Futile fears on Obama, the UN, and a Palestinian state

The UN resolution of a Palestinian state based on Armistice Line of 1949 is not a new one. It hasn’t bound Israel in the past and won’t in the future. The int’l community should therefore be focused on bringing the parties together to negotiate borders on their own.

By ROBBIE SABEL
United Nations 311 (photo credit: REUTERS)
United Nations 311
(photo credit: REUTERS)
A prominent Egyptian negotiator once told me that he found negotiating with Israelis excruciatingly difficult but he knew that in the eventuality that an agreement is reached, Israel will comply with its terms. Perhaps, then, it’s time for the Palestinians to put Israel to the test.
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In his speech to AIPAC on Sunday, US President Barack Obama stressed negotiations as a key element when he pointed out that "core issues can only be negotiated in direct talks between the parties." He also reiterated his stance that "no vote at the United Nations will ever create an independent Palestinian state."
However, this hasn’t stopped Israeli politicians competing with each other in forecasting doomsday situations lest the UN General Assembly pass a resolution calling for “a Palestinian state based on the Armistice Line of 1949." The predictions made by politicians on the potential fallout of such a resolution reflect an observation made by Salisbury in Shakespeare’s Richard II: “The sun sets weeping in the lowly West, witnessing storms to come woe and unrest."
Apparently, these politicians have either chosen to ignore or are simply unaware that the same language has already been adopted in past UNGA resolutions.
It’s worth examining, then, the history of this resolution: In 2003, the resolution was passed in a special Emergency Session, with the Assembly declaring that it was acting in the context of "Uniting for Peace." But as every diplomat and international relations student is aware, UNGA Resolutions, including those passed in a "Uniting for Peace" sessions, serve only as recommendations to states and are not binding by international law.
Neither did the firmaments fall down nor eleven years ago, when the UNGA called for a Palestinian state within the 1949 armistice.
In 2004 the UNGA repeated its call, this time referring to the "pre-1967 borders" rather than to the 1949 Armistice line though in fact there is no difference between the two. This resolution like its predecessor remained a dead letter because once again, UN General Resolutions have no power in either creating a state or determining borders.
In fact, the only body that can form a Palestinian state is the representative authority of the Palestinians themselves. Upon doing so, other countries and international organizations may grant recognition. However, thus far the Palestinians have refrained from declaring themselves a state, with the exception of the clearly fictional 1988 declaration by the PLO in Tunis at a time when they lacked territory and a government.
It can be assumed that the reason the Palestinians have not declared themselves a state within the 1949 armistice lines is because such a declaration would entail a final relinquishing of their ongoing claim that the whole of historical Palestine is Arab territory.

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In the case that a Palestinian state is declared within the 1949 armistice lines, the conflict will simply shift into a border dispute between two neighboring states rather than that the struggle of a homeless people, as the Palestinians love to portray it.
If the situation does evolve into actual border negotiations, the Palestinians may find it difficult to marshal certain legal arguments. For example, should the Jewish suburbs of Jerusalem become part of a Palestinian state solely on the basis that they are located in the territory that was on the Jordanian side of the 1949 armistice line?
In accordance with the Oslo agreement, the Palestinians - and the Israelis - have undertaken not to act unilaterally and to negotiate the status of the territories. Even though such a move would be a violation of their legal undertaking, Israel must nevertheless make a realistic assessment that notwithstanding its unilateral nature, such a Palestinian declaration would receive widespread international support, including from the UNGA.
However, even if a unilateral declaration is made and subsequently receives international recognition, it still leaves the border issue to be negotiated between the two parties.
Neither side can determine a common border unilaterally nor does any international organization have the authority to do so. Therefore, what the international community should be focusing on now, is derailing the notion that the situation can be resolved by some deus ex machina act and begin emphasizing to both sides that an agreed border must be negotiated between them. No doubt negotiations will prove difficult, but there simply is no other way.
The writer is a professor of international law at the Hebrew University and the former legal adviser of the Foreign Ministry