On the Legal Front Lines

Shurat HaDin - Israel Law Center

Capacity for Palestinian Unilateral Declaration of Statehood:
Considering recent international developments
Leonard Hammer, PhD

One approach being threatened by the Palestinians in dealing with the
troubled
negotiations with Israel is the claim to unilaterally declare a Palestinian
state.1 The use
of such a declaration has been claimed before, and raises a number of issues
that merit
examination as to whether such a move by the Palestinians is legitimate, and
even
allowed for, in the international context.

Any claim for statehood entails both political and legal ramifications.
Certainly in the
Israeli-Palestinian context, the matter raises important political
considerations. For
example, already with the rumblings of the Palestinian Authority’s movement
for
unilateral statehood, the United States’ State Department noted that it
prefers direct
negotiations and that a unilateral declaration is not a “helpful” move in
that regard.2

This has long been the stated policy of the US when confronted with
Palestinian
statehood. The US, for its own strategic reasons such as a desire to control
the
situation and conduct the negotiations, clearly disfavors any steps it
considers
unilateral action by either party, including for example building in the
settlements by
the Israelis or the PA asserting that it will unilaterally declare
statehood.

Referring the issue to the United Nations Security Council also will
probably be met
with a veto by the United States. Of course, perceiving the United Nations
as the
political body which it is, it is likely that the Palestinians would receive
support for a
unilateral declaration of statehood from other UN bodies, as was done back
in 1988
when Arafat made such a unilateral declaration.3 It was however to no avail
in 1988,
and many claim that a unilateral declaration also will not be of any
long-term
assistance to the Palestinians in the present either.

In any effort to create a state, however, it also is important to account
for international
law and the legal parameters that exist for an entity to go down the path of
statehood.
Clearly the Arab residents of the former British Mandate maintain the right
of self
determination, a right that was recognized under international law when the
State of
Israel was formed but never materialized for the Palestinians due to a
number of
reasons, the principal one being the lack of support by neighboring Arab
states who
were intent on destroying Israel at the time rather than commit to the
requirements
and assistance that a fledgling Arab state would require. Self determination
would not
however entitle the Palestinians to unilaterally declare statehood,
especially when
accounting for developments that have occurred between Israel and the
Palestinians in
the post-Oslo period, as discussed below.

Granted there have been many comments and analyses regarding the capacity of
the
Palestinians to unilaterally declare (or not declare) statehood. Many have
noted for
example the lack of proper attributes for the Palestinians to legally
achieve statehood,
as discussed later on.4 Yet, an important analogous development that has
recently
been touted as significant to the Palestinians is the Kosovo model, whereby
the newly
formed Republic of Kosovo unilaterally seceded from Serbia and was
subsequently
met with recognition by a number of central state actors, including the
United State
and the majority of European Union countries, among others. Many Palestinian
leaders look wistfully upon the Kosovo situation as grounds for making the
claim that
a unilateral Palestinian declaration of statehood also would be supported by
the
international community.

Interestingly, the Kosovo declaration of unilateral statehood was challenged
by Serbia
before the International Court of Justice (ICJ) in an Advisory Opinion
submitted by
the United Nations General Assembly.5 Putting aside the jurisdictional
issues raised
by the case, it is noteworthy that the approach adopted by the ICJ towards
the issue of
unilateral declaration of statehood was surprisingly (if somewhat
superficially) to
regard the issue as a question of fact, and not of law. In the past,
unilateral
declarations of statehood, or actions concerning unilateral secession, were
generally
carried out by groups within states and were therefore not regulated by
international
law, such that even provisions like UN Charter Article 2(4) calling for
territorial
integrity were not factors in this context.

At the outset, it would seem that the ICJ could be utilized by the
Palestinians to
support their bid for a unilateral declaration of statehood. Yet a number of
provisos
are important here. Firstly, the dissent in the Kosovo Advisory Opinion
vehemently
opposed the majority’s approach, noting the importance of territorial
integrity of the
declaring entity and of course a true measure of sovereignty, in order to
ensure that
other states should not be beset by constant threats of secessionist
movements.

Further, in the Kosovo situation, the Security Council specifically called
for a
resolution of the problem pursuant to the wills of the people of the
affected region,
language that has been lacking in the Israeli-Palestinian context, even when
accounting for recent Security Council (SC) resolutions that have begun to
recognize
the capacity for the Palestinians to eventually create a state.

Granted the SC resolution regarding Kosovo might be deemed ambiguous because
it
specifically called for ongoing forms of negotiations as well to resolve the
dispute, an
important aspect for the Israeli-Palestinian context. Interestingly, the ICJ
nonetheless
stated that the signatories to the Declaration of Independence for Kosovo
were clearly
not bound by Security Council resolutions as the Kosovo signatories to their
Declaration of Independence acted outside of that international framework.

