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Recognizing a Palestinian State before a Peace Agreement with Israel Undermines the International Rule of Law, by Peter Wertheim (JCPA via EoZ)

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Aug. 7, 2017

  • Among those who advocate immediate recognition of a Palestinian state, without a peace agreement with Israel, there is a striking irony in the contrast between the legalistic approach they purportedly adopt on one question, namely settlements, and their cavalier disregard for well-established legal principles on another, namely the creation of states and their recognition. One either supports the international rule of law as a general principle or not at all. One does not get to pick and choose.
  • The four criteria of statehood set out in Article 1 of the Montevideo Convention on the Rights and Duties of States, 1933, are widely accepted as the minimum required by customary international law for the creation of a new state. Two of the criteria – a single, centralized government and the capacity to enter into relations with other states – are manifestly not satisfied by any Palestinian entity.
  • The internal divide between the secular nationalist movement among Palestinians, represented by the PLO and Palestinian Authority (PA) which controls parts of the West Bank, and the theocratic movement, represented by Hamas which controls the Gaza Strip, has resulted in internecine violence on many occasions. All attempts at internal reconciliation have failed and appear to be intractable. They are at loggerheads on the most basic questions, not only concerning peace with Israel and other issues of foreign and domestic policy but also on the essential nature of a future Palestinian State. Thus, for reasons which are entirely internal to Palestinian society, there is no reasonable prospect for the foreseeable future of any government being formed which would exercise effective control over both the West Bank and the Gaza Strip, and would have the capacity to give effect to any agreements purportedly entered into by “Palestine.”
  • Although recognition is a political act and a matter of discretion, it is “subject to compliance with the imperatives of general international law.” Given that the criteria of government and the capacity to enter into relations with other States are at present not satisfied by any Palestinian entity, recognition of any such entity as a State would be to affirm a fiction, contrary to the imperatives of general international law. Recognition by even a large number of other States cannot overcome clear and compelling objective evidence indicating that the mandatory legal criteria of statehood have not been met. An exception would be admission of the entity as a member State of the UN. If, notwithstanding its admission to the UN as a member State, the entity does not, in fact, meet the customary law criteria of statehood, at law it is still a State, albeit a failed State.
  • Applying the additional requirements for recognition contained in the European Community Declaration and Guidelines (1991), the Palestinians have failed, and are likely to continue for the foreseeable future to be unwilling to make commitments to respect the inviolability of the frontiers with Israel, to repudiate all territorial claims by Palestine against Israel and to settle all disputes with Israel by peaceful means.
  • Recognition of a Palestinian State at the present time would not only be contrary to the well-established requirements for statehood stipulated by customary international law and the additional requirements mandated by the European Community Declaration and Guidelines in 1991. It would also contravene the internationally recognized and witnessed Oslo Accords between the Palestinians and Israel and lay the foundations for opening a new phase of the Palestinians’ conflict with Israel, rather than for resolving the conflict. Recognition would, therefore, undermine the primary purposes of the UN Charter and the current international rules-based order, which is to maintain international peace and security.

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