Now, Drop the Veil: The Palestinian State Exists

by John V. Whitbeck

An excruciatingly long and painful labor has finally given birth to a Hebron agreement in which the Netanyahu government has essentially agreed to do in 1997 what Israel was legally obligated to do in March 1996 pursuant to an agreement solemnly signed in Washington in September 1995. While the 99.8 percent of Hebron’s residents who are Palestinian should finally enjoy some measure of human dignity, these negotiations have demonstrated that, under the current Israeli government, backsliding from agreements already signed is far more likely than any genuine progress toward peace.

Fortunately, there is one giant step toward peace which the Palestinians and the international community can now take together without Israel’s prior consent. They can dispel the dangerous illusions that the Palestinian lands conquered by Israel in 1967 are “disputed” rather than occupied, that Palestinian statehood is within Israel’s power to grant or deny, and that the “Palestinian Authority” is or has ever been anything but a transparent euphemism for the State of Palestine.

There has long been a strange, other-worldly quality to the war of words over Palestinian statehood. Prime Minister Binyamin Netanyahu pledged to his Likud Party’s congress in September that “You can dream every night and you will still wake up every morning and see: There is no Palestinian state, there is no Palestinian state, there is not and there will not be a Palestinian state.” In response, President Yasser Arafat assured an Independence Day rally in Gaza in November that “together we shall march till the establishment of an independent Palestinian state with Jerusalem as its capital.”

In fact, whether or not Mr. Netanyahu likes it, and whether or not Mr. Arafat and his supporters fully realize it, the State of Palestine already exists, and Palestinian statehood is not even an issue in the “permanent status” negotiations which formally began this past May and which, according to the Declaration of Principles signed in September 1993, must reach an agreement not later than May 1999.

According to the Declaration of Principles, the issues to be covered during permanent status negotiations are “Jerusalem, refugees, settlements, security arrangements, borders, relations with other neighbors, and other issues of common interest.” Palestinian statehood is not mentioned, but the references to “borders” and “other neighbors” would make no sense except in the context of an agreement between states. Israel’s eventual formal acceptance of Palestinian statehood is clearly implicit in the terms of the Declaration of Principles, but, as a matter of international law, Israel’s prior acceptance is not an essential precondition for the State of Palestine to exist.

Criteria for Statehood

While extending diplomatic recognition to foreign states lies within the discretion of each sovereign state, there are, as a matter of international law, four customary criteria for sovereign statehood: first, a defined territory over which sovereignty is not seriously contested by any other state; second, a permanent population; third, the ability and willingness of the state to discharge international and conventional obligations; and fourth, effective control over the state’s territory and population. Judged by these customary criteria, the State of Palestine is on at least as firm a legal footing as the State of Israel.

While Israel has never defined its ultimate borders, an act which would necessarily place limits on them, the State of Palestine has effectively done so. They encompass only that portion of historical Palestine occupied by Israel during the 1967 war. Sovereignty over expanded East Jerusalem is explicitly contested, even though, after nearly three decades, none of the world’s other 192 sovereign states has recognized Israel’s claim to sovereignty. However, the sovereignty of the State of Palestine over the Gaza Strip and the rest of the West Bank is uncontested.

Israel has never dared even to purport to annex these territories, recognizing that doing so would raise awkward questions about the rights (or lack of them) of those who live there. Jordan renounced all claims to the West Bank in favor of the Palestinians in July 1988. While Egypt administered the Gaza Strip for 19 years, it never asserted sovereignty over it. Since November 1988, when Palestinian statehood was formally proclaimed, the only state asserting sovereignty over those portions of historical Palestine which Israel conquered in 1967 (aside from expanded East Jerusalem) has been the State of Palestine, a state recognized as such by 124 other states encompassing the vast majority of humankind.

The permanence of Palestine’s population is not in question. The state’s ability and willingness to discharge international and conventional obligations has been demonstrated by its establishment of diplomatic relations with a majority of the world’s other sovereign states and by its efforts to obtain membership in international organizations such as the World Health Organization and UNESCO, even if those efforts have until now been blocked by the United States.

The weak link in Palestine’s claim to already exist as a state was, until recently, the fourth criterion, “effective control.” When the state was proclaimed, its entire territory was under the military occupation of another sovereign state. (For seven months, Palestine and Kuwait had that much in common, although sovereignty over all of occupied Kuwait was explicitly claimed and contested by the occupying state.) Now, however, a Palestinian executive and legislature, democratically elected with the enthusiastic approval of the international community, Palestinian ministries and courts and substantial Palestinian security forces exercise “effective control” over a portion of Palestinian territory in which the great majority of the state’s population lives. Even the United States and European countries which have not yet extended formal diplomatic recognition to the State of Palestine welcome President Arafat with the honors and protocol due to a head of state. It can no longer be seriously argued that Palestine’s claim to exist falls at the fourth and final hurdle.

