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ãÑÝÞ ÇáæÑÞÉ ÇáÈÍËíÉ ÇáãÄÑÎå ÈÊÇÑíÎ 2/7/2011 ÈÇááÛå ÇáÇäÌáíÒíå.
Before it is too late: Palestinians should reconsider the unilateral legal establishment of their state
02/07/2011
By: Mohammed Abuhashem
Abstract
Palestinians are intended to address the UN for permanent membership in order to initiate ‘legal hurricane’ against Israel to impose their rights by UN legal mechanisms. These rights include two important issues for the Palestinians, the right to return and, sovereignty over the territories occupied in 1967. However, this paper argues that this unilateral step will undermines the both issues. First, it could end the legal link between that would be Palestinian state and the refugees if they are not granted the Palestinian nationality. In contract, it will undermine the right of refugee to return if they granted the Palestinian nationality. In addition, this step will turn the Palestinian issue from people who are under occupation and who have the right of self-determination, to international border dispute issue, which is legally, politically, and morally weaker. Furthermore, this paper argues that this step will burn the strongest negotiation cards that Palestinians have which are refugee issue and one state solution, ‘the bogey’ for Israel. Moreover, the failure of this step in bringing tangible results to Palestinian people and arguably its counterproductive effect
[1] will severally undermine Palestinian Authority (PA) legitimacy and will strengthen the peace process opposition camp, which can amount to security failure. Finally, this paper argues that the apparent Israel and US opposition is just a game to collect political gains and to find excuses to implement an old plan started by Sharon to impose de facto borders on the future Palestinian state.
Introduction
Palestinian case used to be an exceptional regarding the international law which gave Palestinian representatives enough room for manoeuvring during the last decades. However once establishing the Palestinian state, this room will not be available because there are international laws and customs govern the relationship between states. I think this result is what Yossi Alpher et al meant by describing the status of the Palestinian case after the establishment of the Palestinian state, with ‘state-to-state conflict with manageable parameters’
[2]. Thus, Palestinian should carefully watch their legal steps if they decide to establish the state. This paper demonstrates the legal and political counterproductive results of the unilateral state establishment step (unilateral step). Thus, this paper will cover four points. First, how the unilateral step could undermine the refugee issue. Second, how it could participate in undermining the endeavours for achieving sovereignty over the occupied territories in 1967. In addition, it answers the Saab Erekat question to Fayyad: why Israel intensively is opposing the Palestinian state establishment. Third, this paper demonstrates its effect on any future negotiations. Finally, it demonstrates the expected bad effect on the inner political arena.
I. How the unilateral step could undermine the refugee issue:
This section aims to grape the Palestinian policy maker’s attention to a crucial problem, which should be solved before heading to UN to get a legal status as a state. The problem is identifying
who the Palestinian is. The Palestinian state as a legal entity will face the following questions every time its leaders tried to use international mechanisms to defend Palestinian refugee rights:
1. What is the legal relation between Palestinian state and the refugees?
2. If they are Palestinians, why do not they return to ‘Palestine’ (within the declared borders)?
3. If they are not Palestinians, what is Palestinian state legal excuse to defend their rights?
There are three scenarios are possible on how the Palestinians could deal with this issue. First scenario, PA could decide to ignore this issue or to delay it to the future. In addition, it could include the right to return in the UN resolution of the state establishment. Second scenario, PA defines Palestinians as all people (and their descendants) who used to live in historical Palestine before 1948. Third scenario, PA excludes Palestinian refugees from the definition of the Palestinian citizen.
A. First scenario: PA decides to ignore this issue or to delay it to the future. In addition, it includes the right to return in the UN resolution:
I assert that ignoring this issue is not a good solution since Israel will raise it every time Palestinians try to use UN mechanisms to defend Palestinian refugee’s rights. In addition, including a provision in the UN declaration, that asserts the right of Palestinian refugees to return has no legal value against Israel. It even counterproductive, since it admits that refugees are Palestinians. Thus, the question will be, again: why they do not return to Palestine (within the declared borders)?
Even Israel could return to The International Court of Justice to end the refugee case with stronger argument especially against original refugees’ descendants who arguably are not legally recognized as a refugee under UN resolutions. Palestinian state will not have any legal base to defend the refugee rights since it will be faced by the mentioned three questions.
