One year ago, on Nov. 29, 2012, the U.N. General Assembly voted to upgrade the Palestinian Authority (PA) to the status of a “nonmember observer state.” Although it is more or less widely thought that this organizational elevation was tantamount to a bestowal of formal legal personality, this is not the case. Jurisprudentially, at least, “Palestine” still remains outside the community of separately sovereign states.
This exclusion is evident “beyond a reasonable doubt.” Authoritative criteria of statehood making this point are already long-standing, explicit and readily available. More precisely, under pertinent international law, a state must always possess the following specific qualifications: a permanent population; a defined territory; a government; and the capacity to enter into relations with other states.
The formal existence of a state, moreover, is always independent of any recognition by other states. According to the 1934 Convention on the Rights and Duties of States (the Montevideo Convention): “Even before recognition, the state has the right to defend its integrity and independence, to provide for its conservation and prosperity, and consequently to organize itself as it sees fit .” It follows that even a Palestinian state that would fail to meet evident Montevideo expectations could simply declare otherwise, and then act persuasively “to defend its integrity and independence.” More than likely, any such “defense” would ultimately involve war or terrorism against “Occupied Palestine,” aka Israel.
Whenever the Palestinian Authority finally decides to declare statehood, thereby further enhancing its already upgraded status as a U.N. nonmember observer state, Montevideo standards and rights of statehood will be widely re-examined. Predictably, as Israel — challenging the adversarial declaration — will point correctly to relevant Oslo Agreement violations, the Palestinian Authority will counter-argue that its particular right to declare an independent state of Palestine is fundamental, or “peremptory.” It follows, the PA will subsequently add, that legal rights of statehood override any previously existing expectations of its peace accord with Israel.
In this connection, the Palestinian Authority will undoubtedly cite the plainly nontreaty quality of the Oslo Agreements (per definitions of “treaty” at the 1969 Vienna Convention on the Law of Treaties), and certain allegedly basic and immutable human rights under international law that concern “selfdetermination” and “national liberation.” For years, Israel has not troubled itself too intently with the juridical aspects of “Palestine.” Most Israelis, after all, were never entirely convinced that Palestinian statehood could ever become a genuinely critical issue. Now, of course, Prime Minister Benjamin Netanyahu seems to have conceded the eventual creation of Palestine, but only on the seemingly prudent condition of Palestinian “demilitarization.”
While this contingent condition may sound reassuring, it actually represents little more than a contrived and thoroughly impotent legal fiction.
No new state is ever under any obligation to remain “demilitarized,” whatever else it may have agreed to in its pre-state incarnation.
Over the years, a number of cases in U.S. federal courts have rejected the idea that the Palestine Liberation Organization (PLO), as “parent” of the Palestinian Authority, is in any way recognizable as the legitimate core of an independent Palestinian state. Earlier, perhaps, capable Israeli lawyers and policymakers might have been able to refer to such American case law in compelling support of an argument against Palestinian statehood, but not today. However grudgingly, after Oslo and so many years of incremental Israeli recognition of PLO-PA authority as legitimate, Israel will sometime have to accept Palestine as a co-equal “partner in peace.”
Legally, one must envy the Palestinians for the subtly nuanced dexterity with which they may have managed to outwit the Israelis. For years, legally at least, they have been very patient. Whatever other mistakes it has made in more narrowly tactical or strategic terms, the Palestinian leadership has nonetheless listened, learned, watched and persevered.
Now, even though they remain very far from satisfying the codified expectations of Montevideo, the overwhelming majority of U.N. member states are still all too willing to grant them full juridical parity with Israel.
Under the Montevideo Convention, all states are legally equal, enjoy the same rights, and have equal capacity in their exercise. The moment that the Palestinian Authority should proceed to declare a state of Palestine, the new country will become the effective juridical equal of Israel. When Israelis then begin to object strenuously to inevitable Palestinian claims for more territory — territory within “occupied Palestine” — the world will listen more than politely to the Palestinians. They will, after all, now be fully equal to Israelis under international law.
It is already too late to change all this. The concocted and perilous drift to legal symmetry between Israel and “Palestine” is the direct result of persistently concessionary policies mistakenly fashioned in Jerusalem, from Yitzak Rabin to Mr. Netanyahu. Israel can still learn some important and potentially remediating lessons from its myriad Oslo mistakes.
Above all, Jerusalem must argue vigorously against new European Union guidelines, insisting that Palestine’s borders never be based upon pre-1967 lines. In the words of an Israeli legal expert, Ambassador Alan Baker: “The legality of the presence of Israel’s communities in [Judea and Samaria] stems from the historic, indigenous and legal rights of the Jewish people to settle in the area, granted pursuant to valid and binding international legal instruments, recognized and accepted by the international community. These rights cannot be denied or placed in question.” Accordingly, Jerusalem should clearly affirm that Israeli settlement activity is recognizably consistent with international law.
For Israel to do otherwise on this contentious issue would represent a tangible and self-defeating violation of the law of nations.
Louis Rene Beres is a professor of political science and international law at Purdue University.