May 30, 2011
There is considerable anxiety these days with regard to the threats of the Palestinian Authority (and now the Arab League) to ask the UN, in September, to officially declare "Palestine" to be a state.
Accompanying -- or fueling -- this anxiety is a great deal of misinformation. And so -- having consulted with legal experts here in Israel and done other research -- I will make my best effort to clarify a muddled situation.
What is referred to as "international law" is not nearly as clear or definitive as many people imagine it to be.
There are certain written documents of international law. The Geneva Conventions (four treaties and three protocols pertaining to human rights during war) would be a prime example. But technically these apply only to those nations that have ratified the conventions -- that is, that have agreed to abide by their stipulations. Similarly, there is the charter of the UN, the principles of which have theoretically been accepted by all member states.
There is also "customary international law": When a practice is so common that there is a broad international consensus that it is obligatory, it becomes a rule of customary law considered binding upon all nations.
Sometimes, even though a treaty (such as a Geneva Convention) is binding only on signatories, the principles stated within that treaty have been so widely accepted internationally that they can be said to be "customary international law."
This is what we have, broadly, from the perspective of international law with regard to the establishment of a Palestinian state:
The United Nations does not "recognize" or "declare" states into existence. All the UN can do is accept for membership states that are already in existence. (I'll come to this below.)
A state applies to the Secretary-General. The Security Council must then make a recommendation on membership and send that recommendation to the General Assembly.
But we can assume that the application by a Palestinian state would be vetoed in the Security Council by the US. This is close to a sure thing, because this is the principle on which Obama has advanced his policy and his public position: the state of Palestine must be established via negotiations. What is more, Obama is likely to be influenced by Congressional pressure and electoral considerations.
There is considerable talk among the Arabs now about going to the General Assembly for a declaration of statehood, to avoid that Security Council veto, but quite frankly, I don't know what they're thinking. In any event, a declaration of statehood for the Palestinians by the General Assembly would be only a recommendation without weight in international law. This is important to keep in mind.
Here I would like to stop for an aside: It is often said that Israel was voted into existence with the partition of Palestine recommended by the General Assembly on November 29, 1947. This is not the case. The GA, which only makes non-binding recommendations, did no more than suggest or advise that division of Palestine into states for the Jews and the Arabs would be prudent.
Israel came into being with the declaration of independence made by Ben Gurion on May 14, 1948. The Jewish community in Palestine acted in compliance with the recommendation of the GA regarding division of Palestine. But it was the Jewish community and its leadership, acting, that established the state, not the UN.
As to establishing a Palestinian state:
The PA must declare the state into existence. This it can do, independent of all other issues. There are, however, criteria for the establishment of a state that have been established in customary international law (drawing from the Montevideo Convention):
A state must have (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states.
It is the issue of defined territory that is most problematic.
Originally it was thought that a Fatah-controlled PA would make the declaration in Judea and Samaria. But now formation of a unity government with Hamas is in process. If that government is established, the "state," as it would be declared, would include Gaza.
But beyond this is the question of the border between the PA in Judea and Samaria, and Israel. The talk, of course, is of a Palestinian state to the '67 line. That line was an armistice line between Israel and Jordan in 1949, a line that, according to the terms of the armistice treaty, would not prejudice future negotiations on a final border. The armistice was abrogated in 1967, when Jordan attacked Israel. It is a line without meaning today.
Needless to say, the PA is not in control of all of the territory of Judea and Samaria, from the Jordan River to the '67 line. At most it controls area A, as defined by the Oslo Accords (encompassing the main Arab cities such as Nablus and Jenin -- where the IDF still does operations against terrorists), and partially controls area B.
I spoke yesterday with a lawyer from the Legal Forum of Israel who says the PA cannot declare a state on land it does not control. I have spoken with another legal expert who says they'll declare on all of Judea and Samaria, but will control less.
In other words, they'll do as they please -- undoubtedly, they will declare Jerusalem or part of it as their capital, as well -- regardless of international law.
What would follow next is the recognition of this state of Palestine by other states. The international status, the viability, of this state would be affected by how well recognized it was internationally.
