The Time Isn't Right for Statehood Bid / Prof. Irwin Cotler

September 8, 2011
Any negotiated resolution of the Israeli-Palestinian conflict - as part of wider Arab-Israeli peace and reconciliation - should be based on the principle of two states for two peoples living side by side in peace and security. Accordingly, a premature, unilateral declaration of Palestinian statehood would undermine rather than resolve the Israeli-Palestinian peace process, and would constitute a standing affront to the integrity of the United Nations, international agreements and international law.

It is not surprising, therefore, that U.S. President Barack Obama, in a speech May 19, warned that a just and lasting peace is possible only through a negotiated approach that involves mutual concessions. "Symbolic actions to isolate Israel at the United Nations in September won't create an independent state," stated the president, a position reaffirmed in a communiqué by the G8 on May 27.

A similar position was also taken by the president of the European Parliament, Jerzy Buzek. During a press conference with Palestinian Prime Minister Salam Fayyad on June 15 in Ramallah, Mr. Buzek declared that the unilateral recognition of a Palestinian state would be "dangerous."

On July 27, Prime Minister Stephen Harper dismissed a unilateral declaration of statehood by the Palestinians as "a very unhelpful development." He said a two-state solution should be predicated on "mutual recognition, including recognition of Israel as a Jewish state."

What has gone largely unnoticed is that opposition to the proposed unilateral declaration has recently come from disparate - and unlikely - Arab and Palestinian leadership. First, the secretary-general of the Arab League, Nabil Al-Arabi, said the statehood bid "could be a very dangerous move for the Palestinians during this period." Second, Hamas leadership - which presumably would be part of a proposed Palestinian state - has called the whole exercise a "sham." Third, the Palestinian team responsible for preparing this initiative has been given an independent legal opinion - by its own counsel - that argues against such an initiative and warns of the serious risks involved to the Palestinian people, a position echoed by Jordan's King Abdullah II.

These declarations opposing UN recognition of a unilateral Palestinian statehood bid - whether they emanate from western political leaders or from Arabs and Palestinians themselves - can be said to be anchored in a series of foundational principles and related precedents of international law, including:

- Such a unilateral declara-tion would undermine all accepted international frameworks for peace, such as UN Security Council resolutions 242, 338, and 1850; the Roadmap for Peace; and various statements by the Quartet (the UN, the U.S., the European Union and Russia), all of which call for a mutually negotiated and agreed-upon resolution of the conflict while rejecting unilateralism.

- It would violate existing Israeli-Palestinian bilateral agreements, most notably the Oslo II agreements, which state that "neither side shall initiate or take any step that will change the status of the West Bank and the Gaza Strip pending the outcome of the Permanent Status negotiations" (Article 31).

- While the Israeli-Palestin-ian Interim Agreement was signed by Israel and the Palestine Liberation Organization, it was witnessed by the UN together with the EU, the Russian Federation, the U.S., Egypt and Norway. It would be highly inappropriate for such witnesses to now authorize a UN measure that would effectively violate this agreement, while undermining major resolutions of the UN Security Council and the Quartet itself.

- Such a unilateral declara-tion would unravel the institutionalized legal and administrative framework that underpins existing Israeli-Palestinian relations, which include bilateral arrangements in over 40 spheres of civilian activity, and which serve as a basis for economic, legal and security co-operation.

- Such premature and pre-cipitous recognition - which would prejudice, rather than enhance, Palestinian rights and Palestinians' legitimate claim to statehood - might well precipitate new and violent confrontations. Palestinians' aspirations will be frustrated rather than realized.

- If such UN unilateral rec-ognition were to take place while Hamas is the ongoing authority in Gaza, in partnership with Fatah, it would effectively constitute recognition of Hamas - a terrorist organization outlawed in Canada, the U.S. and European countries - while Hamas continues to reject the basic requirements of the international community, such as recognizing Israel's right to exist, forswearing terrorism and accepting previous international agreements.

- The Palestinian Author-ity does not yet meet the traditional test for statehood - particularly the test of effective government, effective representation, control over a defined territory and adherence to the rule of law. A premature and unilateral recognition of an "unripe" Palestinian state could have a prejudicial effect on other regional conflicts.

Only an immediate return to direct negotiations between Israel and the Palestinians - based on the principle of mutual recognition of two states for two peoples - will invite the establishment of a just and lasting peace.

Irwin Cotler is MP for Mount Royal and a former minister of justice and attorneygeneral of Canada. He is emeritus professor of law at McGill university and has taught and written widely on the Arab-Israeli conflict.

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