UNITED NATIONS LATIN AMERICAN AND CARIBBEAN MEETING IN SUPPORT OF ISRAELI-PALESTINIAN PEACE

Transcription

1 UNITED NATIONS LATIN AMERICAN AND CARIBBEAN MEETING IN SUPPORT OF ISRAELI-PALESTINIAN PEACE The urgency of realizing a two-state solution Montevideo, 29 and 30 March 2011 CHECK AGAINST DELIVERY PLENARY II Support by Latin American and Caribbean countries for a comprehensive, just and lasting settlement of the question of Palestine Paper presented by Mr. John V. Whitbeck International lawyer Paris CPR/LAM/2011/2

2 2 I am grateful to the organizers of this conference for inviting me to speak on the applicability to the State of Palestine of the Montevideo Convention on the Rights and Duties of States and I am also grateful to Google for permitting me to do so. While I have been involved with the Palestinian cause for a quarter of a century, I must confess, in all honesty, that I was not previously aware of the Montevideo Convention. However, I do now know that it was a pioneering multinational treaty addressing the vexing question What is a state? under international law and that it remains relevant not simply within the Western Hemisphere and among its state signatories but also beyond, including with respect to Palestine. The Convention was signed in this city on December 26, 1933 by all the Spanishspeaking states of this hemisphere except Bolivia, as well as by Brazil, Haiti and the United States of America. At the Seventh International Conference of American States which gave birth to the Convention, U.S. President Franklin D. Roosevelt declared his Good Neighbor Policy, which promised a less aggressive American approach to inter- American relations, and this more respectful and egalitarian spirit in state-to-state relations is reflected in the provisions of the Convention. Article 1 of the Convention sets the following agreed criteria for a state to exist 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; and (d) capacity to enter into relations with the other states. In this context, it is important to recognize the distinction between the existence of a state and the diplomatic recognition of a state by other states. Article 3 of the Convention specifically states: The political existence of the state is independent of recognition by other states. 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, to legislate upon its interests, administer its services, and to define the jurisdiction and competence of its courts. Indeed, diplomatic recognition is a fundamentally political issue. No state can be compelled to recognize another state or prevented from doing so. The United States of America provides extreme examples, in both directions, of the absolute discretion of states to grant or refuse recognition. For 30 years, the United States refused to recognize the Peoples Republic of China, whose existence was scarcely in doubt. On the other hand, during the 50 years prior to the collapse of the Soviet Union, the United States continued to recognize the three Baltic states which had been effectively absorbed into the USSR by the end of World War II. The pre-war flags of Estonia, Latvia and Lithuania continued to fly at fully accredited embassies in Washington.

3 3 This Baltic precedent might be usefully recalled if the United States were to argue that, much though it would like to be able to recognize the State of Palestine and hopes to be able to do so at some time in the future, it would be legally impossible to do so now, since its territory is effectively occupied by another state. The criteria for statehood set forth in Article 1 of the Convention did not purport to create international law. Rather, Article 1 restated and codified customary international law as existing in In fact, the Convention's four criteria a permanent population, a defined territory, government and capacity to enter into relations with the other states set what today must seem a very low bar for qualifying as a state and, accordingly, for the rights enjoyed by all states, regardless of recognition, as set forth in Article 4 of the Convention, as follows: States are juridically equal, enjoy the same rights, and have equal capacity in their exercise. The rights of each one do not depend upon the power which it possesses to assure its exercise, but upon the simple fact of its existence under international law. Palestine, currently recognized by 112 other states, clearly qualifies as a state under the Convention's criteria. So does Kosovo, currently recognized by 75 states, even though most states, as well as the United Nations as an institution, still consider its entire defined territory to be sovereign territory of Serbia. So does the Sahrawi Arab Democratic Republic in Western Sahara, currently recognized by 49 states and a member state of the African Union, even though its government is based abroad, in Tindouf, Algeria, while virtually its entire territory has been occupied by the Moroccan army for the past 35 years. So do South Ossetia, Abkhazia, the Turkish Republic of Northern Cyprus and Transnistria, recognized by four, four, one and no states, respectively. Interestingly, Israel does not qualify as a state under the Convention's criteria, since it has consciously chosen never to define its territory and borders, knowing that doing so would necessarily place limits on them. Since 1933, customary international law has become somewhat more restrictive on the criteria for, at least, sovereign statehood. (The words sovereignty and independence do not appear in Article 1 if the Convention.) The Convention's requirement for a defined territory is now commonly tightened to a defined territory over which sovereignty is not seriously contested by any other state, while the Convention's requirement for government is now commonly stated as effective control over the state's territory and population. With the bar raised higher in these two respects, all but one of the aspiring states cited earlier fail to qualify as sovereign states, in all cases except Israel's case because sovereignty (the state-level equivalent of title or ownership) over their defined territory is vigorously contested by another state which (except in the case of Morocco and Western Sahara) is recognized by most other states as the the legal sovereign. Palestine alone still qualifies. Jordan renounced its claim to sovereignty over the West Bank in July While Egypt administered the Gaza Strip for 19 years, it never asserted sovereignty over it. While Israel has formally annexed East Jerusalem and an arc of surrounding territory (an

