The Middle East Channel
"Oh, it’s a long, long while from May to December/But the days grow short when you reach September/ When the autumn weather turns the leaves to flame/ One hasn’t got time for the waiting game." — Maxwell Anderson, September Song, 1938 In his speech on the Middle East Thursday, President Obama greeted the arrival of ...
"Oh, it’s a long, long while from May to December/But the days grow short when you reach September/ When the autumn weather turns the leaves to flame/ One hasn’t got time for the waiting game." — Maxwell Anderson, September Song, 1938
In his speech on the Middle East Thursday, President Obama greeted the arrival of spring in the Arab world with enthusiasm. His prescriptions for achieving Arab-Israeli peace, however, leave the Palestinians once again stalled between seasons.[I] Although the President characterized the transformations sweeping the region as a "story of self-determination" and lauded the courage of Arab citizens who had "taken their future into their own hands," he took a dim view of efforts to pursue international recognition of Palestinian statehood this fall. According to Obama, "Symbolic actions to isolate Israel at the United Nations in September won’t create an independent state." Instead of taking their future into their own hands, Obama suggested, Palestinians should continue down the path of negotiation with the Netanyahu government, however futile talks might seem.
What Obama seems unwilling to acknowledge is that the protest movements across the region and the drive for Palestinian statehood have more in common than just the anxiety they are producing in Israel. They are also premised on a similar impulse. No less than the Tunisians, Egyptians, Bahrainis, Libyans, Syrians, and Yemenis who have revolted against autocratic regimes, what the 4 million Palestinians living under Israeli occupation are seeking is the freedom to govern themselves. For them, independence means more than a seat at the Unuted Nations General Aassembly (UNGA). It means being able to decide where in their country they will live, work, and worship. It means knowing that their government is able to keep them safe. And it means having a say in how their country’s resources are used and distributed.
But how can these aims be realized? The recent reconciliation of Fateh and Hamas, the leading factions of the Palestinian national movement, and the wide scale Palestinian protests last weekend have focused renewed attention on efforts to secure international recognition of Palestinian statehood in September, when the UNGA meets in New York. It has also heightened confusion about the legal and political implications of such a move. A range of questions arise: Is Palestine entitled to recognition as a state? How would action in the United Nations alter Palestine’s legal status? And how could recognition of Palestinian statehood make a difference on the ground, in view of Israel’s continuing military occupation of Palestinian territory and the impasse in negotiations to bring the conflict to an end? President Obama’s curt dismissal of the U.N. option makes finding good answers to these questions all the more urgent.
In 1950, Georges Scelle lamented that, despite decades of experience as an international lawyer, he "still did not know what a State was and felt sure that he would not find out before he died." Sixty years later, the definition of statehood remains unsettled. The best known formulation comes from the 1933 Montevideo Convention on the Rights and Duties of States, which provides that "a State should possess the following qualifications: a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with other States." In practice, however, each of these criteria has been flexibly applied, the international community extending recognition to states with tiny populations (like Grenada and Nauru), with undefined or contested borders (like Israel), with barely functioning governments (like the Congo), and with limited foreign affairs capacity (like Luxembourg).
In view of this flexibility, Mahmoud Abbas’ claim in a New York Times op-ed last week that the Palestinian Authority possesses each of the attributes set out in the Montevideo Convention is not without merit. What the PA lacks, however, is an attribute that is implicit in but gives meaning to each of the others — i.e., independence. The PA is a creature of the Oslo agreements, which sharply limit its territorial, functional, and personal jurisdiction and assign Israel overriding authority in a number of realms. Absent a formal change of status, the PA’s authority continues to be subordinate both to Israel and the PLO; it does not possess the legal supremacy in the areas under its jurisdiction that is the hallmark of statehood. Indeed, the fact that Palestinian officials are discussing declaring independence later this year confirms that even they do not presently regard Palestine as a state.
That said, Palestine looks more like a state every day. Last month, the World Bank announced that "if the PA maintains its performance in institution-building and delivery of public services, it is well-positioned for the establishment of a state at any point in the near future." Moreover, Palestinian diplomacy has already yielded expressions of recognition from a growing array of foreign governments.
