The legal case against a Palestinian state
The argument for recognising a Palestinian state, its proponents argue, is based on international law. But is it?
To be or not to be – well, possibly not as Shakespeare’s Hamlet intended the question. Or, in the current context, to uphold international law or not to uphold international law, at least in regard to the vexed question of Palestinian statehood.
The argument for recognising a Palestinian state, its proponents argue, is based on international law. But is it?
International law involves positions of consensus among states, driven by treaties, conventions, the United Nations and its affiliated bodies.
The Montevideo Convention on the Rights and Duties of States (1933) defined for the purposes of international law what constitutes a state. A state must have (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states. Australia relies upon and applies the Montevideo Convention criteria when determining the existence of a state.
Practically, the Convention provides no minimum requirement comprising a permanent population. It must simply not be transient.
A defined territory must be coherent, however a substantial part of the territory’s borders being disputed does not necessarily prevent the existence of a state. The government must be both effective and in a position to exercise authority independently of any other state. And finally, the government must be capable of interacting with other governments.
In the words of our protagonist Hamlet, “Ay, there’s the rub”. The invective by the Greens and other progressives directed at Israel for breaches of international law, whilst at the same time calling for unilateral recognition of Palestinian statehood – which itself breaches international law – smacks of double standards.
Let’s explore the need for a “permanent population”. We’re constantly reminded that Palestinians are perennial refugees.
Refugees are people who were forced to leave their country to escape war, persecution or natural disaster. According to UNWRA, around 2.5 million of the approximately five million Palestinian residents of the West Bank and Gaza are refugees. By defining themselves as such, these Palestinians acknowledge their presence in the West Bank and Gaza is transient. They are waiting to return to some other place. If this were true, they fail the Montevideo Convention’s first requirement for statehood.
Recognition would require the world – but more importantly, the Palestinians themselves – to acknowledge that they are all the West Bank and Gaza’s permanent population, relinquishing their coveted refugee status and the demand for a return to Israel. After all, one cannot be a refugee in one’s own country.
We then come to the awkward question of a government being both effective and in a position to exercise authority independently of any other state. Hamas’ status as an Iranian proxy is well understood. Its abject betrayal of Gazans is evident by its refusal to build a state, instead building an underground compound for its militia. Its refusal to use aid intended for Gazan civilians shows nothing but contempt for the people it claims to govern. Horrifying statements like that from the late Hamas leader Ismail Haniyeh that Hamas needs “the blood of the women, children and elderly of Gaza” smacks of nihilism. Its complete lack of ability to govern effectively and independently is beyond question.
As for the Palestinian Authority, its effective control over the West Bank is tenuous to say the least, sustained only by its refusal to hold elections since 2005, for fear of losing to Hamas. We wait with bated breath to see what the fallout will be once PA President Mahmoud Abbas finally shuffles off his mortal coil or loses his chokehold on the PA, whichever comes first.
Evidently, there is no Palestinian government effective over its entire population and in a position to exercise authority independently of any other state. Further, Hamas is a proscribed terrorist organisation in Australia. Do Adam Bandt’s Greens and those other activists agitating for recognition propose that Australia should enter into relations with a (potential) government that is a proscribed terrorist organisation?
So, one must ask those seeking recognition of a Palestinian state: how does one call to uphold international law whilst in the same breath ignoring it? Or is that just the politics of the far left, the politics of division or simply the politics of the foolhardy?
The late Douglas Adams best described this conundrum in Life, the Universe and Everything as an “SEP” – somebody else’s problem. It “is something we can’t see, or don’t see, or our brain doesn’t let us see, because we think that it’s somebody else’s problem… The brain just edits it out, it’s like a blind spot… [It] relies on people’s natural predisposition not to see anything they don’t want to, weren’t expecting, or can’t explain”.
Unfortunately for the Greens and other progressive activists, recognition of a Palestinian state is an “SEP”. Their commitment to an ideology of division, intersectionality and addressing imagined oppression has led them to treat international law as irrelevant; an issue for others to worry about.
If those pushing recognition of Palestinian statehood truly seek – as they claim – to bring an end to decades of violence, a good starting point could be an honest reckoning with the international law that embraces Palestinian recognition of the Jewish state and an undertaking to live peacefully as its neighbours.
Jeff Feldman was formerly the CEO of UIA Victoria.
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