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November 20, 2009: A Different PA Angle

February 16, 2010

Before I look at that angle (of necessity, briefly, before Shabbat), I want to add one other news item about Jerusalem housing that I inadvertently left out yesterday.  This did not make mainstream news (thanks to Tamar A for calling my attention to it), but I located it in a couple of different sources.  News is always selective.
Rabbi Yitzhak Hershkowit who for many years has owned property in Beit Tzafafa, a Jerusalem suburb, has never been able to use that property because of Arab squatters.  He fought this in the courts for over thirteen years, and has proven that the land is legally. The court agreed that the squatters should be removed, but the police have never executed the court order.
As to the “angle”: There are some analysts who see effecting an over-turn of SC Resolution 242 at the heart of what’s going on with the PA right now.
Zalman Shoval, former Israeli ambassador to the US, in a column yesterday, made this point.  Shoval describes current PA efforts to establish a state as “a wheelless cart before a lame horse,” which is great.  But he suspects ulterior motives.
A Jerusalem Post editorial expresses the same suspicions.
I’ve been doing some checking with regard to the Palestinians taking their theoretical state-in-the-making to the UN.  It is a complicated business, and the complications are compounded by the fact that within the international arena theoretical rules are one thing, while in reality states often act as they damn please, in accordance not with law but political whim– as we well know.
What is basic fact is that the Security Council does not “endorse” states, or — whatever the term — bring them into being by virtue of a resolution:  there is no mechanism for this within international law via any agency.  The PA would have to declare a state first.  (And if this declaration is unilateral it would render Oslo null and void.)
According to the Montevideo Convention on the Rights and Duties of States of 1933, there is a basic “definition” of a state, which has been adopted by the international community.  In order to qualify as a state, an entity must:
[] have a permanent population
[] have a defined territory
[] be under the control of its own government
[] have the capacity to enter into relations with other states
Does the PA qualify?  No way.  Consider, just for one example, that the PA seems bent on declaring a state that includes Gaza, where its government would have no control. Would it (wink wink) be considered to have met the required  criteria in the course of its declaration, or be laughed out of the international arena?  

As to whether to recognize this new state once it is declared, each nation would make its own decision.  Recognition of a nascent state by other nations does seem to be an important part of creating the legal reality.
This new state would then apply to the Security Council for UN membership.  This membership does not create the state, but simply accords the state, which already exists, the rights and protections conferred upon member states. 
What’s important here, is this, from the International Judicial Monitor (as of this summer):
“…the Security Council must decide to submit a state’s application for admission to the General Assembly for a two-thirds majority vote. The two-thirds requirement means that a state may not be granted admission to the UN if it is not recognized by a two-thirds majority of the General Assembly. This is the case for Kosovo which will likely not be able to join the UN in the near future because it is only recognized by sixty-two UN members.”
And so this new Palestinian state, were it to be declared, might be stopped right there.  Which would render moot the entire discussion about Resolution 242. 
This is not what analysts are looking at, however.  For them the real sticking point has to do with borders, which the PA quite obviously intends to set as the Green Line (everything that was not under Israeli control before the Six Day War of 1967). 
If the SC were to accept “Palestine” as a member state, does this mean it would be sanctioning or endorsing those borders as unilaterally claimed?
If the answer is yes, this would mean setting up a conflict with SC Resolution 242, which, basically, says that Israel does not have to withdraw from all territories acquired in 1967, and is entitled to safe and recognized borders that are arrived at via negotiations.  And Israel does not have to pull out of any territory until this negotiation occurs.  The Green Line is not considered a safe border — strategic depth is required.  (This sets foolish Obama’s statement about settlements not bringing security into conflict with this resolution as well.)   
The concern is that the PA is seeking to overturn or override this resolution.
The Jerusalem Center for Public Affairs held a conference on 242 a couple of years ago (I was in attendance and learned a great deal).  For detailed information from that conference see:


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