Floating around the UN today is a resolution that would give legitimate statehood to the refugees in the form of the state of Palestine.
In a few weeks, an overwhelming majority in the United Nations General Assembly will likely vote for collective recognition of a Palestinian state. But which Palestinian state? Of the three Palestinian states the assembly could recognize, two are real and arguably could meet the requirements for statehood. But it is the third, purely imaginary one that the assembly will endorse, one that neither has a functioning government nor meets the requirements of international law.
According to the prevailing legal standard, the 1933 Montevideo Convention on the Rights and Duties of States, a "state as a person of international law should possess the following qualifications: a) a permanent population; b) a defined territory; c) government; and d) capacity to enter into relations with the other states." Both the Hamas-controlled Palestinian entity in Gaza and the rival Fatah-governed Palestinian entity in the West Bank can be said to meet all four of these criteria of the law of statehood. The one on which the United Nations will vote does not.
In Gaza, Hamas controls a permanent population in a defined territory (i.e., Gaza within the armistice lines of 1949). Gaza has a functioning, if odious, government. And Hamas-controlled Gaza already conducts international relations with a large number of states. From a narrowly legal point of view, the Hamas Gaza entity could become a state, another miserable addition to a very imperfect world.
Of course, a Hamas state in Gaza is not something most of the world wants to see. A Hamas state allied to Iran would be a severe blow to international peace and security, and it would not be a state deserving of recognition by any democracy. It would be a state arising from the military coup of June 2007, a state that engages in large-scale violations of treaty obligations and human rights. Nor does Hamas seek statehood for Gaza alone. Hamas wants eventually to rule the whole of mandatory Palestine, comprising not just the West Bank along with Gaza, but all of today's Israel too. Gaza alone is too small a prize for so grand an ambition. So this possible state is not on the table.
The Fatah Palestinian entity in the West Bank also could meet the legal requirements for statehood, and it would have more international support. It has a functioning government in the Palestinian Authority (PA), a permanent population, and international relations with a very large number of states. It also controls a defined territory, which comprises what are called areas A and B as defined under the Oslo II agreement of September 1995, plus additional territory subsequently transferred by Israel in agreed further redeployments. (Area A is the zone of full civil and security control by the Palestinian Authority, and Area B is a zone of Palestinian civil control and joint Israeli-Palestinian security control.) The Fatah West Bank entity within these lines also could be recognized as a state under international law.
But Fatah, the PA, and the broader PLO do not seek statehood for this West Bank entity that arguably could meet the legal requirements. Their minimum demand is a state that includes Gaza along with the West Bank, the eastern part of Jerusalem, and all the other parts of mandatory Palestine that were under Jordanian and Egyptian control before 1967. Fatah, the PA, and the PLO are demanding title to lands and authority over populations they do not control, being as they are under the rule of Hamas and Israel.
Unlike the two Palestinian entities that already exist, either of which could be recognized as a Palestinian state because they seem to fulfill the legal requirements, the Palestinian entity that a General Assembly majority will recognize as a state this September does not actually exist on Earth. It is imaginary and aspirational, not real. And it does not meet the legal requirements.
First, it will have two rival presidents pursuing incompatible policies. Mahmoud Abbas is presenting himself as the president of the Palestine that is pressing the claim in the U.N. General Assembly, but he is not considered to be the president anymore by Hamas, the largest political party in the putative state. And Hamas has Palestine's own laws on its side in this dispute. Abbas was elected in 2005 to serve until January 2009, so his term has expired. In 2009, he unilaterally extended his term for another year until January 2010 (an extension that also has expired), but that extension did not adhere to Article 65 of the Palestinian constitution, the Basic Law. Hamas, which controls a majority in the now defunct Palestinian Legislative Council (PLC), opposed the extension. According to Article 65 of the Basic Law, the legally empowered president of Palestine, since January 2009, has been PLC Speaker Abdel Aziz Dweik, a deputy representing Hamas. Palestine's ruling party, Hamas, considers Dweik, not Abbas, to be the legal president of Palestine, and it has a strong case.
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Here is the legal criteria that a group must meet to be considered a "state". From the 1933 Montevideo Convention on the Rights and Duties of States, a "state as a person of international law should possess the following qualifications: a) a permanent population; b) a defined territory; c) government; and d) capacity to enter into relations with the other states."
From a historical perspective we find that:
A. The population is supposed to be in Jordan and part of Syria, as agreed in UN resolution 181 so their current location (Gaza and the West Bank) cannot be considered as location for a permanent population. Move them to Jordan and Syria, then you can call that a permanent location and make the refugees a permanent people.
