Recognition of Palestinian Statehood: a Clarification of the Interests of the Concerned Parties

• Publication year: 2012
• Citation: Vol. 40 No. 2

Recognition of Palestinian Statehood: A Clarification of the Interests of the Concerned Parties

Winston P. Nagan^* & Aitza M. Haddad^**

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Table of Contents

I. Introduction...............................................................................343

II. Background Facts Relevant to the Claims for Palestinian Statehood..............................................................346

A. The Land and People of Palestine and Eretz Israel.................346
B. The Recognition of the State of Israel......................................349
C. Palestine Mandate and United Nations System........................352
D. Conflict Following the Partition Resolution............................354

III. The International Law Criteria of Statehood and the Process of Recognition.............................................................362

A. Palestinian Statehood and the United Nations Mandate.........364
B. The Relevance of Recent Case Law..........................................374
C. Repressive and Discriminatory Behaviors of the State of Israel.........................................................................................377
D. Contemporary International Relations....................................386

IV. Interests of the Parties............................................................389

A. Palestinian Interests in a Two-State Solution..........................389
B. Israeli Interests in a Two-State Solution..................................392
C. U.S. Interests in a Two-State Solution......................................396
D. U.S. Interests and the Ultra-Nationalist Leadership in Israel.........................................................................................402
E. Global Community's Interests in a Two-State Solution...........411

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V. The Road Map for Securing the Recognition of Palestinian Statehood..............................................................412

A. The PA Should Establish a Functioning Government Explicitly Based on International Law Criteria.......................414
B. The PA Should Promote "Good Governance" by Establishing the Preconditions for a Parliament to Create a Constituent Assembly and to Draft a New, Sovereign Constitution.............................................................414
C. The PLO Should Reaffirm the 1988 Declaration of Independence in Light of the Creation of a New Government and a New Constitution............................................................415
D. The PNA Should Secure Bilateral Recognition of the New Government and State Worldwide............................................415
E. The PNA Should Encourage Regional Organizations to Recognize the New Government and State...............................416
F. The PNA Should Seek to Secure a General Assembly Resolution Recognizing the Declaration of Independence, the Constitution, and Government of the Palestinian State...........416
G. The PNA Should Seek to Secure Security Council Support......417
H. The PA Should Develop a Strategy to Move Around a U.S. Veto of Security Council Recognition of Palestinian Statehood and Sovereignty Under International Law..............418

VI. Conclusion...................................................................................419

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"The Egyptian peopleAre fighting valiantlyFor human rights.

The Israeli KnessetIs fighting valiantlyTo abolishHuman rights"¹

I. Introduction

The recognition of Palestinian statehood has now become an important issue in the evolution of the conflict between the state of Israel and the Palestinian people. The issue has been made more interesting by decisions of the Canadian Supreme Court and the International Court of Justice (ICJ).² In particular, this Article refers to the judgment of the ICJ concerning the Unilateral Declaration of Independence of Kosovo.³ This judgment adds insights to the prospect of a Palestinian claim to statehood and independence from an international law perspective. More generally, 2010 culminated in the widespread perception that Israel's leaders seek to maintain the status quo indefinitely, leaving Palestinians as an occupied people, which ostensibly secures Israeli interests.⁴ If true, such a position is contrary to Israel's international legal obligations and places Palestinian aspirations at heightened risk.⁵ As the Palestinians' representatives began seeking support for international recognition for the state of Palestine, Israel reached out to other countries—most significantly, the United States—to block such a move.⁶ On December 15, 2010 the United States Congress passed a resolution condemning acts by the Palestinians to seek unilateral (meaning

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without the permission of Israel) recognition of the state of Palestine.⁷ Recent developments in the Israeli-Palestinian conflict suggest that a clarification of international law standards regarding new states, as well the issue of recognition of Palestinian statehood, is ripe for analysis.

State recognition is widely perceived to be a political fact with legal consequences.⁸ In the real world context of state recognition, the legal aspect actually reflects the circumstances of the proto-state (including its political background), making the distinction between political fact and legal consequence less clear.⁹ Analyzing the prospects for any proto-state requires the serious consideration of international law processes—the clarification of which may guide the development of outcomes in particular cases. The contemplated transition in proto-Palestine is one such case.

Many more international law issues other than mere state recognition are implicated in an effort to establish a sustainable solution to this longstanding conflict. The international law jurisdiction over the Israeli-Palestinian conflict is exceedingly complex.¹⁰ Frequently, there is a contest between apparently settled international law standards and the brute facts of either denial or noncompliance—a challenge to the role of international law to effectively provide appropriate normative guidance to the parties.¹¹ Moreover, the Israeli-Palestinian conflict is one that generates dynamism of facts. Since new facts are generated continuously, those facts redefine contextual reality and, as changed contexts emerge, the contextual background itself is redefined. This implies that new facts reshape the legal framework and the relevant discourse. Nevertheless, the complexity attending the normative salience of international law and the context of brute power relations can be unpacked through configurative legal analysis, which uses the legal process as a tool for clarifying problems (rather than narrowly demanding prescriptive outcomes). Using configurative analysis, this presentation envelopes the necessary contextual background within which

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the contestations of international law norms and the search for satisfactory conclusions are important.

International law functions not only by declaring the operative rules and principles that form its procedural and substantive background, but also (as an epistemological tool) by reframing the search for relevant facts having important legal effects.¹² In the context of the Israeli-Palestinian conflict, both sides contest the contextual reality and, consequently, the urgency of addressing particular factual and legal issues. The unwillingness of the parties (through their constituted leadership) to confront legitimate issues of coexistence corresponds with a prevalent ambivalence toward legal norms that direct effective solutions. An appropriate approach to international law may permit us to better identify and understand problems that ultimately require solutions consistent with an evolving legal and political reality.

This Article focuses on one aspect of a complex context of claims and counterclaims by the Israeli and Palestinian peoples: the status of Palestinian claims to statehood under international law. These claims have been variously contested by the Israeli authorities as well as members of the international community. We aim to explore the precise legal and political grounds for these claims and contestations, in order to arrive at a contextual reality that will permit the Israelis and Palestinians to move forward in the process of arriving at a fair and settled agreement. This status is necessary for individuals to begin to accept the status quo and build upon these foundations with activities that will enrich the region and the lives of its people.

From the onset, we wish to point out that we assign a positive value judgment to both perspectives; pro-Israel and pro-Palestine. From this perspective we have tried to provide an objective appraisal of the claim of Palestinians to independence and statehood. We have tried to take into account the interest of the most prominent stakeholders. We have come to the conclusion that the recognition of Palestinian statehood is in the common interest of all the parties and more generally of the world community. This Article therefore, suggests appropriate international law strategies to expeditiously secure the international recognition of statehood for the Palestinian community.

The plan of this Article is to provide the background facts important to the respective claims of both the Israelis and the Palestinians. In particular, the Palestinian claim rests on the boundaries recognized by the Security Council. Israeli claims, which are not clearly delineated, are probably

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influenced by the historical claim to Israeli boundaries reflected in the Eretz Israel idea. The Article reviews Israelistatehood recognition and places the Palestinian issue in the context of the League of Nations Mandate System and the United Nations. The Article traces the conflict following partition and reviews the issue of Palestinian statehood in terms of mandate expectations as well as contemporary expectations of international law. Guidance...