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Palestine and International Law

Ran Chakrabarti puts the quest for Palestinian statehood in historical context and considers the international law that should determine it.

1.         Whose title deeds are they anyway?

You've just moved into a new semi-detached house in a rather volatile neighborhood. It's got a small garden, and the people next-door aren't particularly friendly. All of a sudden, you find them coming over the garden fence and because there's nobody to call for help, you decide to beat them off with the broomstick and chase them back across the walls.

In fact, you find that you've done such a good job in scaring them off, you suddenly realize that you can camp in their garden and occupy their side of the house. They've been vanquished to the farmer's field at the end of the garden. You rather like what you've found. You decide to stay in what you've gained.

"Leave our houses and gardens immediately!" yell the rather hostile neighbors. "Yeah, right, I do that and you're going to come over the walls again. Do you really think that I'm that stupid?"

You're not. In fact, you seize the opportunity. Inviting your relatives over, you start building them a house in your hostile neighbor's garden.

"But your house is ours! We have the title deeds!" yell the hostile neighbors.

But just hang on a minute. You pause and think for a moment. When your lawyers looked at the land registry records, it quite clearly said that God had given you the title deeds and more importantly, the British had given you the keys to the front door.

Sound familiar? Welcome to the intractable world of the Israeli-Palestinian dispute.

2.         Everything you needed to know about the Israeli-Palestine dispute, but were afraid to ask

Up until the end of the First World War, Palestine was part of the Ottoman Empire. At the end of the war, the League of Nations granted a mandate to the British to administer the territory, on the basis of paragraph 4 of Article 22 of the Covenant of the League of Nations, stating:

"Certain communities, formerly belonging to the Turkish Empire have reached a stage of development where their existence as independent nations can be provisionally recognized subject to the rendering of administrative advice by a Mandatory until such time as they are able to stand alone."

The territorial boundaries of Palestine were laid down by several instruments and most importantly, the Anglo-Transjordanian Treaty of 1928 established its eastern border with Jordan. In 1947, the British announced their intention to withdraw. In November 1947, the United Nations General Assembly passed resolution 181 on the future of Palestine, recommending the plan to partition Palestine into two independent states, with an international regime for Jerusalem.  The Palestinians rejected the resolution. Israel declared independence on 14 May 1948. Armed conflict broke out and the plan for partition was superceded by events on the ground.

In November 1948, the United Nations Security Council passed resolution 62, calling for an armistice and the parties to seek agreement. Israel and Jordan signed an agreement in April 1949, which, amongst other things, set out the 'Green Line' demarcating the Arab and Israeli forces. It was agreed that neither side would cross the Green Line nor would the Green Line prejudice future political settlement of any international border.

Following the six-day war in 1967, Israeli forces occupied the entire territory, which constituted Palestine under the British mandate from the League of Nations, including the entire West Bank territories, lying east of the Green Line. The Security Council passed resolution 262, emphasizing the inadmissibility of the acquisition of territory by war and called upon Israel to withdraw its forces from territories east of the Green Line.

Israel then took several steps to change the status of the city of Jerusalem. In 1971, the Security Council declared that all legislative and administrative action taken by Israel in relation to the status of the city of Jerusalem, including the expropriation of land and property and the transfer of populations and the passing of legislation purporting to incorporate the occupied section of Jerusalem, was invalid.

In 1980, Israel passed legislation purporting to make Jerusalem the complete and united capital of Israel. The Security Council responded by stating that the law violated international law and it was null and void.

In 1994, Israel and Jordan signed a peace treaty, fixing the boundary between the two states, with reference to the boundary definition in the original Mandate and without prejudice to the status of any of the territories that came under Israeli occupation in 1967.

Several agreements between the Israeli's and the Palestinian Liberation Organization have been signed since 1993, with a roadmap for peace and the vision of a two state solution. These agreements essentially required Israel to transfer to the Palestinian authorities, certain powers and responsibilities that it exercised in the Occupied Territories. While such transfers have taken place, subsequent events have rendered them incomplete. The Occupied Territories, including Jerusalem are still in Israeli possession.

