By Dr. István László Mészáros, attorney at law, Budapest
This article deals with four issues arising under international law in relation to the so-called “Two State Solution” as embodied in UN resolutions such as Security Council Resolution 2334 (2016). Four arguments are made as to why the Two-State solution conflicts with international law:
- It conflicts with the Oslo Accords, interpreted in light of the doctrine of fundamental change of circumstances;
- It conflicts with the obligation of the UN to ensure peace and security;
- Israel cannot be expected to agree to the creation of a state of Palestine until the latter satisfies the criteria for statehood under international law; and
- Palestinian statehood would be a threat to the freedom of religion.
The League of Nations Mandate for Palestine (1922) was an international treaty, signed by all the 51 members of the League of Nations at that time, and thus binding on all the parties under international law. Its declared purpose was the reconstitution of the Jewish national home in Palestine. The only party that was entitled as beneficiary to that national home was the Jewish people.
The Mandate for Palestine was based on the recognition of the historical right of the Jewish people to their ancient land, and the need for a Jewish homeland in the light of growing anti-Semitism. But it was also based on the fact that – at the same time – the Arabs were granted abundant space for exercising independence elsewhere in the Middle East: in the territories of Lebanon, Syria and Mesopotamia, which were also liberated from Turkish rule and in respect of which mandates were granted.
In addition, in 1921 Britain further expanded this Arab living space by dividing the Palestinian mandate area along the Jordan River and thereby establishing a new area exclusively for Arab Palestinians, the soon-to-be Hashemite kingdom of Jordan, in the entire eastern part (about three quarters) of the entire area of Mandatory Palestine. However, all the land west of the Jordan River, including the city of Jerusalem, was intended for the establishment of the Jewish national home.
Thus, the administrative, political and legal division of Palestine into a Jewish and an Arab territory was already completed in 1922.
The territory east of the Jordan River that was intended for the Arab national home later became the Hashemite Kingdom of Transjordan, that came into existence in 1946 (later – in 1949 – known as the Hashemite Kingdom of Jordan). The territory west of the Jordan River that was intended for the Jewish national home later became the locus of the State of Israel that came into existence in May 1948.
All attempts since 1948 to further divide the land west of the Jordan River therefore amount to nothing less than attempts to abolish the historical rights previously recognized by the League of Nations, and deny the international legal basis of Israel’s statehood. The rights once recognized by the Mandate are preserved by Article 80 of the UN Charter until they are overwritten by a valid international settlement based on the voluntary consent of, or the abdication of rights by, the Jewish people or the state of Israel. Such an instance could have taken place via the UN General Assembly Resolution 181 of 1947 proposing the further division of the Mandate Territory of the Jewish national home, had it been accepted not only by Israel but also by the Arab side. However, the Arabs (including the Arab Palestinian leadership) rejected this plan. Since 1948, Israel has not consented to compromise, or abdicated its territorial rights. There is no right for anyone to force such abdication, especially not in a way of also dictating its conditions.
Further, no international legal obligation requires Israel to recognize a Palestinian state on its territory. Although the Oslo Accords provided the possibility that Israel would agree to the creation of a Palestinian state, this could only occur from Israel’s free, sovereign will and as part of the final status negotiations, which to date have never happened. Further, the Oslo Accords do not specifically state that the outcome of negotiations would necessarily have to be a Palestinian state. (Israel could arguably even renounce the Oslo Accords since the Palestinian Liberation Organization Chairman turned to the UN in 2011, in clear violation of its direct negotiation requirements, as well as the prohibition on changing the status of the territories under negotiation, to petition the unilateral recognition of the Palestinian state behind the back of Israel.)
As reflected in UN Security Council resolution 2334 (December 2016), the United Nations is pressuring Israel to cooperate with “the two-State solution based on the 1967 lines”. This “solution” involves the establishment of an independent state of Palestine, the boundary between the two states being “the 1967 lines” (ie. the lines agreed between Israel and Jordan in the 1949 Armistice Agreement between Israel and Jordan).
