Britain and the Palestinian Statehood Proposal – An Assessment by John Mchugo
Why the British Government should recognise the independent State of Palestine and its Territorial Integrity
John McHugo, Caabu
1.1 The Oslo Accords which were intended to lead to peace between Israelis and Palestinians were signed as long ago as 1993. Yet today what is still called the “peace process” is leading nowhere. Over the years Palestinian negotiators have offered many concessions, but were only asked to make more. The fundamental problem is that Israel, by far the stronger party, has always insisted that the Palestinians recognise its rights while refusing to concede the rights of the Palestinians themselves. How could negotiations ever succeed in such circumstances, when one party will not acknowledge the other’s lawful entitlements?
1.2 President Abbas has therefore embarked on a new initiative. He has called on the international community to recognise Palestine as a sovereign State based on the pre-1967 lines, and will take his country’s case to the UN in September and apply for membership. His intention is at long last to put the parties on a footing of equality. What this means in practical terms is that the Palestinians will be able to ensure that their legal rights, alongside those of Israel, will be taken as the starting point for peace negotiations.
1.3 This paper explains why President Abbas is entitled to take this initiative and calls on the British government to respond positively to it.
2. The Principle of Self-determination
2.1 The Palestinian population of the West Bank (including East Jerusalem) and the Gaza Strip which were occupied by Israel in 1967 (“the Occupied Palestinian Territory”, or “OPT”) have the right of self-determination in international law. Israel is under an obligation to respect this right. It has also been endorsed unanimously by the International Court of Justice.
2.2 The International Court of Justice has declared that self-determination is “one of the essential principles of contemporary international law” and its promotion is one of the founding purposes of the United Nations. Where this principle applies to a duly qualified people in respect of identifiable territory (as it does in the case of the OPT and its indigenous Palestinian population), this right precludes any competing claim to that territory by any other State or entity. All member States of the UN have a duty to respect and promote the realisation of the right of self-determination. It entitles a people “to determine their political status and freely pursue their economic, social and cultural development”.
2.3 The establishment of an independent, sovereign State is one of the possible political outcomes of a process of self-determination. By seeking recognition of its Statehood, the indigenous Palestinian population of the West Bank (including East Jerusalem) and the Gaza Strip therefore seek no more than support for their legal right of self-determination, which all States have a duty to promote.
3. The Principle of the Inadmissibility of the Acquisition of Territory by War
3.1 Another key rule of international law since the adoption of the UN Charter in 1945 is the prohibition of the use of force in international relations. One of the consequences of this is the inadmissibility of the acquisition of sovereignty over territory through armed conflict or belligerent occupation. Like self-determination, this is a rule from which States are not allowed to exempt themselves, as it is an obligation which all States owe to the international community as a whole. Any territorial acquisition which results from the threat or use of force is illegal. Therefore, an occupying power may not annex territory it has occupied, either in whole or in part. No State may use force or the threat of force to extract territorial concessions; any resulting treaty concluded in such circumstances would be void.
4. The Territory of Israel and Palestine
4.1 The maximum possible extent of the sovereign territory of the State of Israel in international law is therefore those parts of the former Mandate of Palestine which were already in its possession before the 1967 war. The principle of the self-determination of the indigenous Palestinian population applies to the other areas of the territory of the former Mandate (i.e. the OPT), and prevents any annexation by Israel. A Palestinian State is entitled to sovereignty over all these areas. Although Israel has asserted that it has sovereignty over an arbitrarily defined district which includes the Old City of Jerusalem and much surrounding territory as part of its “eternal and indivisible capital”, there is no legal foundation to this claim.
5. Palestine already exists as a State and is entitled to Recognition and Membership of the United Nations
5.1 Article 1 of the 1933 Montevideo Convention defines the requirements of statehood under international law:
“The state as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; (d) capacity to enter into relations with other states”.
5.2 When Palestine first proclaimed its independence as a sovereign State in 1988 it did not fulfil these requirements, but it does so today. It has a defined territory, namely the OPT, over which the indigenous Palestinian people have the right to exercise self-determination by establishing their State. This cannot be contested by any other State.
5.3 The Palestine National Authority was established pursuant to the Oslo Accords in 1993, and has been the foundation stone for building the institutions of the government of the sovereign Palestinian State in the OPT.