No doubt, some may conclude that the preceding paragraphs over simplify an enormously complicated web of events, some undisputed, others disputed. They probably do. But notwithstanding that, and the countless lives lost and ruined on both sides through the spiraling of vengeance and hatred, the only way to solve complex problems is to peel away the layers until we arrive at a very core essence. That very core essence has everything to do with the Green Line and the status of Jerusalem, and the creation of a Palestinian state with East Jerusalem as its capital.

3.         The wall

Although 'the wall' came down in Berlin in 1989, in 1996, the Israeli government drew up plans to erect a fence in the West Bank to prevent infiltration into Israel, It approved a final route in October 2003, running 720 kilometers along the West Bank. Phase 1 of the construction, running 150 kilometers, was completed in July 2003. In November 2003, construction continued along the Green Line, though in places, it extends significantly beyond the Green Line and in the case of Jerusalem, the route of the fence lies well beyond the Green Line and beyond the eastern municipal boundary of Jerusalem, as fixed by Israel.

Approximately 16 per cent of the West Bank lies between the Green Line and the fence, which, encompasses an area home to 237,000 Palestinians and, should the wall be completed in accordance with its plans, a further 160,000 Palestinians will be encircled. Up to an estimated 320,000 Israeli settlers are planned to live within the area between the Green Line and the wall. Residents in the enclosed area are not permitted to remain there without the requisite permits issued by the Israeli government.

Israel says that the wall is there to prevent terrorist attacks and it has even gone on the record to say that it will not prejudice any international boundary agreed in a negotiated settlement. They've even said that they will knock it down if necessary. Furthermore, once the terror stops, the wall will come down. Israel points to its right to take measures to exercise its inherent right to self-defense under Article 51 of the United Nations Charter and that is has acted out of necessity to preserve the existence of the state itself.

Potentially plausible arguments you might think? The International Court of Justice thought otherwise. The right to self-defense under Article 51 applies only in relation to aggression by other states and since Palestine is not a state, it cannot logically be a military threat. In its advisory opinion in 2004, the court, overwhelmingly, by 14 votes to 1, ruled that the wall violated international law and that Israel was obliged to knock it down and pay for all the damage it had caused. Israel has done neither.

4.         International law and the birth of States

Some might say that Israel popped out of the womb and onto the international stage through caesarian section on 14 May 1948. The United States of America instantly recognized it. The birth of Palestine on the other hand, has had to go through very hard labor, with very little pain relief for over 63 years. This September, The United States will veto the recognition of Palestine and the admissibility of it to the United Nations.

All international lawyers will agree that the acquisition and annexation of territory by force is illegal under international law, and that's effectively what the West Bank became in 1967. Furthermore, it would be a brave international lawyer who would deny a people the right of self-determination, enshrined in international law. Rather ironically, when the United States exercises its veto later this month to deny the recognition of Palestine as a state and accept its admission to the United Nations as a state, it might do well to remember that it was one of their own, Woodrow Wilson, who championed the idea of self-determination as one of his fourteen points at the Versailles Peace Conference as the end of the First World War.

But the illegal annexation of territory and the principle of self-determination, do not, in themselves confer the automatic right to statehood by their prior occupants and render international legal recognition. So who or what, decides whether a state is a state? The United Nations? No. The United Nations essentially has power to consider whether a state can be admitted to its organization, but this is a fundamentally different thing from granting it 'primary legal legitimacy'. Statehood and membership of international organizations are entirely different matters and should not be confused. Granted, membership of the United Nations may essentially 'rubber-stamp' or approve statehood, but it doesn't determine it.

Pursuant to the United Nations Charter, the General Assembly has the power to admit a state, but it can do so only on the recommendation of the Security Council. As a result of that, Taiwan and Kosovo are not members of the United Nations (since the Chinese and the Russians would respectively, veto their membership) yet they are recognized as states by many countries. Similarly, during the Cold War, many states, as they gained independence from colonial rule, had their membership to the United Nations vetoed, but it would be legal nonsense to suggest that this meant that they were not states.