Is Israel required, or should it be pressured, to consent to the emergence of another, now twenty-second, Arab state situated (in whole or in part) in its own territory, in the hope that this will finally lay the foundations for lasting peace? The decision is the responsibility of the Israelis, but ours is not to expect from others something that we would not do.
The doctrine of fundamental change of circumstances
It is often argued that, under the Oslo Accords, Israel is required to negotiate terms and provisions of a final status agreement that would include the establishment of a State of Palestine based on the so-called “1967 lines”. This approach is reflected in the terms of Resolution 2334.
Since the Oslo Accords were entered into in the early 1990’s, the circumstances have changed so radically that Israel would be entitled to either terminate the Oslo Accords or suspend operation of certain provisions. In no event can Israel be required to negotiate terms or conditions that would threaten its own sovereignty – including its political independence, territorial integrity and right to secure borders.
One of the core changes is the Islamist Hamas’ rise to power in 2006 among Palestinians. This fundamentalist organization does not recognize the Palestinian commitments made in the Oslo Accords because it openly denies Israel’s right to exist. Furthermore, it regards every Palestinian square meter as Allah’s property that one cannot renounce. The Gaza Strip became a terrorist base under Hamas. A warning sign of what Israel might face should it withdraw from East Jerusalem or the West Bank.
Another fundamental change is the devastating effect of the ‘Arab Spring’ and the ISIS terror destabilising the entire region, which favours the spread of political Islamism.
Indeed Israel is threatened more broadly by the spread of global jihadism driven by an apocalyptic vision. Advocates of this regard the abolition of Israel and the acquisition of power over the Old City of Jerusalem as the overture to the day of judgment, to the victory over the West, and the “liberation” of the world. For them, conflict with Israel is not territorial but spiritual, so it cannot be mitigated by any territorial concession. Indeed, any concession would be perceived as a reinforcement of their apocalyptic worldview, which would not dampen, but would rather ignite their determination.
A further fundamental change since 1993 is the radical, militaristic and expansionist policy of Iran, that threatens not “only” Israel, but the whole region today. From the outset, the Islamic Republic of Iran has set itself the goal of exporting the Islamic Revolution, spreading the idea of a theocratic political order in accordance with Islamic religious and political principles. At the heart of this political Islamism (simply known as Islamism) stands the jihadist ideology. Its aim is to expand the Islamic rule, the so-called “dar al-Islam”, which is, as a first step, an Islamic “within the reach” area, including Muslim-majority countries, but also areas with a higher Muslim population, or where a Muslim conquest had been carried out earlier in history. This includes the entire Middle East with Israel in it. In implementing the program, religious doctrinal boundaries between Shiite and Sunni representatives of political Islam are virtually eliminated: Hezbollah, Palestinian Islamic Jihad, Hamas and the Muslim Brotherhood are both backed by Iran, virtually reinforcing Iran’s influence in the region. Political Islamism does not compromise on its long-term goals, for it would be self-denial, even a betrayal of Allah and the Qur’an, since in their view the Qur’an contains not only a religion, but also a political constitution.
The spirit of Islamic fundamentalism is reflected in the regular statements made by Iranian leaders on the destruction of Israel, since, according to their religious interpretation, the mere existence of today’s Israel is in itself a reproach to Allah in an area already conquered by Muslims and, therefore, consecrated to Allah. Aggressive Iranian statements have proliferated significantly in the 2000s and are particularly threatening in the shadow of Iran’s nuclear program.
In such an explosive situation, it would be completely irresponsible for Israel to risk its own security by agreeing to territorial concessions without adequate security arrangements.
