No. 583 May-June 2011
- The public debate in Israel over the Palestinian plan to seek UN support for statehood in September is based on a fundamental misconception: the UN General Assembly cannot by itself establish or recognize a Palestinian state. It can admit new members to the UN only after they have been nominated first by the UN Security Council, where any of the five permanent members could veto the nomination.
- The current Palestinian effort at the UN, moreover, seems redundant. The UN General Assembly already recommended the creation of a Palestinian state on December 15, 1988, and has even insisted on the 1967 lines. The 1988 resolution was backed by 104 countries; only the U.S. and Israel opposed it. But this and other past resolutions (including one as recently as December 18, 2008) did not create a new legal reality, nor did they change anything on the ground.
- In 1998, when Prime Minister Benjamin Netanyahu was confronted with a plan by Yasser Arafat to declare a state in 1999, the Israeli government warned that such a move would constitute ”a substantive and fundamental violation of the Interim Agreement” between Israel and the Palestinians (the Oslo II agreement). It issued a formal statement saying that if such a violation occurred, then Israel would be entitled to take all necessary steps, including the application of Israeli law to settlement blocs and security zones in the West Bank.
- Oslo II clearly established 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” (Article 31). The European Union actually signed Oslo II as a witness. Can EU countries then become active participants in changing the status of the territories whose fate is supposed to be determined only by negotiations?
- Israel must firmly oppose the September initiative in the General Assembly, even if the Palestinians already have the votes. It must make absolutely clear that this move is no less than a material breach of a core commitment in the Oslo Agreements, as the Israeli government asserted in 1998. Only a strong Israeli response will deter Abbas from going further down the road of unilateralism.
The UN General Assembly Cannot Establish a Palestinian State
The public debate in Israel over the Palestinian plan to seek UN support for statehood in September is based on a fundamental misconception: that the UN General Assembly can decide about the existence of new states. Contrary to widespread beliefs, it was not the UN General Assembly that formally established the State of Israel. UN General Assembly Resolution 181, also known as the Partition Plan, from November 29, 1947, only recommended the establishment of a Jewish state. It was an important moral boost for the Jewish people. But the actual legal basis for the creation of the State of Israel was the declaration of independence by David Ben-Gurion on May 14, 1948.
Meanwhile, the Palestinians speak about the UN “recognizing” a new Palestinian state this September. Nabil Shaath, a senior Fatah Central Committee member, referred to the PA gaining recognition for a Palestinian state from two-thirds of the UN member-states.1 In early 2011, Riad Malki, the Palestinian foreign minister, expanded on the idea of UN recognition: “Such recognition would create political and legal pressure on Israel to withdraw its forces from the land of another state that is recognized within the 1967 borders by the international organization.”2 Indeed, because Abbas wants international recognition to cover both the West Bank, where his government rules, and Hamas-controlled Gaza, he felt driven to seek a reconciliation between Fatah and Hamas, just recently.
Yet, the General Assembly does not recognize new states either. It can admit new members to the UN only after they have been nominated first by the UN Security Council. If one of the five permanent members of the Security Council refuses to support the admission of a new state to the UN, then there is nothing the General Assembly can do about it. Kosovo is recognized by at least 75 states, but Russia refuses to support its admission to the UN, so it is not a UN member state. The General Assembly has recognized the right of self-determination of national movements; it has accepted different national movements as representing peoples with national aspirations. But the UN General Assembly cannot by itself establish or recognize a Palestinian state. It can only make recommendations for other states to follow in their bilateral contacts.
It should be pointed out that the current Palestinian effort at the UN seems redundant. The UN General Assembly has already recommended the creation of a Palestinian state in the past. It even insisted on the 1967 lines. On December 15, 1988, the General Assembly adopted Resolution 43/177 which acknowledged “the proclamation of the State of Palestine” by Yasser Arafat at the Palestine National Council meeting in Algiers on November 15, 1988. It was a virtual state, since it did not meet any of the minimal conditions that international law has determined must be met in order for a political community to be recognized as a state. Nonetheless, the UN went ahead and tried to grant some sort of status to Arafat’s declaration.
The 1988 UN resolution affirmed “the need to enable the Palestinian people to exercise their sovereignty over their territory occupied since 1967.” It was backed by 104 countries; only the U.S. and Israel opposed it (36 countries abstained). Since that time, other UN General Assembly resolutions, as recently as December 18, 2008, reaffirmed the rights of the Palestinians to an independent state. But all these past resolutions did not create a new legal reality, nor did they change anything on the ground. Moreover, they did not alter the fundamental fact that UN Security Council Resolution 242 from November 1967 still stood out as the only agreed basis for every Arab-Israeli peace agreement since 1979. Resolution 242 did not demand of Israel to pull back to the 1967 lines.
