The Legal Case Against Palestinian Statehood
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Later this week Palestinian Authority President Mahmoud Abbas is expected to seek recognition of a Palestinian state from the United Nations. The move is opposed by the Obama administration, which has rightly called it a "distraction." Nevertheless, the PA's effort has wide support among the U.N. membership, including Security Council members Russia, China and Britain, as well as other important regional states such as Turkey. These powers should think again because putting the U.N.—and particularly the General Assembly—in the business of state recognition is inconsistent with international law and the U.N. Charter, and it is manifestly not in their interests.
The U.N.—General Assembly or Security Council—has no power to create states or to grant all-important formal "recognition" to state aspirants. The right to recognize statehood is a fundamental attribute of sovereignty and the United Nations is not a sovereign. Those who cite as precedent the General Assembly's 1947 resolution providing for the partition of Palestine misread that instrument and its legal significance.
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Resolution 181 outlined a detailed (and rigorous) process whereby the British Mandate in Palestine was to end and two new states, one Jewish and one Arab, were to be established. It recommended that process to Great Britain (as the mandate-holder) and to other U.N. members. It did not create or recognize these states, nor were the proposed states granted automatic admission to the United Nations. Rather, once the two states were established as states, the resolution provided that "sympathetic consideration" should be given to their membership applications.
In the event, the Arab countries rejected partition and Israel declared (and successfully defended) its independence. Israel's statehood was recognized, in accordance with international law, by other states—including the United States and the Soviet Union.
The Palestinian Authority, by contrast, does not meet the basic characteristics of a state necessary for such recognition. These requirements have been refined through centuries of custom and practice, and were authoritatively articulated in the 1933 Montevideo Convention on the Rights and Duties of States. As that treaty provides, to be a state an entity must have (1) a permanent population, (2) a defined territory, (3) a government, and (4) the capacity to enter into relations with other states.
As of today, the PA has neither a permanent population nor defined territory (both being the subject of ongoing if currently desultory negotiations), nor does it have a government with the capacity to enter into relations with other states. This pivotal requirement involves the ability to enter and keep international accords, which in turn posits that the "government" actually controls—exclusive of other sovereigns—at least some part of its population and territory. The PA does not control any part of the West Bank to the exclusion of Israeli authority, and it exercises no control at all in the Gaza Strip.
The PA does not, therefore, qualify for recognition as a state and, concomitantly, it does not qualify for U.N. membership, which is open only to states. All of this is surely understood by the PA and its backers, and is also why the administration has correctly labeled this effort as a distraction—"stunt" being a less diplomatic but even more accurate term in these circumstances. What is unfortunate is that the Obama administration has failed to present the case against a Palestinian statehood resolution in legal rather than tactical terms, even though these arguments are obvious and would greatly reinforce the U.S. position, also providing a thoroughly neutral basis for many of our allies, particularly in Europe, to oppose Mr. Abbas's statehood bid.
The stakes in this battle are high. The PA's effort to achieve recognition by the U.N., even if legally meaningless, is not without serious consequences. To the extent that state supporters of that measure may themselves have irredentist populations or active border disputes with their neighbors—as do Russia, China, Britain and Turkey—they will certainly store up future trouble for themselves.
Traditionally, states rarely recognize (even if they may materially support) independence movements in other states. This is because granting such recognition may have very serious consequences, up to and including war. (The classic example here being France's recognition of the infant United States in 1778 and its immediate and inevitable entry into the War for Independence against Britain).
With respect to Israel, although it does not actually claim all of the territory on which the "State of Palestine" would be established, it is and has been engaged in difficult negotiations over that territory—and the PA's status—for many years. Support for U.N. recognition might not rise to the level of an act of aggression against Israel, but the U.N. Charter also forbids members to act in a "manner inconsistent with the Purposes of the United Nations." First among those purposes is maintaining international peace and security, and efforts prematurely to force recognition of a Palestinian state clearly undercut this goal. This is, in fact, a rare instance in which a measure is bad policy, bad law, and has the real potential to damage the interests of its opponents and its supporters.
Messrs. Rivkin and Casey are Washington, D.C., lawyers who served in the Justice Department during the Reagan and George H.W. Bush administrations. Mr. Rivkin is also a senior adviser to the Foundation for Defense of Democracies.
Date Added: 2011-09-24