By Paul Parker
The United States’ efforts to block Palestine’s membership in the United Nations perpetuate Palestinian suffering, Israel’s international vulnerability, and instability throughout the region if not the world. If the US were to reverse course and support Palestine’s membership in the UN, Israel and Palestine would then have access to the institutions of international law that possess the means to help construct peace, justice, and security for which both countries plead.
The status quo is crumbling before our eyes: the global Boycott, Divestment and Sanctions movement against Israel grows daily; Palestine has been repeatedly admitted to international bodies open exclusively to states; over two-thirds of the world’s countries have recognized Palestine as a state; the power of AIPAC (American Israeli Public Affairs Committee) highlights the weakness of Israel; Israeli politicians worry publicly about Israel’s drift toward an apartheid state; Israel’s own diverse population is increasingly restive; and the American public, media, and even the military are asking about U.S support of Israel’s occupation of Palestine.
The claim that Palestine is not a state and therefore cannot join the UN is spurious according to the authoritative principles of international law contained in the 1933 Montevideo Convention on the Rights and Duties of States. This global ‘gold standard’ for statehood enshrines the declarative theory of state sovereignty and the four criteria of statehood: a permanent population; a defined territory; government; and capacity to enter into relations with the other states. Palestine is seeking membership in the UN—not statehood and not recognition. (See John Quigley’s “The Statehood of Palestine: International Law in the Middle East Conflict”.)
A Permanent Population: From antiquity, Palestine has had a remarkably stable population. Even today, the Jewish settlers in the West Bank do not mitigate Palestine’s permanent population. For Gaza and the West Bank, the areas that Palestine claims as its state, the population would be virtually 100% Palestinian if all the settlers were to return to the State of Israel. Or, if all the settlers were to remain in the West Bank as new citizens of the State of Palestine, the Jewish portion of Palestine’s population would be less than 13%. Or, another option would be for the settlers to remain in Palestine as Israeli citizens with Palestinian visas. None of these scenarios alters the permanence of the Palestinian population, and all of them have been discussed by Palestinian leaders.
Moreover, Palestinian refugees within Gaza and the West Bank do not compromise Palestine’s citizens, nor do the refugees in neighboring states. The overwhelming majority of refugees will either return to Israel where they lived previously or be absorbed by their host countries and the international community with citizenship and compensation. Only a relatively small portion of the refugees would move to Palestine, and not in such numbers as to be destabilizing. Palestine’s population is strong, growing, and permanent. By the first criterion of the Montevideo Convention, Palestine is a state.
A Defined Territory: Palestine has been a well-defined territory historically, lying in the most western portion of Asia, south of Lebanon, and north-northeast of Sinai. In 1922 the League of Nations confirmed the British Mandate which mapped the precise borders of Palestine. In 1947 the UN’s General Assembly again affirmed the borders of British Mandated Palestine in Resolution 181 the kernel of which reads: “Independent Arab and Jewish States . . . shall come into existence in Palestine.”
Although the size and borders of Palestine have changed over the centuries and are now in dispute, the territory of Palestine still exists. Many states have lost land and changed boundaries without loss of statehood. The CIA World Factbook identifies over one hundred on-going border disputes between sovereign states. India/Pakistan, Japan/Russia, Egypt/Sudan, South Africa/Swaziland, Turkey/Armenia, and Croatia/Slovenia are among the many states with current territorial disputes. Lost land and disputed borders do not negate statehood.
Since I967 Israel has militarily occupied Palestine’s Gaza Strip and the West Bank against the will of its population in what Israel’s Supreme Court (Tamimi v. Minister of Defense, 1985), the UN Security Council (Res. 1322), the UN General Assembly (Res. 61/184), and the International Court of Justice (2004) have all determined is a “belligerent occupation.” The occupation accounts for many of the limits placed on the State of Palestine, but it does not vacate Palestine’s statehood. Poland, Czechoslovakia, Latvia, Lithuania and other states remained states when they were under belligerent occupation—and so does Palestine.