4 4 annexation recognized by no other state, not even the United States of America), it has for 44 years refrained from asserting sovereignty over any other portion of the West Bank or the Gaza Strip, an act which would raise awkward questions about the rights (or lack of them) of those who live there. Since November 1988, when Palestinian statehood was formally proclaimed, the only state asserting sovereignty over those portions of mandatory Palestine which Israel conquered in 1967 (aside from expanded East Jerusalem, as to which Israel's sovereignty claim is universally rejected) has been the State of Palestine. Its sovereignty claim is therefore both literally and legally uncontested, even if not yet universally recognized. It was, of course, profoundly gratifying that some 100 states promptly recognized the State of Palestine when it declared its independence in However, it was then and for several years afterward legally challenging to make the argument that Palestine met the customary international law criterion for effective control over the state's territory and population. This is the best argument which I could make in an article published in the Washington quarterly journal Middle East Policy in early 1993, prior to the Oslo Declaration of Principles signed that September on the White House lawn: The weak link in the Palestinian claim to already exist as a state is, of course, the fourth criterion, effective control. The state's entire territory is under the military occupation of another sovereign state. (For seven months, Palestine and Kuwait had that much in common.) Yet effective control is not purely a question of guns and the capacity to compel submission by physical force. It also encompasses the allegiance of the population, what is sometimes termed 'the general acquiescence of the people'. Few states on earth can claim the degree and intensity of allegiance which the people of the West Bank and the Gaza Strip manifest, day after bloody day, to the State of Palestine. When the State of Israel and the State of Palestine issue conflicting instructions to the population, it is abundantly clear which state exercises effective control over their allegiances. Accordingly, as a matter of customary international law, if not yet of international power politics or Western public consciousness, the status of the occupied territories today is clear and uncontested. The State of Palestine is sovereign, the State of Israel is the occupying power, and U.N. Security Council Resolution 242, explicitly premised on 'the inadmissibility of the acquisition of territory by war', is the internationally accepted basis for terminating the occupation. The next paragraph of that article is one which I recall with some regret: It is absolutely clear that a territory cannot be 'autonomous' or 'selfgoverning' under its own sovereignty. Therefore, if the Palestinians were to accept a regime of 'autonomy' or 'self-government', the ostensible goal of the Israeli-

5 5 Palestinian bilateral talks, sovereignty would necessarily have to shift elsewhere presumably to Israel. By agreeing to 'autonomy' or 'self-government', the Palestinians would be acquiescing, for the first time, in the occupation and would, de jure, be renouncing their existing sovereignty over those portions of mandatory Palestine where they still constitute the overwhelming majority of the population. What could possibly induce them to do so? Of course, as we all know, the Palestinian leadership did do so and the State of Palestine, while never being formally renounced, was effectively consigned to a dark closet before, in recent months, being brought out again into the light of day, dusted off and polished up, with considerable help from South America. On the bright side, notwithstanding all its disappointments and humiliations, the Oslo process has permitted a governmental Trojan horse called the Palestinian Authority to be dragged into the occupied territories and to start building the structures of a state which, until recently, dared not speak its name. The State of Palestine, exercising effective control over all the state's population and most of its territory, will emerge from that Trojan horse, fully equipped, before it applies for U.N. membership in September. This transformation will, logically, require the prior dissolution of the Palestinian Authority (which, legally, should have ceased to exist in 1999, at the end of the interim period provided for in the Oslo Accords) and the accompanying proclamation that all of its ministries and other governmental agencies have become ministries or agencies of the State of Palestine. In this context, it would, of course, be highly desirable for a reconciliation between Fatah and Hamas to be achieved prior to September. One other Article of the Convention, Article 11, deserves to be cited. It reads: The contracting states definitely establish as the rule of their conduct the precise obligation not to recognize territorial acquisitions or special advantages which have been obtained by force whether this consists in the employment of arms, in threatening diplomatic representations, or in any other effective coercive measure. The territory of a state is inviolable and may not be the object of military occupation nor of other measures of force imposed by another state directly or indirectly or for any motive whatever even temporarily. The principle expounded in Article 11 of the Convention is a precursor both of the most important principle in the U.N. Charter, Article 2's prohibition of the acquisition of territory by war, and of U.N. Security Council Resolution 242, which is explicitly premised on the inadmissibility of the acquisition of territory by war. The applicability of Article 11 of the Convention to Palestine is clear and requires no commentary. While, in recent years, the conduct of the United States of America outside its borders has not been noticeably restrained by legal concerns, of either a domestic or an international nature, it is worth noting that the Montevideo Convention of 1933, as a

