Palestine – Lawyers, Hot Air and No Clothes


By: David Singer
John V Whitbeck – described as “an international lawyer who has advised the Palestinian negotiating team” – has recently written an article published in Al Jazeera pointing out that 106 members of the United Nations have now recognized the State of Palestine, whose independence  was proclaimed on 15 November 1988.

Whitbeck also tells us that such recognition covers between 80-90% of the world’s population.
Behind these apparently impressive statistics and the conclusion that Whitbeck draws from them – the story is strikingly different.
Whitbeck’s claim of international recognition is pure window dressing bereft of any clothes. It amounts to hot air and nothing more.
What Whitbeck claims as fact is fiction, a state that exists in the mind rather than in reality, an ideal eagerly sought without any current prospect of being achieved.
The declaration of independence proclaimed on 15 November 1988 by Yasser Arafat was nothing more than a public relations stunt since the Palestine Liberation Organization then controlled not one single centimeter of former Palestine. Such declaration sought to be justified  on the basis of the United Nations 1947 Partition Plan that had recommended division of Western Palestine into separate Jewish and Arab States. That recommendation  had been unanimously rejected by the Arab League. Relying on it 41 years later seemed a hypocritical exercise in diplomatic peace making.
A large part of the world was however prepared to forget and forgive the Arab aggression that followed the rejection of the 1947 UN recommendation and grasp this 1988 lifeline in a further effort to bring about a resolution of  the conflict between Jews and Arabs.  It has proved to be a waste of time in achieving what the Declaration sought to supposedly accomplish.
Whitbeck further reveals the fantasy world in which he is living when he states:

“While still under foreign belligerent occupation, the State of Palestine possesses all the customary international law criteria for sovereign statehood. No portion of its territory is recognized by any other country (other than Israel) as any other country’s sovereign territory, and, indeed, Israel has only asserted sovereignty over a small portion of its territory, expanded East Jerusalem, leaving sovereignty over the rest both literally and legally uncontested.”

Whitbeck’s claim is a load of arrant nonsense.
The criteria for recognition of a state in customary international law were codified in Article 1 of the Montevideo Convention signed on 26 December 1933 which provide as follows:
“The state as a person of international law should possess the following qualifications:
(a) a permanent population;
(b) a defined territory;
(c) government; and
(d) capacity to enter into relations with the other states.”
There is indeed a permanent Palestinian Arab population living in the West Bank and Gaza.  55% of the  West Bank Arabs live in 17%  of the West Bank under the exclusive administrative and security rule of the Palestinian Authority (known as Area A) and so could be said to exist within a defined territory. 100% of Gaza and its entire Arab population is under the administrative and security control of Hamas and so would also meet the first two criteria.
However such a State possesses no government. Relations between Hamas as governing authority in Gaza and the Palestinian Authority as governing authority in the West Bank. are at rock bottom.  Arab League efforts to effect a rapprochement continue to founder. Death, torture and false imprisonment continue to mark the three years long internecine struggle between the two governments to win the hearts and minds of the West Bank and Gazan Arab populations. Neither has the capacity to enter into relations with other states. Both of these criteria for statehood are non-existent and their fulfillment appears a hopeless dream.
Whitbeck’s claim of international recognition of the State of Palestine is therefore meaningless – other than to indicate this is a result the world would like to see. But that was also the world view in 1947 when the Arabs then rejected an Arab State in an area much larger than the one contemplated by even the most optimistic of today‘s recognizing States.
Whether any such an option in any kind, shape or form is available in 2010 – given the new facts created by 500000 Jews now living in the West Bank and East Jerusalem – appears increasingly to be fated to consignment once again to the garbage bin of history.
Any suggestion that the West Bank be entirely cleared of its Jewish population would be a preposterous notion that has no place in the current interpretation of international humanitarian  law.
America. Russia, the European Union and the United Nations have been actively involved in trying to overcome these obstacles during the last seven years – but all to no avail. There is no prospect on the horizon that this situation will change.
Whitbeck’s claim that Israel has only asserted :

“sovereignty over a small portion of its territory, expanded East Jerusalem leaving sovereignty over the rest both literally and legally uncontested”

is another self-serving piece of propaganda and is completely removed from reality. It completely ignores Israel’s legal right to establish the Jewish National Home in both the West Bank and Gaza under the Mandate for Palestine and article 80 of the United Nations Charter.  Sovereignty in the West Bank and Gaza resides in neither Jews nor Arabs at the present time. Sovereignty in East Jerusalem has been claimed by Israel but not internationally recognized. Efforts extending over the last 17 years to determine sovereignty in all these territorial areas have been unsuccessful.
Israel’s claim as sovereign owner of the whole or part of West Bank and sovereign ruler of East Jerusalem cannot be summarily dismissed or written off by the pathetic bleating of a former adviser to the Palestinian negotiating team.
Indeed one could reasonably conclude that with advice such as this  – it is no wonder that the Palestinian negotiating team have been indoctrinated into believing  that they are entitled to continue to claim sovereignty in 100% of Gaza and the West Bank as well as East Jerusalem to the total exclusion of Israel’s claim.
As one saying goes – “I can only act on my lawyer’s advice”.
As another saying goes – “I think you better change lawyers because the advice being given to you by your current adviser seems to be way off the mark”

Whitbeck’s conclusions on the international recognition of the State of Palestine are not worth the paper they are written on.

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