5.4 Palestine already has relations with other States. It is currently recognised by at least 118 member States of the UN – many more than the 76 which recognise Kosovo. Britain has already recognised Kosovo, even though most UN members still consider its entire claimed territory to be Serbian sovereign territory. By contrast, not a single other State recognises any part of the OPT as Israeli sovereign territory. There is no reason why Britain cannot also recognise Palestine if it has the political will to do so.
5.5 Israel is a sovereign State and member of the United Nations. Its independence and admission to the UN came about as a result of it satisfying the requirements of Article 1 of the Montevideo Convention. This was in the teeth of Palestinian opposition and did not result from negotiations with representatives of the Palestinian people. Today, when Palestine also fulfils the requirements of Article 1, there is no reason why Israeli opposition should be allowed to delay British recognition of Palestine or Palestine’s admission to the UN.
5.6 It is important to stress the necessity of coupling the recognition of the State of Palestine with recognition of its territorial integrity. To fail to recognise Palestine’s territorial entitlement at the time of recognition would raise the spectre of the Bantustans during the Apartheid era in South Africa. The Apartheid regime attempted unsuccessfully to pass these Bantustans off as sovereign States and to persuade the international community to recognise them as such. Something similar must on no account be allowed to happen when recognising Palestine. Furthermore, if Palestine did not have its eastern frontier on the Jordan and enjoy the status of a riparian State, or have its sovereignty recognised over the territory of the West Bank under which lie important aquifers, it would be deprived of major elements of its water rights.
5.7 Recognition of the State of Palestine by the international community and the entry of Palestine to the UN are vital to establish “equality of esteem” between Israel and Palestine. If Palestine is accepted as a member of the UN, with sovereignty over the entire OPT, legal parity will at last be established between the parties. Having both parties subject to the obligations which arise from UN membership should facilitate negotiations which lead to a permanent peace and deal with other issues such as the status of Jerusalem and Holy Places, and the rights of refugees.
6. The Benefits for Israel in international Recognition of Palestine and its Admission to the UN.
6.1 Israel will benefit from the international recognition of the State of Palestine based on the pre-1967 lines and its admission to the UN. Because Palestine only claims the OPT as its sovereign territory, once Palestine is admitted to the UN on this basis it will be impossible for any future government of the Palestinian State – of whatever political hue- to extend its territory unilaterally by bringing claims to land on the Israeli side of these lines. It will have waived any right to do so. It will likewise be impossible for any future Palestinian government to refuse to accept the existence of Israel as a sovereign State within them.
6.2 This will balance Israel’s inability to bring a claim against Palestine for territory on the other side of these lines. If the Palestinian state exists on the 1967 lines this of itself implies accepting the Israel has anundisputed title to all the territory on the Israeli side of them, including that territory which was not allocated to the Jewish State under the 1947 UN Partition Plan but which Israel conquered during the period 1948-9, at a time when conquest could no longer be the basis of legal title.
6.3 Entry of the State of Palestine to the UN will also enable the two States to agree whatever territorial swaps they freely choose in their negotiations for a permanent peace. They are both entitled to “secure and recognised boundaries”. Although this does not necessarily presuppose territorial swaps – since all boundaries everywhere in the world between peaceful States are “secure and recognised” as a matter of course – the pre-1967 lines only reflected the cease-fire agreements of 1949. It may well suit the parties to modify them.
6.4 At the moment, Israel is using its military might and position as a belligerent occupant illegally to force concessions out of the Palestinians. This proves that, to date, Israel has not been in good faith in the negotiations it has conducted over territorial issues. Moreover, a settlement which is not freely negotiated and does not reflect the legal rights of both sides will not give Israel the peace and security which it desires and to which it is entitled. As President Obama has recently reiterated, the pre-1967 lines are the basis for all territorial negotiations.
6.5 Admission of the State of Palestine to the UN and the negotiation of a peace treaty between Israel and Palestine will also open the way for recognition of Israel by the member States of the Arab League in accordance with the Arab League Peace Plan – although that will also require Israel to make peace with Syria, for which it needs to renounce its unfounded claim to the Syrian Golan Heights and withdraw from them.
6.6 It will also defuse the vexed struggles over the legitimacy of Israel and the Zionist project which are slowly but surely turning Israel into a pariah State. Indeed, once Israel has made peace with the State of Palestine, other States may be willing for their embassies to Israel to be placed in the Israeli part of Jerusalem.