So if the United Nations doesn't determine state-hood, then who does? Individual states essentially retain the right to decide whether they recognize a new entity or not, and it is a political action more than a legal process. What criteria do individual states look at when they consider recognizing an entity as a state? International lawyers essentially agree that particular factual circumstances have to be satisfied before an entity can call itself a 'State'. Essentially, it has to have a defined territory, a population, a government that exercises effective control over that territory and the ability to enter into relations with other states. These are all questions of fact, and if we accept that law is generated from within the machinery of the state, it would be putting the cart before the horse to say that the state emerges from the legal process.

This is perhaps the essence of the debate between the two main schools of thought in the theory of state recognition in international law, the constitutive and declaratory theories. The former relies on the subjective act of recognition by others, while the latter approach is basically the formal acceptance of an existing reality on the ground. It is not the consent of others that determines statehood, but the empirical facts of reality.

Lets take the hypothetical situation of the newly created state of Utopia, that seems to possess all of these factual criteria. The United States of Ruritania, however, has different ideas. The United States of Ruritania, doesn't like the Utopian regime and it's policies generally. The United States of Ruritania decides not to accord Utopia official recognition.

The Utopian Foreign Minister is outraged. He sends the Ruritanian External Affairs Ministry a formal e-mail (and a text message too). "Just who do you think you Ruritanians are to deny us statehood?" he says, in uncharacteristic and un-diplomatic language. Clearly, we possess all the objective facts that tick the boxes for recognition. Ipso facto, we exist.

The Ruritanians are unmoved by the diplomatic correspondence received from the Utopians. They send an e-mail back, taking each of the criteria of statehood and deny that Utopia satisfies each of those criteria, due to some anomaly here, or another anomaly there. The United States of Ruritania decides to veto the admission of the Utopians to the United Nations.

In 1976, the United States Department of State issued the following statement on the recognition of states (echoing its approach to the recognition of Israel):

"In the view of the United States, international law does not require a state to recognize another entity as a state; it is a matter for the judgment of each state whether an entity merits recognition as a state. In reaching this judgment, the United States has traditionally looked to the establishment of certain facts. These facts include effective control over a clearly defined territory and population; and organized governmental administration of that territory and a capacity to act effectively to conduct foreign relations and to fulfil international obligations. The United States has also taken into account whether the entity in question has attracted the recognition of the international community of states."

Quite clearly, there are elements of both theories of recognition in this statement, but ultimately, the subjective constitutive theory appears to take precedence over the factual declaratory theory.

The approach of the United Kingdom is as follows:

"The normal criteria which the government applies for recognition as a state are that it should have, and seem likely to continue to have, a clearly defined territory with a population, a government who are capable of themselves to exercise effective control of that territory, and independence in their external relations. Other factors, including some United Nations resolutions may also be relevant."

This certainly seems to be a different approach. It omits reference to any exercise of judgment, as found at the beginning of the United States statement, and therefore, appearing to be more declaratory in theory.

So does Palestine satisfy all the criteria for statehood? Does it have a defined territory? Well, its entire western border is in dispute, but then, many other states have border disputes and that doesn't render them non-existent. But hang on a minute, if Palestine's entire western border is in dispute, then that must logically mean that Israel's entire eastern border is also in dispute, yet somehow, Israel qualifies as a state and Palestine doesn't?

Does Palestine have a population? Clearly it does. Does it have government exercising effective control? While the Palestinian Authority exercises certain legal rights to administer the West Bank, effective control of what its population does may be seen by some to be debatable. However, many would suggest that this lack of effective control arises not so much through its own failure, but rather, by virtue of the actual control of the occupying Israeli forces. In any event, one might point out that when existing governments in existing states start to loose their grip on power, that does not lead to the dissolution of the state as a legal entity and its de-recognition in international law, as recent events in Libya highlight. Finally, does it have the capacity to enter into foreign relations? Yes, it clearly does. It has quasi-diplomatic representations in many capitals around the world and has observer status at the United Nations.  

Clearly, when an entity starts to behave and become treated like a state, it is a political process and not something that is created or controlled by the law, and this essentially, is the 'declaratory' theory of the recognition of states in international law. Whether other states accord you recognition or not, is really irrelevant to the formation of the state because its legal status cannot be determined by an external, subjective viewpoint.

