By Andrew Tucker
The concepts of statehood and self-determination are at the center of the normative structure on which the international legal order is premised. The right to self-determination refers to the right of a people to freely determine their political status and pursue their economic, social and cultural development. It is primarily a political concept. The concept of ‘statehood’, which is connected to the right to self-determination, is fairly clear under international law. The criteria for achieving statehood are stringent. It is only states that can adequately protect collective and individual liberties against abuse of power. Allowing entities to pretend to be states, when they lack institutions of government based on the rule of law, undermines the international legal order. Arguably the most important requirement for statehood is independence, next to having a permanent population, a defined territory, a government, and the capacity to enter into relations with other states.
The principle of self-determination is enshrined in customary international law and treaties. So is the concept of statehood. Only in very limited circumstances does a people have a ‘right to a state’ (in the context of decolonization). However, it seems that different rules are applied to Palestinian self-determination. The assertion that the Palestinians have a right to statehood in East Jerusalem and the West Bank is based on a unique and incorrect reading of international law which is not applied to any other comparable conflict or occupation, and which doesn’t take the unique history of the region and Israel’s creation and legal rights as a sovereign state into consideration.
The Oslo Accords granted the Palestinians far-reaching autonomy in the 1990s, and laid a pathway for negotiation. Since progress in the peace negotiations between Israel and the Palestinian Authority has been minimal, the PA has over the last decade unilaterally pursued international recognition of statehood. EU- and UN institutions have been mobilized to support their claims. This is known as “lawfare”: the use of legal language and procedures, to support political and military goals. Two recent resolutions adopted by UN bodies show that this “lawfare” against the State of Israel is intensifying. The thrust of these resolutions is: Israel’s “occupation” of East Jerusalem and the West Bank is illegal; these territories belong to the Palestinians, who have a right to statehood there.
Both resolutions were submitted in coordination with the Palestinian Liberation Organisation, on behalf of the member states of the Organization of Islamic Cooperation (OIC). They are scheduled to be submitted for approval by the full UN General Assembly in mid-December.
First example: draft resolution A/C.4/77/L.12/Rev.1 – November 11 2022
On 11th November 2022, the Fourth Committee of the UN General Assembly (Special Political and Decolonization Committee) adopted a draft resolution calling on the General Assembly to request the International Court of Justice to render an advisory opinion on the following questions:
(a) What are the legal consequences arising from the ongoing violation by Israel of the right of the Palestinian people to self-determination, from its prolonged occupation, settlement, and annexation of the Palestinian territory occupied since 1967, including measures aimed at altering the demographic composition, character, and status of the Holy City of Jerusalem, and from its adoption of related discriminatory legislation and measures?
(b) How do the policies and practices of Israel referred to in paragraph 18 (a) above affect the legal status of the occupation, and what are the legal consequences that arise for all States and the United Nations from this status?”
This resolution is a good example of a politically-motivated resolution dressed up as law. Only a bare majority of 98 states voted for this resolution. 17 states voted against, and a massive 78 abstained or did not vote at all. Further, it will be immediately apparent that this resolution is not neutrally drafted: it is assumed that Israel is “violating” Palestinian rights to self-determination and that it has “annexed” “Palestinian” territory.
Less than a week later, on 17th November, the General Assembly’s Third Committee (Social, Humanitarian and Cultural) approved a resolution on the right of Palestinian people to self-determination, in a recorded vote of 167 in favor to 5 against (Nauru, Marshall Islands, United States, Israel, Micronesia), with 7 abstentions (Cameroon, Kiribati, Guatemala, Palau, Rwanda, Solomon Islands, Togo).
By its terms, the Assembly would stress the urgency of ending the Israeli occupation and a lasting peace settlement between the two sides. It would also underscore the need to respect the territorial integrity of the “Occupied Palestinian Territory, including East Jerusalem”, and urge States to assist the Palestinian people in the realization of their “right to self-determination”.
It is apparent that the choice of wording here draws on the same thrust and assumptions mentioned above and fails to be neutral.
How to proceed? Our newest report gives directions.
Institutions like the UN and the EU have undertaken strenuous efforts for the realization of a Palestinian State. Submissions of resolutions are only part of this endeavor. Despite a half-century of financial and diplomatic input, the current reality is that there is no independent, democratic Palestinian state. Instead, the peace process has terminated, and security risks are undiminished.
A report carried out by thinc., to be published in early December, explores the EU two-state policy, how it failed so far and how to proceed from here. The report shows that the reasons for the failure of the two-state policy are conceptual, legal and practical and offers recommendations for a new approach.
You are cordially invited to attend the launch meeting in the Netherlands (29th November) and Brussels (7th December) at which this report will be presented.
We hope to see you in Nijkerk on 29th November or Brussels on 7th December!