Jerusalem Issue Brief Vol. 10, No. 13 9 December 2010

Recognition of a Palestinian State: Premature,Legally Invalid, and
Undermining any Bona Fide Negotiation Process

Alan Baker

• The acts of recognition of a Palestinian state in 1967
borders by Brazil, Argentina, and possibly other Latin American
states have no significance other than as a political expression of
opinion.

• These acts of recognition run counter to statements by Brazil and
Argentina in the United Nations Security Council in 1967 in favor of freely
negotiated borders between the parties and an internationally
sponsored peace negotiation process as set out in Resolution 242.

• The unceasing efforts among states by the leadership of the
Palestinian Authority to attain recognition of unilateral statehood
within the 1967 borders and thereby bypass the accepted negotiation
process,
runs counter to their commitments in their agreements with Israel,
as witnessed and guaranteed by members of the international community.

• The hostile actions and statements of the Palestinian leadership lack
bona fides and prejudice any reasonable negotiating ambiance between
parties that seek to establish peaceful relations between them, and are
indicative of an utter lack of a genuine will to reach a peaceful
settlement.

The reported declarations of formal recognition by Brazil, Argentina,
Uruguay, and possibly other Latin American states of a “free and
independent Palestinian state within the 1967 borders” raise several
significant issues – both political and legal, whether in the bilateral
political relationship between Israel and those states, and between Israel
and the Palestinian Authority.

Recognition of a political entity as a state does not, in and of itself,
create a state, as such recognition carries no definitive or substantive
significance in the creation of statehood. At most, it is indicative of the
political viewpoints of the recognizing states.

Establishment of statehood, on the other hand, requires a series of
internationally accepted and customary criteria, as set out in the 1933
Montevideo Convention on the Rights and Duties of States, relating to a
capability of governance, permanent population, defined territory, and
capacity to enter into relations with other states.

In fact, that convention specified specifically that “the political
existence of the state is independent of recognition by the other states.”

But in the Palestinian context these criteria for statehood must
be read in the context of the substantive, tailor-made requirements of
the various United Nations resolutions dealing with the settlement of the
Middle-East issue, as well as the specific commitments by the
Palestinians in several still-valid agreements signed with Israel over the
years.

This factor was perhaps amplified following a Palestinian attempt
to declare statehood in 1988, when over 100 states gave their recognition.
But clearly, this unilateral Palestinian attempt to dictate a solution to
the Israel-Palestinian issue outside the internationally accepted and
sponsored peace negotiation process established by the UN Security
Council in Resolutions 242 (1967) and 338 (1973) was never seen to be a
serious factor in solving the issue.

Thus, any act of recognition of a Palestinian state, whether by Brazil,
Argentina, Uruguay or anyone else, can have no validity whatsoever other
than some sort of political expression. To the contrary – such declarations
of recognition run counter to the very resolutions to which those states are
party, and to the agreements that they themselves have, over the years,
endorsed and supported.

Interestingly, the present instance of the Brazilian declaration of
recognition of a Palestinian state within “the 1967 borders” would appear to
run counter to Brazil's own statement to the Security Council during the
course of its acceptance of and support for Resolution 242, in November
1967, when their representative declared:

Its acceptance does not imply that borderlines cannot be rectified as a
result of an agreement freely concluded among the interested States. We
keep constantly in mind that a just and lasting peace in the Middle East has
necessarily to be based on secure permanent boundaries freely agreed upon
and negotiated by the neighboring States. (S/PV.1382(OR),
22 November 1967).

In fact, a draft resolution submitted to the Emergency Session of the UN
General Assembly by eighteen Latin American states (including Brazil and
Argentina) on 30 June 1967 included a call to the parties

…to end the state of belligerency, to endeavor to establish conditions of
coexistence based on good neighborliness and to have recourse in all cases
to the procedures for peaceful settlement indicated in the Charter of the
United Nations. (A/L. 523/Rev.1 para 1(b)).

Thus, the vital and overriding principles advocated by Brazil, Argentina and
other states in 1967, endorsing boundaries being freely agreed upon, good
neighborliness, and peaceful settlement procedures pursuant to the UN
Charter, would appear to have been overlooked by the recent decision
of the Brazilian and Argentine governments, at the behest of the
Palestinian leaders, to favor unilateral Palestinian dictation of a
boundary, without agreement, in violation of any notion of “good
neighborliness,” and undermining the UN-sanctioned peaceful
settlement procedures.

