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The Legal Case Against Palestinian Statehood

The  Wall Street Journal, Opinion Section, David Rivkin & Lee Casey

First among the U.N.’s purposes is maintaining international peace and security. Efforts to force recognition of a Palestinian state undercut this goal.

Later this week Palestinian Authority President Mahmoud Abbas is expected to seek recognition of a Palestinian state from the United Nations. The move is opposed by the Obama administration, which has rightly called it a “distraction.” Nevertheless, the PA’s effort has wide support among the U.N. membership, including Security Council members Russia, China and Britain, as well as other important regional states such as Turkey. These powers should think again because putting the U.N.—and particularly the General Assembly—in the business of state recognition is inconsistent with international law and the U.N. Charter, and it is manifestly not in their interests.

The U.N.—General Assembly or Security Council—has no power to create states or to grant all-important formal “recognition” to state aspirants. The right to recognize statehood is a fundamental attribute of sovereignty and the United Nations is not a sovereign. Those who cite as precedent the General Assembly’s 1947 resolution providing for the partition of Palestine misread that instrument and its legal significance.

Resolution 181 outlined a detailed (and rigorous) process whereby the British Mandate in Palestine was to end and two new states, one Jewish and one Arab, were to be established. It recommended that process to Great Britain (as the mandate-holder) and to other U.N. members. It did not create or recognize these states, nor were the proposed states granted automatic admission to the United Nations. Rather, once the two states were established as states, the resolution provided that “sympathetic consideration” should be given to their membership applications.

In the event, the Arab countries rejected partition and Israel declared (and successfully defended) its independence. Israel’s statehood was recognized, in accordance with international law, by other states—including the United States and the Soviet Union.

The Palestinian Authority, by contrast, does not meet the basic characteristics of a state necessary for such recognition. These requirements have been refined through centuries of custom and practice, and were authoritatively articulated in the 1933 Montevideo Convention on the Rights and Duties of States. As that treaty provides, to be a state an entity must have (1) a permanent population, (2) a defined territory, (3) a government, and (4) the capacity to enter into relations with other states.

As of today, the PA has neither a permanent population nor defined territory (both being the subject of ongoing if currently desultory negotiations), nor does it have a government with the capacity to enter into relations with other states. This pivotal requirement involves the ability to enter and keep international accords, which in turn posits that the “government” actually controls—exclusive of other sovereigns—at least some part of its population and territory. The PA does not control any part of the West Bank to the exclusion of Israeli authority, and it exercises no control at all in the Gaza Strip.

The PA does not, therefore, qualify for recognition as a state and, concomitantly, it does not qualify for U.N. membership, which is open only to states. All of this is surely understood by the PA and its backers, and is also why the administration has correctly labeled this effort as a distraction—”stunt” being a less diplomatic but even more accurate term in these circumstances. What is unfortunate is that the Obama administration has failed to present the case against a Palestinian statehood resolution in legal rather than tactical terms, even though these arguments are obvious and would greatly reinforce the U.S. position, also providing a thoroughly neutral basis for many of our allies, particularly in Europe, to oppose Mr. Abbas’s statehood bid.

The stakes in this battle are high. The PA’s effort to achieve recognition by the U.N., even if legally meaningless, is not without serious consequences. To the extent that state supporters of that measure may themselves have irredentist populations or active border disputes with their neighbors—as do Russia, China, Britain and Turkey—they will certainly store up future trouble for themselves.

Traditionally, states rarely recognize (even if they may materially support) independence movements in other states. This is because granting such recognition may have very serious consequences, up to and including war. (The classic example here being France’s recognition of the infant United States in 1778 and its immediate and inevitable entry into the War for Independence against Britain).

With respect to Israel, although it does not actually claim all of the territory on which the “State of Palestine” would be established, it is and has been engaged in difficult negotiations over that territory—and the PA’s status—for many years. Support for U.N. recognition might not rise to the level of an act of aggression against Israel, but the U.N. Charter also forbids members to act in a “manner inconsistent with the Purposes of the United Nations.” First among those purposes is maintaining international peace and security, and efforts prematurely to force recognition of a Palestinian state clearly undercut this goal. This is, in fact, a rare instance in which a measure is bad policy, bad law, and has the real potential to damage the interests of its opponents and its supporters.

Messrs. Rivkin and Casey are Washington, D.C., lawyers who served in the Justice Department during the Reagan and George H.W. Bush administrations. Mr. Rivkin is also a senior adviser to the Foundation for Defense of Democracies.

