saved from the threat of flood or tsunami by UNESCO programs will not be saved because UNESCO didn't have the resources we had promised. Reporters who might have been saved from coercive governments by the influence of UNESCO in favor of freedom of the press and freedom of speech will lose some of that protection; the public will lose information that those reporters could have provided. People who might have found work in UNESCO promoted cultural industries will lose that opportunity. People who might have been saved from the impact of unethical behavior by scientists will not receive the protection that might have been offered by the UNESCO ethics programs. People who might have been better served by their governments because of the influence of UNESCO's Management of Social Transitions (MOST) program will lose that opportunity. 

Indeed, those of us who enjoy the Olympics may enjoy them a little less as UNESCO has less money to support the international convention against doping in sport. Those of us who enjoy visiting museums may enjoy them a little less as UNESCO has less money to support conventions to protect museum-quality artifacts and to support museum quality. Those of us who enjoy visiting sites such as the pyramids of Egypt, the Taj Majal, or the rose red city at the end of time (Petra, Jordan) may enjoy them less as UNESCO has fewer resources to advocate for their preservation and their appropriate presentation to visitors.

Recommendation

I will refrain from recommending to the Congress and the State Department how to deal with these laws. Those bodies are well able to deal with the specific issues of legislative reform.

For the readers of this blog, I recommend that you contact your Representative and your Senators and ask that they work to restore U.S. funding to UNESCO and that they reform the law to deal with the problems raised in the paragraphs above.

Here is the message I sent to my Representative in the House and to my Senators:

Recently the General Conference of UNESCO voted to offer membership in the Organization to Palestine. In response to the possibility of Palestine joining the Organization, the purpose of which is to build the defenses of peace in the minds of men, the United States is withholding all contributions to UNESCO, apparently permanently. This is due to clauses in the Foreign Assistance Authorization Acts for Fiscal 1990 and 1991, 1994-1995. 

That action has cost the United States soft power in the United Nations system. It has created a financial crisis in UNESCO. It is threatening programs in Iraq and Afghanistan funded by U.S. voluntary contributions and implemented by UNESCO, programs important to our interests in those countries. In two years, that action will cost the United States its votes in the next General Conference. In the long run it will have a negative impact on programs promoting education, science, the preservation of cultural heritage, and freedom of the press. 

Perhaps even worse, if Palestine follows through on announced plans and obtains membership in other UN organizations, the old clause in the Authorization will require the United States to withhold funding from such agencies as the International Atomic Energy Agency, the World Intellectual Property Organization, the International Telecommunications Union, the World Health Organization, and the Food and Agriculture Organization. 

Ideally the clause should be repealed and decisions on the funding of these agencies made in the normal appropriations process. At a minimum, the clause should be amended to allow the President to waive the requirement to withhold funding when he determines that action is to the overall foreign policy advantage of the United States.

John Daly

The opinions expressed in this post are those of the author, and do not necessarily represent those of Americans for UNESCO.