WarSclerotic

International law has one overarching debility. No matter how complex the issues, virtually everyone able to read feels competent to offer an authoritative legal opinion. While, for example, no sane person would ever explain or perform cardio-thoracic surgery without first undergoing rigorous medical training, nearly everyone feels competent to interpret complex meanings of the law.

This debility needs to be countered, at least on a case by case basis. In the enduring controversy over Palestinian statehood, there are significant rules to be considered. For a start, on November 29, 2012, the General Assembly voted to upgrade the Palestinian Authority (PA) to the status of a “Nonmember Observer State.”

Although it is widely believed by many self-defined “experts” that this elevation by United Nations has already represented a formal bestowal of legal personality, that belief is incorrect. Under law, at least, “Palestine” – whatever else one might happen to think of “fairness” – remains outside the community of sovereign states.

This juridical exclusion of “Palestine,” whether welcome or not, on selective political grounds, is evident “beyond a reasonable doubt.” The authoritative criteria of statehood that express this particular exclusion are long-standing and without ambiguity. Under relevant international law, a true state must always possess the following specific qualifications: (1) a permanent population; (2) a defined territory; (3) a government; and (4) the capacity to enter into relations with other states.

Moreover, the formal existence of a state is always independent of 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 codified Montevideo expectations could simply declare otherwise, and then act accordingly, “to defend its integrity and independence….”

More than likely, any such “defending” would subsequently involve incessant war and terror against “Occupied Palestine,” also known as Israel. The Palestine Liberation Organization (PLO) was formed in 1964, three years before there supposedly were any “Israeli Occupied Territories.” What, then, exactly, was the PLO trying to “liberate?”

Whenever the PA finally decides it is time openly to declare statehood, certain explicit Montevideo standards and corollary criteria of statehood will need to be invoked.

Much as the Government of Israel, seeking to challenge any such adversarial PA declaration, will then cite correctly multiple Oslo Agreement violations. The PA will counter-argue that its particular right to declare an independent state of Palestine is nonetheless fundamental, or “peremptory.” The PA will surely add as a footnote that its right of statehood according to “jus cogens“ (“certain fundamental, overriding principles of international law, from which no derogation is ever permitted”) simply overrides all previously-existing expectations of a just peace with Israel.

Israeli Prime Minister Yitzhak Rabin, U.S. President Bill Clinton, and PLO chairman Yasser Arafat at the Oslo Accords signing ceremony on September 13, 1993. (Image source: Vince Musi / The White House)

Undoubtedly, among other matters, the PA will cite (1) the plainly non-treaty quality of the Oslo Agreements (per definitions of “treaty” at the 1969 Vienna Convention on the Law of Treaties), and to (2) those basic and allegedly immutable human rights under international law that concern “self‑determination” and “national liberation.”

Now, of course, Prime Minister Netanyahu seems to have acknowledged the eventual creation of Palestine, but, among other things, only on the seemingly prudent condition of antecedent Palestinian “demilitarization.”

While this contingent condition may at first sound reassuring, it effectively represents little more than a contrived and ultimately impotent legal expectation. For one thing, no new state is ever under any obligation to remain “demilitarized,” whatever else it may have actually agreed to during its particular pre-state incarnation. For another, there is no discernible reason to believe that “Palestine” would ever make good on any of its pre-independence promises to Israel to support the Jewish State’s equally basic right to “peace and security.”

For “Palestine,” following formal statehood, the struggle with Israel would continue to be conceptualized as zero-sum; that is, on the corrosive assumption that absolutely any gain for Israel would represent a corresponding loss for Palestine. It could claim it was defending itself against anyone, including terrorist groups, and remain within its rights.[1]

Under the Montevideo Convention, all states are legally equal, enjoy the same rights, and have equal capacity in their exercise. The moment that the PA should proceed to declare a State of Palestine, the new country could become the effective juridical equal of Israel. To best maintain its indispensable national interests in such circumstances, Israel should insist that Palestine’s borders never be based upon pre-1967 lines.

A perfect core summation of such insistence is provided in the February 10, 2013 words of Israeli legal expert, Ambassador Alan Baker:

“The legality of the presence of Israel’s communities in the area (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, Israel should clearly affirm that Israeli “settlement activity” is in fact fully consistent with binding international law. Any contrary affirmation by a still-aspiring “Palestine” would be founded upon specious misrepresentations of this critical law.

Louis René Beres is Emeritus Professor of International Law at Purdue University. His just-published new book is titled Surviving Amid Chaos: Israel’s Nuclear Strategy. lberes@purdue.edu

[1] Over the years, a number of cases in United States federal courts have rejected the idea that the PLO, as “parent” of the PA, 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. Today, however, after Oslo, and after so many years of incremental Israeli recognition of PLO/PA authority as legitimate, Israel will have to base its well-founded opposition to “Palestine” on other grounds.