But self-definition is simply not enough. We can't just through up our arms and say, hey, we are a state now, because, to take you seriously, other states will measure your status as a state against a set of objective criteria. Essentially, whether we like it or not, a state's emergence is controlled by the legal order as represented by existing states, and their subjective and political views of objective facts. Welcome to the 'Club'? Sorry sir, we can't accept you without a tie.

So will Mahmoud Abbas be welcomed with open arms into the Club that is the United Nations without a tie? This year alone, Brazil, Argentina, Chile, Uruguay, Bolivia and Paraguay all formally recognized the Palestinian state. The Russians have also reiterated its support for the Palestinian state and Denmark, Ireland, France, Italy, Norway, Portugal, Spain and even the United Kingdom have recently upgraded the status of the Palestinian delegations in their capitals to that of a 'mission', something normally reserved for states. Since 1988, over 100 countries have themselves formally recognized Palestine as a state, and that is over half of the United Nations General Assembly.

All evidence to suggest a groundswell of movement in favor of formal recognition and United Nations membership? Maybe, but that just isn't enough. While the United Nations General Assembly can pass a resolution recognizing the status of Palestine and recommend its acceptance to the United Nations, it is not legally binding on member states. Only the Security Council can pass legally binding resolutions and it is a foregone conclusion that the United States are going to veto such a resolution, if it is tabled at the Security Council.

5.         The paradox and consequences of state recognition

The constitutive theory of recognition is ultimately hindered by the following paradox. If your status as a state was left to the subjective whim of other states, then it would lead to the following situation. Iran does not recognize Israel. Can we really say that Israel does not exist simply because Iran and a few other states may not recognize it? In an international legal system that is predicated on the principle of sovereign equality, it would be illogical to infer that Palestine does not exist simply because the United States and Israel say that it doesn’t.

In the absence of a general, factual determination of statehood, we would be left with a subjective and bilateral, political determination thereof. The irrationality of this becomes only too clear when we consider what the natural consequence of denying statehood really means – that international rights and obligations simply evaporate into thin air. It would be legal nonsense to say that Iran would not be bound to observe its UN Charter and other multi-lateral treaty obligations with respect to Israel, simply on the basis that Iran didn't recognize the existence of Israel.

So why are the United States and Israel so keen to deny Palestine statehood? An unrecognized state has no rights and obligations in international law. If Palestine were declared a state, then immediately, Israel, by its present occupation of the West Bank will be in breach of the United Nations Charter. Palestine, as a state, could legitimately call upon the inherent right of individual or collective self-defense under Article 51 of the Charter to remove Israel from the occupied territories. Palestine, as a state, would be able to accede to international conventions and bring legal action against Israel on various matters. Palestine could accede to various international human rights instruments, such as the Covenant on Civil and Political Rights. It could even join the International Criminal Court and file cases against Israel for war crimes. It would be a tinderbox of a situation that is highly likely to precipitate conflict in the Middle East.

6.         The future

We started this article with a very simple analogy that highlights a very simple message. If we continue to trespass and build our houses in someone else's garden, it's highly likely that the hostile neighbors are never going to be extending their hands in friendship towards us. The sensible thing to do would be to withdraw and hand back, in exchange for an agreement on where the garden fence lies.

International law is quite clear on the matter of occupation of territory by force and the International Court of Justice has ruled on the de-facto annexation of the West Bank created by the Israeli security wall. It's high time that title to the biggest real estate dispute in history was resolved once and for all, but it can only be resolved by meeting the aspirations of statehood of a people long suppressed. Anything less will just not do. 

Yet despite all the international law, the United States is likely to wax lyrical about the Palestinian aspiration for statehood on the one hand, while taking it away with the other, premising statehood on achieving first, a utopian negotiated settlement with Israel, which will never happen. The United States will veto any recommendation for Palestine to be admitted as a member state of the United Nations, and with it, it runs the risk of ending the peace process and opening divisions between the Europeans who support statehood and those that don't.

A General Assembly resolution will not be enough to get Palestine admission to the United Nations, and Mahmoud Abbas runs the risk of looking like an emperor with no clothes, yet if 150 states vote for him, it will be symbolic enough to give Palestine the moral high ground and it will expose widening divisions amongst the Europeans with the United States and Israel.

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