David Rosenberg
The Media Line (Analysis)
June 6, 2011 - 12:00am

The Palestinian drive to win United Nation recognition of statehood faces immense political and legal obstacles, scholars said at a conference on Monday. But they said that even if they succeed, the practical impact will be minimal.

“The world already sees us as an occupier of Palestinian territory. What would be the big the change?” said Robbie Sabel, who teaches international law and the Hebrew University and advised the Israeli Foreign Ministry. “Since the world is going to accept a Palestinian state, I suggest to Israel that since we can’t beat them, we should join them.”

Some warned that a resolution by the UN General Assembly – the most likely venue for statehood to be win approval – may spark a new round of violence by disappointed Palestinians.

“The occupation will not end in spite of the recognition of the Palestinian state. Then the Palestinian population will be utterly frustrated,” Avi Primor, a former ambassador and Israeli Foreign Ministry official. “In daily life, if nothing changes, the frustration will have to break out. Will it be a new intifada? A Gandhi intifada? I’m not sure, but we’re prepared for any eventuality.”

With negotiations stalled, the statehood drive has become the focus of Palestinian plans and Israeli distress. PA President Mahmoud Abbas has said statehood would raise the Palestinians’ status in the global community and give it the legal tools to pursue Israel in the international justice system. It’s for those same reasons that Israel opposes statehood.

The path to Palestinians statehood could be thwarted by legal and political tangles.

With U.S. President Barak Obama publicly stating last month that he opposed the Palestinians declaring unilateral statehood, the Palestinians would face a U.S. veto if they tried to bring the matter to the Security Council. Analysts say the U.S. would be uncomfortable as the only council member casting a no vote and is therefore trying to get at least some European countries to join it, but it is likely Israel can count on Washington.

That means the Palestinians will have no choice but to use the UN General Assembly (GA), where they have two options.

The first is to try and bypass the Security Council by using a rarely invoked procedure calling “Uniting for Peace,” which can be employed when the Security Council fails to maintain international peace and security. To do that, however, the Palestinians would need a two-thirds majority in the GA, or 135 states, a number they have said they believe they can reach. For now, however, they are well short of that.

The second option, seeking an ordinary GA resolution, would entail a less forceful recognition of statehood than the Palestinians want. A GA resolution would be no more than a declaration, although it would be an embarrassment to Israel. Moreover, the GA could use the statehood resolution to upgrade Palestine’s status from ordinary observer, which it has enjoyed since 1974, and assign it to committees where it could lobby more effectively for anti-Israel reports and resolutions.

Israel’s Yediot Ahronot daily cited officials in the country’s Foreign Ministry as saying the Palestinians will have to balance their goal of getting as wide support as possible with the conflicting goal of resolution that spells out the most concrete terms. They predicted that a resolution calling for a state inside the 1967 border of the West Bank and Gaza Strip could receive as many as 140 votes while a more vaguely worded version might win as many as 170.

Munther Dajani of the Palestinian Al-Quds University noted that the Palestinians declared their state in 1988, which has been recognized by large numbers of the international community.

“But they have yet to be accepted the major powers, namely the U.S. and the five major powers of Europe,” Dajani said. “Some of the Europeans may recognize the Palestinian state, but some may not. It all depends on the U.S.”

In fact, GA President Joseph Deiss expressed the view at a May 27 news conference that the GA had no authority to admit a member to the UN, although he added that this was a different matter than recognize a state.

Deiss said that under terms set out in the UN Charter a candidate has to declare its adherence to the Charter. The Security Council must then make a recommendation backed by at least nine “yes” votes and no veto. Only then can the GA vote on membership, which must be approved by a two-thirds majority.

Scholars disagree on whether the Palestinians have the legal authority to go ahead with their statehood drive at all.

The 1933 Montevideo Convention set out the legal criteria for establishing a state: a permanent population, territory defined by permanent borders, effective government and ability to manage its own affairs.

In that framework, Sabel said the PA had met most of the criteria for a state. It has an effective government and conducts foreign relations. Its borders aren’t fixed but other states, most notably Israel at its founding, were accepted as a state and joined the UN. The main barrier the Palestinians face in legal terms is one they erected themselves.

“They haven’t declared themselves a state and this is the key,’ Sabel said. “No other body declares you a state. They can recognize you, but the act of declaring yourself a state is unilateral.”

Sabel said he couldn’t say for sure why the Palestinians haven’t taken that step, but he suggested that it was because they remain divided over whether they would commit themselves to the 1967 borders.

Others see more serious legal obstacles to a state. A group of 60 attorneys, including former Israeli Foreign Ministry legal adviser Alan Baker, said the statehood drive violated the 1922 San Remo agreement as well as the 1949 armistice agreement ending Israel’s War of Independence. It also contradicts the Palestinians’ own undertaking in 1995 not to unilaterally change the status of the West Bank and Gaza.

“There’s nothing we can do to stop, but there is something we can do to minimize,” said Chuck Freilich, of Harvard University’s Kennedy School. He doubted there was anything Israel could do to stop Abbas to go the GA. But Israel could position itself after the GA resolution supporting statehood itself with provisions.

“Let’s say ‘yes we’re for a Palestinian state’ …but the 67 borders are a starting point for negotiations and not the basis. And let’s say that there will be land swaps. So let’s say yes for once.”

Netanyahu could offer to freeze settlement in exchange for suspending the statehood drive and returning to the negotiating table and offer to discuss a provisional Palestinian state. All of this would put the onus of the peace process’ failure on the Palestinians, but Freilich said he doubted that the prime minister would be prepared to risk his coalition to make such moves.


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