So is There a Palestinian State?
After the vote of the UN General Assembly on 29 November 2012, Abbas claimed that an independent Palestinian state now exists. It doesn’t. So what did that vote accomplish?
Dr. Emmanuel Navon
Since the signature of the Oslo Agreements, the Palestinian Liberation Organization (PLO) has often threatened to unilaterally declare statehood, even though it did just that in 1988 in Algiers. Abbas himself never formerly declared independence. In his speech at the UN General Assembly in September 2011, he clarified that a Palestinian state had already been declared by Arafat in Algiers in 1988.
After the vote of the UN General Assembly on 29 November 2012, Abbas claimed that an independent Palestinian state now exists. It doesn’t.
For a start, General Assembly resolutions are mere recommendations. Resolution 181 recommended the partition of the British Mandate but it did not establish the State of Israel. Likewise, last week’s resolution did not establish a State of Palestine. The General Assembly does not and cannot establish states.
According to international law, an entity must meet four criteria in order to claim statehood: 1. It must exercise effective and independent governmental control; 2. It must possess a defined territory over which it exercises such control; 3. It must have the capacity to freely engage in foreign relations; 4. It must have effective and independent control over a permanent population.
The Palestinian Authority (PA) meets none of the above criteria.
1. Independent Government Control.
Under the Declaration of Principles (“DOP”) on Interim Self-Government Arrangements, signed between Israel and the PLO on September 13, 1993, the parties agreed that the PA would only have limited powers. The PA does not possess the independent, effective and sovereign governmental control that is required to satisfy the definition of statehood. It has no jurisdiction over significant areas of responsibility which are essential to an effective and independent government, such as control over borders –an area of responsibility which was not transferred to the Palestinian Authority, and which continues to be exercised exclusively by Israel.
Even in Area A, where more extensive powers and responsibilities have been transferred, the PA does not exercise the powers of a sovereign government. The absence of the requisite degree of control is all the more evident in Areas B and C, where the PA's jurisdiction is of a more limited nature and Israel continues to exercise significant authority.
Finally, there isn’t one Palestinian government but two: A Hamas government in Gaza, and a Fatah government in Ramallah. The last election in the PA was in 2006. It was won by Hamas, and Abbas is hardly representative of a population that hasn’t been allowed to vote for seven years.
2. Defined Territory.
The lack of legitimate title over territory has in the past been the basis for denying recognition to such entities as Manchukuo and the Turkish Republic of Northern Cyprus. The 1988 PLO “Declaration of Independence” did not specify the borders of the “State of Palestine.”
There never existed such as state in the past, and therefore the PA cannot claim any legal title over the "West Bank", as if this territory had been under the control of a Palestinian state in the past (it was conquered and annexed by Jordan in 1949 and remained under the Hashemite Kingdom’s control until 1967). By contrast, there is a recorded history of Jewish national sovereignty and presence.
Israel’s legal rights stem from the Treaty of Sèvres (1920) and from the League of Nations Mandate (1922). The PLO disputes the legality of both documents. But if it was illegal for the League of Nations to recognize the Jews’ national and historical rights over their original country, then all the nation-states that emerged from the dismembering of the Ottoman and Austro-Hungarian empires are illegal as well (such as Austria and Lebanon for instance).
The League of Nations did not grant national rights to some “Palestinian people” because no such people had ever been heard of at the time, and because it had never been recorded in the annals of History. Indeed, the United Nations Special Commission on Palestine (UNSCOP) dismissed Arab claim that the League of Nations Mandate was illegal. The Report says that the Arabs "have not been in possession of it [Palestine Mandate territory] as a sovereign nation," and that there were "no grounds for questioning the validity of the Mandate for the reason advanced by the Arab states."
The territory claimed by the PA is not defined. It is fragmented and disputed, and is not based on any past or legal sovereignty.
3. Foreign Relations.
The DOP specifies that the PA does not have powers and responsibilities in the sphere of foreign relations. True, the PA has been conducting foreign relations in practice, but this has been done in violation of the DOP.
4. Permanent Population.
The PA has no control over the population of Gaza, which is run by Hamas. Its control over the population in Areas A and B is partial. And as the U.S. Court of Appeals has held, where there are doubts as to the territorial scope of a putative state, its claim to a permanent population is in doubt.
Those countries who voted at the UN General Assembly in favor of recognizing the PA as a state ignored the most basic rules of international law. Why the EU is keen to lecture on legality, it breached international law by recognizing as a state an entity that doesn’t meet the criteria of statehood. Worse, the EU ignored its own standards and requirements on statehood.
The EU conditioned in the past the recognition of the former republics of Yugoslavia and of the Soviet Union not only on the traditional criteria of statehood, but also on other requirements, such as a commitment to abide by international law, the proof of being a viable entity. The EU did not make such demand with regard to the PA.
The EU let the PA get away with breaching the Oslo Agreements. The DOP states clearly (Art. XXXI ) that “Neither side shall initiate or take any step that will change the status of the West Bank and the Gaza Strip pending the outcome of the permanent status negotiations.” Declaring the "West Bank" and Gaza a state clearly changes, or aspires to change, the status of those territories.
As for the PA’s claim that such unilateral move (and breach of the DOP) is inevitable in light of the failure to reach an agreement with Israel, it is simply remindful of this well-known anecdote: a man murders his parents, is prosecuted in court, and asks the judge for mercy because he’s an orphan. The PA was unwilling to reciprocate Israel’s compromises and concessions at Camp David (July 2000), at Taba (December 2000), and during the Annapolis negotiations (2008).
The PA’s claim that there is no self-determination without statehood is plainly wrong. In international law, self-determination does not necessarily mean statehood. The Yugoslavia Arbitration Commission, for instance, determined that the self-determination right of Serbians in Bosnia and Croatia should amount to a minority protection but not to statehood. The unilateral declaration of statehood by the Turkish minority of Northern Cyprus was rejected by the international community, which claimed at the time Turkish Cypriots could enjoy self-determination without statehood.
Moreover, the principle of self-determination cannot be applied in an absolute or one-sided way. In international law, the exercise of self-determination must take other rights into account. The PA’s statehood bid denies the rights of the Jews for three reasons:
a) The PA continues to incite its population against Israel and to teach its children that the ultimate goal is the elimination of Israel;
b) Mahmoud Abbas has declared more than once that the Palestinian state will not tolerate the presence of a single Jew in its midst (and therefore that Jews will be denied access to their holy sites such as Hevron and the Tomb of Rachel), if part of that state;
c) By continuing to insist on implementing the ill-named “right of return” to Israel proper, Abbas is denying the Jews their right to self-determination by demanding that they become a minority in their own country.
The General Assembly vote on 29 November 2012 did not establish a “Palestinian state.” It did confirm, though, that the “peace process” is a sham and that there is no point negotiating with the PLO what it will eventually obtain at the UN.