SEKULOW & JOSHPE: Palestinian state is wishful thinking

Territory doesn’t meet U.N. charter’s criteria for statehood

The Palestinians, much as they have done for more than the last half-century, are planning to defy their international obligations and international law by unilaterally declaring independence at the United Nations. The legal effect of that declaration will be nil. First, the United States is likely to veto at the Security Council any Palestinian attempt to gain admission to the U.N. as a member state. Second, while the General Assembly can recognize a Palestinian nonmember state, that recognition has no legal effect.

According to international legal precedent, statehood does not become so by declaration or even recognition. Instead, it is a function of whether an entity possesses the qualities that the world associates with independent, sovereign states. Those criteria are defined in the Montevideo Convention as a permanent population, a defined territory, a government and a capacity to enter foreign relations. In essence, a state comes into existence by being able to stand on its own as a separate, independent political body.

As much as the Palestinians want to exist as an independent state and as much as other members of the international community want them to as well, it simply is not the case. First, the Palestinians lack both a defined territory and a defined population. In the West Bank, areas are designated A, B and C, with the Palestinians exercising virtually no control in Area C and limited control in A and B.

Second, their government consists of an internationally recognized terrorist group - Hamas - and the Palestinian Authority (PA), whose authority is only recognized through the Oslo Accord agreements with Israel. Those same agreements also specifically curtail Palestinian power by stating that the PA does “not have powers and responsibilities in the sphere of foreign relations … and the exercise of diplomatic functions.” They also state that “[n]either side shall initiate or take any step that will change the status of the West Bank and the Gaza Strip pending the outcome of the permanent-status negotiations.” A declaration of statehood by the Palestinians would explicitly violate those provisions.

Perhaps just as importantly, however, the Palestinians lack the stability of a state. Of the Palestinian Authority’s nearly $4 billion annual budget, more than $500 million comes directly from the United States. European countries also provide hundreds of millions of dollars in aid. Nearly half of the remaining budget requires Israeli assistance, which would be seriously jeopardized in the event the Palestinians proceed with their declaration of independence in violation of Oslo.

Moreover, Palestinians lack the institutional legitimacy required of states. Even a 2008 PA report conceded a general lack of respect for judicial independence and the rule of law. That institutional instability is only exacerbated by the situation in Gaza, which is ruled by Hamas. In short, the Palestinians’ underdeveloped governance and economic infrastructure makes it unfit for statehood.

The timing of the Palestinians’ anticipated declaration of independence is especially ironic because Fatah has entered a unity agreement with Hamas, which has once again initiated a rocket-launching campaign into southern Israel. Those terrorist attacks should preclude any U.N. validation of the Palestinian cause. Indeed, U.N. admission is predicated upon compliance with the U.N. Charter and is only open to “peace-loving states,” a criteria that cannot possibly be met when complicit with terrorism.

Some have argued that the precedent in Kosovo, and the subsequent International Court of Justice (ICJ) opinion, provides legal support for Palestinian statehood. The ICJ opinion, however - even though nonbinding - was “narrow and specific” and held not that Kosovo’s declaration of independence created a state, but that it was not per se illegal. It specifically disclaimed any opinion on the legal effectiveness of a declaration of independence. That is because declarations of independence do not create states. If that were the case, a Palestinian state would already exist, as it declared statehood in 1988 as well, to no effect.

States, like stars, come into existence only when the right elements converge into a self-sustaining body. As much as the world may wish for a Palestinian state to exist, wishing it simply doesn’t make it so.

Jordan Sekulow is the executive director of the American Center for Law and Justice and oversees the ACLJ’s international offices.Brett Joshpe is a lawyer with the ACLJ in New York City.

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