6 6 ratified treaty which has not been renounced, has the status of domestic law in the United States. Both domestic and international law require the U.S. Government to respect and observe its provisions, which are not subject to any geographical qualifications or limits. Under both the criteria of the Montevideo Convention and the more restrictive criteria of recent customary international law, the State of Palestine exists now. Its existence does not require Israeli consent or American recognition. It is a reality which must no longer be ignored. It is no secret that many long-time friends of the Palestinian people and cause (myself included) have concluded in recent years that a decent two-state solution was no longer conceivable and that the Palestinian people should henceforth take their inspiration from Martin Luther King, Jr. and Nelson Mandela and pursue, by strictly nonviolent means, the full rights of citizenship in a single democratic state with equal rights and dignity for all. At least for me, this calculation has been changed by the current strategic decision of the Palestinian leadership in Ramallah to break free from a so-called peace process which has been cynically manipulated to perpetuate process and prevent peace and to rely instead on the United Nations, international law and the support of decent people around the world by seeking diplomatic recognition of the State of Palestine by a large majority of the world's states comprising an overwhelming majority of the world's people prior to applying for full member state status at the United Nations this September. Seven of the nine South American states which have recognized the State of Palestine since December have recognized the state explicitly within its full pre-1967 borders. If Palestine, within its full pre-1967 borders, were a U.N. member state, not simply the occupied territories, the end of the occupation and peace with some measure of justice, even if not imminent, would instantly become a question of when, no longer of whether. The writing would be clearly on the wall. The Holy Land is rumored to have been the site of miraculous resurrections. The current Palestinian strategy offers the last, best hope of raising the two-state solution from the dead and making it a reality in a form which offers not simply a restructured and renamed occupation but genuine liberation and some measure of justice. Decent people everywhere should do everything in their power over the next six months to make this last-chance strategy succeed. If it does succeed, a huge debt of gratitude will be owed to the governments and people of South America, who, by their well-timed recognitions of the State of Palestine, have given this strategy credibility, momentum and hope. ***

7 7 SUPPLEMENTS

8 8 PUBLICATIONS OF THIS ARTICLE: December 22, CounterPunch (Online) December Palestine Chronicle (Online) December Jordan Times (Amman) December Arab News (Jeddah) December Khaleej Times (Dubai) December Al-Jazeera English (Online) December The Guardian (London) December Cyprus Mail (Nicosia) December Daily Star (Beirut) January 12, Christian Science Monitor (Boston) January Al-Ahram Weekly (Cairo) March Washington Report on Middle East Affairs PALESTINIAN STATEHOOD -- QUALITY AS WELL AS QUANTITY By John V. Whitbeck On January 7, Chile extended diplomatic recognition to the State of Palestine as a free, independent and sovereign state. Coming soon after the recent recognitions by Brazil, Argentina, Bolivia and Ecuador (in each case explicitly within the full pre-1967 borders, encompassing all of the Gaza Strip and the West Bank, including East Jerusalem), Chile's recognition brought to 109 the number of UN member states recognizing the State of Palestine, whose independence was proclaimed on November 15, While still under foreign belligerent occupation, the State of Palestine possesses all the customary international law criteria for sovereign statehood. No portion of its territory is recognized by any other country (other than Israel) as any other country's sovereign territory, and, indeed, Israel has only asserted sovereignty over a small portion of its territory, expanded East Jerusalem, leaving sovereignty over the rest both literally and legally uncontested. In this context, it may be enlightening to consider the quality as well as the quantity of the states extending diplomatic recognition. Of the world's nine most populous states, eight (all except the United States) recognize the State of Palestine. Of the world's 20 most populous states, 15 (all except the United States, Japan, Mexico, Germany and Thailand) recognize the State of Palestine. Even eight EU member states recognize the State of Palestine.

