By Victor Kattan, The Guardian – 19 Nov 2009
The Palestinian Authority lacks the support to issue another unilateral declaration of independence – it should not be hasty
The Palestinian Authority has been making some rather strange decisions lately. In October, it opposed the Goldstone report on the Gaza war, which raised serious questions about Israel’s conduct in that conflict, when it first came before the UN human rights council in Geneva. Only in the face of overwhelming protest from his own people did President Abbas reverse his decision. Now, Abbas has threatened to resign, and if reports are to be believed the authority is seeking international support for issuing another unilateral declaration of independence (UDI).
Politically, the timing is inauspicious, for this would be a declaration supported by only one Palestinian faction. Hamas, which controls the Gaza Strip, has opposed it. It seeks to end Israel’s 42-year military occupation first. If independence means the ability of a government to direct its own affairs without external interference then the position taken by Hamas seems perfectly logical. How can the envisaged Palestinian state be independent when Israel is the belligerent occupant?
Israel is hardly likely to withdraw from the territories simply because the Palestinians issue a UDI. On the contrary, in return, Israel’s environment minister, Gilad Erdan, a close ally of prime minister Binyamin Netanyahu, has threatened to annex the Israeli settlements.
Nor, historically, would this be the first declaration of “independence” the Palestinians have issued. In 1948, the Mufti Haj Amin al-Husseini declared the independence of Palestine from Gaza. In 1988, the Palestinian National Council issued a declaration of a state of “Palestine” at a meeting in Algiers.
It has been argued by some legal scholars that the 1988 UDI was merely declaratory in the sense that Palestine already existed juridicially as a state since the mandate era. But if this is the case, then why is the Palestinian Authority seeking international support to issue yet another declaration? This would seem to indicate that the territory over which the Palestinian Authority asserts sovereignty is not, in fact, a state at all. It seems clear to me that the Palestinians did not attain independence in 1948 or in 1988 and are unlikely to attain independence now if the Palestinian Authority goes ahead with another UDI.
This is because under international law recognition alone does not confer statehood. The Palestinian Authority should know better. Over 100 states recognised “Palestine” in 1988; the PLO has a special form of observer status in the UN, and consulates throughout the world. It has all the formal trappings of statehood such as a permanent population, a defined territory, government, and a limited capacity to enter into relations with other states.
However, it lacks the most essential elements of statehood: independence and sovereignty, and effective control over its territory. The fact is that Israel, the occupying power, has the final say in most matters affecting the destiny of the Palestinian people. It controls the Palestinian economy, its electromagnetic spectrum, its road network, its immigration controls, and much more. Moreover, the PLO lacks any form of territorial jurisdiction, and the authority is subordinated legally to Israel through the Oslo accords.
A Palestinian state that is recognised under these circumstances, with its territory partitioned, and subdivided into cantons, surrounded by walls, fences, ditches, watchtowers, and barbed wire, would scarcely be a state worthy of the name.
It is true that Congo was accepted as a UN member state while Belgium was still in control but it had already granted the Congolese government independence. Similarly, although Guinea-Bissau was accepted as a UN member state at a time when Portugal, the colonial power, retained control, Lisbon had already agreed to withdraw from the territory. Israel has not indicated that it has any intention of withdrawing from the West Bank.
Bosnia is also different, in that it had American and European support for its claim to statehood and was admitted to the UN despite foreign military presence and the administrative role of the Office of the High Representative. Even Kosovo differs from the Palestinian case in that its governmental organs were developed under international auspices that were sanctioned by a binding security council resolution. It should be noted that the legality of Kosovo’s declaration of independence is currently before the international court of justice in the form of a request for an advisory opinion. The EU, and the US, have cautioned Abbas from prematurely issuing a UDI. And their support is crucial.
Rather than acting hastily and haphazardly, the best thing the PA could do if it is really intent on issuing a declaration of independence would be to consider holding a referendum along the lines recommended by the Badinter Arbitration Commission as regards the former Yugoslav republics. Of course, they would have to co-ordinate the logistics of such a referendum with Hamas. The one major advantage that the Palestinians have which differentiates their case from Kosovo is self-determination. As a people subject to an earlier type of colonial rule in the form of a mandate, the Palestinians are entitled to external self-determination. In their quest for independence they are entitled to seek support from the international community.
It would be politically difficult and hypocritical for Europe and the US to reject the popular will of the Palestinian people for a second time as they did when they opposed the outcome of the 2006 legislative elections. And even if they did oppose it, or if Israel placed obstacles in the way of holding a referendum, the PA would then have the necessary impetus and international support from the developing nations and the non-aligned movement to seek a majority vote in the UN general assembly for an authoritative advisory opinion from the international court of justice. In this regard an appropriate question for that court to consider might be the lawfulness of Israel’s prolonged military occupation of the West Bank and Gaza, and the implications this has for Palestinian statehood.