While the ICJ dissent again noted that this is a somewhat misleading form of
analysis,
as the individuals who created the state had previously acted under the
aegis of the SC
resolution and also had engaged the process in the past, it raises an
important issue for
the Palestinians. This is because of the Declaration of Principles entered
into between
the Palestinians (or the PLO) and Israel concerning the creation of an
entity (the
Palestinian Authority) that would serve in a limited capacity. The
agreements were
clearly linked to the requirement of ongoing negotiations between the sides,
with a
view towards eventually creating a legitimate state for the Palestinians
agreeable to all
involved parties.6 Earlier Security Council Resolutions, such as the famous
resolution
242, also called for negotiations and, more importantly, was the basis upon
which the
two sides came to an agreement and which to continue negotiating toward
other
subsequent agreements.

Granted what should be of interest when considering a unilateral declaration
of
statehood under international law is the value of such a declaration as
serving the
values and interests of the international community overall. This raises
interesting
dilemmas for the Palestinians for two key reasons. One is that the creation
of the PA
and the form of international status that it has acquired since Oslo was
done for the
very reason that a process like Oslo would be adhered to as a means of
coming to a
proper settlement, via negotiations between the two sides. This is central
to the very
notion of providing a platform for the Palestinians from which to engage
Israel and
the international community, and allowing for it to operate, with the goal
of
eventually achieving statehood in a manner acceptable to all sides. It is,
in a sense, a
condition placed upon the parties, and is not meant to be sidestepped by one
side in
achieving its long-term interests.

Further, unlike the Kosovo situation, the precursor to the PA was the PLO, a
terrorist
organization that might have been moving forward on the basis of self
determination,
but certainly did not meet the legitimate interests of the international
community nor
maintain values that are reflected in the UN Charter. Indeed, while self
determination
is an important right, it is not an allowance for all groups to unilaterally
decide to
secede, especially when considered in the Israeli-Palestinian context where
there are
two recognized sides operating, rather then an entity removing itself from
colonial
domination or seceding from territory under the former control of a
pre-existing
sovereign, such as in the Kosovo-Serbian context.

In the end, the Kosovo decision, while not serving as a complete bar to
eventual
Palestinian statehood, certainly serves as grounds to prevent such a
unilateral
declaration given the ongoing interests of key international players like
the United
States as well as the desire to bind the relevant parties to adhere to
seminal
agreements. Moreover, unlike in Kosovo, the Palestinians are making
assertions to
areas under full Israeli sovereignty, such as Jerusalem, that are clearly
subject to
ongoing dispute and negotiation.

Further, the agreement between the Israelis and Palestinians called for
Israeli
oversight, as agreed to by the Palestinians, and not a UN mandated
international force,
as was done in Kosovo. This is a fundamental difference calling into
question the
actual capacities of the Palestinians to carry themselves forward as a state
under
international law. Given the already existing opposition to a unilateral
declaration,
such a move would in the end not only compel Israel to take its own
unilateral actions
and sever ties with the Palestinians, but create an even more complex and
difficult
point from which to allow for negotiations to continue, hindering the
situation even
further.
==================

1 The Jerusalem Post online for example noted this in an article from
October 30, 2010, with Israel
claiming that the call is not be taken seriously.
http://www.jpost.com/Israel/Article.aspx?id=193329

2 This was noted in the Jerusalem Post online as recently as November 8,
2010.
http://www.jpost.com/International/Article.aspx?id=194211

3 The New York Times online discusss the background and current efforts in
an October 20, 2010
article. http://www.nytimes.com/2010/10/21/world/middleeast/21mideast.html

4 In particular, note an extensive analysis conducted by Tal Becker from the
Israeli Foreign Ministry a
few years back. It can be found at http://www.jcpa.org/art/becker2.htm#1

5 The decision can be found online. http://www.icjcij.
org/docket/index.php?p1=3&p2=4&k=21&case=141&code=kos&p3=0 Note that an
Advisory
Opinion is NOT a court decision between two contending states but a means to
assist UN bodies with
understanding relevant international law

6 Note that in an Israeli Supreme Court case, Shurat Hadin argued that the
Palestinian Authority was an
entity created through the Israeli military authorities, thus subjecting PA
actions to administrative
review by the Israeli Supreme Court. The Supreme Court acknowledged the
creation of the PA as such
an entity, but dismissed the appeal by deferring to the decision taken by
the military authorities on the
matter. 2717/96 Wafa Ali and others v. Ministry of Defense and others

November, 2010.
Shurat HaDin - Israel Law Center
10 Hata'as St. Ramat Gan, 52512 Israel
Phone: 972-3-7514175 | Fax: 972-3-7514174
info@israellawcenter.org
http://www.israellawcenter.org

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November, 2010.

Shurat HaDin - Israel Law Center
10 Hata'as St. Ramat Gan, 52512 Israel
Phone: 972-3-7514175 | Fax: 972-3-7514174
info@israellawcenter.org
http://www.israellawcenter.org