John V. Whitbeck / The Huffington Post – 2012-11-29 14:58:07

http://www.huffingtonpost.com/john-v-whitbeck/palestine-united-nations_b_2200612.html

UNITED NATIONS (November 29, 2012) — The votes of the United States and other Western states on Palestine’s application for a United Nations status upgrade from “observer entity” to “observer state,” which will be voted on by the General Assembly today, will be absolutely critical to keeping alive the current slim hopes of achieving peace in the Middle East on the basis of the “two-state solution” which Western states profess to support.

Western states also profess to prefer — and truly do prefer — Mahmoud Abbas and the Ramallah leadership to Hamas, which the West formally labels a “terrorist” organization.

After the widely perceived triumph for Hamas represented by its determined resistance to Israel’s latest onslaught and last week’s truce terms, which have given Hamas a major boost in prestige, both internally and internationally, do the United States and other Western states really wish to inflict a potentially terminal humiliation on Mahmoud Abbas and the Ramallah leadership with a flood of Western abstentions and negative votes on November 29?

Additionally, do the United States and other Western states really wish to give the impression that violence achieves results while responsible, nonviolent initiatives appealing to international law and international legitimacy are, in Western eyes, unwelcome annoyances?

Do the United States and other Western states really wish Hamas to replace Mahmoud Abbas and the Ramallah leadership as the leading force in the Palestinian people’s quest for justice and dignity? Do they really wish, effectively, to vote for Hamas?

These questions, if seriously considered, should provide compelling practical arguments, in addition to the already compelling moral, ethical and legal arguments, for the United States and other Western states to provide overwhelming support for Palestine’s right to exist when they cast their votes on November 29, the International Day of Solidarity with the Palestinian People.

To the extent that international law may be of some relevance in the decision-making process, the case for Palestine’s “state status” is strong. It meets the four criteria for a state to exist under international law, as codified in the Montevideo Convention on the Rights and Duties of States: “(a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states.” Indeed, the State of Palestine is already recognized diplomatically by 131 of the 193 UN member states, with a combined population exceeding 80 percent of mankind.

With respect to its “defined territory,” Palestine is clear and categorical. It asserts sovereignty (the state-level equivalent of title or ownership) only over the 22 percent of historical Palestine which Israel occupied in 1967 — nothing more and nothing less.

While Israel has formally annexed East Jerusalem and an arc of surrounding territory (a purported annexation recognized by no other state, not even the United States), it has for 45 years refrained from asserting sovereignty over any other portion of the West Bank or the Gaza Strip, an act that would raise awkward questions about the rights (or lack of them) of those who live there.

Accordingly, since November 1988, when Palestinian statehood was formally proclaimed, the only state asserting sovereignty over those parts of mandatory Palestine that Israel occupied in 1967 (aside from expanded East Jerusalem, as to which Israel’s sovereignty claim is universally rejected) has been the State of Palestine. Its sovereignty claim is therefore both literally and legally uncontested, even if not yet universally recognized.

In this context, it is worth noting that Israel does not qualify as a state under the Montevideo Convention’s criteria, since it has consciously chosen never to define its territory and borders, knowing that doing so would necessarily place limits on them.

Fortunately for Israel, international acceptance of Palestine’s defined (and formally limited) borders will finally give Israel defined and uncontested borders with Palestine, notably including West Jerusalem, to which other states, all of which now maintain their embassies to Israel in Tel Aviv, should then feel free to move their embassies.

For compelling legal, moral, ethical and practical reasons, the United States and other Western states should join the great majority of UN member states, encompassing the vast majority of mankind, in honoring the moral obligations and legal responsibilities of the international community toward the Palestinian people by formally recognizing that, 65 years after the General Assembly’s fateful recommendation to partition Palestine, the two states envisioned by the General Assembly do indeed exist, even though one state is, temporarily, under military occupation by the other state.

This is a situation which, in the interests of both justice and international legality, requires rectification through urgent and intensive state-to-state negotiations in accordance with terms of reference which are consistent with international law and relevant UN resolutions and with the full, active and determined support of the international community.

John V. Whitbeck is an international lawyer who has represented the Palestinian negotiating team in negotiations with Israel.

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