Accordingly, as a matter of customary international law, if not yet of general public consciousness, the status of the Palestinian territories occupied in 1967 is today clear and (with the exception of expanded East Jerusalem) uncontested. The State of Palestine is sovereign, the State of Israel remains the occupying power in a portion of Palestinian territory, and U.N. Security Council Resolution 242, explicitly premised on the “inadmissibility of the acquisition of territory by war” and explicitly cited as the basis of the future permanent status settlement in all the Israeli-Palestinian accords, is the internationally accepted basis for terminating the occupation.

Arafat’s Most Important Title

After the signing of the Declaration of Principles, President Arafat de-emphasized the most important of his three presidential titles (and the one still listed first in his Arabic correspondence), that of President of the State of Palestine. Negotiating with Prime Ministers Rabin and Peres, who a reasonable person could at least hope were negotiating in good faith, he presumably made the political judgment that the occupation was likely to end sooner if he did not thrust the state in the faces of his Israeli counterparts but rather let them adjust to it gradually as mutual confidence increased. When, last spring, the Labor Party dropped its opposition to a Palestinian state from its election manifesto, this gentle, seductive approach appeared to be working.

While drawing a veil labeled “Palestinian Authority” across the face of the state may once have been necessary or helpful to the advancement of peace, this is clearly no longer the case. Veiling is no longer necessary, since polls show that a majority of Israelis are now willing to accept a Palestinian state. Indeed, in mid-December, Mr. Netanyahu’s chief adviser and spokesman, David Bar-Ilan, announced in a Jerusalem Post interview that his prime minister could accept a Palestinian State if Israel’s security needs were adequately assured. He even stated: “They have foreign relations. They have embassies. If they declare a state tomorrow, I’m sure that the whole world will recognize it.” This stunning reversal of positions elicited neither a prime ministerial correction nor any significant public outrage. Veiling is no longer even helpful since, as a purely practical matter, serious permanent status negotiations cannot begin while there is any uncertainty as to whether the negotiators are seeking agreement on the details of the future relationship between two states or whether one of those states still hopes to annex the other.

Surely the time has now come for the Palestinian leadership to drop the veil and admit that the State of Palestine exists on the soil of Palestine and for the State of Palestine to apply to upgrade Palestine’s status at the United Nations from observer to member state. At the Security Council level, China and Russia already recognize the State of Palestine. The strong public statements in favor of Palestinian statehood by French President Jacques Chirac and British Foreign Secretary Malcolm Rifkind during their recent visits to Palestine make it virtually inconceivable that France or the United Kingdom would now veto Palestinian membership. With President Clinton freshly re-elected, knowing that he will never run for public office again and thus free for the first time to act in accordance with American principles and national interests, there is some reason to hope that the United States, which has so recently defied the overwhelming tide of world opinion by blocking a second term for U.N. Secretary-General Boutros Boutros-Ghali, might choose not to defy the overwhelming tide of world opinion by blocking Palestine’s membership application. Indeed, the non-reaction in Israel to Mr. Bar-Ilan’s recent statements even raises the once unthinkable possibility that Israel might not insist that the United States veto a Palestinian membership application.

If Palestine were to become a member state of the United Nations, even the current Israeli government would (even if only after a politically acceptable passage of time) have no choice but to recognize that the earth is not flat and to negotiate seriously on how to structure the relationship between the two states in the mutual interests of their peoples. Even if the United States dared to veto Palestinian membership this time, the focus of attention would have been effectively shifted from the realm of brute force (where Palestine is extremely weak) to the terrain of international law (where Palestine is extraordinarily strong). Now that the Palestinian national movement has established a firm foothold of “effective control” on the soil of Palestine, it is on the terrain of international law and international legitimacy that Palestine should and must pursue its struggle for peace with some measure of justice.

Significant progress on this terrain could give Palestinians the confidence, pride and patience to resist a desperate, self-destructive return to violence and to wait out a frustratingly prolonged period of minimal gains on the ground until this or a future Israeli government is finally prepared actually to achieve both peace and security for both Israelis and Palestinians. Palestinian membership in the United Nations would make Middle East peace a question of when, not whether. It is an opportunity which can and must be seized.