If Israel exists, then so does Palestine

In international law, the two have equal claim to sovereign statehood, writes John V Whitbeck

An excruciatingly long and painful labour has finally given birth to a Hebron agreement in which Benjamin Netanyahu's government has essentially agreed to do in 1997 what Israel was legally obligated to do in March 1996, pursuant to an agreement solemnly signed in Washington in September 1995. These negotiations have demonstrated that under the present Israeli government, backsliding from agreements already signed is far more likely than any genuine progress toward peace.

Fortunately, there is one giant step towards peace that the Palestinians and the international community can now take together, without Israel's prior consent. They can dispel the dangerous illusions that the Palestinian lands conquered by Israel in 1967 are "disputed" rather than occupied, that Palestinian statehood is within Israel's power to grant or deny, and that the "Palestinian Authority" is or has ever been anything but a transparent euphemism for the state of Palestine.

There has long been a strange, other-worldly quality to the veil of words drawn across the face of Palestinian statehood. Prime Minister Netanyahu pledged to his Likud party's congress last September that "you can dream every night and you will still wake up every morning and see: there is no Palestinian state, there is no Palestinian state, there is not and there will not be a Palestinian state". In fact, the state of Palestine already exists, and Palestinian statehood is not even an issue in the "permanent status" negotiations that formally began last May and which, according to the Declaration of Principles signed in September 1993, must reach an agreement not later than May 1999.

According to the Declaration of Principles, the issues to be covered during permanent status negotiations are "Jerusalem, refugees, settlements, security arrangements, borders, relations with other neighbours, and other issues of common interest". Palestinian statehood is not mentioned, but the references to "borders" and "other neighbours" would make no sense except in the context of an agreement between states. Israel's eventual formal acceptance of Palestinian statehood is clearly implicit in the terms of the Declaration of Principles, but, as a matter of international law, Israel's prior acceptance is not an essential precondition for the state of Palestine to exist.

While extending diplomatic recognition to foreign states lies within the discretion of each sovereign state, there are four customary criteria for sovereign statehood: a defined territory over which sovereignty is not seriously contested by any other state; a permanent population; the ability and willingness of the state to discharge international and treaty obligations, and effective control over the state's territory and population. Judged by these criteria, the state of Palestine is on at least as firm a legal footing as the state of Israel.

While Israel has never defined its ultimate borders, the state of Palestine has effectively done so. They encompass only that portion of historical Palestine occupied by Israel during the 1967 war. Sovereignty over expanded East Jerusalem is explicitly contested, even though, after nearly three decades, none of the world's other 192 sovereign states has recognised Israel's claim to sovereignty. However, the sovereignty of the state of Palestine over the Gaza Strip and the rest of the West Bank is uncontested.

Israel has never dared even to purport to annex these territories. Jordan renounced all claims to the West Bank in favour of the Palestinians in July 1988. While Egypt administered the Gaza Strip for 19 years, it never asserted sovereignty over it. Since November 1988, when Palestinian statehood was formally proclaimed by the Palestinian National Council meeting in Algiers, the only state asserting sovereignty over those portions of historical Palestine that Israel conquered in 1967 (aside from expanded East Jerusalem) has been the state of Palestine, a state recognised as such by 124 other states encompassing the vast majority of mankind.

The permanence of Palestine's population is not in question. The state's ability and willingness to discharge international and treaty obligations has been demonstrated by its establishment of diplomatic relations with a majority of the world's other sovereign states and by its membership in various international organisations.

The weak link in Palestine's claim to already exist as a state was, until recently, the fourth criterion, "effective control". When the state was proclaimed, its entire territory was under the military occupation of another sovereign state. Now, however, a Palestinian executive and legislature (democratically elected with the enthusiastic approval of the international community), Palestinian ministries and courts, and substantial Palestinian security forces exercise "effective control" over a portion of Palestinian territory in which the great majority of the state's population lives. It can no longer be seriously argued that Palestine's claim to exist falls at the fourth and final hurdle.

While drawing a veil labelled "Palestinian Authority" across the face of the state may once have been necessary to the advancement of peace, this is clearly no longer the case. Polls show that a majority of Israelis are now willing to accept a Palestinian state. Indeed, in mid-December, Mr Netanyahu's chief adviser and spokesman, David Bar-Ilan, announced in a Jerusalem Post interview that his Prime Minister could accept a Palestinian state if Israel's security needs were adequately assured. This stunning reversal of positions elicited neither a prime ministerial correction nor any significant public outrage.

Surely the time has now come for the Palestinian leadership to drop the veil and assert that the state of Palestine exists on the soil of Palestine, and for the state of Palestine to apply to upgrade its status at the UN from observer to member state.

If Palestine were to become a member state of the UN, even the Netanyahu government would have no choice but to recognise that the Earth is not flat and to negotiate seriously on how to structure the relationship between the two states in the mutual interests of their peoples. Even if the US dared to veto Palestinian membership, the focus of attention would have been effectively shifted from the realm of brute force (where Palestine is extremely weak) to the terrain of international law (where Palestine is extraordinarily strong).

Now that the Palestinian national movement has established a firm foothold of "effective control" on the soil of Palestine, it is on the terrain of international law and international legitimacy that Palestine should and must pursue its struggle for peace with some measure of justice. Significant progress on this terrain could give Palestinians the confidence, pride and patience to resist a desperate, self-destructive return to violence and to wait out a frustratingly prolonged period of minimal gains on the ground.

Palestinian membership of the UN would make Middle East peace a question of when, not whether. It is an opportunity which can and must be seized.

The writer is an international lawyer based in Paris.