Abbas Hopes to be Handed a State
There are several reasons why the Palestinian leadership is pursuing this UN strategy. First, Mahmoud Abbas has been convinced that the UN route allows him to obtain a Palestinian state on a silver platter without having to actually stand up in a hall in Ramallah and issue a declaration. He told Newsweek‘s Dan Ephron, in an interview published on April 24, that he is not prepared to declare a state by himself, if the UN General Assembly adopts a resolution on Palestinian statehood. Abbas prefers to be passive and let the international community do all the work. He is not following the sequence of state-creation practiced by Israel’s leader, David Ben-Gurion, in 1947-48.
Abbas knows there are risks if he decides to unilaterally declare a state. In 1998, when Prime Minister Benjamin Netanyahu was confronted with a plan by Yasser Arafat to declare a state, when the five-year Interim Agreement was to expire in 1999, the Israeli government warned that such a move would constitute ”a substantive and fundamental violation of the Interim Agreement” between Israel and the Palestinians (the Oslo II agreement). It issued a formal statement on November 11, 1998, saying that if such a violation occurred, then Israel would be entitled to take all necessary steps, including the application of Israeli law to settlement blocs and security zones in the West Bank. At the time, the U.S. and Israel deterred Arafat’s declaration. This also raises the question: if the 1988 declaration was really a meaningful act, then why did Arafat plan on making another declaration of independence in 1999?
This September, Abbas can say that he is not responsible for what the UN does, but at the same time is looking forward to 130 states or more recognizing the new Palestinian state, in the aftermath of a UN resolution. Under such conditions, he obtains the benefits of statehood without having to take responsibility. It is normal state practice that states only recognize a new state that has already been declared. If Abbas leaves the UN General Assembly in New York after receiving support for a Palestinian state, but does not issue a declaration of statehood in Ramallah, then there could be legal limits on how states respond to this situation. For that reason, there are Palestinian spokesmen who try to put forward a legal argument that Abbas does not have to declare a state because Arafat already made the declaration in 1988.
The real importance of any new UN General Assembly resolution is the follow-up the Palestinians pursue. Abbas’ advisors are probably reading doomsday scenarios in the Israeli press that Israeli settlements and military bases in the West Bank will no longer be “occupiers” but rather “invaders” in a sovereign state. Might Israel be subject to sanctions? It would be irresponsible to dismiss these ideas completely, but to take these next steps, the Palestinians would need the UN Security Council. The Obama administration may not like Israeli settlements, but it is not about to support UN resolutions treating Israel like Iraq under Saddam Hussein. Besides, after pushing a resolution in the General Assembly in defiance of Washington, Abbas will have little credit left to ask for new Security Council actions.
What Will the Europeans Do?
Palestinian diplomatic strategy at the UN has always been based on gaining qualitative support for pro-Palestinian initiatives and not just quantitative backing. In other words, it was not enough for the Palestinians and the Arab bloc to win 130 votes in the UN General Assembly based on the Non-Aligned Movement. Something is clearly missing for the Palestinians if they can only rely on countries like Cuba, Yemen, and Pakistan. For that reason, the European Union’s support for their resolutions is always pivotal. Moroever, many states, like Japan or Argentina, will decide how to vote on the basis of what the European Union decides to do.
Yet, the EU and certain pivotal states in the international community will have certain problems with Abbas’ move, though these concerns are not always apparent on the surface. In the UN system, new states have been admitted when they resolved bilaterally their differences with those states with which they have fundamental disputes. Thus Bangladesh could only become a UN member when it resolved its conflict with Pakistan, of which it was once a part. Europeans are sensitive to the dangers of premature recognition of states in unresolved conflicts, because of their own experiences. The Yugoslav Wars (1991-1995) were ignited when Germany recognized Croatia and Slovenia, prior to solving the problems created by the dissolution of Yugoslavia. And Spain was reluctant to recognize Kosovo, because it feared the precedent that it set for Basque separatists. According to Der Spiegel, German Chancellor Angela Merkel is urging Abbas to refrain from a unilateralist course at the UN.3 Abbas cannot take EU support for his September UN bid for granted.