B. Second scenario: PA defines Palestinians as all people (and their descendants) who used to live in historical Palestine before 1948:
In this case, Palestinian refugees will lose their de facto refugee status. The logic of this conclusion depends on the following:
There is no legal definition for the Palestinian refugee.
[3] Although displaced Palestinians in 1948 and their descendants match the refugee definition in the convention on refugee 1951 and the definition of stateless persons in 1954 convention, they are excluded from these two conventions because they have assistance form one of UN organizations (UNRWA).
[4] In addition, the UN mandate, which established the UNRWA, did not define the Palestinian refugee. There is only an operational definition adopted by the UNRWA:
‘Palestine refugees are people whose normal place of residence was Palestine between June 1946 and May 1948, who lost both their homes and means of livelihood as a result of the 1948 Arab-Israeli conflict’.
[5]Form the previous definition we can observe that even the UNRWA does not include original refugees’ descendants to the definition. However, UNRWA recognizes the descendants’ right to benefit from the UNRWA relief assistance.
[6] Nevertheless, this definition has no legal value as I mentioned before. I would like to say here, there is no international recognized definition of who the Palestinian refugee is.
This legal lacuna leaves PA policy makers with one choice depending on the de facto refugee status of the Palestinian refugee and avoiding any act which could give Israel chance to undermine this de facto status. To defend the refugee’s rights, according to the customary law regarding this issue, the PA could use de facto refugee status.
[7] I believe that Palestinians should maintain the de facto status of the Palestinian refugees. It will be extremely weak argument to claim that Palestinian refugees who have the citizenship of the Palestinian state have the right to return to the land that Israel occupied. Some could argue that the Palestinians depend on 242 resolution as a legal base for the right to return. If we take a look at 242 resolutions we will find it stated that: ‘affirms the necessity for achieving just settlement of the refugees problem’. I argue that Palestinians cannot depend only on this resolution for two reasons. First, it does not define who the refugee is. Thus, the argument remains, is the original refugees’ decedents are considered as refugees. Second, this resolution language is weak because it uses ‘necessity’ which has no obligatory power. In addition, it just asks for ‘just solution’, which is a political term. Thus, for instance, Israel could argue that the establishment of the Palestinian state as alternative home for the refugees is a justice compensation for Palestinian refugees. Furthermore, the ‘194’ General Assembly resolution has no binding power as any other General Assembly resolution. However, I agree with Boling that this resolution represent recognized customary norms. Thus, I repeat again that Palestinians need to keep the de facto status of the Palestinian refugees to be able to get benefit of this resolution, which contains customary norms. Finally, if the mandate of the UNRWA is ended, Palestinian refugees will be covered by 1951 convention on the status of refugees. However, by giving the refugees the Palestinian citizenship, the refugee’s status will be sized according the 1951 convention.
The status of refugee will be sized if the refugee ‘voluntarily re-availed himself of the protection of the country of his nationality’ or/and ‘acquired a new nationality, and enjoys the protection of the country of his new nationality’.
[8] In conclusion, Palestinians should keep the de facto status of refugees because this de facto status gives refugees the right to return. Covering refugees under the statehood citizenship will undermine this status.
C. Third scenario: PA excludes Palestinian refugees from the definition of Palestinian citizen:
In this case, the Palestinian state will have no more legal justification to defend Palestinian refugee right to return because it has no legal link with them. However, this will keep the de fact status of these people as a stateless and refugee.
Some could argue that Palestinian Liberation Organization (PLO) rather than the Palestinian state can still have the right to defend Palestinian refugee rights since it still represents all Palestinians. I argue that PLO will face the following situation:
What is the PLO legal excuse to claim that the people who displaced from occupied territories in 1948 are Palestinians? While Palestinian state itself did not consider them Palestinians?! and what is the relationship between PLO and the Palestinian state?
It will be really a very weak argument if PLO claims that it is separated from the Palestinian state. In addition, it will be legally unacceptable argument since ‘the Palestinian citizen’ will have two definitions; one under the Palestinian state, which does not include refugees and one under PLO which includes refugees. I really doubt that any legal entity can accept this weird status. Moreover, Palestinian refugees themselves, after the establishment of the state, will not be able claim that they are Palestinian refugees. They only could claim that they are ‘Israeli refugees’ because they are not Palestinians any more.
