Palestinian Statehood — A Matter of Law

By Dina Khreino

PALESTINE HAS the right to exist under international law and granting the Palestinians statehood should not be looked upon as a favour by the US, EU or Israel. On Feb. 9, the EU considered a proposal for elections to be held in the Palestinian territories that would call for the Israeli army's prior withdrawal back to its pre-September 2000 positions and the lifting of closures.

According to French Foreign Minister Hubert Vedrine, “If we're not in agreement with US policy, we must say it. Europeans do not agree with the White House's Middle East policy and believe it's an error to blindly support Ariel Sharon's policies of pure repression.” France suggested that after these free elections, which could be held in Gaza and the West Bank, Israel would immediately recognise an independent Palestinian state before starting negotiations on final borders, refugees, Jerusalem and other thorny issues. The new state would then be admitted to the UN and both sides would adopt a declaration of non-belligerency.

Whether this is lip service from the EU or a continuing gap between the US and EU on Middle East policy, the question of Palestinian statehood is a matter of law, and not of the puppet politics of the US-EU relationship. The fact is that under customary international law, Palestine has the right to exist as a sovereign nation, and has ample legal support.

The Balfour Declaration of 1917 did not dilute the Palestinians' demand for their own state as a matter of right and the fulfilment of Britain's obligation under the Covenant of the League of Nations. Regardless of the justice or the injustice in the partition resolution of 1947, which created an Arab as well as a Jewish state, this was an affirmation and endorsement by the international community of the existence of Palestinian nationalism and its right to independence on a specific geographical area. Regardless, too, of the rejection by the Palestinians of the partition resolution and their resistance to its implementation, the existence of a Palestinian identity and its right to exist as a nation on its own land was never questioned except by Zionism.

Partition Resolution 181, dated Nov. 29, 1947, didn't mean that Israel got lawful sovereignty over Palestine, in spite of getting political sovereignty through Western support. Moreover, Israel violated the partition resolution through the confiscation of Palestinian and Arab territories. Israel's membership in the United Nations was conditioned by its pledge to commit to UN resolutions 181 and 194, concerning the return of the refugees.

Traditionally, the criteria for statehood have been regarded as resting solely on considerations of effectiveness. Entities with a reasonably defined territory, a permanent population, a stable government and a substantial degree of independence of other states have been treated as states. The Palestinian people have been deprived of their elementary right to self-determination to be practically implemented in accordance with known United Nations resolutions. Palestine has the criteria it needs to meet for establishing a sovereign state, but Israel needs to abide by Resolutions 242 and 338 in order for it to be fully implemented.

The PLO is currently serving as the Provisional Government of the state of Palestine and this Provisional Government already controls substantial sections of occupied Palestine, as well as the entire populace of occupied Palestine. It is thus already exercising effective control over large amounts of territory and people and is providing basic administrative functions and social services to the Palestinians living in occupied Palestine and abroad.

As for having a fixed population, the permanence of the Palestinians and their “identity” is not in question. On Dec. 15, 1988, the United Nations General Assembly adopted Resolution 43/177, essentially recognising the new state of Palestine and according it observer-state status throughout the United Nations Organisation. That resolution was adopted by a vote of 104 in favour, the United States and Israel opposed, and 44 states abstaining.

The rule of law, equality before the law, legal certainty and effective law enforcement are pillars of a democratic society that enable citizens to mobilise, organise and manage themselves for their advancement and for the common good. Unfortunately, Sharon believes that his democratic society is one in which he can keep Arafat under military supervision and restrictions, while the violence on both sides escalates and the Israeli army continues to use excessive military force against the Palestinians. It would be hypocritical of the international community to support limited sovereignty and autonomy models, in which Palestinians would “enjoy” a maximal extent of political, economic, social and cultural independence, while responsibility for security would be withheld; that is not the definition of a sovereign state.

When Palestine is a sovereign state, it should have control both over foreign and internal policies and there should be no restrictions over land and borders, water and other resources, and their ability to determine their own economic and social development. The state should be entitled to have direct territorial links with Arab countries, control of border crossings and, as a sovereign nation, an army to secure it.

A partition and a “two-state solution” is the only means of satisfying the Palestinian demands for independence and sovereignty. Israel would no longer be responsible for the welfare of the Palestinians. The internal pressures and psychological damage caused by occupation and daily conflict would end. The US, EU, Israel and the rest of the world can continue discussing Palestinian statehood, but one thing needs to be clear amongst them all, and that is the definition of sovereignty and the understanding that Palestinians have legally been entitled to their own state for over half a century.

The writer is a researcher of political science, International Law, and Middle East Affairs in Paris, France.