The Vatican has just concluded a treaty to recognize “Palestine” as an independent state. Nonetheless, under governing international law, primarily the 1934 Convention on the Rights and Duties of States (aka the Montevideo Convention), “Palestine” will still remain outside the community of separately sovereign states. This exclusion will be proper, moreover, despite the United Nations’ earlier action on November 29, 2012. On that day, a General Assembly resolution had merely upgraded the Palestinian Authority (PA) to the substantially limited status of a “Nonmember Observer State.”
There is more. Jurisprudential limitations of the Vatican treaty on “Palestine” are evident “beyond a reasonable doubt.” The authoritative criteria of statehood are long-standing, fixed, explicit, and readily identifiable. More precisely, under plainly recognizable legal rules, a state must possess the following very specific qualifications: (1) a permanent population; (2) a defined territory; (3) a government; and (4) the capacity to enter into relations with other states.
Undoubtedly, the PA will cite confidently to the (1) non-treaty quality of the Oslo Agreements(treaties are defined at the 1969 Vienna Convention on the Law of Treaties), and to (2) certain allegedly basic and immutable human rights under international law that concern “self‑determination” and “national liberation.”
For years, Israel has not troubled itself too intently with any of the expressly juridical aspects of “Palestine.” Most Israelis, after all, were never entirely convinced that Palestinian statehood could somehow become a genuinely critical issue. Prime Minister Netanyahu seems to have conceded the eventual creation of “Palestine,” but only on the seemingly prudent condition of Palestinian “demilitarization.” While this contingent condition or caveat may initially sound reassuring, it actually represents little more than an easily disregarded legal fiction.
The Palestinian Authority is surely aware of this fact. No new state, it will understand, is ever under any binding obligation to remain “demilitarized.” This exception holds whatever else it may have previously agreed to in its pre-state diplomacy and negotiations.
Over the years, a number of cases in United States federal courts had 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, but not today. However grudgingly, after Oslo, after so many years of incremental Israeli recognition of PLO/PA authority as legitimate, Israel will likely have to accept a still implacable “Palestine” as a “partner in peace.”
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,” however impermissibly, the new country will effectively become thejuridical equal of Israel. And when Israelis then begin to object strenuously to inevitable irredentist claims for more territory ‑ territory within “Occupied Palestine,” as the PA still describes Israel ‑ the world will listen more attentively to the Palestinians. They will, after all, now seemingly be equal to Israelis under pertinent international law.
It is too late to change all this. In part, at least, the advancing drift to legal symmetry between Israel and “Palestine” is the direct result of persistently concessionary policies fashioned in Jerusalem. But Israel can still learn some important and potentially remediating lessons from its myriad Oslomistakes.
Above all, Jerusalem must begin to argue vigorously against European Union guidelines, insisting that Palestine’s borders never be based upon pre-1967 lines. 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, Jerusalem should finally affirm that Israeli settlement activity is entirely consistent with international law, and also that those jailed Palestinian terrorists who have murdered Israeli civilians will never be released as any so-called “good will gesture.” There is, in short, no defensible reason for Jerusalem to continue its participation in an asymmetrically suicidal diplomacy. Promisingly, in this connection, the new coalition under Prime Minister Netanyahu is apt to acknowledge this conclusion, and to more vigorously contest any propagandistic Palestinian manipulations of the International Criminal Court.
Before a Palestinian state can be correctly declared, it will first have to satisfy all codified and customary criteria of governing international law. Neither the Vatican nor the European Union can permissibly justify any “end run” around this corpus of binding rules. Jurisprudentially, at least, the creation of “Palestine” can never be based upon a fully concocted hodgepodge of irrelevant and dangerous political arguments.
Reprinted with author’s permission from The Hill