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

Jordan Sekulow and Matthew Clark

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. (REUTERS)

 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:

At no time in history has there been an Arab Palestinian state or similar Arab Palestinian political entity exercising any form of national sovereignty over either parcel of land. After the British departed Palestine in May 1948, Jewish Palestinians declared their independence, thereby establishing the State of Israel. Israel’s Arab neighbors immediately attacked the fledgling Jewish state. Rather than annihilate the infant state of Israel, Israel actually gained additional territory than originally allotted to it by the UN Partition Plan. The war ended with a series of armistice agreements that, at Arab insistence, determined that the armistice lines were not lawful borders, meaning that actual borders must still be negotiated.

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:

The recognition of a new State or Government is an act that only other States and Governments may grant or withhold . . . The United Nations is neither a State nor a Government, and therefore does not possess any authority to recognize either a State or a Government. As an organization of independent States, it may admit a new State to its membership or accept the credentials of the representatives of a new Government.

As we explain:

Thus, existence as a “state” is an a priori requirement for UN membership, and the UN realizes that it does not have the power to recognize a state. Instead, any determination of statehood by the General Assembly would be a raw exercise of politics, not law. As such, any state recognition by the General Assembly would be illegitimate, as would be the “state” so recognized.

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:

By attempting to obtain a declaration of statehood via the UN, the PA is in direct violation of a series of Israeli-Palestinian agreements that require bilateral negotiations. By taking its case directly to the General Assembly, the PA is openly and notoriously breaching its treaty obligations with Israel, obligations it freely assumed under the auspices of the international community. For example, Palestinian officials explicitly agreed not to change the PA’s status outside of peace talks pursuant to the Interim Agreements. By appealing to the UN instead of negotiating, the PA is undermining all of the UN’s efforts for peace to date. Were the General Assembly to recognize a form of Palestinian statehood via a status change, the UN would simply undermine its own legitimacy in the international community.

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.