MEMORANDUM

To:   Palestinian leadership

From:   Negotiations Support Unit

Subject: Legal and strategic implications of the PNA government program: “Ending the Occupation, Establishing the State”

Date: 14 October 2009

The purpose of this memo is to advise on the legal and strategic implications of the PNA government program entitled “Ending the Occupation, Establishing the State” on the Palestinian leadership?s overall strategy for securing Palestinian rights.

1.  ISSUE

The PNA government program highlights the need for the Palestinian leadership to carefully assess if, when, and how it should work towards formal recognition of Palestinian statehood. Some argue that Palestinians should work actively to lay positive facts on the ground to make Palestinian statehood an inevitability that cannot be ignored by Israel and the rest of the world. However, formal international recognition of Palestinian statehood, if granted at the wrong time and in the wrong circumstances, could actually harm rather than help Palestinian independence efforts, and set Palestinians back in realizing their national aspirations rather than moving them forward.

Since international recognition of Palestinian statehood is not likely to happen without the Palestinian leadership first calling for such recognition, the timing and circumstances of such a call by the leadership also should be carefully calibrated. Regrettably, to date, the Palestinian leadership has not advanced a coherent narrative as to how and when the State of Palestine came or will come into existence.1 This narrative will take on a practical significance if and when Palestine/PNA/PLO tries to accede to various organizations and/or conventions because statehood is usually a condition for membership.

1.  OPTIONS

The leadership could adopt any one of four narratives with respect to Palestinian statehood:

1.  Palestine existed as a state prior to the occupation: This approach is based on the premise that the state of Palestine has existed since the British mandate period, and that it continues to exist, albeit under Israeli occupation and over the territory that the PLO currently argues is the territory of Palestine.
2.  The state of Palestine came, or will come, into existence during the occupation: This approach is based on the premise that a Palestinian state emerged or will emerge during the Israeli occupation, after the 1988 Declaration of Independence and most likely some time after Israeli military redeployment from limited parts of the oPt and the PNA has assumed some territorial and functional control over those areas.
3.  The state of Palestine will come into existence upon the termination of the occupation: This approach is based on the premise that the Palestinian state will emerge only after the Palestinian government can exercise actual ?effective control? over all of the territory of the State of Palestine. This would most likely come after the conclusion of a permanent status agreement and substantial, if not complete, implementation of the agreement (e.g., evacuation of all settlers and withdrawal of all Israeli troops).
4.  Palestine enjoys functional statehood for the purpose of assuming the rights and responsibilities under a given convention or within a given organization: This approach is based on the premise that, short of actual statehood, Palestine is a “state” for the purpose of assuming the rights and responsibilities of a member to a given convention or organization. Palestine would likely have to be able to demonstrate that it is in fact capable of exercising those powers and responsibilities.

1.  ANALYSIS AND RECOMMENDATION

Although this may not be the intention, the PNA government program appears to call for the establishment of a Palestinian state while the oPt remains under Israeli occupation, especially because the program contemplates Palestinian accession to a number of international organizations before the occupation ends.

Based on our consideration of the following benefits and risks, we RECOMMEND AGAINST asserting that Palestine came into existence during Israel?s occupation, or that it will or should come into existence during Israel?s occupation (#ii above). If it is not the intention of the leadership to make such an assertion, then the leadership needs to make this clear whenever it refers to the government program.

Potential benefits

•  Recognition of statehood should, in theory, be accompanied by recognition and acceptance of the concomitant rights associated with it (i.e., sovereignty, full membership in the international community, etc.). Therefore, statehood should strengthen Palestine?s assertion of its rights against Israeli violations or threats.

•  As a state, Palestine should have recourse to international mechanisms to enforce its rights (e.g., ICC and UN Charter), which could further strengthen respect for its rights, including Palestine?s potential assertion of, and defenses to, Israeli (or other) border violations.

