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Declaring An Independent Palestinian State
by Stephen Lendman
Email: lendmanstephen (nospam) sbcglobal.net
08 Apr 2011
Declaring An Independent Palestinian State - by Stephen Lendman
On April 2, New York Times writer Ethan Bronner headlined, "In Israel, Time for Peace Offer May Run Out," saying:
The UN may vote to "welcom(e) the State of Palestine as a member whose territory includes all of the West Bank, Gaza and East Jerusalem. The Palestinian Authority (PA) has been steadily building support for such a resolution in September, a move that could place Israel into a diplomatic vice."
According to Defense Minister Ehud Barak:
"We are facing a diplomatic-political tsunami that the majority of the public is unaware of and that will peak in September. It is a very dangerous situation, one that requires action. Paralysis, rhetoric, inaction will deepen the isolation of Israel."
On April 4, Israeli Foreign Minister Avigdor Lieberman warned UN officials against recognizing an independent Palestine, saying:
"It will destroy everything we have accomplished to date" with no further explanation. President Mahmoud Abbas said he'll seek recognition at the UN General Assembly this September when the body holds its annual meeting. A notorious occupation enforcer, he may or may not follow through. So far, over 130 countries have officially recognized Palestine within its 1967 borders. Israel remains contemptuously opposed.
So does America, White House Middle East advisor Dennis Ross, saying:
"We have consistently made it clear that the way to produce a Palestinian state is through negotiations, not through unilateral declarations, not through going to the UN. Our position on that has been consistent in opposition" to legitimate Palestinian rights. Neither Washington or Israel tolerates them, so it's up to the UN to act.
European nations, including Britain, France and Germany said sovereignty should be within 1967 borders with equivalent land swaps to resolve today's reality on the ground, exactly what Israel rejects. An anonymous official said:
"Does the world think it is going to force Israel to declare the 1967 lines and give up (East) Jerusalem as a basis for negotiation?"
Others like MK/Netanyahu aide Zalman Shoval said:
"Whatever we put forward has to be grounded in security arrangements because of what is going on regionally. We are facing the rebirth of the eastern front as Iran grows strong. We have to secure the Jordan Valley. And no Israeli government is going to move tens of thousands of Israelis from their homes quickly."
In fact, not at all, except perhaps token numbers too small to matter unless sustained pressure forces them.
Declaration of a Palestinian State
In 1987, Law Professor Francis Boyle was Palestinian Liberation Organization (PLO) legal advisor in drafting of its 1988 Declaration of Independence. From 1991 - 1993, he also represented the Palestinian Delegation to the Middle East Peace Negotiation run-up to Oslo. In fact, months in advance, he prepared a 30-page analysis titled, "The Interim Agreement and International Law," explaining numerous potential legal traps, essential to counter or be entrapped in a bad deal.
That's precisely what happened because Arafat and others rejected his advice, including saying place no trust in Israeli and American promises. They're worthless and won't be honored. They're not honest peace brokers, wanting only unchallengeable domination. Expect no Final Settlement. They'll indefinitely delay and postpone to give Israel enough time to tighten occupation, kill your people, destroy your homes, and steal your land. Only binding, enforceable guarantees are acceptable, and given US/Israeli duplicity, nothing negotiated with them is certain.
In the late 1980s, Boyle was asked, "Why should the PLO create an independent state? He responded saying:
If you don't, "you will forfeit the moral right to lead your people."
As a result, on November 15, 1988, the Palestine National Council (PNC) adopted Boyle's Memorandum, "proclaim(ing) the existence of the new independent state of Palestine." Immediately after the Reagan denied
Yasser Arafat a visa to attend the UN General Assembly. Instead, he spoke at a Special Session in Geneva, called so he could address the world body as an official head of state. Despite earlier false steps, this began the Middle East peace process as it's now known - started by the Palestinians, not Israelis.
In addition, Boyle accurately predicted that Palestine would be an "instantaneous success" and eventually achieve de jure diplomatic recognition from about 130 states. It also became a de facto, not de jure, UN member, but it's "only a matter of time."
Creating the Palestinian State
Boyle's "CREATE THE STATE OF PALESTINE" Memorandum of Law is discussed below, describing characteristics needed for world community recognition, including:
-- "a determinable (not necessarily fixed) territory;" its borders are negotiable; the new state is comprised of Gaza, the West Bank and East Jerusalem; Palestinians have lived there for millennia; they deserve it as their nation state;
-- a fixed population;
-- a functioning government; in 1988, Arafat declared the PLO as Palestine's Provisional Government; and
-- the capacity to enter into relations with other states; about 130 nations recognize Palestine; others haven't because, under occupation, it lacks effective control of its territory; still others disagree, saying Israel isn't in control; it's an occupier; on December 15, 1988, The General Assembly recognized Palestine's legitimacy, affording it observer status;
Palestine can easily satisfy essential criteria, and all UN Charter states (including America and Israel) provisionally recognized Palestinians an independent in accordance with UN Charter article 80(1) and League Covenant article 22(4). Further, as the League's successor, the General Assembly has exclusive legal authority to designate the PLO as the Palestinian peoples' legitimate representative.