I even wonder about the legitimacy of PLO after the declaration of the state. PLO could continue its endeavours to end the Israel occupation of the 1967 occupied territories, which is logical. However, under which legal justification PLO can defend refugee rights to return to another state? because the declaration of the Palestinian state in UN has implicit meaning that all the other territories are belonging to Israel state. Thus, under which legal excuse can a Palestinian entity (PLO) defends refugees who belong to another state (Israel)? After the declaration of the Palestinian state, that could be considered intervention in another state (Israel) affairs. Thus, total separation between PLO and future Palestinian state should be conducted, which is politically difficult.
Some could argue that PLO could consider itself as a representative for refugees who originally Palestinians. That could be right but the PLO in this case will be only an NGO who are defending the rights of refugees belonging to the state of Israel. In this case, Palestinian state could only depend on humanitarian excuses to support this organization, which gives it a very narrow room of manoeuvring. Otherwise, Israel could easily claim that Palestinian
state intervenes in Israel internal affairs which is not acceptable under international law. Finally, if the Palestinian state establishment will restrict its leaders from defending refugees’ rights rather than giving them new platform to defend these rights, why do they need to establish a state in the first place? The refugee issue is not only a core issue for Palestinian people, it is also a very strong negotiation card! and losing it is a unredeemable mistake.
II. How the unilateral step could participate in undermining the endeavours for achieving sovereignty over the occupied territories in 1967.
This section demonstrates that this unilateral step will give Israel the legal ground to achieve unilateral disengagement, which will turn the Palestinian issue to international border dispute. Some could argue that, if it is that clear, why is Israel intensively opposing the establishment of the state of Palestine? I believe that Israel apparently opposes this step since it is not only want to get benefit from legal consequences of this step but also it needs to use it politically to have ‘legitimate’ excuses to impose de facto borders on the Palestinian state. I mean that Israel wants to show the world that PA is breaching the Oslo Agreement in order to give itself the excuse to breach it. I will demonstrate that more clearly hereinafter:
I believe that it is part of an old plan prepared by Sharon. It started with the first disengagement and it will be followed by another one in West Bank (WB) soon after the establishment of the Palestinian state. Once Palestinians unilateral step, which is a breach to Oslo Agreement,
[9] Israel has the legal right to do unilateral disengagement and impose border de facto status. On contrast, if Israel did not oppose the Palestinian unilateral step that could be considered as implicit acceptance of it. Then, Israel will not find the legal excuse to make its own breach. Some could argue that Israel does not need legal excuses to do disengagement because it did that before without a one.
[10] I argue this time the disengagement intended to be the final solution; thus, it needs legal base to strengthen the Israel position because it will use it later before any arbitration body. Thus, the legal argument will be like that: Palestinians breach their obligations under international treaty, which give the Israel lawful right to dismiss its obligations under the same treaty. Finally, the expected unilateral Israeli disengagement will shift the Palestinian issue from people under occupation who have the right to self-determination to border dispute between two states. That clearly will weaken the Palestinian issue and its legal, political, and moral depth. I think that is what Yossi Alpher et al meant by supporting the Palestinians’ choice of establishing statehood, when they stated:
‘Call for both
states to engage in good faith negotiations … to resolve all outstanding issues between them, beginning with the issues of borders, settlements, water and security arrangements’. Moreover, when they mentioned that ‘state-to-state conflict with manageable parameters’
[11]Therefore, I would like to assert what Fayyad said recently that the establishment of the state will have only symbolic meaning and effect. Thus, Palestinian will end up on the negotiation table. The next section argued that, once Palestinian return to the negotiation table, they will find themselves without any effective negotiation cards.
III. The counterproductive effect of the unilateral step on any future negotiations:
As been asserted before since the international law is practically the law of strong states, Palestinians will finally return to negotiation table. Then, they will recognize that the legal establishment of the state of Palestine undermines the most important Palestinian negotiation cards. This will not only make Palestinian position weaker in any future negotiation but also it will make Israel has no interest in negotiation. The logic of this argument is demonstrated hereinafter.
