Washington Report on Middle East Affairs, July 1996, pgs. 8-12

Did Israel’s 1996 Election Kill the Peace Process?—Six Views

An Expatriate American Attorney

“Earth to Bibi: Palestine Exists”

By John V. Whitbeck

There is a strange, other-worldly quality to the current war of words over Palestinian statehood. In response to Prime Minister-elect Binyamin Netanyahu’s insistence that he will never agree to the establishment of a Palestinian state, President Yasser Arafat has responded that a state “is the desire of the Palestinian people, and nobody can stop it.” President Hosni Mubarak of Egypt has stated that “the Palestinians are going to establish a Palestinian state now or then.”

In fact, whether or not Mr. Netanyahu agrees to it, and whether or not Mr. Arafat and his supporters fully realize it, the State of Palestine already exists, and Palestinian statehood is not even an issue in the “permanent status” negotiations which began last month and must reach an agreement not later than May 1999.

According to the Declaration of Principles signed on the White House lawn in September 1993, the issues to be covered during permanent status negotiations are “Jerusalem, refugees, settlements, security arrangements, borders, relations with other neighbors, and other issues of common interest.” Palestinian statehood is not mentioned, but the references to “borders” and “other neighbors” would make no sense except in the context of an agreement between states. Israel’s eventual formal acceptance of Palestinian statehood is clearly implicit in the terms of the Declaration of Principles, but, legally, Israel’s prior acceptance is not an essential condition for the State of Palestine to exist.

While extending diplomatic recognition to foreign states lies within the discretion of each sovereign state, there are, as a matter of international law, four customary criteria for sovereign statehood: (1) a defined territory over which sovereignty is not seriously contested by any other state; (2) a permanent population; (3) the ability and willingness of the state to discharge international and conventional obligations; and (4) effective control over the state’s territory and population. Judged by these customary criteria, the State of Palestine is on at least as firm a legal footing as the State of Israel.

While Israel has never defined its ultimate borders, an act which would necessarily place limits on them, the State of Palestine has effectively done so. They encompass only that portion of historical Palestine occupied by Israel during the 1967 war. Sovereignty over expanded East Jerusalem is explicitly contested, even though, after nearly three decades, none of the world’s other 192 sovereign states has recognized Israel’s claim to sovereignty. However, the sovereignty of the State of Palestine over the Gaza Strip and the rest of the West Bank is uncontested.

Israel has never dared even to purport to annex these territories, recognizing that doing so would raise awkward questions about the rights (or lack of them) of those who live there. Jordan renounced all claims to the West Bank in July 1988, and, on June 5, King Hussein reaffirmed that “We will never under any condition be a substitute for” the Palestinians. While Egypt administered the Gaza Strip for 19 years, it never asserted sovereignty over it. Since November 1988, when Palestinian statehood was formally proclaimed, the only state asserting sovereignty over those portions of historical Palestine which Israel conquered in 1967 (aside from expanded East Jerusalem) has been the State of Palestine, a state recognized as such by 124 other states encompassing the vast majority of humankind.

The permanence of Palestine’s population is not in question. The state’s ability and willingness to discharge international and conventional obligations has been demonstrated by its establishment of diplomatic relations with a majority of the world’s other sovereign states and by its efforts to obtain membership in international organizations such as the World Health Organization and UNESCO, even if those efforts have been blocked by the United States.

The weak link in Palestine’s claim to already exist as a state was, until recently, the fourth criterion, “effective control.” When the state was proclaimed, its entire territory was under the military occupation of another sovereign state. (For seven months, Palestine and Kuwait had that much in common.) Yet a Palestinian executive and legislature, democratically elected with the enthusiastic approval of the international community, now exercises “effective control” over a significant proportion of Palestinian territory in which the great majority of the state’s population lives. It can no longer be seriously argued that Palestine’s claim to exist falls at the fourth and final hurdle.

Accordingly, as a matter of customary international law, if not yet of general public consciousness, the status of the Palestinian territories occupied in 1967 is today clear and (with the exception of expanded East Jerusalem) uncontested. The state of Palestine is sovereign, the state of Israel remains the occupying power in a portion of Palestinian territory and U.N. Security Council Resolution 242, explicitly premised on “the inadmissibility of the acquisition of territory by war” and explicitly cited as the basis of the future permanent status settlement in all the Israeli-Palestinian accords, is the internationally accepted basis for terminating the occupation.

Some Israelis argue and some Palestinians fear that the PLO’s signature on its accords with Israel constitutes, at least implicitly, an acquiescence in the occupation and a renunciation of Palestine’s 1988 declaration of independence. However, the interim agreements signed in Cairo in May 1994 and in Washington in September 1995 both contain the following significant provision: “Neither party shall be deemed, by virtue of having entered into this agreement, to have renounced or waived any of its existing rights, claims or positions.” This provision was inserted at Palestinian insistence during the final stages of the Cairo negotiations specifically to protect Palestine against such an interpretation.

Out of deference to Israeli sensibilities, President Arafat has in recent years kept the third of his three presidential “hats,” that of president of the state of Palestine, largely on a back shelf. There is every reason to believe that he will now wear it more prominently. If the United States and other Western countries, which already welcome President Arafat with the honors and protocol due to a head of state, are seriously interested in actually achieving peace in the Middle East, as opposed to simply ensuring that an interminable and increasingly euphemistic "peace process" continues, there could be no more constructive act than adding their names to the long list of countries which have extended diplomatic recognition to the state of Palestine.

By doing so, they would do Israelis the favor of making absolutely clear that whether or not "peace" will include an independent Palestinian state is a non-issue. In fact, the challenge for all who are seriously interested in peace is to find a way to structure the Palestinian state and its relationship with Israel that meets at least the minimum requirements of the Palestinians and still permits a majority of Israelis to perceive such a state as enhancing their security and the quality of their lives. In this manner Israelis can be helped to recognize that it is in their own self-interest to accept Palestine's right to exist in peaceful co-existence alongside Israel. Peace is unimaginable on any other basis.

John V. Whitbeck is an international lawyer based in Paris.