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Jerusalem Center for Public Affairs
Strategic Alliances for a Secure, Connected, and Prosperous Region

Recognition of a Palestinian State – Premature, Legally Invalid, and Undermining any Bona Fide Negotiation Process

Filed under: International Law, Palestinians, Peace Process, The Middle East
Publication: Jerusalem Issue Briefs

Vol. 10, No. 13    December 9, 2010

  •  The acts of recognition of a Palestinian state in 1967 borders by Brazil, Argentina, and possibly other Latin American states have no significance other than as a political expression of opinion.
  • These acts of recognition run counter to statements by Brazil and Argentina in the United Nations Security Council in 1967 in favor of freely negotiated borders between the parties and an internationally sponsored peace negotiation process as set out in Resolution 242.
  • The unceasing efforts among states by the leadership of the Palestinian Authority to attain recognition of unilateral statehood within the 1967 borders and thereby bypass the accepted negotiation process, runs counter to their commitments in their agreements with Israel, as witnessed and guaranteed by members of the international community.
  • The hostile actions and statements of the Palestinian leadership lack bona fides and prejudice any reasonable negotiating ambiance between parties that seek to establish peaceful relations between them, and are indicative of an utter lack of a genuine will to reach a peaceful settlement.

The reported declarations of formal recognition by Brazil, Argentina, Uruguay, and possibly other Latin American states of a “free and independent Palestinian state within the 1967 borders” raise several significant issues – both political and legal, whether in the bilateral political relationship between Israel and those states, and between Israel and the Palestinian Authority.

Recognition of a political entity as a state does not, in and of itself, create a state, as such recognition carries no definitive or substantive significance in the creation of statehood. At most, it is indicative of the political viewpoints of the recognizing states.

Establishment of statehood, on the other hand, requires a series of internationally accepted and customary criteria, as set out in the 1933 Montevideo Convention on the Rights and Duties of States, relating to a capability of governance, permanent population, defined territory, and capacity to enter into relations with other states.

In fact, that convention specified specifically that “the political existence of the state is independent of recognition by the other states.”

But in the Palestinian context these criteria for statehood must be read in the context of the substantive, tailor-made requirements of the various United Nations resolutions dealing with the settlement of the Middle-East issue, as well as the specific commitments by the Palestinians in several still-valid agreements signed with Israel over the years.

This factor was perhaps amplified following a Palestinian attempt to declare statehood in 1988, when over 100 states gave their recognition. But clearly, this unilateral Palestinian attempt to dictate a solution to the Israel-Palestinian issue outside the internationally accepted and sponsored peace negotiation process established by the UN Security Council in Resolutions 242 (1967) and 338 (1973) was never seen to be a serious factor in solving the issue.

Thus, any act of recognition of a Palestinian state, whether by Brazil, Argentina, Uruguay or anyone else, can have no validity whatsoever other than some sort of political expression. To the contrary – such declarations of recognition run counter to the very resolutions to which those states are party, and to the agreements that they themselves have, over the years, endorsed and supported.

Interestingly, the present instance of the Brazilian declaration of recognition of a Palestinian state within “the 1967 borders” would appear to run counter to Brazil’s own statement to the Security Council during the course of its acceptance of and support for Resolution 242, in November 1967, when their representative declared:

      Its acceptance does not imply that borderlines cannot be rectified as a result of an agreement freely concluded among the interested States. We keep constantly in mind that a just and lasting peace in the Middle East has necessarily to be based on secure permanent boundaries freely

agreed upon and negotiated by the neighboring States

    . (S/PV.1382(OR), 22 November 1967).

In fact, a draft resolution submitted to the Emergency Session of the UN General Assembly by eighteen Latin American states (including Brazil and Argentina) on 30 June 1967 included a call to the parties

    …to end the state of belligerency, to endeavor to establish conditions of coexistence based on good neighborliness and to have recourse in all cases to the procedures for peaceful settlement indicated in the Charter of the United Nations. (A/L. 523/Rev.1 para 1(b)).