7. The Benefits for Britain in recognising the Palestinian State
7.1 As the former Mandatory power, Britain has a historic responsibility to the Palestinian People. By taking the lead among EU nations in recognising the Palestinian State and its territorial integrity, Britain will take a step towards healing a wound and an injustice which has lasted for decades and been a major destabilising factor in the Middle East. Recognition will help reduce tensions in the region.
7.2 Recognition will give Britain much needed credibility in the fight against extremism, ultimately making our streets a safer place and reducing the threat to British citizens, to British troops in Afghanistan, and British interests overseas generally.
7.3 At the time of the “Arab Awakening”, it will also enable us to look the Arab World in the eye and show that we do desire a relationship of equality and mutual respect. By demonstrating our commitment to the rule of international law, it will encourage Arab countries to do the same.
“The Israel-Palestine conflict in international law: territorial issues” by Iain Scobbie with Sarah Hibbin and an introduction by Henry Siegman, U.S. Middle East Project and the Sir Joseph Hotung Programme for Law, Human Rights and Peace Building in the Middle East, School of Oriental and African Studies, University of London. (http://www.soas.ac.uk/lawpeacemideast/publications/file60534.pdf)
About the author: John McHugo is an international lawyer and author of a refutation of Israel’s interpretation of Resolution 242, published in the International and Comparative Law Quarterly. He is currently writing a book ‘ Rebuilding Babel ‘, an explanation of how the West has gone wrong in the Arab World. He is chairman of the Liberal Democrat Friends of Palestine and is a member of the committee of the Egyptian British Friendship Society. He reads and speaks Arabic. He has served on the Caabu Executive for the last two years.
What makes a country?
Denis Seguin, theglobeandmail.com
When South Sudan was welcomed into the United Nations on July 14, the organization’s press office declared it “the world’s newest state.” But the UN knows well that such declarations are thorny at best. State, nation or country – there is no legal definition of the place stamped on the cover of a passport. Adding South Sudan means that there are 193 member states of the United Nations. But that doesn’t answer the question of how many countries there are in the world.
Put that question to the United Nations and the answer, essentially, is: “Don’t ask us.” According to the Office of the Spokes-person of the Secretary-General, “it is the member states themselves who decide what the member states are.”
After all, what makes a country a country? Membership in the United Nations does not endow universal statehood. Many member states of the UN do not recognize each other: for example, the Czech Republic and Liechtenstein, or South Korea and North Korea. More than 30 UN member states do not recognize Israel; Palestine predicts that it will have 135 recognitions by September, when the General Assembly is set to vote on the issue of Palestinian statehood.
The issue is “poisonously controversial,” as Carne Ross puts it. Mr. Ross, a former British diplomat, is executive director of New York-based Independent Diplomat, a not-for-profit initiative that represents the interests of unrecognized states – entities that for purely political reasons are not allowed to join the club with the exclusive Manhattan address.
It’s controversial because a new member state represents a competitive threat to its neighbours. And it’s poisonous because the ascension of a breakaway nation such as South Sudan (one of Mr. Ross’s clients) to member status in the UN could encourage sovereignty movements within existing member states – a headache for Canada among many other countries.
Like any country club, the UN has its gatekeepers. These are five permanent members of the Security Council – China, France, Russia, the United States and the United Kingdom – each of which has veto power on any substantive issue, including membership. That’s why, should it come this September, a resolution recognizing Palestine statehood would be purely symbolic.
The Montevideo formula
What is a country? The concept is old, but it’s only in the past century that an effort has been made to give firm definition to the status of nationhood. Franklin Delano Roosevelt convened a New World summit in 1933 in Montevideo, Uruguay, in an attempt to counterbalance the old, colonial approach to nation building. The United States, Mexico and 18 nations from Central and South America and the Caribbean attended. (Canada did not.)
According to Article 1 of the Montevideo Convention on the Rights and Duties of States, a state should possess four qualifications: a permanent population; a defined territory; government; and the capacity to enter relations with other states.
But the Montevideo Convention has never been more than a guideline. As for the four defining characteristics of a state, among member states of the UN, anomalies abound. Moreover, there are many almost-countries that can claim all four qualifications. Quebec, for example, has a permanent population, defined boundaries, a system of government and official delegations in Brussels, London, Mexico City, Munich, New York, Paris and Tokyo.
It sounds simple enough: A group of people living within the same defined geographic area over time will have common cause. This is how the concept of a nation developed. And it’s why islands – England, Japan – make such enduring countries, and have enduring ethnic nationalism.
