The legal impossibility of limited Palestinian statehood at the U.N.

REUTERS Palestinian women take part in a rally in support of the efforts of Palestinian President Mahmoud Abbas to secure … Continued

REUTERS

Palestinian women take part in a rally in support of the efforts of Palestinian President Mahmoud Abbas to secure a diplomatic upgrade at the United Nations, in Gaza City on Nov. 27, 2012.

On Thursday, the Palestinian Authority (PA) will again seek statehood at the United Nations. While this form of “statehood” will not confer U.N. member state status to the “Palestinian entity,” it could fundamentally reshape the Middle East, undermine international law, inhibit peace, and violate Israel’s right to exist.

The resolution that the PA submitted to the U.N. General Assembly includes numerous demands that far exceed a simple (but equally illegal) grant of non-member observer state status, i.e. statehood, to the Palestinian Authority.

The ACLJ has put together a comprehensive legal analysis of the fallacies, overreaching and illegality of the PA’s resolution at the U.N.

First, the PA is demanding that the U.N. create the state of Palestine, “on the Palestinian Territory occupied [by Israel] since 1967” within “the pre-1967 borders.”

It is important to understand that historically and factually the PA’s resolution is inaccurate. Israel does not “occupy” Palestinian land; at best, that territory is in dispute, but legally not “occupied.” As ACLJ Senior Counsel Skip Ash in our legal analysis:

In fact, the areas in dispute were never governed by an Arab Palestinian political entity, as none was established in 1949; “the Jordanian army occupied the West Bank, and the Egyptian army occupied the Gaza Strip.” Israel captured this territory when it was attacked in 1967. The U.N., in Security Council Resolution 242, never intended for all of this territory to be returned to Egyptian or Jordanian control.

As our legal analysis explains, the resolution, “only required that Israel return ‘territories’ captured during the 1967 war, not ‘the’ or ‘all the’ territories it captured. Such wording was intentional.”

Second, the PA is demanding that the UN grant something that it has no power or authority under international law to do, statehood.

The U.N. recognizes this principle of international law itself, stating:

As we explain:

For international law purposes, the Montevideo Convention contains the “best-known formulation of the basic criteria for statehood,” to wit, to be a “state,” an entity must possess a permanent population, a defined territory, a government, and a capacity to enter relations with other states. These criteria are widely considered to be the prime indicia of statehood, and the Palestinians’ failure to meet a number of them absolutely preclude any legitimate claim to statehood by the Palestinian Authority.

The Palestinians’ unwillingness to negotiate a defined territory with Israel, and the competing authority of Hamas in the Gaza Strip and the PA in the West Bank, “confirm the fact that the Palestinians lack the territorial control and governmental capacity that is required for statehood or sovereignty.”

This attempt at the U.N. to create a new state, “subverts international law,” and “[c]onsequently, any General Assembly recognition is a legal nullity.”

Third, the PA resolution accuses Israel of illegally obtaining the disputed territories through an aggressive war. Again, this accusation is devoid of factual or legal support.

It is well-settled that international law forbids acquiring territory through aggressive war. The issue is whether territory can be obtained through defensive measures. In effect, when a state violates international law by engaging in aggressive war and that state loses territory it occupies, there is no requirement in international law that such territory be returned to the violating state. In fact, any asserted requirement to do so would reward the aggressor vis-à-vis the victim. As such, Israel reasonably believes that territory may indeed be acquired through defensive measures.

As explained above, the territories in dispute were obtained by Israel in 1967 during the Six Day War and were not the result of an aggressive war by Israel. Thus, Israel is in complete compliance with international law, and “negotiations between the parties are necessary to determine to whom the various territories belong.”

Fourth, the PA is demanding statehood and the acquisition of territory controlled by Israel as a pre-condition to negotiations for a peace agreement with Israel. Essentially, the PA is demanding that negotiations begin from their best-case scenario after throwing out all previous agreements. The ACLJ’s legal analysis concludes:

Legally, the PA’s willingness to breach its solemn agreements with Israel by seeking a unilateral declaration of statehood at the U.N. frees Israel “from fulfilling its reciprocal obligations under the same agreements.”

It would “likely trigger a strong Israeli response that could derail indefinitely the achieving of peace between Israelis and Palestinians as well as the establishment of an Arab Palestinian state.”

Finally, the PA resolution at the U.N. relies on bits and pieces of select U.N. resolutions for support, ignoring others and obfuscating their context. Not only did Arab Palestinians reject the principles laid out for the creation of two states in 1947, while Jewish Palestinians accepted them, Arabs immediately attacked the new Israeli state and there has been a perpetual state of conflict ever since. One need only be reminded of the Palestinian rockets that rained down on Israeli civilians a little over a week ago.

Palestinians continue to ignore those same U.N. resolutions’ calls for recognizing Israel as a Jewish state. As our analysis concluded, “In citing General Assembly Resolution 181 and Security Council Resolution 242 as support for the Palestinian claim of statehood status, the Palestinian Authority demonstrates their propensity to pick and choose from UN resolutions those portions that support their asserted claims while simply ignoring portions that undermine their positions.”

