Five questions -five answers: Approaching September - 2

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September is approaching and thus the announced Palestinian bid for UN membership. We would like to present to our readers various opinions on the issue, interviewing several partners of KAS in our series “5 questions – 5 answers”. Therefore, we asked Ambassador (Ret.) Alan Baker for his assessment of the legal aspects of the announced action. Ambassador Baker is Director of the Institute for Contemporary Affairs at the Jerusalem Center for Public Affairs and one of Israel’s leading experts on international law.

Cover: Five questions -five answers: Approaching September - 2

    Ambassador Baker, these days the Palestinians are seeking for recognition as a state by the United Nations. Do the UN have the power to grant statehood?

    Alan Baker: The UN is not a body that has the capability or powers to establish states or grant statehood. International law and practice set out very clearly a list of objective criteria for determination of statehood. These include the capability to administer/govern the territory over which the entity is seeking statehood and the capability to fulfill international obligations. Regrettably the Palestinian Authority as yet is unable to show that it can demonstrate these capabilities. It has no control over the territory of the Gaza Strip, which is governed by the Hamas terror organization, and by its approach to the UN it clearly demonstrates that it does not abide by its commitments.

    While the UN General Assembly may adopt, by automatic majority, any resolution that this majority may desire, this does not give validity to the content of the resolution. Thus any such resolution granting recognition to a Palestinian state will be nothing more than a public relations exercise, without any validity as to the content of the resolution. However such a resolution may upgrade the status of the Palestinian observer delegation in the UN to that of a non-member state, but that would have no legal validity anywhere outside the UN framework.

    In this context, it might be recalled at in 1988 the PLO carried out a similar exercise, and the UN indeed adopted a resolution recognizing the Palestinian state that Yasser Arafat then declared. But similarly, this, too, had no legal relevance.

    If the Palestinians decide to address the General Assembly to upgrade their status from an observer mission to a non-member state, to what extent would their status under Public International Law be improved?

    Alan Baker: Other than for internal UN purposes (seating in meetings etc.), such an upgrade would have no legal implication in public international law.

    It has been argued that the recognition of a Palestinian State would ipso jure imply the recognition of the State of Israel, even by those countries that still deny Israel’s right to exist.

    Alan Baker: A resolution by the UN General Assembly acknowledging its recognition of a Palestinian state would mean nothing more than any other resolution of the General Assembly. It would be nothing more than a non-binding expression of the political opinion of the majority of the members of the UN voting in favor. It would not necessarily be indicative of any recognition of Israel by countries that still deny Israel’s right to exist, if there are any such countries. The question of Israel’s right to exist is not an issue here, and is immaterial.

    However, if such a resolution were to acknowledge a Palestinian right to sovereignty over part of Jerusalem, then the “ipso facto” principle might well be relevant to Israel’s rights vis a vis the other parts of Jerusalem.

    In Israel, the Palestinian bid for UN membership has been criticized as a unilateral step, contradicting wording and spirit of the Oslo agreements. On the other side, the Middle East Quartet has recently criticized new Israeli settlement plans as unilateral measures, complicating the renewal of peace talks. Is there a problem of reciprocal unilateralism?

    Alan Baker: There is no absolutely issue whatsoever of reciprocal unilateralism.

    First of all, the Palestinians cannot bid for UN membership as long as they do not fulfill the criteria for statehood, including the capability to govern all the territory that they claim to be their state, and the capability to fulfill international and other obligations and commitments. The fact that they do not govern the Gaza Strip, which is governed by the Hamas terror organization, clearly indicates that they cannot claim statehood. Hopes entertained by the international community, and especially the EU states, that perhaps a so-called “reconciliation” between Hamas and Fatah might have resulted in a unified Palestinian administration over all the territories, have been dashed in light of the lack of any possibility of agreement between Hamas and Fatah on the components of such a unified entity.

    Secondly, the Palestinians cannot bid for membership as such of the UN until they can prove that they are a peace-loving state and are capable of accepting and abiding by the obligations of the UN Charter, and such membership is recommended by the Security Council and accepted by the General Assembly. It is already clear that the Security Council will not be able to make such a recommendation, so the entire question of a bid for membership will remain academic.

    As to the issue of reciprocal unilateralism, there is no room for drawing any parallels between the Palestinian approach to the UN and Israel’s settlement plans or policy.

    By unilaterally deciding to halt the negotiating process and to approach the UN to impose a solution to issues that have been agreed-upon as negotiating issues, the Palestinian leadership is undermining the very basic principle of the Middle-East peace process, that all issues must be solved through negotiation. This principle, established in UN Security Council resolutions 242 (1967) and 338 (1973) is the basis for ALL the agreements, peace treaties and other documents in the peace process, including Yasser Arafat’s own solemn commitment to Yitzhak Rabin of July 1993 to solve “all outstanding issues by negotiation”.

    In by-passing the negotiation process, the Palestinians are rendering the agreements as impossible to carry out, and as such are committing a fundamental breach of the agreements signed with Israel and witnessed by the leadership of the international community, including the UN, the EU, the US, Egypt, Jordan and others.

    On the other hand Israel’s settlement plans are distinctly NOT a breach of the agreements. The agreements contain NO prohibition whatsoever on either of the parties, the Palestinians nor the Israelis, to build in the areas under their respective control. The issue of settlements has been mutually agreed upon as a permanent status negotiating issue. Israel has repeatedly stated that its settlement plans have no bearing whatsoever on the negotiations, and Israel even agreed to freeze settlement construction for nine months in order to facilitate a Palestinian return to the negotiating table. But the Palestinian leadership chose to open a concerted campaign in the international community against Israel’s settlement policies, rather than negotiate the issue in a bona fide manner.

    Accordingly, it is absolutely incorrect to view the settlement issue as being a reciprocal, unilateral breach.

    The most recent terrorist attacks on Israel, killing eight Israeli citizens, clearly demonstrate that there are fanatical enemies to peace on the Palestinian side. How will it affect the debates on the Palestinian statehood issue?

    Alan Baker: As long as the Palestinian leadership is unable to demonstrate to the international community that it is capable of controlling its territory, of preventing acts of terror against Israel, its neighbor, (as well as against Egypt, its other neighbor), of abiding by international norms and principles requiring friendly relations among states, and as long as terrorism is permitted and even encouraged within the Palestinian social and educational system, the Palestinians cannot come to the international community with clean hands and request recognition of statehood and acceptance into the international community.

    The recent terrorist acts on Israel are indicative of the fact that the Palestinians are incapable of exercising rights and duties of statehood.

    Thank you very much, Ambassador Baker.

    The questions were asked by Michael Mertes and Evelyn Gaiser. August 22, 2011


    Israel, August 23, 2011