We've already seen recognition by some states -- Brazil, Uruguay, Argentina -- in Latin America, which is interesting, as this has come before the PA itself has declared a state. But in any event it is the recognition of Western democracies that would make a real difference for the new Palestinian state.
What we are looking at is the possibility of recognition by European nations -- and it is these nations that Netanyahu has been lobbying in this regard. The Europeans must be convinced that a unilateral declaration of Palestinian statehood would be detrimental to peace in the Middle East and should not be supported.
It is the considered opinion of many, if not most, experts that nothing much will happen on the ground after that Palestinian state is declared. It is a certainty that no international force, UN or otherwise, is going to come in and push us back to the '67 line. And keep in mind that Israel is not going to recognize the state. Israel is highly unlikely to honor the inviolate integrity of this unilaterally declared sovereign state if it is necessary to pursue terrorists, and most certainly will not honor the unilaterally declared border.
The overriding concern with regard to this matter is not with legalities, but with politics. If Israel is perceived as "occupying" part of a Palestinian state, then there may be an increased effort at isolating and delegitimizing the Jewish state -- utilizing boycotts and sanctions. Thus, every possible effort is being made now to make Israel's case within the international community, and to bolster Israel's status. To that end, what Netanyahu just accomplished in the Congress is of enormous importance.
It must be noted as well that whatever I've said about international law, there is a tendency to ignore that law today and take action as it suits various parties politically.
In seeking to declare a state unilaterally, the Palestinian Arabs are hoping to circumvent the "end of conflict" that would come with a negotiated settlement. They are separating peace from statehood. This point cannot be over emphasized, and it is what the international community must understand. If there were a final peace accord, in theory, two states would stand side by side. As it is, they hope to declare their state and still go at Israel until she is no more.
What is more, unilateral declaration of statehood by the Palestinian Arabs represents an abrogation of agreements under Oslo (which created the PA in the first place). It also flies in the face of UN resolutions -- most particularly Security Council Resolution 242 of 1967 -- which call for a negotiated settlement on final borders.
A letter drafted jointly by lawyers of the Legal Forum for Israel and by Ambassador Alan Baker, Director of the Institute for Contemporary Affairs at the Jerusalem Center for Public Affairs, and signed by jurists and international lawyers from around the world is being sent to the Secretary-General of the United Nations.
It addresses the inherent illegality of the adoption of a resolution by the General Assembly recognizing a Palestinian state and its borders, and seems to be a move to block a worse case scenario in which the General Assembly ignores both its own rules and international law.
You can see it in its entirety here:
I would like to share three of the points made in the letter:
" While the Interim Agreement [of the Oslo Accords] was signed by Israel and the PLO, it was witnessed by the UN together with the EU, the Russian Federation, the US, Egypt, and Norway. It is thus inconceivable that such witnesses, including first and foremost the UN, would now give license to a measure in the UN aimed at violating this agreement and undermining major resolutions of the Security Council.
" While the UN has maintained a persistent policy of non-recognition of Israel's sovereignty over Jerusalem pending a negotiated solution, despite Israel's historic rights to the city, it is inconceivable that the UN would now recognize a unilaterally declared Palestinian state, the borders of which would include eastern Jerusalem. This would represent the ultimate in hypocrisy, double standards, and discrimination, as well as an utter disregard of the rights of Israel and the Jewish People.
" Such unilateral action by the Palestinians could give rise to reciprocal initiatives in the Israeli Parliament (Knesset) which could include proposed legislation to declare Israel's sovereignty over extensive parts of Judea and Samaria, if and when the Palestinians carry out their unilateral action."
Again, I point out that such a move by the General Assembly would carry no weight in international law, but might have negative political repercussions for Israel.
As to the last of the points in the letter above: Israel, as the PA, is bound by the Oslo Accords to resolve via negotiations issues of borders and status of territory in Judea and Samaria. Unilateral action is precluded. If the PA were to take unilateral action, it would abrogate Oslo and free Israel to move on annexation of at least Jewish communities in Judea and Samaria.
© Arlene Kushner. This material is produced by Arlene Kushner, functioning as an independent journalist. Permission is granted for it to be reproduced only with proper attribution.
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