Call for unilateral recognition of a Palestinian state complete legal misconception - opinion

It is somewhat puzzling why British, American, French, and other leading international politicians, in the midst of the present tragic war to oust the brutal and horrific Hamas terrorist presence from the Gaza Strip, are now finding it propitious and necessary to call for unilateral recognition of Palestinian statehood.

One may legitimately ask whether these people really understand what they are talking about.

Over the last few days US Secretary of State Antony Blinken has reportedly requested that the State Department present policy options for a possible US recognition of a Palestinian state at the end of the war, and even to consider the possibility of not casting a veto on a potential UN Security Council resolution admitting a “State of Palestine” as a full member state. This, needless to say, despite the fact that there exists no such thing as a Palestinian state.

Similarly, British former prime minister and present Foreign Secretary David Cameron chimed in by stating, during a recent visit to Beirut, that the UK could officially recognize a Palestinian state after a ceasefire in Gaza “without necessarily awaiting the outcome of negotiations between Israel and the Palestinians on a resolution of the conflict.” He went on to claim that such UK recognition could materialize “even before the end of a negotiating process.”

If, indeed, the UK considers it so important to recognize a Palestinian state even before the end of negotiations, one may logically and legitimately ask what would be left to negotiate, and whether such intervention in the agreed Israeli-Palestinian negotiating process would not constitute a unilateral prejudgment of the outcome of such negotiations?

France’s President Macron, in recently exclaiming that “the recognition of Palestinian statehood is not a taboo for France,” appears to be joining this curious choir of leading politicians who seem to be totally ignorant of the history of the Middle East peace process as well as the internationally legal requirements to resolve disputes through negotiation.

Borrell's antagonism

Finally, the EU’s foreign policy chief, Josep Borrell, who ever since his previous posting as foreign minister of Spain has rarely missed an opportunity to display his antagonism toward Israel, chose to add his own comment that “Israel cannot have the veto right to the self-determination of the Palestinian people.”

In making such a curious statement, Borrell appears to be ignorant of the extensive international documentation in which both the Palestinians and Israel have agreed to negotiate the permanent status of the disputed territories, and in so doing, the Palestinians are in fact exercising their right to self-determination.

IT IS inconceivable to imagine that serious and responsible international leaders may either be overlooking or deliberately ignoring the basic principles of international law and practice requiring resolution of the Middle East dispute through negotiation, rather than by unilateral, third-party imposition.

Thus, UN Security Council Resolution 242, following the 1967 Six Day War, called for a special UN representative to “promote agreement and to assist efforts to achieve a peaceful and accepted settlement.” Similarly, Security Council Resolution 338, adopted after the 1973 Yom Kippur War, in addition to calling for a ceasefire, called for the commencement of “immediate and concurrent negotiations aimed at establishing a just and durable peace in the Middle East.”

The principle of a negotiated outcome for resolving the dispute also figures in the still valid 1993-1995 Oslo Accords, in which Israel and the PLO Palestinian leadership, with the support and encouragement of the leaders of the international community, reciprocally obligated themselves to negotiate between them the permanent status of the disputed areas.

In fact, in the seventh paragraph of the Final Clauses of the Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip, signed in Washington on September 28, 1995 (commonly known as Oslo II), the parties agreed specifically that:

“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.”

Any unilaterally imposed recognition of a Palestinian state by the international community, as is presently being seriously considered by the leadership of US, the UK, France, the EU, and the UN, would be tantamount to undermining this final clause of the Oslo Accords, to which the US, the EU, Russia, Norway, Jordan, and Egypt are signatories as witnesses.

Not only would it be contravening their solemn commitments as signatories witnessing the Accords, but it would, in effect, be unilaterally prejudging the outcome of the negotiations on the permanent status of the territory.

As such, it would in fact constitute an attempt to unilaterally change the status of the West Bank and Gaza Strip in contravention of the Accords.

Clearly, any such undermining of the Oslo Accords by those countries and organizations that signed as witnesses to the Accords would likely frustrate the very validity and any further possibility of implementing the Accords.

It would afford Israel the prerogative to consider the Accords as no longer valid, and to take whatever unilateral actions it may judge appropriate in order to protect its national and security interests.

The writer, formerly the legal adviser to the Foreign Ministry and Israel’s ambassador to Canada, participated in the negotiation and drafting of the Oslo Accords. He presently heads the International Law Program at the Jerusalem Center for Public Affairs.