However, while Brazil, Argentina, and Uruguay may well be undermining their
own declared principles, the Palestinian Authority leadership, in actively
lobbying for such recognition throughout the world as part of a declared and
concerted aim to achieve recognition by the United Nations of a
unilaterally declared Palestinian state, and acknowledgement of the 1967
lines as its border, is in fact undermining the whole peace negotiation
process and abusing the bona fides of the international
community.

Legally speaking, the actions by Palestinian Authority head Mahmoud Abbas,
and his aide Sa'eb Erekat, in pushing to achieve this aim are in
violation of the Israeli- Palestinian Interim Agreement of 1995,
article IX, paragraph 5(a), according to which:

…the [Palestinian] Council will not have powers and responsibilities in the
sphere of foreign relations, which sphere includes the establishment abroad
of embassies, consulates or other types of foreign missions and posts or
permitting their establishment in the West Bank or the Gaza Strip, the
appointment of or admission of diplomatic and consular staff, and the
exercise of diplomatic functions.

No less importantly, the Palestinian leadership is committed, in Article
XXXI, para. 7, not to “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.”

Any activity by the Palestinian leadership, including lobbying foreign
governments for individual recognition and initiating resolutions in United
Nations organs to bring about the unilateral establishment a state
outside the negotiation process, is a serious violation of their
commitments vis-à-vis Israel. It is tantamount to bypassing the
internationally accepted negotiating process, and undermining
the very resolutions and agreements that serve as the basis and
foundation for the peace- negotiation process.

Since the Palestinian commitments vis-à-vis Israel were witnessed and
guaranteed by central elements of the international community, including
the U.S., UN, EU, Russia, Egypt, and Jordan, and endorsed by most other
states, including Brazil and Argentina, then clearly the Palestinian
lobbying activities must be condemned by those elements, and should not be
encouraged by them.

This problem becomes even more complex on the background of the ongoing and
concerted efforts by the Palestinian leadership to block any
progress in the negotiating process through their misleading
demand that Israel freeze all settlement activity – a demand
that has no basis whatsoever in the series of agreements between
Israel and the Palestinians.

In addition to the above, it would appear that the Palestinian leadership
is, by its own hand, undermining and prejudicing any negotiating ambiance
or good faith between the two sides through a series of offensive actions
such as:

• Hostile statements by their chief negotiators, both vis-à-vis
the internal Palestinian population and vis-à-vis the international
community

• Open encouragement and initiation of legal proceedings in
international as well as foreign national courts against Israeli leaders and
officials, and other activities in foreign states aimed at undermining
Israel’s status

• Attempts to utilize and abuse the international community to question
the national and historical heritage of the Jewish people

• Daily official incitement in schools, universities, and in the
Palestinian media

Clearly this activity, openly, officially, and even proudly sponsored and
supported by the head of the Palestinian Authority, Mahmoud Abbas,
and the head of the negotiation division of the Authority Sa’eb Erekat,
in addition to its inherent and obvious bad taste, is utterly incompatible
with any negotiating ambiance.

How, one might ask, can the Palestinian leadership expect to instill
confidence in the Israeli government and public while at the same
time engaging in a policy of maligning Israel and its leaders, seeking
to delegitimize Israel, and undermining the agreed-upon negotiating process
which is aimed at achieving peace between the two peoples?

* * *

Amb. Alan Baker, Director of the Institute for Contemporary Affairs at the
Jerusalem Center for Public Affairs, is former Legal Adviser to Israel's
Foreign Ministry and former Ambassador of Israel to Canada. He is a partner
in the law firm of Moshe, Bloomfield, Kobu, Baker & Co. He participated in
the negotiation and drafting of the various agreements comprising the Oslo
Accords.

This Jerusalem Issue Brief is available online at:
http://www.jcpa.org

Dore Gold, Publisher; Yaacov Amidror, ICA Chairman; Alan Baker, ICA
Director; Mark Ami -El, Managing Editor. Jerusalem Center for Public
Affairs (Registered Amuta), 13 Tel -Hai St., Jerusalem, Israel; Tel.
972-2-561-9281, Fax. 972-2-561-9112, Email: jcpa@netvision.net.il. In
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www.jcpa.org. © Copyright. The opinions expressed herein do not
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