For a declaration of independence to be effective, however, Palestinians will need to do more than accumulate acts of recognition. The PLO, after all, has declared independence before, proclaiming in 1988 "the establishment of the State of Palestine on our Palestinian territory with its capital Holy Jerusalem." Because the PLO lacked a foothold in Palestinian territory and made no effort to reconstitute itself as a government in exile, its 1988 declaration was generally regarded as a symbolic gesture. This time around, the PLO must demonstrate that the Palestinian state is no longer a disembodied spirit by reconstituting the Palestinian Authority as the interim government of the State of Palestine. Pending the conclusion of a negotiated settlement with Israel and an internal constitutional process, Palestine may choose to maintain some of the arrangements and institutions defined in the Oslo Accords, and it may opt to defer asserting its jurisdiction over all of the territory it claims, avoiding an immediate confrontation with Israel over Jerusalem and West Bank settlements. But it must make clear that where it does exercise jurisdiction, it does so pursuant to sovereign right, not on the basis of authority delegated by Israel. It also must clarify the hazy relationship between institutions of the PA and the PLO so that lines of authority and responsibility do not become a point of contention.
The legal effectiveness of a Palestinian declaration of independence does not depend on coordination with Israel or an end to Israel’s occupation of Palestinian territory. There are abundant precedents of states being recognized despite the failure of their governments to establish effective control across the length and breadth of their claimed territory. Indeed, state practice indicates that the strength of a government’s legal title — its right to govern the territory in question — can compensate for a lack of actual authority over that territory. What makes the Palestinian case especially strong is the near universal recognition of Palestinians’ right to self-determination in the West Bank and Gaza Strip and the fact that Palestinian control over that territory is constrained by a foreign occupation increasingly regarded as wrongful by the international community. As suggested by Professor James Crawford of Cambridge, the author of the leading treatise on the creation of states, "There may come a point where international law may be justified in regarding as done that which ought to have been done, if the reason it has not been done is the serious default of one party and if the consequence of its not being done is serious prejudice to another." In view of the Netanyahu government’s intransigent refusal to halt settlement construction and to negotiate in good faith an end to Israel’s nearly 44-year occupation of Palestinian territory, we are well past that point.
After declaring independence, Palestinians may take one of two routes at the United Nations. First, they may seek Palestine’s admission to the organization as a full member, as Mahmoud Abbas has indicated they intend to do. Because the UNGA can admit new members only upon the recommendation of the Security Council, however, that route may be blocked by an American veto. Whether the Palestinians choose to pursue it will depend on their assessment of what stands to be gained from a second confrontation with the Obama administration at the U.N.
Some have suggested that the UNGA could use the "Uniting for Peace" framework to override a U.S. decision to veto a recommendation for Palestine’s admission to the U.N. That framework allows the assembly to take collective action to address threats to international peace and security, when action has been blocked by a veto in the Security Council. What is unclear, however, is whether Palestine’s lack of membership in the U.N. will be regarded as a threat to international peace and security justifying the use of this mechanism. Indeed, if that approach could be taken, the U.S. and other western states probably would have taken it back in the 1950s, when the U.S.S.R held up the admission of states in the Western sphere of influence (Italy and Finland initially, then later a number of others) by using its veto. The fact that Uniting for Peace was conceived during the same era as that controversy, but not used for those purposes, suggests that the legal departments of foreign ministries and U.N. missions might hesitate to use it now.
Alternatively, the Palestinians may seek a non-binding UNGA resolution urging U.N. members to extend recognition to the new state of Palestine, if they have not done so already. The resolution could also express support for Palestine’s claim to sovereignty over the West Bank, East Jerusalem, and the Gaza Strip, while simultaneously urging Palestinians and Israelis to return to negotiations with a view to resolving contested issues, such as the contours of a land swap agreement, the settlement of the refugee problem, the allocation of water from shared aquifers, etc.
Neither membership in the U.N. nor a resolution of support from the UNGA is necessary for Palestine to become a state. But either step could serve to bolster both the breadth and the quality of the recognition that the new state receives from other governments. Breadth is important if Palestinians are to demonstrate that this time recognition is more than a symbolic gesture by longstanding allies in the developing world. But quality is important, too: explicit international support for Palestinian territorial claims could help to shape the contours of a hoped-for Quartet peace plan and could improve the Palestinians’ leverage in future negotiations over borders.
