DAVID SINGER: THE MISSED OPPORTUNITIES IN “PALESTINE”
Posted By Ruth King on May 7th, 2012
David Singer is an Australian Lawyer, a Foundation Member of the International Analyst Network and Convenor of Jordan is Palestine International – an organisation calling for sovereignty of the West Bank and Gaza to be allocated between Israel and Jordan as the two successor States to the Mandate for Palestine. Previous articles written by him can be found at www.jordanispalestine.blogspot.com.
Israel’s former Foreign Minister – the late Abba Eban – is remembered for his many wise and pithy comments – of which the
following is probably the most memorable:
“The Arabs never miss an opportunity to miss an opportunity”
The Arabs have been unyielding in their refusal to recognize a Jewish state in its biblical and ancestral homeland throughout the history of the 130 years conflict between Jews and Arabs in former Palestine.
The idea that such a Jewish state should be allowed to exist on just 0.01% of the former Ottoman Empire captured by Britain and France in the First World War – has been an ongoing anathema for the 22 Arab states who received the remaining 99.99% for Arab self-determination.
Opportunities to create another Arab state – and so end the conflict – were afforded by the Peel Commission in 1937, the United Nations in 1947, between 1948-1967 and in 2001 and 2008.
All such opportunities were missed by the Arabs.
Now the opportunity to conclude a peace treaty with Israel under the Oslo Accords and the Bush Roadmap has also gone begging – following the rush by the Palestinian Arabs to unilaterally seek to achieve statehood by joining the United Nations and when that failed – UNESCO.
Ironically – these are two opportunities that should have been avoided like the plague.
The attempt to join the United Nations was a failure – after the 15 members of the Committee on the Admission of New Members could not agree on whether Palestine’s application to join the UN complied with the two following fundamental requirements in Article 4 of the UN Charter:
- Was Palestine a state?
- If so, was it peace loving?
The Committee took their work seriously – as the following two paragraphs in their
Report indicate:
“It was stated that the criteria set out in Article 4 of the Charter were the only factors that could be taken into consideration in the Committee’s deliberations. In support of this position, reference was made to the Advisory Opinion of 28 May 1948 of the International Court of Justice (ICJ), on the Conditions of Admission of a State to Membership in the United Nations (Article 4 of the Charter).
It was also asserted that the Committee’s work, whatever its outcome, should be mindful of the broader political context. The view was expressed that a negotiated solution remained the only option for a long-term sustainable peace and that final status issues had to be resolved through negotiations. Support was expressed for a two-State solution based on pre-1967 borders, resulting from political negotiations, leading to an independent State of Palestine with East Jerusalem as its capital. It was stressed that the granting of Palestine’s right to self-determination and recognition must not be seen as contrary to Israel’s inalienable right to exist.”
The legal issues inherent in deciding whether Palestine was a “State” were also canvassed by the committee as the following paragraphs in their Report indicate:
“On the criterion of statehood, reference was made to the 1933 Montevideo Convention on the Rights and Duties of States, which declares that a State as a person of international law should possess a permanent population, a defined territory, a government and the capacity to enter into relations with other States.
With regard to the requirements of a permanent population and a defined territory, the view was expressed that Palestine fulfilled these criteria. It was stressed that the lack of precisely settled borders was not an obstacle to statehood.
Questions were raised, however, regarding Palestine’s control over its territory, in light of the fact that Hamas was the de facto authority in the Gaza Strip. It was affirmed that the Israeli occupation was a factor preventing the Palestinian government from exercising full control over its territory. However, the view was expressed that occupation by a foreign power did not imply that the sovereignty of an occupied territory was to be transferred to the occupying power.”
Given the diversity and range of views expressed – it is no wonder that the Committee was unable to attest to Palestine’s current status qualifying it to meet the Charter’s requirements for membership.
Undeterred at the outcome – Palestine ran off to UNESCO hoping to get a better result there in its quest for statehood.
The application to join UNESCO was treated very differently to the UN application.
There was no vetting Committee to look at and first decide whether Palestine was a state – again a necessary prerequisite to entitle it to apply for membership under Article II paragraph 2 of UNESCO’s Constitution.
Whilst there was no requirement in the UNESCO Constitution that Palestine be “peace – loving” – there was a provision that stipulated a two-thirds majority vote of the members was required. There appears to have been
no consideration whether that meant members “present and voting” or whether it required two thirds of the 194 members to vote in favour.
The 58 members of the Executive Board simply voted to recommend to the Members that Palestine be admitted as a member of UNESCO- without apparently considering any of the issues that had so perplexed the Security Council’s Committee. This recommendation then went to a meeting of the 194 members – when 107 of those present and attending voted in favour. 129 were required – if a two-thirds majority of the 194 members was necessary.
This foray into UNESCO has turned out disastrously for Palestine, UNESCO and the scores of millions of people worldwide reliant on UNESCO – as events since that decision on 31 October 2011 have shown.
The idea that the two-state solution should be achieved by a negotiated solution has gone out the door. 194 countries have now recognized that Palestine is a state and that the Palestinian Arabs are no longer homeless. No more negotiations are required to create a state for the Palestinian Arabs.
If the state of Palestine now wants to make demands on Israel – a new negotiating process will first have to be agreed on between Israel and Palestine.
The Oslo Accords and the Roadmap have become extant – and Israel is now free to make decisions without regard to their provisions.
Palestine can only blame itself for the position it now finds itself in. The 194 nations that made the decision to admit Palestine as a member state of UNESCO – where the UN Security Council for good legal reasons feared to tread – are equally culpable .
All of these countries have forfeited the right to talk of international law as the final determinant in this long running conflict or any other conflicts – following their willingness to breach international law when it suits them.
The law of the jungle has taken over from the rule of law.
If these 194 countries ever come to their senses – the following further words of wisdom from
Abba Eban will prove to be prescient:
“History teaches us that men and nations behave wisely once they have exhausted all other alternatives.”
Such wise behaviour will only emerge when international law – not political opportunism – is applied to settle the Arab – Jewish conflict.
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