Thus, the vital and overriding principles advocated by Brazil, Argentina and other states in 1967, endorsing boundaries being freely agreed upon, good neighborliness, and peaceful settlement procedures pursuant to the UN Charter, would appear to have been overlooked by the recent decision of the Brazilian and Argentine governments, at the behest of the Palestinian leaders, to favor unilateral Palestinian dictation of a boundary, without agreement, in violation of any notion of “good neighborliness,” and undermining the UN-sanctioned peaceful settlement procedures.

However, while Brazil, Argentina, and Uruguay may well be undermining their own declared principles, the Palestinian Authority leadership, in actively lobbying for such recognition throughout the world as part of a declared and concerted aim to achieve recognition by the United Nations of a unilaterally declared Palestinian state, and acknowledgement of the 1967 lines as its border, is in fact undermining the whole peace negotiation process and abusing the bona fides of the international community.

Legally speaking, the actions by Palestinian Authority head Mahmoud Abbas, and his aide Sa’eb Erekat, in pushing to achieve this aim are in violation of the Israeli-Palestinian Interim Agreement of 1995, article IX, paragraph 5(a), according to which:

      …the [Palestinian] Council

will not have powers and responsibilities in the sphere of foreign relations

    , which sphere includes the establishment abroad of embassies, consulates or other types of foreign missions and posts or permitting their establishment in the West Bank or the Gaza Strip, the appointment of or admission of diplomatic and consular staff, and the exercise of diplomatic functions.

No less importantly, the Palestinian leadership is committed, in Article XXXI, para. 7, not to “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.”

Any activity by the Palestinian leadership, including lobbying foreign governments for individual recognition and initiating resolutions in United Nations organs to bring about the unilateral establishment a state outside the negotiation process, is a serious violation of their commitments vis-a-vis Israel. It is tantamount to bypassing the internationally accepted negotiating process, and undermining the very resolutions and agreements that serve as the basis and foundation for the peace-negotiation process.

Since the Palestinian commitments vis-à-vis Israel were witnessed and guaranteed by central elements of the international community, including the U.S., UN, EU, Russia, Egypt, and Jordan, and endorsed by most other states, including Brazil and Argentina, then clearly the Palestinian lobbying activities must be condemned by those elements, and should not be encouraged by them.

This problem becomes even more complex on the background of the ongoing and concerted efforts by the Palestinian leadership to block any progress in the negotiating process through their misleading demand that Israel freeze all settlement activity – a demand that has no basis whatsoever in the series of agreements between Israel and the Palestinians.

In addition to the above, it would appear that the Palestinian leadership is, by its own hand, undermining and prejudicing any negotiating ambiance or good faith between the two sides through a series of offensive actions such as:

  • Hostile statements by their chief negotiators, both vis-à-vis the internal Palestinian population and vis-a-vis the international community
  • Open encouragement and initiation of legal proceedings in international as well as foreign national courts against Israeli leaders and officials, and other activities in foreign states aimed at undermining Israel’s status
  • Attempts to utilize and abuse the international community to question the national and historical heritage of the Jewish people
  • Daily official incitement in schools, universities, and in the Palestinian media

Clearly this activity, openly, officially, and even proudly sponsored and supported by the head of the Palestinian Authority, Mahmoud Abbas, and the head of the negotiation division of the Authority Sa’eb Erekat, in addition to its inherent and obvious bad taste, is utterly incompatible with any negotiating ambiance.

How, one might ask, can the Palestinian leadership expect to instill confidence in the Israeli government and public while at the same time engaging in a policy of maligning Israel and its leaders, seeking to delegitimize Israel, and undermining the agreed-upon negotiating process which is aimed at achieving peace between the two peoples?

*     *     *

Amb. Alan Baker, Director of the Institute for Contemporary Affairs at the Jerusalem Center for Public Affairs, is former Legal Adviser to Israel’s Foreign Ministry and former Ambassador of Israel to Canada. He is a partner in the law firm of Moshe, Bloomfield, Kobu, Baker & Co. He participated in the negotiation and drafting of the various agreements comprising the Oslo Accords.