Thursday’s vote marks an attempt to fundamentally reshape the Middle East at the expense of international law, peace, and the Israeli and Palestinian peoples. Even if it were to pass the General Assembly, its legal effect would be a nullity.

Jordan Sekulow is executive director of the American Center for Law and Justice (ACLJ). Matthew Clark is an attorney at the ACLJ.

About

Jordan Sekulow and Matthew Clark Jordan Sekulow is executive director of the American Center for Law and Justice (ACLJ). Matthew Clark is an attorney at the ACLJ. Follow them on Twitter: @JordanSekulow and @_MatthewClark.
  • miln

    Now, I’m not a lawyer, nor do I ever want to be one, but if we apply the Montevideo criteria, then isn’t Israel also not a state? If the Palestinian borders are not defined, so aren’t the Israeli. Yet no one seems to mind that little fact. Furthermore, I find it ridiculous that Palestine will not be able to resort to the ICJ to seek reparations from Israel. So Justice is reserved only for the richer and more powerful country? Doesn’t sound like justice to me.
    Finally, we can argue that Israel has been aggressively occupying Palestinian territory through its settlement program, fighting off opponents with live ammunition. That doesn’t sound like defensive measures to me.
    So, dear Mr. Sekulow, can we stop the legal nit-picking and look at the facts? More than half of the world is behind Palestine, while Israel is backed by a bunch of white-collar attorneys with six-digit salaries and the largest war machine in the world.

  • just_looking

    Christian hacks associated with Pat Robertson’s 4 rate law school. A waste of digital ink …

  • Nag Raj

    Considering selective sanctions, illegal sanctions and Veto power in major organisation, I wonder what constitutes legal or illegal. The fact remains, Palestine will be better off by gaining the status of “Non member Observer” status rather than the mere “Observer” status. This piece of article stinks, it is one sided.

  • Nag Raj

    In a world of selective sanctions and Veto power, I wonder what constitutes legal or illegal. Like it or not, it is the legitimate right of Palestine to stake the claim and get the Non member Observer status which is a tad bit better than simple Observer status.

  • DrLou1

    Abbas’ and the PA’s move here with the UN will likely go down as yet another feat of political stupidity which will rank up there with Arafat’s support for Saddam Hussein in the first Gulf War.

    With Hamas’ delusion of military competence and the PA’s belief it can lie its way through the UN and international law, the Palestinian Arabs will once again be let down the hardest by their own leadership. All Israel has to do is watch while the dueling Palestinian domains implode on their own.

    And that is a shame…

  • obmed1

    I beleive the Montevideo criteria mean that a state must have at least *some* minimal defied and undisputed territory. They do not mean that every last inch of a state’s territory must be defied and undisputed. By your interpretation the existence of some minor border disputes between two states would negate the statehood of both parties. For example by your concept neither Ireland not Great Britain would qualify as states because they had a dispute over Northern Ireland. Spain would not exist as a state because of the disputes over the Basque region and over Catalonia. One could go on with the silly examples.

  • ShiraDvora

    Now we need a legal analysis of the 1000+ cases of rape committed by the UN’s “peace keeping force”. Certainly UN’s soldiers of fortune have broken many an international law. It’s time to take the UN to task on its operation and blatant corruption.

  • ShiraDvora

    The UN’s building in New York City isn’t even up to fire code. We were not allowed to take local school children on field trips there because of this. If the UNs leadership can’t even govern its building according to simple fire code standards, what does this say about the way they do business in general?

  • Blueshift

    This is an obviously biased article. Ash’s pro-Israeli legal interpretation is grasping at straws. The Palestinians have no other option but the UN. They can’t get fair treatment from Israel (who also ran to the UN when they were in trouble.) The only option is a brokered, two-State solution including discussions on returning to the 1967 borders. One day the Israeli government is going to act in a way that the US can’t support and the only losers will be the people.

  • SODDI

    You American christian conservatives want to keep this conflict going as long as possible, don’t you?

    It’s so Jews and Palestinians both can be cannon fodder for you christians’ War at the End of the World meltdown nukemare, right? It’s the only way you think you can raise your dead Jesus for a worldwide theocracy. Everyone on the planet needs to die so your Jesus can live. That’s in your Revelation, right?

    That is a puerile psychopathic prophecy and has nothing to with the very real lives of Palestinians and Israelis, real live humans not a long dead denizen of that little plot of land.

  • TB_One

    Another ignorant response from someone who knows nothing about Christianity nor Biblical prophecy.

  • TB_One

    Ignorance knows no bounds.

  • TB_One

    Wonderful tolerance displayed…NOT

  • XVIIHailSkins

    Isn’t it fascinating how zealously Sekulow defends Israel? I think that any fundamentalist Christian who wants a seat at the Israel debate should be required to divulge the fact that he wants to get all the Jews into Israel so that they can fulfill the revelations apocalypse prophesy. This is a bit of an elephant in the room for American Christians who trumpet about the sanctity of ‘God’s Israel,’ but always fail to mention that when the end of days finally occurs, all Jews that fail to convert will be headed straight for the inferno. The sickest joke in this world is that people whose minds work this way actually wield influence over U.S. policy. Religious fanatics in the U.S. have cast a shadow over this vital, global issue since its beginning, I think at the very least they ought to admit what their end-game is.

