Thursday, November 29, 2012

“Palestine” Does Not Qualify as a “State”

Back in 2005, after Israel removed every soldier and settler from Gaza, Palestinian President Mahmoud Abbas announced that “from this day forward, there will be no security turmoil and weapons chaos and abductions, which are not characteristic of our culture.” He proved a poor prognosticator regarding Palestinian culture: given the chance to live “side by side in peace and security” with Israel, the Palestinians demonstrated they could not do so even with themselves. 

Abbas was expelled from Gaza in 2007; there have been no parliamentary or presidential elections since 2006; no functioning Palestinian legislature exists; Abbas is entering the 95th month of his 48-month term; he cannot set foot in half of his purported state (in the words of Israel’s UN ambassador, he cannot even see it with binoculars); he has refused to negotiate with Israel for more than four years; he demands recognition of a Palestinian state while refusing to recognize a Jewish one; and he now seeks admission to the UN as a non-member state even though “Palestine” meets none of the four requirements under international law for a state.
Under the Montevideo Convention (1933), a state “should possess the following qualifications”: (1) a defined territory; (2) a government; (3) capacity to enter into relations with the other states; and (4) a permanent population.
“Palestine” lacks a “defined territory.” A “defined territory” cannot include an area whose status and borders can only be defined, under longstanding international agreements, by negotiations. To have a defined territory, “Palestine” has to negotiate it with Israel; until then, its self-definition of territory is not a “defined territory” under the law; it is simply a negotiating position.
“Palestine” lacks a “government.” It is ruled half by a terrorist group and half by an unelected administrative entity. Its last election occurred nearly seven years ago, and it has no capacity (much less inclination) to hold a new one. The government of each half considers the government of the other half illegitimate, and both are correct: one regime took power by a coup, and the other remains in power four years after its term expired. There is no legal governing body in either half of the purported state, much less one that governs both.
“Palestine” lacks the “capacity to enter into relations with the other states.” Abbas has no capacity to bind the rulers of Gaza, nor even to implement his own commitments in the area in which he can at least set foot. While in office, he failed to implement his prior obligations, including Phase I of the Roadmap (which mandated the dismantling of Hamas and other terrorist groups), and he is currently an unelected official, unrecognized by half his putative state, with no capacity to bind “Palestine” to anything.
“Palestine” lacks a “permanent population.” Most of the population considers themselves not putative citizens of a new state but perennial “refugees” — an inherited status under the unique definition applicable to Palestinians — who reject any suggestion they should form the permanent population of a new state. They consider themselves instead to be temporary residents (and UNRWA, the UN agency devoted to caring for them, is legally a “temporary” UN body) who seek to “return” to a different state, not to be permanent residents where they currently live.
When you refuse to negotiate a defined territory (and demand instead that it be conceded before you deign to “negotiate”); when you lack a government that controls your purported territory (and instead have multiple regimes each lacking legitimacy); when you lack the capacity to enter into relations with other states (and ignore the agreements you already signed); and when you have residents who reject permanent residence and assert instead a “right” to “return” to another state, you meet none of the requirements for a state.
The irony is that between 2000 and 2008, the Palestinians received three formal offers of a state, and rejected them all — the modern equivalent of the Three Nos. Now one group of Palestinians seeks UN recognition as a “non-member state,” when they fail to qualify as a state at all, and they ignore the fact they could already have been a member-state three times over (or more), had they simply said yes. As Stephen J. Rosen noted last year, they have:
two incompatible presidents, two rival prime ministers, a constitution whose most central provisions are violated by both sides, no functioning legislature, no ability to hold elections, a population mostly not under its control, borders that would annex territory under the control of other powers, and no clear path to resolve any of these conflicts.
Once again, “Palestine” is all set to be a failed state, no more ready for statehood than it was a year ago. Article 10 of the Montevideo Convention provides that the “primary interests of states is the conservation of peace.” The Palestinian gambit at the UN is not intended to produce peace, but to provide a platform for law-fare. It will do nothing to bring the Palestinians closer to the state they could have had long ago, if a state were really what they wanted, and it will in fact put peace further away.
Link to original article:
Myths and Facts
Myths and Facts
General Assembly Resolution for Limited Palestinian Statehood Lacks Legal Authority
November 29, 2012 | Eli E. Hertz
A host of resolutions passing annually by the General Assembly are not legally binding documents by any measure. One needs only to read Article 10 of the UN Charter:
“The General Assembly may discuss any questions or any matters within the scope of the present Charter or relating to the powers and functions of any organs provided for in the present Charter, and, except as provided in Article 12, may make recommendations to the Members of the United Nations or to the Security Council or to both on any such questions or matters” (italics by author).
Professor, Judge Schwebel, the former president of the International Court of Justice, has written that:
“The General Assembly of the United Nations can only, in principle, issue ‘recommendations’ which are not of a binding character, according to Article 10 of the Charter of the United Nations.”
Schwebel also cites the (1950) opinion of Judge, Sir Hersch Lauterpacht, a former member judge of the International Court of Justice, who declared that:
“The General Assembly has no legal power to legislate or bind its members by way of recommendation.” Yet, another former ICJ judge, Sir Gerald Fitzmaurice, has been just as resolute in rejecting what he labeled the “illusion” that a General Assembly resolution can have “legislative effect.”
Academics and renowned international law experts also agree. Professor Stone illuminates this subject by pointing out:
“In his book The Normative Role of the General Assembly of the United Nations and the Declaration of Principles of Friendly Relations, Professor Gaetano Arangio-Ruiz is led to conclude that the General Assembly lacks legal authority either to enact or to ‘declare’ or ‘determine’ or ‘interpret’ international law so as legally to bind states by such acts, whether these states be members of the United Nations or not, and whether these states voted for or against or abstained from the relevant vote or did not take part in it.”
Certain General Assembly resolutions may be recognized as “declaratory,” but no more. Among Schwebel conclusions:
“Certain resolutions of the General Assembly – viewed as expressions of the assembled States of the world community … which treat questions of international law which are not the subject of principles found in the United Nations Charter may be recognized to be declaratory, though not creative, of international law, provided that they are:
(i) adopted with the support of all assembled States, or, at any rate, of all the groups of States represented in the General Assembly, including major States that are not members of a group, such as the United States of America and China.”
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