I believe that Palestinian negotiators have four negotiations cards:
A. The one state solution
B. The refugee issue
C. Israel security
D. Regional and international security
I think that the legal establishment of the Palestinian state will undermine the first two cards. In addition, the other two cards are undermined, long time ago, by the inner conflict and the increasing of US existence in the Middle East.
A. On state solution: ‘The atomic bomb’
Unilateral state declaration will undermine any future choice for threatening by ‘one state solution’ card, Palestinian strongest card in the negotiation table. It is clear that Israel will do anything to avoid this choice. Thus, even if Palestinians will not use it in fact, this card should not be burned. This card is like possessing an ‘atomic bomb’, you cannot use it or even threat the others of using it; however, it makes the others ready to listen to your terms. What I want to say, if Palestinians do not want or are not able to use this choice, keeping this card is vital to keep the Israeli negotiator under stress. This can be proved by Tzipi Livni position when she said that ‘Palestinian state is a core interest for Israel’, apparently because she worried about one state solution which could collapse Zionist dreams. The same can be understood from Raef Zreik’s article, ‘Why The Jewish State Now?’, when he asserts that the disengagement of the Palestinian is vital priority for Israel.
[12] Thus, the question is: If Palestinians give Israel what it wants by establishing a Palestinian state without any real state’s components, why will Israel negotiate the Palestinians to give them these components??!!
B. Palestinian refugee card:
As demonstrated before, Palestinian refugees issue is not only one of the final status issues, but also it is a negotiation card. Also as demonstrated earlier, the establishment of the state will either undermine the refugee right to return or it will end the link between the Palestinian refugees and would be the Palestinian state. In both cases, Palestinian state will lose this card.
C. Israel security card
I believe that Palestinians lost the power of this card after the Palestinian Political rift because Israel knows now that its security is an interest for both Gaza and WB governments. Israel knows that both governments are avoiding any counterattacks against Palestinian cities. Otherwise, massive Israeli attack could cause security failure, which could encourage either Fatah or Hamas to challenge the other rule by making a ‘coup’ as what happened in Gaza in 2007.
[13] D. Regional and international security card:
I believe that this card lost its power because of the existence of Al-Qaida threat, which arguably takes the attention from the Palestinian case as the main source of instability. Thus, nowadays many observers believe that the US existence in the Middle East is the main reason behind instability. Therefore, solving the Palestinian issue is not pressure point anymore since it is not the most important source of disorder in the region. However, it is good to keep claiming that the solving of the Palestinian issue is the ‘Key for stability in the Middle East’. However, the important thing is to what extent the main actors in the international community believe in that!
IV. The unilateral step could undermine the legitimacy of PA and the security in WB:
The main problem is that PA exaggerates the importance and the effectiveness of the state legal establishment. In addition, Israel participated in that by apparently opposing this step. Palestinians are looking for this step as an emancipation step, which could achieve significant progress in the way to gain their rights. Some truly think that PA, which lacks legitimacy because of inner conflict and the lack of constitutional base for Fayyad government,
[14] deprives its legitimacy from the ‘Promises of September’.
[15] Thus, I believe that when people feel the failure of this step, by not only giving them no tangible results but also by undermining their core rights as argued before, they will be very disappointed with PA policy. That could amount to security failure if the
peace opponents decided to use that to challenge PA rule in WB.
[1] This Paper make argument about the counterproductive effect of the legal establishment of the Palestinian state.