There is another factor that can affect European attitudes, in particular. The 1995 Israeli-Palestinian Interim Agreement, also known as Oslo II, clearly established 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” (Article 31). The European Union actually signed Oslo II as a witness. How can the EU then support a Palestinian initiative at the UN which violates this core commitment in an international agreement, when the EU itself is a signatory to the agreement in question? Can EU countries go ahead and recognize a Palestinian state when they then become active participants in changing the status of the territories whose fate is supposed to be determined only by negotiations?
Moreover, because the Palestinians would be violating a signed international agreement with Israel by going to the UN in pursuit of unilateral change of the status of the West Bank and Gaza, they would be engaging in a clearly illegal act. There are implications from this for how states treat the issue of recognition. For example, states strictly adhering to international law would have grounds to deny recognition to a Palestinian state. After all, there is a general principle of law, noted by Professor Malcolm Shaw, that an “illegal act cannot produce legal rights.”4 Furthermore, according to the Second Restatement of the Foreign Relations Law of the United States (1981), a state is required not to recognize or treat as a state any entity which has “attained the qualifications of statehood in violation of international law.”5
Abbas is hoping that European political interests in backing the Palestinians will trump the question of legality. He also wants to change the political context of his struggle with Israel to his favor. He is hoping that any reference to the 1967 lines will weaken the resolve of the Israeli public. He wants to influence the public debate and get Israelis to accept the inevitability of a full withdrawal from the West Bank. He is hoping that Israelis will draw parallels between a UN General Assembly resolution this September and the partition resolution from 1947 and thereby create political momentum that will put new pressures on the Israeli government to make concessions that previous Israeli prime ministers thought would be unwise.
In this sense, Abbas’ move is aimed at shaping the political context of the diplomatic struggle between Israel and the Palestinians in the future in the Palestinians’ favor. He is hoping that the Obama administration will be more reluctant to use the U.S. veto at the UN Security Council if he can obtain an overwhelming vote in his favor at the UN General Assembly. What this means is that Israel’s countermoves should be aimed at affecting the terms of the international debate that Abbas is trying to shift. This is as much a struggle about political consciousness as it is about international law.
What Should Israel Do?
What should Israel do? It must firmly oppose the September initiative in the General Assembly, even if the Palestinians already have the votes. It must make absolutely clear that this move is no less than a material breach of a core commitment in the Oslo Agreements, as the Israeli government asserted in 1998. It cannot leave any doubts about how serious it views Abbas’ move, especially if the UN resolution he seeks mentions the 1967 lines, thereby predetermining Israel’s future borders, without any negotiations, as called for in the Oslo Agreements. It must make clear that Abbas has chosen unilateralism over a negotiated settlement of the Israeli-Palestinian conflict, as called for in previous signed agreements.
As an additional step, Israel should ask the Obama administration and Congress to reconfirm the April 14, 2004, U.S. letter to former Israeli Prime Minister Ariel Sharon which specifically ruled out a full Israeli withdrawal from the West Bank and promised “defensible borders” for Israel in the future. The letter was confirmed by overwhelming bipartisan majorities in both houses of Congress in June 2004. Obama has neither embraced nor renounced the 2004 letter. Israel is not helpless if the Palestinian leadership takes hostile diplomatic action against it. Only a strong Israeli response will deter Abbas from going further down the road of unilateralism.
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1. “PA Will Get Majority UN-Recognition for Palestinian State,” Jerusalem Post, April 19, 2011.
2. Linda Gradstein, “Palestinians to Push for UN Recognition as Independent State,” Aol News, January 10, 2011.
3. Herb Keinon, “EU Split over UN Recognition of Palestinian State,” Jerusalem Post, April 24, 2011.
4. Prof. Malcolm Shaw QC, “In the Matter of the Jurisdiction of the International Criminal Court with regard to
the Declaration of the Palestinian Authority: Opinion,” as submitted to the Prosecutor of the International
Criminal Court in The Hague by the International Association of Jewish Lawyers and Jurists, Alex Hertman,
Adv., President, September 9, 2009.
See also: “When an entity comes into existence in violation of certain basic rules of international law, its title to be a ‘State’ is in issue….Illegality of origin might sometimes be taken as grounds for non-recognition.” James Crawford, The Creation of States in International Law, 2nd ed. (New York: Oxford University Press, 2006), p. 74.
5. Tal Becker, International Recognition of a Unilaterally Declared Palestinian State (Jerusalem: Jerusalem Center for Public Affairs, 2000), p. 17.