Tuesday, June 4, 2013

Defacto Statehood in International Law

I was saddened at the news of International Law expert Howard Grief's passing. But more than sadness, I am worried. Worried that today's scholars will not be able to speak as strong and freely as Howard Grief did. He was polite, but never catered to political correctness over absolute truthful analysis of International Law about a region in which a clear declaration of the truth is just as important as it's understanding.  I say this not because there are not also brilliant minds in this generation, but because distractions, an air of political correctness in legal discourse of International Law and Israel, in a place where only the simple truth will do.

The sages of the Talmud relate in the first chapter of Ethics of the Fathers, that civilization is founded upon truth, justice and peace. Thus without an adherence to truthful application of justice (International Law) there cannot be peace. Therefore for scholars to fail to emulate the Howard Grief style, would be to risk failure in pursuit of finding a true path to peace. While I may lack Howard's superior politeness and scholarship, I will attempt to address this as truthfully as I can.

Recently I have heard some scholarship attempting to support the current Knesset's policies by saying do not question that a Two State Solution can work, when there exists a defacto Palestinian state already.  In my opinion, this is a statement of political leanings, not a declaration of legal standards. Defacto means "an actual practice, but not necessarily one ordained by law." Further, such recognition is generally provisional. In this case, on condition of a final peace deal between Israel and the Palestinian Authority. Also keep in mind the concept that a state must function as a state and also be recognized as one to be granted full rights under International Law.

To all supporters of the erroneous thought that Arabic Palestine is truly a defacto state, please consider the following:

  1. Palestine is not (yet) a state that can even make a treaty.
  2. Is Palestine a quasi State?  Logically speaking, if Palestine existed before the Oslo Accords which of course it did not, then for some strange reason it agreed to not become a State (again?) when it signed the Oslo Accords until after the Final Status discussions were concluded and signed as a treaty.  Never happened, never will.
  3. The United Nations specifically granted limited recognition only, not full recognition. For what reason?  That they are already a state?  That they should be considered a state? Some of the countries that supported the PA only on condition that their limited recognition would not interfere with the treaty between them and Israel, other states that were trying to legalize the Palestinian Authority. But their intentions and current practices do not overrule Oslo, from their own reasoning, which essentially renders the UN resolution legally null and void, as customary law cannot overrule a treaty between member states and certainly between a member state and an ethnicity within it's borders. (Jordan has no legally binding joint claim over Judea and Samaria (the West Bank.) Thus even the quasi recognition by the UN, did not change that status.
  4. The Palestinian Authority lacks the full functionality of an independent state, rather functions more like a sub-state within a nation, as a state or county in the United States does.  Interstate border issues, such as an environmental hazard that is bothering a neighboring state may soon find itself to the needs and dictates of the federal government, and as far as defacto status goes, Israel does not share authority with the PA,  it is the superior authority in anything that Israel deems is or is not in its interest.  It took an Israeli court order to change the location of security fence in Samaria, for example, not any force, command or pleading from the Palestinian Authority. 
  5. If the anyone wishes to reinterpret reality that the UN has more power than it does, then remember that in International Law, a declaration by the United Nations of defacto recognition cannot overrule a treaty between states, if it is a state, as the PLO agreed to become a non-state-state until Israel agrees otherwise. (The self contradiction and circular reasoning at the UN matches the hypocritical and bipolar diplomacy of the Palestinian Authority.)
  6. The Oslo Accords are have already expired, according to scholars like me, and only remain as a defacto practice by the majority of the United Nations to pretend that it is not over.  This, however, cannot overrule Israel's Fundamental rights (Jus Cogens) of self preservation by preventing the formation of a terrorist state within its border. So there is not a legal reason to continue to recognize the Palestinian Authority at all, just a current practice to really, really, really wish really hard that it would become a real state after all.  My legal advice: Wake up, people!

If not for the idea of a One State Solution with the IDF in charge of things, there would be no logical expectation of peace in the near future.  Therefore today's legal scholars must ignore their own political views and work towards finding the optimum One State Solution that works best for long term peace so that International Law may be upheld and peace be obtained.

May it soon be so, by the grace of G-d.

No comments: