The ‘unbearable lightness’ of voting – for a Palestinian state

REUTERS Palestinian protestors shout slogans in front of Israeli soldiers during a protest against Israel’s military operation in Gaza, at … Continued


Palestinian protestors shout slogans in front of Israeli soldiers during a protest against Israel’s military operation in Gaza, at Hawara checkpoint near the West Bank city of Nablus on Nov. 15, 2012.

States intending to vote in the U.N. General Assembly (UNGA) in favor of granting non-member “state” observer status to “Palestine” are showing a stunning disregard for international law and the troubling ramifications of such a move – which would extend far beyond the Israeli-Palestinian arena.

“States” are the primary building blocks of the international order. Accordingly, most of international law is concerned with the conduct of states and the relationships between them. Hence, the legal concept of what constitutes a “state” is of fundamental importance in international law. At least until now, there has been a widely accepted legal definition of what characterizes a state, namely that contained in the Montevideo Convention of 1933. The convention sets out four features which must all be present for a state to exist, namely: a permanent population, a defined territory, government and the capacity to enter into relations with other states. Now this may seem trivial, but clearly the convention refers to existing facts rather than aspirations. The fact that a certain group aspires to acquire the attributes of statehood in the future is no basis for recognizing the existence of a state in the present.

At the moment, the “Palestinian entity,”although it lays claim to the entire West Bank, East Jerusalem and the Gaza Strip, consists only of limited autonomy in parts of the West Bank. The responsibilities and powers of this entity are laid out in the Oslo Agreements concluded between Israeli and Palestinian leaders in the mid-1990s. According to the Palestinians themselves, they are under Israeli “occupation”, meaning that Israel is the actual ruler of the West Bank while any authority the Palestinian entity enjoys under the Oslo Agreements is at Israel’s pleasure and can thus be revoked at any time. Meanwhile, the Gaza Strip is controlled by a rival entity – Hamas. Add to this the fact that no Palestinian Arab State (nor any state for that matter) has ever existed in the territories in question. Clearly, the current reality doesn’t even come close to meeting the Montevideo requirements.

Contrast the “Palestinian entity” with the states that have at some time held the status of “non-member state observers” in the U.N. The list contains the states of Italy, Spain, Switzerland, Finland, Austria, Japan, Bangladesh, South Korea, North Korea, Kuwait, Monaco and Vietnam, as well as the former states of West Germany, East Germany, South Vietnam and North Vietnam. Clearly, all of them substantially meet the criteria of statehood under the Montevideo definition. Today the only state holding non-member state observer status in the U.N. is the Holy See – admittedly a strange example – however, since the Holy See controls the Vatican City (that has defined borders, a fixed population and a government) and carries on international relations on a global scale, it falls fairly comfortably within the Montevideo definition.

What the Palestinian delegation is asking from the UNGA is for the latter to throw the Montevideo definition out of the window. It would mean that statehood could exist without any facts on the ground.

This undoubtedly would be very good news for innumerable movements for self-determination or secession around the world. If the Palestinian example is to become the new standard, it’s difficult to imagine which of these would not qualify for statehood.

Those UNGA member states contemplating a ‘yes’ vote should know that their frivolous vote today could well come back and bite them in the future. Under their proposed new rules, any group aspiring to statehood – regardless of the situation on the ground – can be considered a state. Of course they may be counting on the hypocrisy of their fellow member states to keep them of trouble, but there are no guarantees that a member state won’t find itself on the wrong end of a similar UN vote in the future.

Of course, if the UNGA goes ahead with this folly, it would not change international law. The Palestinian entity would not magically become a state just because a group of countries, however large, decides to call it one. It would however be a sad day for international law if one of its chief custodians decides to trample it underfoot.

Compounding the tragedy, a “yes” vote would not only be a setback for international law, but probably also for the peace process.

Add to that the existence of an entirely reasonable alternative to this folly, with a much better chance of success in advancing the cause of peace – namely negotiations without preconditions between Israelis and Palestinians.

What exactly is wrong with that alternative?

David Benjamin is an Israel-based attorney specializing in international law, the law of armed conflicts and counter-terrorism and a former senior legal adviser to the Israel Defense Forces. He is a senior counsel to the American Center for Law and Justice – Jerusalem. Jordan Sekulow is the executive director of the ACLJ.

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  • Sterling Ericsson

    This article makes a good point about the occupation and how it can’t really be considered a true state.

    However, following international law should go both ways. The World Judicial Court already ruled that Israel is violating the Geneva Convention because of how it is treating the people in West Bank and because it’s building settlements there (which violates the part of the Geneva Convention that was written because of how the Nazis were trying to assimilate France by importing German people there).

    And this issue has nothing to do with the Gaza Strip. Hamas is an entirely different situation that has nothing to do with West Bank, which is separate from Gaza.

    So, David, shouldn’t Israel also be following the international ruling and condemnation of their actions in West Bank?

