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By David French1316114428000

Does international law matter? Do U.N. member states respect the U.N. Charter? The Palestinian Authority has declared it will seek statehood at the U.N. as early as next week. They will do so with the full backing of every Islamic nation in the world and with the expected backing of numerous other nations that are historically hostile to Israel. It’s critical to understand, however, that if the U.N. recognizes the Palestinian Authority, it will violate its own charter, violate longstanding norms of international law, and further impair its credibility with vital (and powerful) members of the world community.

Let’s take a closer look:

The Charter requires respect for existing treaties.

We the peoples of the United Nations determined to establish conditions under which justice and respect for the obligations arising out of treaties and other sources of international law can be maintained.” (From the Preamble)

By recognizing a unilateral declaration of a Palestinian state, the U.N. would be an accomplice to a fundamental breach of the Oslo Accords which prohibit either side from taking any steps to change the status of the West Bank or Gaza pending the outcome of permanent status negotiations.

The Charter opens U.N. Membership to “states” only, not to “movements.”

Membership in the United Nations is open to all other peace loving states which accept the obligations contained in the present Charter and, in the judgment of the Organization, are able and willing to carry out these obligations. (Article 4.1)

The Palestinian Authority flunks this test on several counts. First, U.N. membership is open to “states” only. Granting membership to an entity which cannot meet the most basic and accepted international legal requirements for statehood would not only be a violation of this foundational requirement, it would set a dangerous precedent in international relations. Note that the question of whether the Palestinian entity can qualify as a state is a distinct question from whether one thinks the Palestinians ought to have a state. To regard the West Bank and Gaza Strip as a “state” would mean stretching the meaning of the term beyond all reason.

The accepted international criteria for statehood are laid out in the Montevideo Convention of 1933: a permanent population, a defined territory, government and capacity to enter into relations with the other states. The West Bank and Gaza Strip clearly fail to meet these criteria. The only authority exercised by the Palestinian Authority (PA) is that which it has through the sufferance of Israel, the parameters of which are defined in the Oslo Accords: the population and territory under the PA’s authority, the extent of its governing power and ability to carry on foreign relations only extend as far as that to which Israel has agreed. If the PA presses ahead with its unilateral course, its breach of the Oslo Accords would allow Israel to actually dismantle the PA.

The danger of the PA’s approach is obvious. If the U.N. nullifies all objective criteria for statehood — leaving recognition open for all aspiring separatist movements with sufficient political influence — then it has laid a foundation for perpetual, bloody conflict. The floodgates would open for the multitude of secessionist groups worldwide who would easily qualify for statehood under the “new rules,” whether they be Tibetans, Tamils, Basques, Kurds, or any of the countless others seeking recognition of their “right” to independence and statehood. 

The proposed Palestinian state is engaged in open, offensive war against Israel.

To practice tolerance and live together in peace with one another as good neighbors” (Preamble)

To develop friendly relations among nations based on respect for the principle of equal rights and self determination of peoples, and to take other appropriate measures to strengthen universal peace” (Article 1.2)

Any declaration of independence on 1967 lines leaves the most populous city in the new Palestinian “state” in the hands of Hamas, a terrorist organization at open war with Israel. Moreover, the Palestinian Authority and Hamas have declared an intention to form a unity government, leaving the whole of Palestinian territory under at least partial control of terrorists. 

As for “equal rights,” the PLO’s ambassador to the United States declared that any new Palestinian state should be judenrein, cleansed of all Jews. This declaration stands in stark contrast to Israel, which grants its Arab citizens full civil rights — indeed, Israel’s Arab citizens enjoy more civil liberties than the citizens of any Arab country in the Middle East.

The Charter repeatedly emphasizes the need for peaceful resolutions to conflict:

All members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.(Article 2.3)

All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.  (Article 2.4)

The prevailing deeply-held belief (and longstanding practice) of the PLO and Hamas is that they are entitled to use violence — to advance the maximalist goal of destroying Israel, or the more modest goal of ending Israel’s so-called “occupation” of the “Territories.” The unrelenting campaign of Palestinian terror, the content of the charters of the PLO and Hamas, and the widespread incitement to violence in Palestinian society are beyond dispute.

This commitment to violence demonstrates that the Palestinians at present are simply not “able and willing” to carry out their obligations under the Charter. Even if, for argument’s sake, one were to accept that the Palestinians were genuinely “willing” to take on the obligations attendant to U.N. membership, very recent history shows they are not “able” to do so. The Palestinian Authority lost its short and vicious civil war with Hamas, leaving Hamas in total control of the Gaza Strip. Does any reasonable person believe that the PA is “able” to restrain Hamas? Has the PA ever demonstrated an ability to restrain Hamas? Can the Palestinian delegation to the U.N. provide any reassurance that Hamas won’t also seize the West Bank — either through bullets or the ballot? 

The Palestinians Intend to Circumvent the Proper Admission Procedure.

The admission of any such state to membership in the United Nations will be effected by a decision of the General Assembly upon the recommendation of the Security Council. (Article 4.2)

The Charter’s meaning is plain: A Security Council recommendation is a prerequisite to membership. There were sound reasons for the framers of the Charter to vest this responsibility with the world’s leading powers in the Security Council, among them the need for the Security Council to act as a brake on the General Assembly. Since the U.S. is so far vowing to veto the Palestinian membership bid, the Palestinians may ask the General Assembly to use the obscure “Uniting for Peace” framework and adopt a resolution which, although not legally binding under the Charter, would be a “moral equivalent” to admitting a Palestinian state as a U.N. member. To use a domestic legal example, such a maneuver would be the equivalent of using a congressional resolution to circumvent the Bill of Rights.

Does international law matter? Is the U.N. Charter viable? The questions are that stark. Abandoning international law for the political expedience of recognizing a non-existent Palestinian state could very well lead to even greater violence. The Middle East is a tinderbox, and the Palestinians are trying to strike a match.

This article originally appeared in the National Review. It was co-authored with David Benjamin, a Jerusalem-based international law consultant and a former senior legal adviser to the Israel Defense Forces.

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