Copyright 2011 Dow Jones & Company, Inc. All Rights Reserved

 




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Congress – the co-equal and systematic ally of Israel

Presidents propose and Congress disposes

On September 23, 2021, the US House of Representatives voted 420:9 to replenish the Israeli-developed defensive “Iron Dome” missiles, which are increasingly manufactured – and eventually exported – by the US defense company Raytheon, that benefits from the battle-tested “Israeli laboratory.”

The overwhelming vote reflects Congressional realization that the “Iron Dome”:

*Enhances Israel’s posture of deterrence, which is critical to the survival of all pro-US Arab regimes and minimization of regional instability;
*Reduces the need for full-scale Israeli wars on Palestinian and Islamic terrorism;
*Provides an alternative to Israeli military ground-operations against Palestinian terrorists, which would entail substantial Israeli and Palestinian fatalities;
*Represents joint US-Israel interests, militarily and technologically, in the face of mutual threats (e.g., Islamic terrorism) and mutual challenges (e.g., developing world-class, game-changing technologies).

*Constitutes another example of the systematic support by Congress of enhanced US-Israel cooperation.

The decisive role played by Congress in the replenishment of the “Iron Dome” underscores the cardinal rule of the US political system: The President proposes, but Congress disposes.

The involvement of Senators and House Representatives in foreign policy and national security-related issues has surged since the Vietnam War, Watergate and Iran Gate scandals, the dismantling of the USSR (which transformed the world from a bi-polar to a multi-polar) and rapidly-expanding globalization.

In fact, former Secretary of State, Jim Baker, complained about the growing congressional assertiveness in the area of foreign policy: “You can’t conduct foreign policy with 535 Secretaries of State….”  Former Secretary of Defense, Dick Cheney, criticized Congress for micromanaging the defense budget: dictating how much to spend on particular weapons, imposing detailed requirements and programmatic restrictions, venturing into policy-setting and requesting that the Department of Defense submits mountains of reports.

Congressional muscles 

The US Congress is the most powerful legislature in the world, and it has demonstrated its co-equal, co-determining muscle in the areas of foreign and defense policies on many occasions, such as:

*Imposing sanctions against foreign countries in defiance of Presidents Clinton, Obama and Trump (e.g., Egypt – 2012, Iran – 1996-97 and 2013, Russia – 2017);
*Non-ratification of the 2015 JCPOA, which enabled withdrawal by the US;
*The 2009 non-closure of the Guantanamo Detention Camp was led by Senate Majority Leader, Harry Reid (NV-D), in defiance of President Obama.
*The 2009 non-confirmation of Charles Freeman to the Director of National Intelligence was led by Senator Chuck Schumer (NY-D);
*The 1999 non-ratification of the Comprehensive Test Ban Treaty in defiance of President Clinton and the international community;
*The unprecedented expansion of US-Israel strategic cooperation took place despite stiff opposition by President Bush and Secretary of State Baker;
*The Comprehensive Anti-Apartheid Act overrode President Reagan’s veto;
*The 1984 Boland Amendment aborted President Reagan’s financial and military aid to anti-Communist elements in Nicaragua;
*The 1983 blocking of President Reagan’s attempted coup against the Surinam pro-Soviet regime;
*The 1978 Foreign Intelligence Surveillance Act mandated congressional authorization of surveillance of persons and organizations, which may threaten national security;
*The 1975/76 Tunney (CA-D) and Clark Amendments stopped financial and military covert support of the opposition to the pro-Soviet regime in Angola;
*The 1973 Church-Case Amendment ended funding of military involvement in Southeast Asia;
*The 1973 War Powers Act overrode President Nixon’s veto;
*The Jackson-Vanik Amendment preconditioned aid to Moscow upon free immigration.

Congress empowered by the Constitution

As documented in the aforementioned paragraphs, one is advised to note that while Congress is preoccupied with District and State issues, it has the power to both propose and dispose in the areas of foreign and defense policies.

The US Constitution aspires for a limited government and a non-monarchical president, and therefore does not limit Congress to overseeing the budget. It provides the Senate and the House of Representatives with the power to act on strategic issues and policy-setting.

The Constitution accords Congress ”the power of the purse,” oversight of government operations, ratification of treaties, confirmation of key appointments, declaration of war, funding of military operations and cooperation with foreign entities, creation and elimination of government agencies, imposing sanctions on foreign governments, etc.

In other words, the President is the “commander in-chief” within constraints, which are set by Congress.




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