But in the highly mobile post-Montevideo world, permanence is a subjective term. The population of the Lebanese diaspora is estimated to be three to four times greater than Lebanon’s four million residents; many of these Lebanese expatriates will have the right to vote in the 2013 national elections.
Permanence can also be impossible: Should the Maldives be inundated by rising sea levels, its 300,000 citizens will have no choice but to move. Yet the Maldives presumably would continue to be a member state of the UN.
Or consider the example of the Republic of Poland, occupied by Germany and the Soviet Union in September of 1939. From its base in Paris, and then in London, the Polish government-in-exile maintained a state-like status – with prime ministers and presidents – for 50 years until the collapse of the Soviet Union. In 1990, Lech Walesa, the first post-Soviet president, accepted the symbols of Polish government, including the original 1935 Polish constitution, from the last president-in-exile.
In an op-ed piece last November in The Wall Street Journal, former U.S. ambassador to the UN John Bolton dismissed Palestine’s quest for membership in part because “customary international law’s definition of ‘statehood’ requires that a putative state have clear boundaries.”
Tell that to India and Pakistan, which have been disputing the Kashmir region since partition. If you purchased the (now discontinued) Microsoft Encarta encyclopedia in Pakistan, its map of Kashmir corresponds to Pakistan’s territorial claim. If you bought Encarta in India, the map corresponds to the Indian claim.
Maps are powerful tools in the cause of nationalism. They create what Tom Edwards, a geographer and digital cartographer who helped to design maps for Microsoft, calls “ground truth,” a visual representation as evocative as a portrait of a beloved ancestor.
Government and relations
When Chiang Kai-shek’s Kuomintang decamped to Taiwan in 1950, his nation, the Republic of China, was one of the Earth’s most powerful, holding one of five permanent seats on the UN Security Council along with its crucial veto power. Then, one day in 1971, that seat, and all its power, was transferred to the People’s Republic of China and Taiwan ceased to exist in the eyes of the UN. (Taiwan does exist in the eyes of the World Trade Organization, which refers to it as Chinese Taipei – such is realpolitik.)
Likewise today, the Arab Spring has left many states in flux. Who can be said to represent the government of Libya? Of Egypt? And what of Somalia? Since the civil war began in 1991, the government that is represented at the UN has had control over only a small fraction of its defined territory.
Conversely, consider Somaliland. A vestige of the colonial era, the former British Somaliland, it became an independent state in 1960. Shortly thereafter, the former Italian Somaliland became independent, and the two states were joined. The fractious union was a contributing factor in the Somali Civil War. In 1991, the Somali National Movement seceded from Somalia and declared itself the Republic of Somaliland, claiming the former colonial boundary as its own. But Somalia’s capital remained in Mogadishu and, with it, its UN membership.
Yet, according to Somaliland’s former minister of foreign affairs, Abdillahi Mohamed Duale, his state of four million citizens fits all the criteria of the Montevideo Convention. “We are not creating a new territory. We are reclaiming one that existed in 1960 when the British left and granted independence.”
Unlike Somalia, Somaliland has prevented piracy on its shore. More than 30 UN member states recognize the sovereignty of Somaliland. But none of the permanent five.
On the opposite coast of Africa, Western Sahara has the opposite problem. It is occupied by a neighbour that has a friend on the Security Council. Itself a colonial vestige – formerly Spanish Sahara – Western Sahara has been illegally occupied by the Kingdom of Morocco since 1975. Despite numerous UN-sponsored initiatives, France has reliably undermined Western Sahara’s sovereignty movement.
Do it yourself
Starting a country is easy. “It’s a state of mind,” says Erwin Strauss, author of the seminal 1979 libertarian handbook How To Start Your Own Country. The difficulty is finding land.
There are numerous examples of micro-nations, self-declared sovereign entities that occupy the inevitable interstices of geopolitics. The Principality of Sealand has since 1967 occupied an abandoned Second World War gun tower eight miles off the British coast in the North Sea. Founded in 1970, the Principality of Hutt River Province describes itself as “the second-largest country on the continent of Australia” – about 75 square kilometres. It seceded over a wheat quota.
Sealand and Hutt River each have defined territory, a permanent, albeit small, population and a system of government – they issue passports, postage stamps and currency – and they have interacted with other governments. Both have faced adversity – court battles, political persecution and even military coups – and survived.
But be warned. As Prince Leonard of Hutt River Province puts it: “If you think you can just declare a country and put up a flag and sit back, you’ve got another think coming.”