Transcript: The legal case against Palestinian statehood

Radio interview with Frank Gaffney on Secure Freedom Radio (9/23/2011)

Frank Gaffney: Tell us as succinctly as you can what the legal case against Palestinian statehood actually is.

David Rivkin: Thank you, Frank. The case is very simple and it’s one of those issues where really there is no doubt. Over the course of centuries, at the very heart of modern international law, lies the concept of objective criteria that have to be met in order for a given entity to be considered a state that can be recognized by other states.

Those criteria are crystallized in the Montevideo Convention on Rights and Duties of States and therefore you need to have territory, population, and the kind of government that exercises effective sovereignty over territory and is capable of entering into international agreements with other countries.

To emphasize, it does not have to be a good government, Frank, it does not have to be democratic; it can be quite repressive. But it has to be exclusive. You cannot have an alleged government that really exists at the sufferance of someone else and is not responsible for major elements of governance.

It’s absolutely clear that the Palestinian authority does not qualify. Because look, they exercise zero control over Gaza, which is ruled by Hamas, and they exercise a pretty modest and incomplete modicum of control over the West Bank. To the extent that they exercise any control there, it’s done because of agreements they entered into with Israel and can be changed at any time.

Israel really is exercising full security control throughout the entire West Bank.

To put it crisply, there is only one entity that can midwife a Palestinian state, and that’s Israel—because Israel is in a position that can, in fact, disengage itself from the business of exercising key governmental functions in the West Bank.

That has not happened. That is the key reason why Palestine cannot be entitled to statehood. And one final point, very briefly, the U.N., in any case, is emphatically not in the business of recognizing states, determining their boundaries, recognizing governments. That is something to be done only by other states. Neither the Security Council nor the General Assembly can do that.

All the U.N. does is take an existing state and makes that state a member of the U.N., and to be a member of the U.N., you have to be a state.

And that responsibility, as I understand it, David Rivkin, resides exclusively in the U.N. Security Council and not the General Assembly, is that right?

That is true. But even the Security Council, despite its formidable authority, cannot take a non-state and designate it a state. What the Security Council can do is take an existing state and recommend its membership to the General Assembly.
But I understand that’s something under the U.N. charter that has to flow in exactly the way you describe. If the U.S. vetoes a motion to make Palestine a member in the Security Council it is not sufficient to have the U.N. General Assembly vote by majority to reverse that. Is that correct?

It is utterly insufficient now.  The lawyers for the Palestinian Authority argue that they can follow the precedent of the Vatican. They were granted an observers status by the General Assembly.

What they are missing, of course, is that the Vatican is the oldest state in existence with a continued history spanning well over 2,000 years.  We have an instance where the General Assembly took an existing state, did not make it a U.N. member, made it a non-member state observer.

Now whether or not it’s something that the General Assembly can do is a more difficult question. The important thing is: They took a state with regard to the Vatican and that would not be the case with Palestine.
Let me drill down on one thing, that is there would necessarily be an aggregation of a whole slew of agreements between the PLO and Israel as well as others . . . tell us about those legal arrangements and what the implication would be if they were simply shredded by the United Nations at this point.

That’s an excellent point. If you go back to the beginning of at least the modern stage of relations between Israel and Palestinian Authority. The Oslo Accords specifically provide for the fact that any final arrangements between Israel and the Palestinians are to be achieved through negotiations. And in the interim, neither side would try to alter the legal status of any of the disputed territories.

So, another excellent point you made: It’s not just bilateral between the Palestinians and Israel. A number of members of the United Nations, including European countries, including Russia, members of the so-called quartet, have signed the same agreements to sort of lend their prestige. So for them to be supporting the Palestinian statehood bid would in fact breach their obligations of that agreement.

The point I would make . . . If I were in Israel’s shoes, I would say to myself: “What weight? What stock would I put in agreements? They’re not just Palestinians. I don’t expect anything compliant from them, but a number of the world’s leading democracies who cosigned Oslo agreements are breaking their commitments by acting this way. What is the value of their future commitments they can enter?”

By the way, I happen to think—not to sound litigious here—I think Israel actually has a case against every member of the United Nations that is supporting the Palestinian statehood, particularly the ones that cosigned the Oslo agreements in a court of international justice for breach of their obligations, breach of their treaty agreements, and breach of the U.N. charter.
There was an interesting piece by Evelyn Gordon earlier this week . . . she reports that all of Palestinian refugees would not be given citizenship in this new state. Very quickly, any thoughts on what that simply does to exacerbate all the things you just said that argue against this?

Two things, it clearly underscores that they are playing games and not complying with the second criteria, which is population.

But Frank, you and I both understand that they’re doing it for two reasons:

Unfortunately, this is a political ploy. They want to maintain the notion that there is a massive refugee population, that is not just physically not present in the West Bank . . .   but think about the irony, they want to proclaim a Palestinian state and they don’t want to give out passports in that state to the Palestinians that are residing in the refugee camps? I mean . . . it is absurd.

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