  • Jake Singer

    One of the problems with your argument is that Israel recognized the borders quite a while ago with the Oslo Agreement designation of the various Palestinian Areas of the occupation: Areas A, B and C. Israeli settlement building has been limited to Area C and only where Military bases and administration locations in order to administer the occupation. With the occupation ending, Israel’s own Supreme court indicated that the land use would need to be returned.

    The Occupied territory has been well mapped out both within the UN and and Israeli government and military institutions. The Oslo accords also surrendered the responsibility of the governmental and financial costs of administering the occupied peoples to the Palestinian Authority. The Paris protocol clearly shows that the PA is financially self-responsible. Israel only acts as a Tax collector for the PA as spelled out in the same protocol. While the PA has limited political oversight over Gaza, they are still finding and pay rolling the various institutions serving the palestinians of Gaza. And they are the only recognized spokes men of all the territories.

    All this being said, it’s important to remember that in a legal dispute you cannot have one of the two parties also be the arbiter. The self evident fact that Israel is occupying a foreign people and transfers their tax revenue to this foreign peoples government as well as has designated all the lands of as occupied under the Oslo agreement and the Paris protocol, clearly indicates that this people and this land is a foreign entity.

    It is the responsibility of the International community to either recognize or not recognize this entity as a state. Not Israel’s. It is also the purview of the International judicial system to arbitrate the dispute. Unlike the marketing and propaganda we hear, this bid for observer statehood is not unilateral but the proper forum. It involves not just one state and one occupied people, it involves hundreds of the wor

  • Jake Singer

    finding = funding in the second paragraph of my comment above.

  • It wasn’t me

    This article is so biased that Teheran Times would be proud to print it on front page.
    So international law should apply to Palestinians and not to Israel that completely ignores Geneva Convention/International Law whenever it suits them.

    “Compounding the tragedy, a “yes” vote would not only be a setback for international law, but probably also for the peace process.”

    This part that i quoted is laughable.

  • OrisLight

    I’m an American and I stand with Israel.

  • Esther Robertson Crowell

    I’m an American & I stand with Israel.

  • Fidelio

    I stand with Israel and fear WWIII

  • Sterling Ericsson

    For any actual reason or is this some sort of nationalism thing?

  • Sterling Ericsson

    Wouldn’t it be Israel that started it then?

  • Adam_Smith

    Will we be seeing soon in the WaPo an opposing interpretation, as prominently featured, of the applicable international law by a Palestinian based lawyer?

  • Butch Baker

    Israel is sacred to God. The United States must stand by her and stand with her against her enemies or we both shall be overcome by evil. God Bless. BB.

  • fuzfire

    Gods Truth needs no counter, it stands without need for any further comments from man. That is why Truth will always win over any challenge, God is sovereign. As to our laws they are suppossed to reflect God’s. when they don’t, at some point they will always fail.

  • fuzfire

    The Bible clearly states of Israel, “I will bless those who bless you, and whoever curses you I will curse; and all peoples on earth will be blessed through you.” Beware of what you do and say against God’s nation Israel. History Is replete with examples of nations and people who run afoul of this Truth.

  • Kingofkings1

    South Sudan and East Timor can become states in 15 minutes. Palestine must be allowed to wait a few hundred years. The problem is not with Palestine. The UN has no credibility. It must be disbanded

  • iamacna

    I pray for the peace of Jerusalem I pray for God to favor His people Israel. Those who love Israel and bless Israel will be blessed and prosper. Trying to strike Israel off the map will be counter productive for those who try – whether that counter production occurs in this life or after.

  • Secular1

    iamacna, WTF are talking man? Are you praying to your bat crap crazy sky daddy to favor his people? Why do you need to pray to this fellow favor his people, isn’t that by definition true? Or, are you thinking that your sky daddy may not favor his people without your entreaties? On th side, you want your sky daddy to also make those who love Israel prosper too. You are really need to get your head of that place where sun don’t shine man. You guys are real dumb givl man.

  • Secular1

    Butch, Butch, you must be baking stuff with lots of PAM man. WTF is this Israel being sacred to DOG. I am supposed to give a flip about it?

  • Secular1

    fuzfire please go and check yourself in belvue.

  • Secular1

    fuzfire you should take your bible and hide where sun don’t shine.

  • one nation

    The U.N. should give Palestine statehood as well as take it away from the Vatican where as the Vatican can act as a church. Israel should stay off of Palestine property with Israel’s buildings and roads. How would Israel act with Palestine if the tables where turned?

  • one nation

    ScottinVA, do not agree with your first two sentences. This is 2012.

  • Bluefish2012

    It’s impossible to meet the four criteria of Montevideo with a boot on the necks of the Palestinian people, and squatters taking their land away every day.

  • miln

    So, Butch,
    How do you know that? Did you ask god personally? Or did your well-paid preacher tell you? Or maybe it was Glenn Beck!

  • miln

    Thanks for this post, your arguments are well-structured!