The Repercussions of a UN Recognition of Palestine

The Palestinian Authority (PA) has been hard at work of late lining up votes in the UNGA for the recognition of the state of Palestine with pre ’67 borders with the eastern part of Jerusalem as its capital.  They intend to use the “Uniting for Peace” procedure to avoid a possible UNSC veto regardless of whether the procedure is legal. (See; The UN Charter Cannot Support GA Resolution 377). Were they to get such recognition the repercussions would be significant.

Alan Baker, who was legal counsel for Israel in the drafting of the Oslo Accords and is currently associated with the Jerusalem Center of Public Affairs, recently published The Palestinian UN Gamble — Irresponsible and Ill-Advised. He summarized his article as follows
“While such a resolution would not have the authority to alter the legal status of the territories, the negative consequences of such a course of action would nevertheless serve to void the very basis of the peace process. It would undermine the legal existence of the Palestinian Authority and violate commitments by Yasser Arafat to settle all issues by negotiation.

“Such unilateral action outside the negotiation process would constitute a fundamental breach of the 1995 Israeli-Palestinian Interim Agreement, thereby releasing Israel from its reciprocal commitments.”

This would go so far as to release Israel from the confines of UNSC Res 242. How so?

According to the Palestine Mandate passed in 1922, Great Britain, the Mandatory power, had the following obligation with respect to all of that part of Palestine lying west of the Jordan River:
“The Administration of Palestine, while ensuring that the rights and position of other sections of the population are not prejudiced, shall facilitate Jewish immigration under suitable conditions and shall encourage, in co-operation with the Jewish agency referred to in Article 4, close settlement by Jews, on the land, including State lands and waste lands not required for public purposes.”
The Plan of Partition (Res 181) passed by the UNGA in 1947, though it violated this provision, was accepted by the Jews and paved the way for the recognition of the state of Israel six months later.  Had the Arabs accepted this resolution, they too would have had a state and that would have been the end to Jewish rights of close settlement in Judea and Samaria (West Bank). But they didn’t and so Jewish rights to same didn’t end.
So why isn’t The Government of Israel asserting those rights now?
The answer finds its origin in UNSC Res 242, passed in 1967, which authorized Israel to remain in occupation until she had secure and recognized borders. Israel’s acceptance of this resolution effectively waived Jewish Mandate rights in exchange for such borders. Israel obviously preferred such borders over exercising her rights of “close settlement” which would have necessitated managing the Arab population in these lands. Once again the Arabs rejected this resolution, preferring instead “no negotiation, no recognition and no peace” as resolved in their Khartoum Conference in Sept 1967.
Notwithstanding this, Egypt broke ranks and made peace with Israel in 1979, as did Jordan in 1994.
In 1993 Rabin and Arafat signed the Declaration of Principles on the White House lawn, which aimed to
“establish a Palestinian Interim Self-Government Authority, the elected Council (the ‘Council’), for the Palestinian people in the West Bank and the Gaza Strip, for a transitional period not exceeding five years, leading to a permanent settlement based on Security Council Resolutions 242 and 338.”
As a pre-condition to this mutual declaration, Arafat delivered two letters to Rabin promising to amend the Charter of the PLO which called for the destruction of Israel, and Rabin delivered a letter to Arafat confirming his intention to allow normalization of life in the territories.  Arafat and the PLO never did amend their Charter.  For that matter, Fatah and Hamas have similar provisions in their Charters even to this day.
This Declaration made no mention of a Palestinian state as the goal, nor did it call for a cessation of Israeli settlement activity.
In 1995, Israel and the PA entered into an Interim Agreement which provided, inter alia, for the creation of the PA and for its exercise of power.  It obligated both parties “to carry out confidence building measures as detailed herewith.”  Those details involved Israel releasing prisoners in stages. No other confidence building measures were required.  That never stopped the US from continually demanding that Israel offer more “confidence building measures”.
Article XXXI provided:
“Nothing in this Agreement shall prejudice or preempt the outcome of the negotiations on the permanent status to be conducted pursuant to the DOP. 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.”
Both of these agreements became known as the Oslo Accords.
As Baker points out,  declaration of a state by the PA would clearly be a fundamental breach of this provision. To my mind there have been numerous fundamental breaches by the PA, which include their daily incitement, their Intifadas and their massive rocket attacks from Gaza.  In these instances over the years, Israel chose not to declare the Oslo Accords null and void. But not this time. For example, Israel has mooted the idea of annexing part, if not all, of Judea and Samaria (West Bank), were it to happen.
It may be argued that if the Agreement is abrogated that Israel’s Mandate rights still apply.
By demanding the armistice lines as borders subject to mutual exchanges, the PA is rejecting  Res 242 which provides for “secure borders” otherwise described as “defensible borders.”   Likewise the Arab League has similarly rejected Res 242 in putting forth their initiative, which was based on the armistice lines rather than “secure borders.”  By demanding 100% of Judea and Samaria, they are demanding that Israel retreat from all of the territories which is also contrary to the intent and meaning of the resolution.