The statements of recognition so far offered by governments around the world vary in ways that leave their implications unclear. For example, whereas the Chilean statement recognizes "the existence of the State of Palestine as a free, independent, and sovereign State," Brazil "recognizes the Palestinian state on the 1967 borders," and Russia "support[s] the inalienable right of the Palestinian people to an independent State with its capital East Jerusalem." In order to ensure that a declaration of independence in September has maximal impact, Palestinian diplomats should urge the international community to speak with one voice – both recognizing the state of Palestine and expressing support for Palestinian sovereignty in the West Bank, East Jerusalem, and the Gaza Strip, subject to minor and equitable negotiated changes to the border.
Statehood will not absolve the Palestinians of the need to negotiate with Israel regarding almost the full array of "permanent status" issues. To the extent that the Palestinians repudiate the arrangements defined in the Oslo accords and must make new transitional arrangements with Israel, it may even lengthen the negotiation agenda. It may also elicit unwelcome unilateral action by Israel, such as an attempt to annex territory west of the barrier it has built in the West Bank, as the deputy speaker Danny Danon of the Knesset has threatened.
But it could also help to improve the Palestinians’ negotiating leverage by raising the costs to Israel of perpetuating the status quo. For example, it would permit Palestine to accede to the Rome Statute, enabling the International Criminal Court (ICC) to exercise jurisdiction to prosecute Israeli war crimes in Palestinian territory — including, under Article 8(b)(viii) of the Statute, the continuation of settlement activity. It could also help to clarify the legal framework applicable to the negotiation of sticky issues like the allocation of water resources.
That said, the main reasons for declaring independence are not legal. They are political. And here is where the changes sweeping across the region again become relevant. Protestors in Tunisia and Egypt knew that the ouster of Ben Ali and Mubarak would by no means guarantee a complete transformation of their country’s political system. They nevertheless insisted that Ben Ali and Mubarak resign so that, whatever came next, it would not simply be a return to the status quo ante. It was, in other words, a faith in securing the possibility of change that kept the protests alive. And it is what will prompt thousands of Palestinians to take to the streets this summer in support of a declaration of independence, even if they are not certain what will follow it.
But if the political theater in New York this September is to contribute meaningfully to the fulfillment of Palestinian aspirations for freedom, it must be linked not only to a well executed diplomatic strategy in world capitals, but also to a well choreographed strategy for mass mobilization in Palestine. As a first step, Palestinian governmental and civil society leaders should convene immediately to agree on a code of conduct for non-violent resistance to the occupation, as well as a means of enforcing it. At the same time, the Palestinian leadership should identify a range of non-violent measures that may be implemented gradually in order to increase the costs to Israel of maintaining the occupation – from boycotts of Israeli goods sold in Palestinian territory to referral of Israeli officials for prosecution for war crimes to a sanctions resolution in the UNGA.
The success of a strategy of non-violence will depend not only on the sincerity with which it is expressed, but also on the skill with which it is organized and managed. As Yousef Munayyer pointed out on this site, Palestinians are by no means new to non-violence, and the hard-won expertise of non-violent movements in Bil’in, Budrus, and elsewhere in Palestine should be fully exploited. Indeed, the process through which Palestinian government and civil society collaborate to mobilize the public in support of independence can provide a strong foundation for the kind of popular participation in governance that was sorely missing from Palestinian politics during the Arafat era — and that the Arab Spring has led peoples across the region to believe they are entitled to enjoy.
Palestinians must also recognize that non-violence is more than an effective tactic for challenging military units better equipped to respond to armed resistance than peaceful protest. It is also an important message to the Israeli public. Although Palestinians find it difficult to fathom, Israeli support for their government’s security policy is driven to a great extent by fear. If pursued with discipline and determination over an extended period of time — the occupation, after all, will not fall in 18 days — non-violent resistance could help Palestinians convey that what they seek is freedom, not conflict. The message to Israelis must be: It’s not about you. It’s about us. And we’re tired of waiting.
Omar M. Dajani is Professor of Law at the University of the Pacific’s McGeorge School of Law. Previously, he served as legal adviser to the Palestinian negotiating team in peace talks with Israel.
[I] The phrase comes from Elegy for the Time at Hand, a poem by the Syrian poet Adonis.
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