States intending to vote in the U.N. General Assembly (UNGA) in favor of granting non-member “state” observer status to “Palestine” are showing a stunning disregard for international law and the troubling ramifications of such a move – which would extend far beyond the Israeli-Palestinian arena.
“States” are the primary building blocks of the international order. Accordingly, most of international law is concerned with the conduct of states and the relationships between them. Hence, the legal concept of what constitutes a “state” is of fundamental importance in international law. At least until now, there has been a widely accepted legal definition of what characterizes a state, namely that contained in the Montevideo Convention of 1933. The convention sets out four features which must all be present for a state to exist, namely: a permanent population, a defined territory, government and the capacity to enter into relations with other states. Now this may seem trivial, but clearly the convention refers to existing facts rather than aspirations. The fact that a certain group aspires to acquire the attributes of statehood in the future is no basis for recognizing the existence of a state in the present.
At the moment, the “Palestinian entity,”although it lays claim to the entire West Bank, East Jerusalem and the Gaza Strip, consists only of limited autonomy in parts of the West Bank. The responsibilities and powers of this entity are laid out in the Oslo Agreements concluded between Israeli and Palestinian leaders in the mid-1990s. According to the Palestinians themselves, they are under Israeli “occupation”, meaning that Israel is the actual ruler of the West Bank while any authority the Palestinian entity enjoys under the Oslo Agreements is at Israel’s pleasure and can thus be revoked at any time. Meanwhile, the Gaza Strip is controlled by a rival entity – Hamas. Add to this the fact that no Palestinian Arab State (nor any state for that matter) has ever existed in the territories in question. Clearly, the current reality doesn’t even come close to meeting the Montevideo requirements.
Contrast the “Palestinian entity” with the states that have at some time held the status of “non-member state observers” in the U.N. The list contains the states of Italy, Spain, Switzerland, Finland, Austria, Japan, Bangladesh, South Korea, North Korea, Kuwait, Monaco and Vietnam, as well as the former states of West Germany, East Germany, South Vietnam and North Vietnam. Clearly, all of them substantially meet the criteria of statehood under the Montevideo definition. Today the only state holding non-member state observer status in the U.N. is the Holy See – admittedly a strange example - however, since the Holy See controls the Vatican City (that has defined borders, a fixed population and a government) and carries on international relations on a global scale, it falls fairly comfortably within the Montevideo definition.
What the Palestinian delegation is asking from the UNGA is for the latter to throw the Montevideo definition out of the window. It would mean that statehood could exist without any facts on the ground.
This undoubtedly would be very good news for innumerable movements for self-determination or secession around the world. If the Palestinian example is to become the new standard, it’s difficult to imagine which of these would not qualify for statehood.
Those UNGA member states contemplating a ‘yes’ vote should know that their frivolous vote today could well come back and bite them in the future. Under their proposed new rules, any group aspiring to statehood – regardless of the situation on the ground – can be considered a state. Of course they may be counting on the hypocrisy of their fellow member states to keep them of trouble, but there are no guarantees that a member state won’t find itself on the wrong end of a similar UN vote in the future.
Of course, if the UNGA goes ahead with this folly, it would not change international law. The Palestinian entity would not magically become a state just because a group of countries, however large, decides to call it one. It would however be a sad day for international law if one of its chief custodians decides to trample it underfoot.
Compounding the tragedy, a “yes” vote would not only be a setback for international law, but probably also for the peace process.
Add to that the existence of an entirely reasonable alternative to this folly, with a much better chance of success in advancing the cause of peace – namely negotiations without preconditions between Israelis and Palestinians.
What exactly is wrong with that alternative?
David Benjamin is an Israel-based attorney specializing in international law, the law of armed conflicts and counter-terrorism and a former senior legal adviser to the Israel Defense Forces. He is a senior counsel to the American Center for Law and Justice – Jerusalem. Jordan Sekulow is the executive director of the ACLJ.