Thus it would appear that not only will the Oslo Accords be no longer binding on Israel, neither will Res 242, because the Arabs have never accepted it.
The Obama Administration understands the risks of the UN granting recognition to the state of Palestine.   Dennis Ross, speaking to the ADL recently on behalf of the US said,
“We have consistently made it clear that the way to produce a Palestinian state is through negotiations, not through unilateral declarations, not through going to the UN.  Our position on that has been consistent in opposition.”
The Obama Administration would rather keep Israel shackled to the Oslo Accords while at the same time pressuring Israel to capitulate.  In reality, the US has abandoned Res 242 and the Oslo Accords, de facto, by pressing Israel to accept security guarantees in place of secure borders and by pushing the Arab League Initiative. She is also pushing for the division of Jerusalem, which is not required by the Oslo Accords.
It remains to be seen if the EU will follow the US lead on keeping Israel shackled.  Angela Merkel during her recent meeting with PM Netanyahu said, “We are in favor of two states for two nations.  It is not certain that unilateral recognition will contribute to promoting peace, and this will be our position in September.”
Regardless, the PA seems bent on following through with bid for UN membership. Some people think the recognition of the state of Palestine would be a disaster for Israel while others think not.
Caroline Glick recently wrote,
“The fact is that while acceptance of “Palestine” as a UN member state will be a blow, it will mark an escalation not a qualitative departure from the basic challenges we have been facing for years.”
But at least, Israel will be free to act.
Israel will have no legal obligation to refrain from annexing Judea and Samaria in whole or in part. Her right to settle all of this land and to establish a national home on all of it for the Jews, which has been recognized by international law, will be legally unassailable.  Furthermore, as conquerors of this land, pursuant to a defensive war, international law entitles her to keep it. When Israel conquered the land, no one had sovereignty over it including Jordan and the Arabs living there.  In effect, this war was a continuation of the ‘48 war. Thus it put an end to the Armistice Agreement and the armistice lines which the parties had agreed would not be the final borders in any event.
After coming this far in my reasoning, I had a conversation with Baker because I wanted him to reconcile for me the provision in the Interim Agreement calling for a settlement based on Res 242 and Article XXXI which provides “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.” In my reading of these two clauses, I thought that the second was limited by the first.
He advised to the contrary, noting that Israel could assert any right she might have. I asked if that included our right to settle the land pursuant to the Mandate.  He advised that the Mandate rights ended in the creation of Israel in 1948. I begged to differ, arguing that that would have been the case had the Arabs accepted a state on the rest at that time.  But what do I know?  He has been involved in this process for close to 20 years.
He did say that even if a state is declared, the PA will still have to negotiate borders and everything else, so he isn’t fearful of such recognition.  With this, I agreed. But the chances of reaching agreement after 25 years, are slim. A recent poll reported that 78% of Likudniks oppose the creation of a Palestinian state.
In the meantime, Israel should build as much as she wants and should extend Israeli law to all communities in Judea and Samaria in which her citizens live.   Aside from providing housing for its citizens, it would put pressure on the Palestinians to compromise.  If Israel were to continue with the de facto freeze, the Palestinians would have no incentive to make peace and could wait a hundred years while they build throughout Judea and Samaria and continue their campaign to demonize and delegitimize Israel.
Accordingly, Israel should welcome the recognition of a Palestinian state and the abrogation of the Oslo Accords.
Ted Belman is the editor of Israpundit and a retired lawyer.  He made aliya two years ago and lives in Jerusalem.

(www.americanthinker.com / 10.04.2011)

2 thoughts on “The Repercussions of a UN Recognition of Palestine

  1. Alan Baker talks twaddle .. “While such a resolution would not have the authority to alter the legal status of the territories, “

    Yet the UN resolution to accept Israel did exactly that for Israel. It would in fact cement the legal extent of Palestinian sovereignty. It would not necessarily alter the occupation or illegal ‘facts on the ground’, for which Israel is solely responsible.

    .. “the negative consequences of such a course of action would nevertheless serve to void the very basis of the peace process. It would undermine the legal existence of the Palestinian Authority and violate commitments by Yasser Arafat to settle all issues by negotiation “

    This is Alan Baker twaddlespeil 101. A) The PA would not be the Government of the new State. First Declare a State (as Israel did). Have the state recognized, (as Israel did). Then elect a Government to administer that state (as Israel did) rather glaringly obvious isn’t it? B) It would mean for Israel to continue laying claim to Palestinian territory, it would have to negotiate with a state, recognized by the UN.