  • XVIIHailSkins

    Scott, rather than simply basking in the sadistic bliss of telling other people that they’re headed for eternal torture (the whole impetus behind Christianity, by the way), why don’t you explain how Israel figures into the Christian apocalypse mythology. Are you arguing that the fanatical and monolithic support for Israel among American Christians has nothing to do with the book of revelation? Try to employ some intellectual honesty here, at least have the courage to admit that you support Israel because you think your God needs it in order to properly annihilate mankind.

  • XVIIHailSkins

    ^But never fear, compassionate, humble American Christians to the rescue!

    There would be no such thing as anti-Semitism if your religion- a plagiarism of early Judaism- had not originally condemned the Jews for rejecting Christ. Despite your confusion about the term ‘anti-Semitic,’ you make it abundantly clear that your outlook on this matter has grown entirely out of a racist, tribalistic, Freudian impulse. The bigot inevitably tells you more about himself than about the object of his contempt, Scott. Try to understand that to reasonable people, wherever they are in the world, there is no difference between a mind like yours and the mind of the most brainwashed Muslim radical you’ve ever seen on TV.

  • XVIIHailSkins

    ^This is the high water mark of Christian humor.

    There is no such thing as ‘tolerance’ when it comes to evaluating the legitimacy and reputation of a law firm, and when it comes to Robertson’s the original poster was probably too gentle.

  • WmarkW

    Hey, “On Faith.”

    There’s a major story on Page One of WP.com and a lot of other news sites, that Egypt hurriedly rammed through an Islamist constitution today, that doesn’t protect free speech, women’s rights or abolition of slavery.

    How come you don’t have a story on your page yet?

  • Secular1

    I don’t understand what is the significance of Sekulow. These are all political acts. Once they muster enough countries to back the declaration, it is fait accompli. Sounds like a case of sour grapes.

  • dbouw

    I agree, but I would also add that evangelicals also go back to God’s blessing to Abraham “I will bless those that bless thee and curse thee that curse thee” (note how God only uses King James English)

    So they see this as “We must support Israel 100%” because this is what it means to bless. In fact, with their unquestioning of Israeli militancy Evangelicals are probably cursing them,

  • DavidJ9

    The Sekulows have never let mere facts get in the way of their prejudices.

  • Elohist

    Ther’s a big contradiction in this pretentious verbiage. If it is impossible for the Palestinians to obtain statehood from the UN, then how can they be in violation of any agreement not to seek full statehood by seeking recognition as an observer at the UN?

    I’d like the authors to explain if there is any people on the face of the earth persecuted more than the Palestinians today? Forced into diaspora all over the world, denied their own state, forced to kow-tow to a nation that denies them basic rights of political organization, wreks terror on the populace by indiscriminate surveillance, justifies violence against any one of them without judicial process, and keeps them from possession of their religion’s holy shrines?

  • Abey

    Now the United Nations vote to grant Palestine a non voting member is “ILLEGAL” but its vote in 1947 to grant grant 7% of the mostly illegal immigrants of Palestine 80% of the lands of Palestine was” LEGAL”.

  • XVIIHailSkins

    In Scott’s mind, the ‘rightful possessors of the land of Israel’ got their name on the mortgage after wandering in the desert for forty years, surviving because of various supernatural phenomena, and massacring other tribes by divine warrant. The fact that Israeli (yes, Israeli) archaeologists have now roundly confirmed that none of these events took place should give you pause when you consider what Scott means by ‘reasonable people.’ Scott’s position is analogous to the 17th century Englishman who claims that North America rightfully belongs to him and not the Indian because God has bequeathed it to white Christians or some other such nonsense. Likewise, 17th century Scott would be the first to call an Apache resistance a terrorist organization. The pathologies of colonial ideology are alive and well among delusional, self-pitying American Christians whose tax dollars and donations are the sole reason that this insanity continues.

  • XVIIHailSkins

    Indeed, I need someone to save me from the religious. Also I suppose it would be redundant to point out that you just avoided my question entirely. The fact that you and others like you (Sekulow is a fine example) simply lack the intellectual honesty to voice their true motives for supporting Israel ought to tell you something very important about this faith of yours. I have read the Revelation, and to me it only provides evidence that apocalyptic sadomasochism is not a new pathology.

  • ratspeaker

    No the UN isn’t competent to make state of Palestine, only the Israelis have the coveted licence from God to do this. Silly me and I thought the UN was the arbiter of so called International Law. The fact that the Palestinians lived on this bit of dirt prior to the Israeli declaration of UDI in 1948 is just an irritating rumour;. since the land was being held in trust by the supreme deity until his chosen people could wrest it by violence from the cold sweaty hand of the lawfully mandated government. The importation of large numbers of followers of the faith soon ensured that those indiginous arabs who hadnt fled the zionist gun barrel would soon be outnumbered. A democracy made! Read your history folks.

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