Potential risks

•  The international community may come to regard the Palestine problem as a mere border dispute, rather than as a case of military occupation, thereby diminishing political pressure for prompt resolution of remaining final status issues. For example, recognition of statehood in less than all of the oPt, or as a State with Provisional Borders (SPB), may enable Israel to claim that the terms of UN Security Council Resolution 242 have been fulfilled (i.e., that Israel has withdrawn from “territory occupied in the recent conflict”).
  •  Such a change in international community perception may lead to indefinite postponement of final status negotiations and further delay the realization of Palestinian national and individual rights. An SPB, as a formal interim phase, may especially entrench the status quo and serve as a pretext to indefinitely postpone resolution of the remaining final status issues.
  •  Any further postponement of final status negotiations would grant Israel time to unilaterally impose its own final status outcome. For example, the ?interim phase? since Madrid in 1991 has seen the settler population increase from 75,000 to nearly half a million while Israel unilaterally sets de facto borders with its Wall.
•  International recognition of Palestinian statehood may raise expectations that Palestine can and should assume responsibilities in fields and in areas over which it does not, and cannot, exercise effective control.2 The situation created by the Gaza ?disengagement? is a case in point. Conversely, recognized Palestinian statehood may diminish demands for Israel to assume its responsibilities as an occupying power under IHL because Israel could claim its occupation has ended.3

•  Statehood requires a government to have effective control over its territory and population. If Palestinians assert statehood while exercising control over only parts of the oPt, they may jeopardize the Palestinian claim of sovereignty to the rest of the oPt.
  •  If Israel asserts by deed and word its sovereignty over any part of the oPt (e.g., asserting sovereignty over a unified Jerusalem, expanding settlements, treating the Wall like a border, expanding and operating checkpoint terminals as “border crossings”, etc.) and Palestinians fail to protest Israel?s assertions regularly and at appropriate moments, then Palestinians? claim to these parts of the oPt would be weakened (because they would be acquiescing to the Israeli claims of sovereignty). In fact, even if Palestinians appropriately protest, their claim to the remaining parts of the oPt could be weakened if the international community were to recognize, even implicitly, the Israeli claims (e.g., recognizing a provisional or unilateral border).
  •  Israel may respond positively to a Palestinian declaration of statehood in order to promote the creation of a state with provisional borders (SPB). Recognition of Palestinian statehood by Israel and a critical mass of other states (e.g., US and EU states) on only part of the oPt could prejudice border negotiations from legal, political and physical (de facto/facts on the ground) points of view (including border crossings, the territorial link and maritime boundaries).

If the leadership still wishes to pursue accession to various international organizations and/or conventions, to protect against the risks discussed above we recommend that the leadership advance the narrative that Palestine enjoys functional statehood for the purpose of assuming the rights and responsibilities under a particular convention or organization (#iv above).

The advantages of this approach are:

•  It is perfectly compatible with the fact that the occupation is on-going. Therefore:
•  political pressure is maintained for a prompt resolution of the Israeli-Palestinian conflict; and
•  it promotes a reasonable and realistic expectation of the PNA?s responsibilities in light of the constraints imposed by the occupation.
•  It minimizes the risk to borders and the risk of an SPB by characterizing statehood in functional, rather than territorial, terms and by limiting the claim of statehood to a very particular purpose.
•  To some extent, it depoliticizes the issue by sidestepping many of the politically-sensitive issues.

It should be borne in mind, however, that the more the leadership asserts statehood, even in functional terms only, the more it risks having other states recognize Palestinian statehood during Israel?s occupation, with all the associated risks outlined above. Attempting to accede to one or two conventions/organizations may not attract the interest of states, whereas a concerted systematic effort to accede to half a dozen or more conventions/organizations may, which could lead to an ill-timed recognition of Palestinian statehood by other states or by Israel. Once again, (nominal) statehood will not satisfy Palestinian interests without the freedom, sovereignty and independent control over all Palestinian territory and population that will come only with an end to the occupation and genuine exercise of all of the attributes of statehood.