The Gaza War has re-ignited shrill calls for Palestinian statehood. But how should the expected benefits for Palestinians be compared with expected harms to Israel? And what does international law (aka the law of nations) have to say about such an essential comparison?
To begin, history deserves some evident pride of place. On 29 November, 2012, the UN General Assembly voted to confer the legal status of “Nonmember Observer State” upon the Palestinian Authority (PA). Significantly, however, this status was never upgraded to one of full or sovereignty-centered statehood. Moreover, prior to this 2012 United Nations conferral, a Palestinian state never existed in any iteration or form.
Never.
The 2012 General Assembly elevation did not bestow authentic legal personality (i.e., a formal condition of “juristic personhood”). Under binding international law, both codified and customary, “Palestine” remained outside the community of genuinely sovereign states. This is the case whatever else one may think about “equality,” “fairness” or “justice” under the law of nations.
The ongoing juridical exclusion of “Palestine,” whether welcome or unwelcome, is legally correct. In this connection, the authoritative criteria of statehood confirming such a contentious exclusion are plain and long-standing. Under all relevant norms, a state under international law must possess these four specific qualifications: (1) a permanent population; (2) a defined territory; (3) a government; and (4) the capacity to enter into relations with other states.
Unsurprisingly, there are assorted law-based and complicating contradictions. The legal existence of a state is always independent of recognition by existing states. At the same time, pursuant to the 1934 Convention on the Rights and Duties of States (the Montevideo Convention): “Even before recognition, the state has the right to defend its integrity and independence, to provide for its conservation and prosperity, and consequently to organize itself as it sees fit….”
This means, inter alia, that even an aspiring Palestinian state that failed to meet codified Montevideo expectations could declare otherwise and act “to defend its integrity and independence….” Such defense, of course, would still remain subject to the laws of war of international law or humanitarian international law (HIL). Ipso facto, all “defensive” acts of terrorism would be impermissible and criminal. Under international law, the ends can never justify the means. In law, the commonly-repeated mantra that “One man’s terrorist is another man’s freedom fighter” is merely an empty witticism.
Nonetheless, any nationalistic declarations of Palestinian “self-defense” would accelerate war and terror against Israel. Despite being widely misunderstood and under-reported, the Palestine Liberation Organization (PLO), forerunner of the Palestine Authority (PA) was formed in 1964. Significantly, this was three years before there were any “Israeli Occupied Territories.” What exactly, therefore, was the PLO trying to “liberate” at the time?
It’s not a difficult question. As Israel proper is defined by its several regional foes as “occupied Palestine,” the true object of “liberation” was all of Israel. In this intentionally murderous definition, nothing has changed. The Palestinian terror killings, rapes and mutilations of October 7, 2023 were clear testament to this deceptive geographic definition.
Whenever the PA decides it is time to openly declare Palestinian statehood – a declaration that would likely be based upon certain prior agreements with Hamas (Islamic Resistance Movement), Palestinian Islamic Jihad and Iran – recognizable Montevideo standards of statehood would need to be invoked. Much as the Government of Israel would seek to challenge any such contrived declaration, the Palestinian side would assuredly counter-argue that its right to declare an independent state was “peremptory” or beyond legal challenge. This adversary would then add as clarifying “footnote” that its unchallengeable right to statehood overrides all previously-existing legal expectations regarding peace with Israel.
There would be many technical particulars. Among other things, the Palestinian side, by whomever represented, could cite to (1) the non-treaty quality of the earlier Oslo Agreements (per definitions of “treaty” at the 1969 Vienna Convention on the Law of Treaties), and (2) the basic and allegedly immutable human rights regarding “self‑determination” and “national liberation.”
For years, Israel did not concern itself too conspicuously with legal aspects of “Palestine,” but this disposition is presently changing. Plausibly, though Israel would base any allowance of Palestinian statehood on antecedent Palestinian “demilitarization,” that particular expectation would be “dead on arrival.” Prima facie, as both Palestinian and Israeli negotiators would understand, no new state is ever under any law-based obligation to be “demilitarized.” This is the case, moreover, whatever else this new state might have agreed upon during its pre-state form.
There is no discernible reason to believe that “Palestine” would ever make good on any pre-independence promises to support Israel’s irrevocable rights to “peace and security.” For “Palestine,” following even formal accessions to sovereignty-centered statehood, the armed struggle with Israel would continue as a zero-sum conflict. On this expectedly corrosive Palestinian view, any gain for Israel would signify a correlative loss for Palestine.
Over the years, a number of cases in United States federal courts rejected the idea that the PLO, as umbrella organization or “parent” of the PA, was the legitimate core of an independent Palestinian state. Earlier, perhaps, capable Israeli lawyers and policymakers might have been able to refer to American federal case law in offering valid arguments against Palestinian statehood. Today, however, long after the Oslo Accords and subsequent “Road Map” expectations, Israel would have to base its well-founded opposition to “Palestine” on other legal grounds. Owing to the persistently annihilationist platforms of PA, Hamas and Iran vis-à-vis Israel (the “Phased Plan” for Israel’s eradication adopted in Cairo in June 1974 has never been retracted), this different stance need not be infeasible.
Under the Montevideo Convention, all states are legally equal, enjoy equal rights and have equivalent capacity in their lawful exercise. Inter alia, the moment that PA/Hamas choose to openly declare a State of Palestine, the new country would become the juridical equal of Israel. To best protect its core national interests in such foreseeably threatening circumstances, Jerusalem should vigorously insist that Palestine’s borders never be drawn along pre-1967 lines.
There is pertinent history. A coherent summation of such required insistence was already offered in a February 10, 2013 statement by Israeli Ambassador Alan Baker: “The legality of the presence of Israel’s communities in the area (Judea and Samaria) stems from the historic, indigenous, and legal rights of the Jewish people to settle in the area, granted pursuant to valid and binding international legal instruments, recognized and accepted by the international community. These rights cannot be denied or placed in question.”
At first glance, currently expanding calls for Palestinian statehood could seem entirely reasonable. Upon closer historical and legal examination, however, a Palestinian state would quickly become an irredentist state and an existential threat to Israel. Lest anyone forget, the existing Jewish State is less than half the size of America’s Lake Michigan.