9 9 By contrast, the 72 UN member states which currently recognize the Republic of Kosovo as an independent state include only one of the nine most populous states (the United States) and only four of the 20 most populous states (the United States, Japan, Germany and Turkey). When, in July, the International Court of Justice held that Kosovo's unilateral declaration of independence did not violate international law because international law is silent on the subject of the legality of declarations of independence (meaning that no declarations of independence violate international law and all are "legal", albeit subject to the political decisions of sovereign states to recognize or not the independence declared), the United States responded by calling on all countries which had not already recognized Kosovo to do so promptly. Five months later, only three more have seen fit to do so -- Honduras, Kiribati and Tuvalu. If the Arab League were now to call on the minority of UN member states which have not already recognized Palestine to do so promptly, it is certain that the response would be far superior (both in quantity and in quality) to the response to the recent American appeal on behalf of Kosovo. It should do so. Notwithstanding that (by my rough calculations) states encompassing between 80% and 90% of the world's population recognize the State of Palestine while states encompassing only between 10% and 20% of the world's population recognize the Republic of Kosovo, the Western media (and, indeed, much of the non-western media as well) act as though Kosovo's independence were an accomplished fact while Palestine's independence is only an aspiration which can never be realized without Israeli-American consent, and much of international public opinion (including, apparently, the Palestinian leadership in Ramallah) has, at least until recently, permitted itself to be brainwashed into thinking and acting accordingly. As in most aspects of international relations, it is not the nature of the act (or crime) which matters but, rather, who is doing it to whom. Palestine was conquered and is still occupied, 43 years later, by the military forces of Israel. What most of the world (including the UN and even five EU member states) still regards as the Serbian province of Kosovo was conquered and is still occupied, 11 years later, by the military forces of NATO, the American flag is flown there at least as widely as the Kosovo flag and the capital, Pristina, boasts a Bill Clinton Boulevard and a larger-than-life-size statue of the former American president. Might makes right, at least in the hearts and minds of the mighty, including most Western decision-makers and opinion-formers. Meanwhile, as a perpetual "peace process" appears suddenly threatened by peaceful recourse to international law and international organizations, the U.S. House of Representatives has adopted by a unanimous voice vote a resolution drafted by the American Israel Public Affairs Committee (AIPAC) calling on President Obama not to recognize the State of Palestine and to veto any effort by Palestine to obtain UN membership.

10 10 Western politicians and the Western media customarily apply the term "international community" to the United States and whatever countries are willing to publicly support it on a given issue and apply the term "rogue state" to any country which actively resists Israeli-American global domination. By its slavish subservience to Israel, as reflected yet again both in the absence of a single brave voice raised against this new House resolution and in the Obama administration's recently rejected offer of a huge military and diplomatic bribe to Israel in reward for a mere 90-day suspension of its illegal colonization program, the United States has effectively excluded itself from the true international community (redefined to refer to the great majority of mankind) and become a true rogue state, acting in consistent and flagrant contempt of both international law and fundamental human rights. One must hope that the United States can still pull back from the abyss and recover its own independence, even if all signs currently point in the opposite direction. In fact, it may soon reach its moment of truth and have the opportunity to do so. If Palestine, within its full pre-1967 borders, were a UN member state, not simply "the occupied territories", the end of the occupation and peace with some measure of justice, even if not imminent, would instantly become only a question of "when", no longer of "whether". When, later this year, the State of Palestine applies for UN membership, Barack Obama must have the courage to assert his own country's independence and to permit it to rejoin the true international community by withholding the traditional American veto of any UN action opposed by Israel and by permitting the State of Palestine and the Palestinian people to assume their full and rightful places in the community of nations. ***

11 11 PUBLICATIONS OF THIS ARTICLE: July 23, CounterPunch (Online) July Palestine Chronicle (Online) July Jordan Times (Amman) July Arab News (Jeddah) July Daily Star (Beirut) July Gulf News (Dubai) July Khaleej Times (Dubai) August 1 -- Al-Dustour (Amman) August 1 -- Sunday Mail (Nicosia) August 2 -- Alyaum (Dammam) IF KOSOVO, WHY NOT PALESTINE? By John V. Whitbeck On July 22, the International Court of Justice issued an advisory opinion on the following question posed to it by Serbia: "Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?" By a 10-4 majority, the court ruled that, because "general international law contains no applicable prohibition of declarations of independence", Kosovo's declaration of independence in February 2008, coordinated with and supported by the American and most EU governments and subsequently recognized by 69 countries, "did not violate general international law." The clear implication is that no declarations of independence violate international law and that all are therefore "legal". Because the court's majority chose to rephrase the question before the court (addressing violation of, rather than accordance with, international law in circumstances in which international law is silent) and to respond with wording which has permitted the supporters of Kosovo independence to claim an unequivocal victory and the American government to call publicly on all countries to recognize Kosovo as a sovereign state, not only Kosovars and the American and most EU governments will be celebrating this advisory opinion as a vindication of their positions. So will the peoples and governments of Abkhazia, South Ossetia, Transniestria, Nagorno-Karabakh, Bosnia's Republika Srpska, the Turkish Republic of Northern Cyprus and Iraqi Kurdistan. Discontented minorities and potential separatists elsewhere (including Alaska, Hawaii and Vermont) may also find cause for encouragement in this opinion. Might the Palestinian people also find reason to celebrate, cause for encouragement or grounds for hope in this opinion?