The noncontiguous nature of Gaza and the West Bank does not invalidate the Montevideo Convention’s territorial criterion for statehood. Many countries have noncontiguous territory such as Denmark, Canada, Argentina, and even the United States. By the second criterion of the Montevideo Convention, Palestine is a state.
Government: Palestine has a government, albeit one historically conditioned by the “tutelage” of Britain, then the “trusteeship” of Jordan and Egypt, and now the belligerent occupancy of Israel. Under the British Mandate, the government of Palestine issued Palestinian passports and extended naturalized Palestinian citizenship to immigrants with the oath, “I swear that I will be faithful and loyal to the Government of Palestine.” (Norman Bentwich, “Palestine Nationality and the Mandate, Journal of Comparative Legislation and International Law, vol. 21, 230, at 232, 1939; emphasis added) Today, the government of Palestine continues to elect governing officials, provide civil services, legislate and enforce law, adjudicate civil and criminal cases in courts of law, and issue passports that are accepted worldwide including by the U.S. and Israel. Incredulously, although the government of Palestine has signed treaties and entered diplomatic relations with more than two-thirds of the world’s countries, the U.S. has criticized Palestine’s bid for UN membership as “unilateral.” Nothing could be further from reality.
Even Israeli Prime Minister Benjamin Netanyahu has acknowledged and bitterly complained that the government of Israel has accepted that Palestine is a state with a government although not formally recognized. In 1993 one week after PM Yitzhak Rabin formally recognized the PLO and signed Oslo Accords, Mr. Netanyahu politically eviscerated him from the floor of the Knesset with repeated condemnations: “Despite its denials, this government has accepted the creation of a Palestinian state . . . . Even if the words ‘a Palestinian state’ are not mentioned, you do not need a sign; this is a Palestinian state.” (BBC Summary of World Broadcasts, Sept. 23, 1993, ME/1801/MED, at 6, available at LEXIS, News Library, BBCMIR File. Italics added.) Who would sign the Oslo Accords with the government of the State of Israel if not the government of the State of Palestine?
Divided governmental control of the Palestinian Authority between Fatah and Hamas does not negate Palestine’s statehood although it does make governance more difficult. Many states have had coups and revolutions with weak, divided, or temporary governance, yet remained states. Turkey has suffered through a half dozen coups yet remained a state with membership in the UN. And consider the changes in governments and contested governments in Iraq, Iran, Afghanistan, and the 2011 ‘Arab spring’ states all of which have had divided governments and then radically different governments, yet remained states and UN members.
Is Palestine’s government illegitimate because it includes Hamas which in its Charter opposes the existence of the State of Israel? No, not unless Israel’s government is illegitimate because it includes Likud which in its Platform “opposes the establishment of an independent Palestinian state.” (http://www.jewishvirtuallibrary.org/jsource/Politics/likud.html). In democracies, the diverse voices of the entire population are a mark of political health.
Palestine’s commitment to democracy is also its reason for not affirming that Israel is “a Jewish state.” Palestine has recognized the State of Israel in its 1988 Declaration of Independence and in the 1993 Oslo Accords, and repeatedly since then, but not as “a Jewish state.” Just as President Truman explicitly struck “Jewish state” from America’s recognition of the State of Israel in May 1948 (He literally drew a line through the phrase, “Jewish State,” and in his own hand wrote, “State of Israel”), Palestine refuses to recognize Israel as a “Jewish state.” To do otherwise, firstly, would justify Israel’s denial of equal civil rights for its non-Jewish citizens, more than 20% of its population. And, secondly, it would preempt the diverse citizens of Israel from determining their own national identity. The character of Israel is to be determined by the religiously, ethnically, and ideologically diverse population of Israel, not Palestine. It would be undemocratic for the State of Palestine to recognize the State of Israel as Jewish. (For President Truman’s recognition of the State of Israel with his deletion of “Jewish State” see, http://www.trumanlibrary.org/exhibit_documents/index.php?tldate=1948-05-14&groupid=3429&pagenumber=1&collectionid=ROIexhibit)
After 90 years of European and Israeli overlords—and before these, the Ottomans—Palestinians yearn for their government to be free from external domination. America and Israel may not approve of the government of Palestine, or for that matter the governments of France, Cuba, Turkey, or Russia, but they are all still states. And just like Israel, and every other country in the world, any Palestinian government will retain the right to use military force in its national interests and will be held accountable by the international community for military activity. By the third criterion of the Montevideo Convention, Palestine is a state.