Article 62 of the Vienna Convention of the Law of Treaties contains a clear legal basis for Israel to oppose the creation of a Palestinian state, or even to terminate or suspend application of the Accords, under the principle of “fundamental change of circumstances” (clausula rebus sic stantibus). This old legal doctrine is not only incorporated into the Vienna Convention, but has been the part of international customary law for a long time, so it has a general validity far beyond the Convention:
Article 62. Fundamental Change of Circumstances
1. A fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of a treaty, and which was not foreseen by the parties, may not be invoked as a ground for terminating or withdrawing from the treaty unless: (a) The existence of those circumstances constituted an essential basis of the con sent of the parties to be bound by the treaty; and (b) The effect of the change is radically to transform the extent of obligations still to be performed under the treaty. 2. A fundamental change of circumstances may not be invoked as a ground for terminating or withdrawing from a treaty: (a) If the treaty establishes a boundary; or (b) If the fundamental change is the result of a breach by the party invoking it either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty. 3. If, under the foregoing paragraphs, a party may invoke a fundamental change of circumstances as a ground for terminating or withdrawing from a treaty it may also invoke the change as a ground for suspending the operation of the treaty.[emphasis added]
Peace and security
By coercing Israel into a two-state solution, the UN is contravening the goal of its very existence which is:
- to maintain international peace and security
- and to maintain respect for the obligations arising from treaties and other sources of international law.
Historical experience confirms that the two-state solution will not bring peace. Over the past century, the Zionist movement had always (in 1922, 1937, 1947) acquiesced into this direction, but it never resulted in peace. The unilateral withdrawal from the Gaza Strip and South Lebanon have not contributed to peace rather to the intensifying anti-Israel terror.
Israel has not only the right, but it has every reason to oppose the two-state proposal. The country-mutilation would result in a fatal weakening of its self-defence capability and render it vulnerable to an international environment, which, since the establishment of the State of Israel, has not been able to defend Israel from any external aggression.
The stability of the region is best served by a united Israel, capable of halting Islamic fundamentalism, within which state the Arab minority enjoys the blessings of territorial-based ethnic autonomy. So far, it has not been resting with Israel that this high level of autonomy under the Oslo Accords (which many national minorities cannot even dream of in Europe) has not been used by the Arab population for peaceful self-construction. On the contrary: it has become the base of anti-Israel terror and even a battlefield between the Palestinian fractions (Fatah and Hamas).
Palestine does not meet the conditions for Statehood
“Palestine” does not yet meet the conditions of statehood under international law. These conditions  are that there must be:
- a people,
- an area between well-defined borders recognized by its neighbours, to which the people are exclusively bound,
- and an effective government which is capable of entering into diplomatic relations with other states.
None of these conditions are met by the Palestinians.
1) Concerning the Palestinians as a people
“Palestinian people” is not a real ethnic category, but a purely political, tactical concept, an entity created artificially after the 1967 War, which is not based on any pre-existing ethnic group that is separate from all other peoples. There is no specific Palestinian language or culture; Palestinians are no different from Arabs living in Jordan, Syria or even Egypt.
Prior to the 1970’s, the Palestinian Arabs themselves did not consider themselves an independent people; the epithet ‘Palestinian’ was only used in a geographical meaning. The original 1964 PLO Charter  provides:
- Article 1. Palestine is an Arab homeland bound by strong national ties to the rest of the Arab Countries and which together form the large Arab homeland.
- Article 3. The Palestinian Arab people has the legitimate right to its homeland and is an inseparable part of the Arab Nation. It shares the sufferings and aspirations of the Arab Nation and its struggle for freedom, sovereignty, progress and unity.
- Article 6. The Palestinians are those Arab citizens who were living normally in Palestine up to 1947, whether they remained or were expelled. Every child who was born to a Palestinian parent after this date whether in Palestine or outside is a Palestinian.
- Article 7. Jews of Palestinian origin are considered Palestinians if they are willing to live peacefully and loyally in Palestine.
Because they did not consider themselves an independent nation, they did not want to establish an independent state before 1967 in the western part of the previous Mandate, but imagined their future in a larger Arab unit:
- In 1926, even the name Palestine was rejected by them, saying that the area should be called “Surriya al-Janubbiyah” (South Syria)
- Article 24 of the 1964 PLO Charter provides that the PLO does not exercise any regional sovereignty over the West Bank in the Hashemite Kingdom of Jordan, on the Gaza Strip or the Himmah Area….