    .. “According to the Palestine Mandate passed in 1922, “

    Evidence by omission is typical….. 1) The LoN Mandate for Palestine, refers to the :LoN Charter Article 22 , under which Palestine was a Class A Provisional State. 2) The State was not to be a Jewish State, but a state called Palestine : Article 7 The Administration of Palestine shall be responsible for enacting a nationality law. There shall be included in this law provisions framed so as to facilitate the acquisition of Palestinian citizenship by Jews who take up their permanent residence in Palestine. Re-iterated in the white papers. http://wp.me/PDB7k-Q#Mandate

    ” Had the Arabs accepted this resolution, they too would have had a state “

    More twaddle. By May 15th 1948, when the Mandate ended in order that either party could declare unfettered independence if they wished, Jewish forces were already in control of territories slated for the new Arab State. A declaration of independence cannot be effective whilst someone else controls territories belonging to the declaring party.

    ” and that would have been the end to Jewish rights of close settlement in Judea and Samaria (West Bank). But they didn’t and so Jewish rights to same didn’t end”

    …bollocks… The declaring of a separate State of Israel, independent of Palestine, “within frontiers approved by the General Assembly of the United Nations in its Resolution of November 29, 1947 “ took away the right of Israelis to settle anywhere in Palestine. Israel is not in Palestine, Israel is not a part of Palestine. Israel is independent of Palestine and anywhere else.

    .. Slight problem with your take on UNSC res 242.

    A) It was between existing states only. All of which had already been recognized. All of which already had recognized borders.

    B) It was to end hostilities between those states. It had nothing to do with Palestinian Statehood.

    C) The UNSC can only recommend already recognized States for acceptance into the UN. The UNSC Mandate does not extend to granting or formulating statehood.

    D) What remained of the Class A Provisional State of Palestine after Israel was declared independent of Palestine, falls under the UN Charter Chapt XI.

    ….“Israel will have no legal obligation to refrain from annexing Judea and Samaria in whole or in part.”

    Problem 1) legal annexation must be by referendum of the ACTUAL citizens of the territory to be annexed. This does not include illegally settled Israeli citizens, in territory illegally annexed or illegally acquired by war.

    Problem 2) we are talking about the West Bank as it is now officially called being a part of the Palestinian state. How would Israel have a right to annex it?

    ….“Her right to settle all of this land and to establish a national home on all of it for the Jews, which has been recognized by international law”

    Oh dear…The Balfour Declaration, the Lon Mandate for Palestine and subsequent declarations, were applicable only to a limited area and a limited number of parties. International Law is applicable world wide and to all nations, until such time as it is repealed.

    Furthermore. read the Israeli Government’s version of Declaration for the Establishment of the State of Israel FIRST LINE. The Mandate expired.

    “Furthermore, as conquerors of this land, pursuant to a defensive war, international law entitles her to keep it. “

    Show us where it says this in International Law. In fact, it simply does not exist. The UNSC Resolutions, the Ceasefire Agreements, the Armistice Agreements and the two subsequent peace agreements, ALL show us that Israel’s wars were with states.

    Palestine falls under the UN Charter Chapter XI.

    “Ted Belman is the editor of Israpundit and a retired lawyer.”……who talks nonsense.

  2. The Arabs could have a had a state in 1948? …NOTaccording to the JCPA. … http://wp.me/pDB7k-jA

    ‘Her right to settle all of this land and to establish a national home on all of it for the Jews, which has been recognized by international law’ ? …NOT according to the Mandate, the Balfour Declaration or the White papers… http://wp.me/PDB7k-Q#jews-can-live-anywhere … None of which were International Law because they did not apply to all nations world wide and all of which BTW were PRE-Israel How they could convey any rights on a state that did not exist at the time, is quite miraculous.

    ‘defensible borders’ for Israel according to UNSC Res 242 ? …NOT according to UNSC Resolution 242 …. http://wp.me/pDB7k-Mn

    ..’as conquerors of this land, pursuant to a defensive war, international law entitles her to keep it. ‘ …NOT according to Professor Schwebel … http://wp.me/PDB7k-Y#Schwebel … and NOT according to UNSC Res 242 “It is inadmissible to acquire territory by war” It does not say defensive war is OK, because it means ANY war.

    Furthermore read the Egypt Israeli Peace Agreement, wherein Israel was FIRST required to WITHDRAW from all Sovereign Egyptian soil BEFORE peaceful relations resumed. … http://wp.me/PDB7k-Y#Peace-Egypt-Israel … Remember as you read, it is what Israel AGREED TO …

    Article II Determination of Final Lines and Zones
    1. In order to provide maximum security for both Parties after the final withdrawal ….. etc etc…

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