13 July 2001

PALESTINIAN STATEHOOD AND
INTERNATIONAL LAW

By Louis Rene Beres

Under authoritative international law, a state must possess the following 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 political existence of a state is independent of recognition by other states. Indeed, according to the Convention on Rights and Duties of States (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...."

When the Palestine National Authority (PNA) declares statehood sometime in the next twelve months, these standards and rights of statehood will be formally invoked and widely acknowledged. Much as theGovernment of Israel, seeking to challenge the declaration, will cite to pertinent Oslo violations, the PNA will counter argue that its rights to declare an independent state of Palestine are "peremptory" (essentially so fundamental that they are beyond legal challenge) and therefore override any expectations of the non-treaty Oslo agreement with the State of Israel. In this connection, the PNA will undoubtedly cite as well to certain allegedly fundamental and immutable rights under international law concerning "self-determination" and "national liberation." Israel's extraordinarily small cadre of capable international lawyers will assuredly have no convincing response, none whatever.

For years, Israel has not troubled itself with the juridical aspects of "Palestine." After all, Israelis were always entirely convinced that Palestinian statehood would never become a serious issue. Now, of course, the declaration of statehood is certain, and Israel hardly knows where to turn. Legally, as well as militarily, the Jewish State has been outflanked. Even worse, it has contributed mightily to its own debility. By agreeing to negotiate with a terrorist organization (PLO) and allowing that organization the trappings of international legitimacy (metamorphosed into PA), Israel now makes it impossible to deny the authority of "President" Yasser Arafat. While the Israelis have insistently kept up a hollow refrain of "autonomy" as opposed to "sovereignty," it has been a unilateral and uninspired refrain, one heard by no one outside of Israel.

Over time, Palestine will likely enlarge to include what Palestinians still refer to as "Occupied Palestine," that is, the entire State of Israel. This has always been the undisguised PLO/PA objective. (Looking over the official PA maps, one must acknowledge that they have always been scrupulously honest in this regard). Should this happen, it will be the direct result of jurisprudential brilliance on the part of the Arabs and jurisprudential indifference/incompetence on the part of the Israelis.

Over the years, a number of cases in United States federal courts have rejected the idea that the PLO is in any way the core of an independent state. Israeli lawyers and policymakers might at one time havebeen able to refer to such cases in support of an argument denying Palestinian statehood (inasmuch as judicial decisions of domestic courts may themselves be a source of binding international law), but not any longer. After Oslo, after persistent Israeli recognition of PLO/PA authority, Israel will grudgingly have to accept Palestinian arguments. It will be just one more expression of Israel's self-inflicted disappearance.

One must envy the Palestinians the dexterity with which they have successfully outwitted the Israelis. For years they have listened and learned and watched and persevered. Unlike the Israelis, who STILL haven't taken the trouble to learn relevant international law or to seek the informed counsel of those American scholars who are expert in this area, the Palestinians have engaged certain first-rate American professors of international law as policy advisors. While the Israelis have been busy developing complex weapon systems that will be utterly beside the point in the coming catastrophic war, the Palestinians - lacking Israeli arrogance - have been busy thinking and consulting. While Israeli professors of international law worry largely about protecting Arab rights from "Zionist infringements," Arab scholars worry about the very same issue. Not surprisingly, Jewish rights to survival in Israel, already self-diminished in law, will be lost materially in the now inevitable war.

Returning to the Montevideo Convention, all states are legally equal, enjoy the same rights, and have equal capacity in their exercise. The moment that the PA declares a State of Palestine, the new state will be the full juridical equal of Israel. When Israelis begin to object hysterically to Palestinian claims for more territory - territory within the extant State of Israel - the world will listen more than politely to the Palestinians. They will, after all, now be fully equal to Israelis under international law - courtesy of every Government of Israel from Rabin to the present.

It is too late to change all this. But Israel can still learn some important lessons from its carefully codified "Oslo" mistakes of the past eight years. A first lesson should be this: Heed the sound advice of those international law scholars outside the country who are more than willing and able to help you. Ask your Ambassador in Washington to listen carefully.

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LOUIS RENE BERES was educated at Princeton (Ph.D., 1971) and is Professor, Department of Political Science, Purdue University and is a long-time expert in international law. The author of fourteen books dealing with international law, he has co-authored scholarly articles in Israel and the United States with former Ambassador Zalman Shoval and COL. (IDF/RES.) Yoash Tsiddon-Chatto. Other international law articles by Dr. Beres have been published in Israel in NATIV; BTZEDEK; HAARETZ; THE JERUSALEM POST; THE JERUSALEM LETTER; BULLETIN OF THE JERUSALEM INSTITUTE FOR WESTERN DEFENCE; and the Policy Paper Series of the Ariel Center. Born in Switzerland, Professor Beres is Strategic and Military Affairs Analyst for THE JEWISH PRESS in New York City.
E MAIL: BERES@POLSCI.PURDUE.EDU



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