The Palestine National Council (PNC) is the PLO's legislative body, empowerered to proclaim the existence of Palestine. According to the binding 1925 Palestine Citizenship Order in Council, Palestinians, their children and grandchildren automatically become citizens. So are diaspora Palestinians. Those living in Israel and Jordan have dual nationalities, and residents of the Occupied Territories remain "protected persons," according to Fourth Geneva, until a final peace settlement is reached.
Boyle explained that the Proclamation of Independence must create the Government of Palestine (GOP). It then can claim the right of Palestine and its people to UN membership. It requires approval by both the Security Council and General Assembly according to five conditions. Applicants must be:
-- a state;
-- peace loving;
-- accept the Charter's provisions;
-- be able to administer them; and
-- be willing to do so.
Washington provisionally recognized Palestine as an independent nation. According to UN Charter Article 80(1), it can't reverse its position by vetoing a Security Council (SC) resolution calling for Palestine's UN admission. Any veto is illegal, subject to further SC action under the Charter's Chapter VI. Ultimately, the SC only recommends admissions. The General Assembly affirms them by a two-thirds majority.
It can go further as well by enacting a complete international legal regime for the new state, requiring all members refrain from recognizing Israel's illegal occupation. Moreover, UN Charter Article 80(1) and others empower the General Assembly to recognize the Palestinian state and take all necessary measures to end Israel's illegal occupation.
In addition, Palestine's Declaration of Independence is "determinative, definitive, and irreversible." It recognized the General Assembly's 1947 Partition Plan in good faith. It also declared:
-- its commitment to the UN Charter's purpose and principles;
-- the Universal Declaration of Human Rights (UDHR), policy, and principles of nonalignment;
-- its natural right to defend the Palestinian state, rejecting "the threat or use of force, violence and intimidation against its territorial integrity and political independence or those of any other state;"
-- its willingness to accept UN supervision on an interim basis to terminate Israel's occupation;
-- its call for a Middle East International Peace Conference based on UN Resolutions 242 and 338;
-- its asking for Israel's withdrawal from occupied Palestinian lands - since 1967, including East Jerusalem;
-- its willingness to accept a voluntary confederation between Jordan and Palestine; and
-- its "rejection of terrorism in all forms, including state terrorism...;"
-- its acceptance of UN Charter Article 51, the four 1949 Geneva Conventions, and the 1907 Hague Regulations on Land Warfare.
The PNC accepts them. Israel doesn't and won't observe fundamental international laws. In addition other nations are culpable. Under Geneva's Common Article 1, all countries are obliged to pressure Israel to comply.
America is especially at fault, providing Israel with annual billions of dollars, more billions in loans and grants, weapons, munitions, equipment, the latest technology, and numerous other special benefits afforded no other state. Without them, Israel couldn't wage aggressive wars with impunity.
No wonder Boyle recommends suspending Israel from all UN organs and bodies, including the General Assembly. Legally it's permissible because its admission was conditional on accepting Resolution 181 - the 1947 Partition Plan. Israel repudiated 181 and 194, granting Palestinian refugees the right of return among other provisions. America is equally culpable.
For decades, Palestinians have suffered. It's high time the world body afforded them full de jure recognition as an independent member state, their legitimate status long denied, and let Israel and America stew over it.
A Final Comment: Breaking News
On April 8, Australians for Palestine and other sources headlined, "Israel Announces the Start of 'Operation Scorching Summer,' " saying:
Israeli apache helicopters attacked Palestinian houses in heavily populated Shuja'eya neighborhood east of Gaza City. Israeli vessels also fired on residential targets. Palestinians reported five deaths, dozens wounded, and an ambulance struck.
In addition, Israeli aircraft struck Khan Younis, south of Gaza City. No casualty reports so far are available. Moreover, heavy shelling targeted Rafah and border tunnels. Areas adjacent to Egypt are being bombed. Two high voltage electricity converters in Khan Younis and Gaza City were hit, causing power outages.
All Gaza hospitals declared a state of emergency. UN staff were evacuated. The situation remains fluid.
Stephen Lendman lives in Chicago and can be reached at lendmanstephen (at) sbcglobal.net. Also visit his blog site at sjlendman.blogspot.com and listen to cutting-edge discussions with distinguished guests on the Progressive Radio News Hour on the Progressive Radio Network Thursdays at 10AM US Central time and Saturdays and Sundays at noon. All programs are archived for easy listening.
This work is in the public domain