UN Recognition Of A Palestinian State? There's Just One Snag

From Foreign Policy, Steven Rosen writes about the one internal condition of the UN for recognizing a second Palestinian state that is lacking:

In a few weeks, an overwhelming majority in the United Nations General Assembly will likely vote for collective recognition of a Palestinian state. But which Palestinian state? Of the three Palestinian states the assembly could recognize, two are real and arguably could meet the requirements for statehood. But it is the third, purely imaginary one that the assembly will endorse, one that neither has a functioning government nor meets the requirements of international law.

According to the prevailing legal standard, the 1933 Montevideo Convention on the Rights and Duties of States, a "state as a person of international law should possess the following qualifications: a) a permanent population; b) a defined territory; c) government; and d) capacity to enter into relations with the other states." Both the Hamas-controlled Palestinian entity in Gaza and the rival Fatah-governed Palestinian entity in the West Bank can be said to meet all four of these criteria of the law of statehood. The one on which the United Nations will vote does not.

So how exactly do Hamas and the Palestinian Authority stack up?


As Rosen describes it, Hamas has:

• A permanent population in Gaza in a defined territory based on the armistice lines of 1949).
• Gaza has a functioning government (firing rockets at civilians in Israel in Israel might not count)
• Hamas does have international relations with a large number of states (the one it threatens to destroy may not be an issue)

Likewise the Palestinian Authority in Judea and Samaria:

The PA is a functioning government (no one said it has to function well)

• It has a permanent population with a defined territory (areas A and B as defined by the Oslo II agreement of September 1995)
• There is a functioning government
• The PA, too, has international relations with a number of state (the fact that it's most to ask for funding without which the PA can barely function is irrelevant.)

So far, so good--at least as far as Hamas and Fatah are concerned.
They run into a problem however because of a self-imposed issue--The Palestinian Authority has been making additional demands of Israel, not to mention that Hamas claims Israel as part of a Muslim state

As a result:

Their minimum demand is a state that includes Gaza along with the West Bank, the eastern part of Jerusalem, and all the other parts of mandatory Palestine that were under Jordanian and Egyptian control before 1967. Fatah, the PA, and the PLO are demanding title to lands and authority over populations they do not control, being as they are under the rule of Hamas and Israel.

Unlike the two Palestinian entities that already exist, either of which could be recognized as a Palestinian state because they seem to fulfill the legal requirements, the Palestinian entity that a General Assembly majority will recognize as a state this September does not actually exist on Earth. It is imaginary and aspirational, not real. And it does not meet the legal requirements.

More problems for the proposed Palestinian state:

• As a result of Hamas and Fatah working together for a Gaza/West Bank state, there is the fact that Abbas in fact is no longer president of what would be a Palestinian state--but has not been recognized by Hamas as a leader for years. And Hamas has Palestine's own laws on its side in this dispute. When Abbas was elected in 2005, his term ended January 2009. At that point, he extended his term until January 2010--but according to Article 65 of the Palestinian constitution, the Basic Law, Abbas could not do that. Thus, the actual current president of Palestine, since 2009 is PLC Speaker Abdel Aziz Dweik--who just so happens to represent. Also, keep in mind that Hamas in Gaza has its own laws, separate from those of the Palestinian Authority.
  
  
• Since is not legally president Hamas does not recognize Salam Fayyad appointment as prime minister. Thus Fayyad has no power since Article 66 of the Basic Law has not been adhered to and neitherFayyad's appointment on June 15, 2007, nor his reappointment on May 19, 2009, was confirmed by the PLC as required. According to Hamas the legal prime minister of the Palestinian Authority is Ismail Haniyeh, also of Hamas. Abbas fired Haniyeh after the Gaza coup, but that is in violation of articles 45, 78, and 83 and that he continues to exercise prime ministerial authority under Article 83. Again, Hamas has the law on its side.
  
  
• The proposed Palestinian state has thus far demonstrated a lack of ability to hold presidential or legislative elections as per Article 47 of its Basic Law--and those elections are long overdue.
  
  
• The Palestinian legislature never meets. From the time it was elected on Jan. 25, 2006, for a 4 year term, the PLC has enacted no laws, passed on no ministers, and conducted no meetings since 2007. Instead, Abbas has taken upon himself to make the laws as decrees

One wonders if the Palestinian Authority actually qualifies as a working government--or at least a legal one.

Bottom line, for the General Assembly to recognize a Palestinian state at this time amounts to creating an imaginary state--not that one would put that past the UN.

Rosen concludes:

General Assembly will create an imaginary state that has two incompatible presidents, two rival prime ministers, a constitution whose most central provisions are violated by both sides, no functioning legislature, no ability to hold elections, a population mostly not under its control, borders that would annex territory under the control of other powers, and no clear path to resolve any of these conflicts.

He finishes with the suggestion that if the General Assembly pursues this path, it is likely to end with a civil war.

That, of course, is not a problem.
Israel would take the blame for the UN's negligence.

Technorati Tag: Gaza and West Bank and Palestinian State and UN.