[2] Yossi Alpher, Colette Avital, Shlomo Gazit, and Mark Heller, ‘Buying Into Palestinian Statehood’ )The New York Times, June, 24,2011) <http://www.nytimes.com/2011/06/25/opinion/25iht-edalpher25.html?_r=1&ref=global>
[3] There was a political argument between Israel and Palestinians regarding who considered a refugee. Palestinians want to extend refugee definition to include the descendants of the original refugees but Israel rejects this approach. Thus, Palestinian refugee left without definition, accessed, Terry M Rempel, ‘Palestinian Displacement: Who are Palestinian refugees?’ 6 <
http://www.fmreview.org/FMRpdfs/FMR26/FMR2602.pdf > n.d; Asem Khalil,
Palestinian Refugees in Arab States: A Right Based Approach (European University Institute, 2009) 8<
http://cadmus.eui.eu/handle/1814/10792 > n.d
[6] UNRWA even registers Lebanese people after the 2008 Israeli war on Lebanon. In addition, it registers the Palestinian displaced persons during the 1967 Arab-Israel war who are not refugee according to the UNRWA mandate. for more information see: Lance Bartholomeusz,
The Mandate of UNRWA at Sixty (Refugee Survey Quarterly, Vol. 28, Nos 2 & 3, 2010) 456
[7] Gail J. Boling,
Palestinian Refugees and the Right of Return: An International Law Analysis (BADIL - Information & Discussion Brief Issue No. 8, January 2001)
[9] ‘Neither Party shall be deemed, by virtue of having entered into this Agreement, to have renounced or waived any of its existing rights, claims or positions’. ‘Neither side shall initiate or take any step that will change the status of the West Bank and the Gaza Strip pending the outcome of the permanent status negotiations’. ‘The two Parties view the West Bank and the Gaza Strip as a single territorial unit, the integrity and status of which will be preserved during the interim period’, accessed, Mideast Web, The Oslo Interim Agreement September 28, 1995 <http://www.mideastweb.org/meosint.htm>
[10] The unilateral disengagement is a breach to Oslo Agreement: ‘Neither side shall initiate or take any step that will change the status of the West Bank and the Gaza Strip pending the outcome of the permanent status negotiations’, Oslo Agreement.
[11] Yossi Alpher, Colette Avital, Shlomo Gazit, and Mark Heller, ‘Buying Into Palestinian Statehood’ )The New York Times, June, 24,2011) <http://www.nytimes.com/2011/06/25/opinion/25iht-edalpher25.html?_r=1&ref=global>
[12] Raef Zreik, ‘Why the Jewish State Now?’[2011] Journal of Palestine Studies, Vol. 40, No. 3, pp. 23-37
[13] DCAF-Shams Forum,
Delivering Security to the Palestinian People, Tubas, West Bank/Palestine, Summary Report (DCAF, 2008) 6 <http://www.ssronline.org/edocs/report_dcaf_shams_forum_tubas20081123.pdf>; International Crisis Group,
Squaring the Circle: Palestinian Security Reform under Occupation (Middle East Report N°98, 2010) 26, 27,38 <http://www.crisisgroup.org/~/media/Files/Middle%20East%20North%20Africa/Israel%20Palestine/98%20Squaring%20the%20Circle%20--%20Palestinian%20Security%20Reform%20under%20Occupation.pdf>
[14] International Crisis Group, Squaring the Circle: Palestinian Security Reform under Occupation (Middle East Report N°98, 2010) <http://www.crisisgroup.org/~/media/Files/Middle%20East%20North%20Africa/Israel%20Palestine/98%20Squaring%20the%20Circle%20--%20Palestinian%20Security%20Reform%20under%20Occupation.pdf>;Roland Friedrich and Arnold Luethold,
And They Came In and Took Possession of Reforms: Ownership and Palestinian SSR, in
Local Ownership and Security Sector Reform, Ed. Timothy Donais (DCAF, 2008) 192; For instance, many Palestinian people disagree with international security support to PA since they think that it is to provide security to Israel rather than Palestinians, accessed, Roland Friedrich and Arnold Luethold,
Entry-Points to Palestinian Security Sector Reform, in
Entry-Points to Palestinian Security Sector Reform, Ed. Roland Friedrich and Arnold Luethold (DCAF, 2007) 145; People have the to think in international donors that way, for instance, PSSR actors consider PSF control of WB as successful because its role during the war in Gaza in preventing third intifada called for by Hamas, accessed, International Crisis Group,
Squaring the Circle: Palestinian Security Reform under Occupation (Middle East Report N°98, 2010) 9
[15] International Crisis Group,
Squaring the Circle: Palestinian Security Reform under Occupation (Middle East Report N°98, 2010) 37 <http://www.crisisgroup.org/~/media/Files/Middle%20East%20North%20Africa/Israel%20Palestine/98%20Squaring%20the%20Circle%20--%20Palestinian%20Security%20Reform%20under%20Occupation.pdf>
