Should the Palestinians issue a unilateral declaration of statehood?

The question has been asked of the Ibishblog by numerous readers whether or not I think that the PLO should follow through on their ideas and actually make a formal declaration of independent statehood. Damn good question.

Obviously, this is a highly fraught topic, filled with both opportunities and dangers for the Palestinians. First, even as a threat it is clearly a double-edged sword. It reminds Israel and the international community that Palestinians have agency and that their whole national agenda is an effort to realize an international consensus, and that Palestinian statehood is in the general interest and should become a reality. It would be pursuant to a small mountain of Security Council resolutions and other international instruments of legality. The threat in a sense calls the bluff of all other parties, saying, in effect: "we’ve tried everything we can think of for almost 20 years and gotten no where. If you really believe what you say, and support our independent statehood, support us now in this. If not, maybe like Israel you never really wanted it at all." It also demonstrates that Palestinians could, potentially, act diplomatically without regard to Israel’s concerns and demands.

The question, of course, is: to what effect? The cost-benefit ratio seems extremely tight, making it a bold, indeed risky move. The argument, of course, is that Palestinians have no choices left other than moves that are both bold and risky. And, as a very well argued commentary in today’s edition of the Arab News points out, "If both Israel and Hamas condemn the proposal of a UN declaration of independent Palestinian state in the West Bank and Gaza, as they have, it suggests it must be the right idea." I’m not sure I can imagine a better argument for anything then an Israeli-Hamas consensus that it’s a bad idea.

Even as a threat, the move involves serious drawbacks. It has already been met with counter-threats from Israel to annex parts of the occupied West Bank, which as a practical matter might be more easily accomplished than Palestinian independence. It also more or less runs counter to the national strategy of the PLO since the late 1980s, which has been to seek an negotiated agreement based on the understanding that major changes between Israel and the Palestinians require mutual agreement and cannot really be accomplished by unilateralism on one side or the other.

The biggest problem is that in the end, there is still no serious prospect of ending the occupation and the conflict except through a negotiated agreement, no matter how remote that seems at this point. Therefore even the threat, while it does serve to concentrate minds, also hardens positions and undermines the basic strategy. But Palestinian frustration, the ongoing stalemate in talks, and the generalized sense that something drastic has to be done to change the strategic environment have apparently led to serious consideration of what can only be seen as a drastic measure.

As for acting on the threat in some formal manner, whether unilaterally or through the UN, the stakes would clearly be even higher. There are obvious appeals to the idea, making it extremely tempting. But the potential costs are very grave indeed. First, a unilateral declaration that, like earlier efforts of this kind, would, at this stage, be little more than an empty rhetorical gesture, ignored by Israel, the US and other powers. It could prove to not only be pointless, but also serve as a demonstration of Palestinian weakness and desperation. True enough that the UN General Assembly has the power to recognize and admit new members, one of the few meaningful powers not assigned to the Security Council, but as a practical matter, without the prearranged approval of the United States, even a formal gesture in the General Assembly would probably fail to yield significant results.

Moreover, if the threat alone carries strategic risks as well as benefits, acting on the threat is even more potentially dangerous. Were it done in defiance of rather than in cooperation with the United States, such an act might risk US support for the principle of Palestinian independence, which is one of the main cards the Palestinians currently hold. To cast it aside in gesture that proves wholly ineffective would be a dreadful mistake. It is not really within the power of the Palestinians to "call the bluff" of the United States, so to speak, in such a dramatic manner, if the Americans are dead set against it.

It would, therefore, require tacit and prearranged coordination with and approval of, or at least no ardent objections from, the United States for such a step to prove more productive than damaging. At this stage, that seems highly unlikely, with not only Washington, but also the EU and others warning against any such action. There are reports that there is an unpublished annex to the PA state and institution building program proposed by Palestinian Prime Minister Salam Fayyad that suggests a potential declaration of statehood at the end of the two-year development and administrative project. This makes infinitely more sense than any such steps now, since if the PA plan is actually carried out, the framework of the state will be in place and declaring its existence, as Fayyad himself put it, would become essentially a "formality."

But many Palestinians obviously feel they cannot wait, and with good reason. In the face of stonewalling and continued settlement activity (most recently this unbelievably irresponsible announcement of 900 new settler housing units in Gilo), bellicose rhetoric and other provocations from Netanyahu, and complete dissatisfaction with Obama administration’s inability to shift the Israeli position, the sense that something dramatic is required is now almost universal. Hence the flurry of trail balloons about Abbas not running again, resigning, dissolving the PA, shifting to a single-state strategy, and now this talk about declaring statehood. Because it all reflects obvious desperation and a very limited set of options, none of it is very convincing except as an indication of despair.