12 12 The American and EU impatience to amputate a portion of a UN member state (universally recognized, even by them, to constitute a portion of that state's sovereign territory), ostensibly because 90% of those living in that portion of the state's territory supported separation, contrasts starkly with the unlimited patience of the U.S. and the EU when it comes to ending the 43-year-long belligerent occupation of the West Bank and the Gaza Strip (no portion of which any country recognizes as Israel's sovereign territory and as to which Israel has only even asserted sovereignty over a tiny portion, occupied East Jerusalem). Virtually every legal resident of the West Bank and the Gaza Strip seeks freedom -- and has for over 40 years. For doing so, they are punished, sanctioned, besieged, humiliated and, day after endless day, killed by those who claim to stand on the moral high ground. In American and EU eyes, a Kosovar declaration of independence from Serbian sovereignty should be recognized even if Serbia does not agree. However, their attitude was radically different when Palestine declared independence from Israeli occupation on November 15, Then the U.S. and the EU countries (which, in their own eyes, constitute the "international community", to the exclusion of most of mankind) were conspicuously absent when over 100 countries recognized the new State of Palestine, and their non-recognition made this declaration of independence purely "symbolic" in their own eyes and, unfortunately, in most Palestinian and other eyes as well. For the U.S. and the EU, any Palestinian independence, to be recognized and legally effective, must still be directly negotiated, on a wildly unequal bilateral basis, between the occupying power and the occupied people -- and must be agreed to by the occupying power. For the U.S. and the EU, the rights and desires of a long-suffering and brutalized occupied people, as well as international law, are irrelevant. For the U.S. and the EU, Kosovar Albanians, having enjoyed almost nine years of UN administration and NATO protection, could not be expected to wait any longer for their freedom, while the Palestinians, having endured over 40 years of Israeli occupation, can wait forever. With the "peace process" effectively brain-dead, the Kosovo precedent offers the Ramallah-based Palestinian leadership, accepted as such by the "international community" because it is perceived as serving Israeli and American interests, a golden opportunity to seize the initiative, to reset the agenda and to restore its tarnished reputation in the eyes of its own people. If this leadership truly believes, despite all evidence to the contrary, that a decent "two-state solution" is still possible, now is an ideal moment to reaffirm the legal existence (albeit under continuing belligerent occupation) of the State of Palestine, explicitly in the entire 22% of Mandatory Palestine which was not conquered and occupied by the State of Israel until 1967, and to call on all those countries which did not extend diplomatic recognition to the State of Palestine in and particularly the U.S. and the EU states -- to do so now.

13 13 Of course, to prevent the U.S. and the EU from ignoring such an initiative or treating it as a joke, there would have to be a significant and explicit consequence if they were to do so. The consequence would be the end of Palestinian adherence to the "twostate" illusion. The Palestinian leadership would make clear that if the U.S. and most EU states, having recognized a second Albanian state on the sovereign territory of a UN member state and having called on all other states to do likewise, will not now recognize one Palestinian state on a tiny portion of the occupied Palestinian homeland, it will dissolve the "Palestinian Authority" (which, legally, should have ceased to exist in 1999, at the end of the five-year "interim period" under the Oslo Accords) and the Palestinian people will thereafter seek justice and freedom through democracy -- through the persistent, nonviolent pursuit of full rights of citizenship in a single state in all of Israel/Palestine, free of any discrimination based on race and religion and with equal rights for all who live there, as in any true democracy. Palestinian leaderships have tolerated Western hypocrisy and racism and played the role of gullible fools for far too long. It is time to kick over the table, constructively, and to shock the "international community" into taking notice that the Palestinian people simply will not tolerate unbearable injustice and abuse any longer. If not now, when? *** John V. Whitbeck, an international lawyer who has advised the Palestinian negotiating team in negotiations with Israel, is author of "The World According to Whitbeck".