- In the first Arab-Israeli war of 1948, the Arab countries did not aim to create an independent Arab Palestine. Instead, Jordan occupied (and later annexed) Judea-Samaria, and Egypt occupied Gaza.
It was only after the Israeli liberation of the entire part of the Mandate territory (preserved formerly for the Jewish national home) in 1967 when the idea of “Palestinian” ethnic identity of the Palestinian Arabs was created. However, there is no historical, scientific basis for this:
- The Philistines, from whom the name ‘Palestinian’ derives, disappeared as a people at the time of the Babylonian conquest. In addition, they were not Arab people but originated from the island of Crete. And they had no connection to Jerusalem whatsoever, since the Jebusites lived there before the conquest of King David.
- There is no scientific basis for their descent from any of the Canaanite tribes either.
Moreover, there is no credible evidence that the Palestinians – unlike the Jews – would have any special, exclusive connection to the area on which they want to found their state.
2) Concerning well-defined borders
The Palestinians are not in the possession of a clearly defined area with clear boundaries:
- The so-called 1967 boundaries are only armistice lines and the armistice agreements themselves declare that these do not qualify as definitive borders.
- These armistice lines were not between Israel and the Palestinian Arabs, but between Israel and its neighbours, two of which (Egypt and Jordan) themselves recognized other boundaries in the peace treaties.
- The Oslo Accords make border issues a subject of further negotiations.
3) Concerning governance
There is no effective Palestinian government today. In fact, there are actually two governments, but neither of them is legitimate nor effective. The Hamas government, which rules Gaza, was not recognized by the international community, as it refused to fulfil the triple conditions set by the international Quartet: it did not abandon terrorism, did not recognize the state of Israel, and did not accept the conventions previously signed by the PLO with Israel. President Abbas, who effectively ruled only Judea and Samaria, is also an illegitimate leader, since his mandate has long expired as President of the Palestinian Authority, nevertheless, neither Hamas nor the FATAH have set any new elections.
With a fictitious ethnicity, an area of uncertain scope, and with two illegitimate and non-effective governments, it is obviously unable to engage in independent relations with other states.
To sum up, there are no historical, actual or international law-based foundations for an independent Palestinian state.
Protection of freedom of religion and the cultural heritage of mankind
In this final section we focus our attention on a specific aspect and potential consequence of the Two-State Solution which is of interest to all people of faith. In addition to the doubts concerning the statehood of Palestine in the light of the requirements of international law, the two-State solution would most likely be a threat also to the freedom of religion.
Under Article 18 of the UN International Covenant on Civil and Political Rights:
Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.
Jerusalem is the meeting point of three world religions, and all of Judea-Samaria is proliferated with the sacred places and archaeological memories of the Jewish and Christian religions. Their preservation and free access is a vital part of the freedom of religion and, moreover, the protection of the cultural heritage of mankind.
It is in the interest of all mankind that these places and monuments are preserved and securely accessed.
Ever since they reside under the jurisdiction of Israel, they are demonstrably protected and can be visited safely.
The same cannot be said of the period of Arab-Muslim rule:
- Between 1949 and 1967, the religious sites of the Israelite religion were demolished and desecrated in Jerusalem’s Old City, while the Western Wall was cut away from them,
- even under the supervision of the Palestinian Authority, destruction and archaeological warfare (destruction and elimination of the Jewish artefacts/archaeological monuments) is taking place, which at times does not spare Christian sites either. In 2002, the Church of Nativity was occupied, damaged, and looted by Palestinian militants. The priests were taken hostage, Bibles were torn apart, their pages being used as toilet paper. In Bethlehem, the proportion of the Christian population has decreased dramatically since the city has come to Palestinian hands.
Therefore, even the rationale for the protection of fundamental rights – namely freedom of religion – and the protection of the cultural heritage of mankind dictates that Israel should remain, or become the custodian and guardian of the holy places.
 Montevideo Convention on the Rights and Duties of States (1933)