But there might be a way of approaching this idea that has a little more substance and creativity, and its clear that at least some thought is being given to it in Ramallah at present. It’s important to consider that going to the UN need not involve a unilateral declaration of statehood or even seeking the recognition of a Palestinian state as a de facto or fully realized entity. It strikes me that there ought to be, even if this is unusual, or conceivably unprecedented, a means of filing something that amounts to a claim of sovereignty in the occupied territories. It’s important to remember that other than East Jerusalem, only the PLO has a formal claim of sovereignty on the West Bank and Gaza Strip. Israel has never made any such claim, Egyptian and Jordanian claims have been formally renounced years ago, and no other party has any legitimate or extant sovereignty claim.

Under the terms of Security Council resolution 242, Israel must withdraw from the occupied territories, and there is no other entity other than a Palestinian state which claims the right to assume sovereignty and responsibility. Without a concept of Palestinian sovereignty, the land for peace formula outlined in 242 makes no sense. The international recognition for the need for a Palestinian state has been implicit since the Madrid conference in the early 1990s, and has been made explicit by a number of UN Security Council resolutions passed over the past five years. However, formal recognition of Palestinian sovereignty in the occupied territories in all of these circumstances is implicit and conditional on an agreement with Israel.

However, Israel’s founding was legally based on the UN partition plan of 1947, and therefore it could be argued that Israeli sovereignty was recognized in parts of Palestine by the UN before the creation of the state of Israel or its admission to the UN as a member state. This same partition plan, it could also readily be argued, is as much the birth certificate of Palestine as it is of Israel. However, given the passage of time and transformation of circumstances, as well as the emergence of the PLO as the governmental representative entity of the Palestinian people, a reiteration of Palestinian sovereign rights specifically linked to the occupied territories would reconcile the logic of in 1947 partition plan with that of the 1967 land for peace formula in a manner that is harmonious and consistent with the needs and desires of the international community. Moreover, any claim of sovereignty of this kind can be linked to the Arab Peace Initiative, providing added diplomatic gravitas, and framing the gesture in terms of the broader drive for peace in the Middle East generally.

Of course, Israel has implicitly claimed sovereignty in occupied East Jerusalem by extending its civil law to the territory it defines as municipal Jerusalem, which includes East Jerusalem. However, this action was explicitly rejected in 1980 by more than one UN Security Council resolution (voted for by the US, I might add) which not only rejected Israel’s efforts to effectively annex east Jerusalem but also explicitly called for Israeli withdrawal from the city (it’s the only part of the occupied territories that has been specifically designated by the Security Council as an area Israel must withdraw from). Therefore, given that there are no other extant sovereign claims on the West Bank and Gaza Strip, and Israel’s claim of sovereignty in East Jerusalem has been explicitly rejected on more than one occasion by the Security Council, it strikes me that a mechanism for filing a formal claim of sovereignty by the PLO as the sole legitimate representative of the Palestinian people would have considerable merit.

I should be very blunt about this: I’m not an international lawyer, and I’m now talking about something quite technical and complex that is beyond my professional competency. I would be the first to admit I’m a little out of my depth in postulating that there is a potential to develop a mechanism that functions as a formal claim of sovereignty on behalf of the Palestinians that can be recognized by the UN but that deliberately falls short of another declaration of statehood that will be recognized mainly by developing countries and have little if any practical effect. It seems to me that the international community, and even the United States, under the right circumstances would have a very strong interest in backing any such claim of sovereignty in order to rescue the possibility of a two state agreement in light of Israel’s efforts to stonewall on its roadmap obligations vis-à-vis settlements, and its apparent refusal to agree to meaningful terms of reference for permanent status negotiations (persistently trying to take Jerusalem off the table, for example). Obviously, supporting any such move, even tacitly would be politically costly for the Obama administration with a number of important domestic constituencies, but with patience and coordination such an eventuality is, I think, definitely not outside the realm of possibility.

At any rate it’s pretty clear something drastic has to be done by somebody to shake up the present situation, which is not only an untenable stalemate, but in the long run is simply a recipe for another eruption of violence. The unbelievably reckless and irresponsible attitude of the Israeli government on settlements, Jerusalem and permanent status terms of reference have left all other parties with very few options within the existing framework. Obviously something has got to give, and I think it’s either going to be some action such as bolstering Palestinian statehood through a of recognition of sovereign rights or major action to support the PA State and institution building plan (which I think is even more important), or it may be impossible to prevent the complete breakdown of the entire system of relations between Israel and the Palestinians and another outburst of intense violence which will be to the enormous detriment of all parties.