International Relations: Palestine not only has the capacity to enter into relations with other states, it has formal diplomatic relationships with over 130 countries and is a member of almost thirty international organizations that are open exclusively to states. Clearly, there is nothing unilateral or hypothetical about the State of Palestine’s bid for UN membership.
Yet Palestine is still widely misreported as a territory seeking UN “recognition.” According to its Charter, the UN does not possess the authority to recognize a state, and Article 3 of the Montevideo Convention explicitly affirms that “the political existence of the state is independent of recognition by the other states.” Palestine does not need recognition by the US or Israel to be a state; it is already a state. What Palestine needs, however, and what Israel and the entire world need, is Palestine’s acceptance as a Member state of the UN or as a Permanent Observer nonmember state. Israel and the United States’ formal recognition of the State of Palestine is a domestic political question that Israelis and Americans will resolve in their own time. For UN membership, Article 4 of the UN Charter requires only that an applicant is a state, not diplomatic recognition of that state—and Palestine is a state.
As long as Palestine is banned from the UN, neither Palestine nor Israel has any option to resolve what they consider the unjustified actions of the other except violent retaliations or the interminably fruitless ‘peace negotiations’ regularly suspended by eruptions of war and terrorism. As everyone knows who has ever studied physics, history, or political science, to maintain the status quo is impossible. Inflamed passions for retribution in Israel and Palestine are a constant threat to world peace and relate directly to Al Qaida, Iran, Iraq, Syria, and the Arab spring countries.
But if Palestine were accepted as a Member or Permanent Observer in the UN, Israel and Palestine could take each other to the International Court of Justice or the International Criminal Court to charge the other with specific crimes or to resolve disputes over roads, walls, borders, houses, settlements, air space, and natural resources. Currently, these courts and the Geneva Conventions cannot be invoked directly; but if Palestine were a Member or Permanent Observer of the UN both states could use the tools of international legal institutions that are more insulated from the pressures of domestic politics to resolve conflicts without violence. This is the function of the United Nations: nonviolent resolution of international disputes.
Palestine’s membership in the UN is the key to Israel’s security and full international support and to Palestinian freedom, equal rights, and the resolution of the refugees’ right of return. Qassam rocket launches and drone missile attacks can be answered with international sanctions, not further violence; home demolitions and land confiscation can be addressed in the international courts not the streets. Cross-border kidnappings, shootings, and assassinations can be treated as criminal acts not terrorism or military actions. And Palestine’s UN membership paves the way for both states to come to terms with the Arab Peace Initiative that promises to integrate Israel into its Arab ‘neighborhood’ which Israel has long described as hostile to its existence. For peace, justice, freedom, and security, nothing is quite as powerful as political equality.
Palestine’s membership in the UN does not require that it remains an independent state totally separate from all other states unless Palestine and the other states choose separate and independent states. International law affirms that independent states may freely associate to form a new state (UN GA Resolution 2625, 24 October 1970). All kinds of arrangements are possible: an independent state; a merger of Israel and Palestine into one state; a confederated state of Jordan, Israel and Palestine; an economic and cultural union of all the states of the Levant, but separate political structures; and other options as well.
The UN is the world’s inclusive institution devoted to peace. It is not perfect, but it is much better than unending war. By blocking the State of Palestine’s membership, America has left Israelis and Palestinians with the limited options of capitulation to the other’s most recent demands or violence—and neither state is ready to capitulate.
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