B. Gaza and the West bank may be considered a defined territory as they are today, but that area is a result of many wars, negotiations, agreements and concessions by Israel since 1948. As both areas are supposed to be part of Israel, and they were at one time, if we follow rule A then rule B falls into place and the defined territory becomes Palestine.
C. The government of Gaza, Hamas is nothing more than jihadists and Islamists who want nothing less than the total elimination of Jews from what they call their land. The ruling Fatah (PA) authority in the West Bank is the twin of Hamas, with the same goals and aspirations. A government, even one elected that demands the death of a race of people, that government is to be ignored and taken down when possible. What Hamas and Fatah(PA) are is not a governemtn but a band of genocidal thugs bent on doninating all they see, via Allah and the Qur'an.
D. Anyone can talk to anyone, that is the power of open dialogue. What is said is as important as the ability to say it, and the relations between peoples is dictated by the philosophy and values of those countries. Hamas and Fatah have open dialogue with many countries, that is true but what they say regarding Western values, Israel, Europe and human rights should be the main criteria in deciding whether they are respectable, not that they merely have a dialogue with foreign entities.
I disagree with the writers premise of what a state is regarding the refugees, but his conclusion and his point on which entity will be voted on is right on the mark.
From the Middle East Forum August 3 by Steven J. Rosen
The Palestinians' Imaginary State
In a few weeks, an overwhelming majority in the United Nations General Assembly will likely vote for collective recognition of a Palestinian state. But which Palestinian state? Of the three Palestinian states the assembly could recognize, two are real and arguably could meet the requirements for statehood. But it is the third, purely imaginary one that the assembly will endorse, one that neither has a functioning government nor meets the requirements of international law.
According to the prevailing legal standard, the 1933 Montevideo Convention on the Rights and Duties of States, a "state as a person of international law should possess the following qualifications: a) a permanent population; b) a defined territory; c) government; and d) capacity to enter into relations with the other states." Both the Hamas-controlled Palestinian entity in Gaza and the rival Fatah-governed Palestinian entity in the West Bank can be said to meet all four of these criteria of the law of statehood. The one on which the United Nations will vote does not.
In Gaza, Hamas controls a permanent population in a defined territory (i.e., Gaza within the armistice lines of 1949). Gaza has a functioning, if odious, government. And Hamas-controlled Gaza already conducts international relations with a large number of states. From a narrowly legal point of view, the Hamas Gaza entity could become a state, another miserable addition to a very imperfect world.
Of course, a Hamas state in Gaza is not something most of the world wants to see. A Hamas state allied to Iran would be a severe blow to international peace and security, and it would not be a state deserving of recognition by any democracy. It would be a state arising from the military coup of June 2007, a state that engages in large-scale violations of treaty obligations and human rights. Nor does Hamas seek statehood for Gaza alone. Hamas wants eventually to rule the whole of mandatory Palestine, comprising not just the West Bank along with Gaza, but all of today's Israel too. Gaza alone is too small a prize for so grand an ambition. So this possible state is not on the table.
The Fatah Palestinian entity in the West Bank also could meet the legal requirements for statehood, and it would have more international support. It has a functioning government in the Palestinian Authority (PA), a permanent population, and international relations with a very large number of states. It also controls a defined territory, which comprises what are called areas A and B as defined under the Oslo II agreement of September 1995, plus additional territory subsequently transferred by Israel in agreed further redeployments. (Area A is the zone of full civil and security control by the Palestinian Authority, and Area B is a zone of Palestinian civil control and joint Israeli-Palestinian security control.) The Fatah West Bank entity within these lines also could be recognized as a state under international law.
But Fatah, the PA, and the broader PLO do not seek statehood for this West Bank entity that arguably could meet the legal requirements. Their minimum demand is a state that includes Gaza along with the West Bank, the eastern part of Jerusalem, and all the other parts of mandatory Palestine that were under Jordanian and Egyptian control before 1967. Fatah, the PA, and the PLO are demanding title to lands and authority over populations they do not control, being as they are under the rule of Hamas and Israel.
Unlike the two Palestinian entities that already exist, either of which could be recognized as a Palestinian state because they seem to fulfill the legal requirements, the Palestinian entity that a General Assembly majority will recognize as a state this September does not actually exist on Earth. It is imaginary and aspirational, not real. And it does not meet the legal requirements.
First, it will have two rival presidents pursuing incompatible policies. Mahmoud Abbas is presenting himself as the president of the Palestine that is pressing the claim in the U.N. General Assembly, but he is not considered to be the president anymore by Hamas, the largest political party in the putative state. And Hamas has Palestine's own laws on its side in this dispute. Abbas was elected in 2005 to serve until January 2009, so his term has expired. In 2009, he unilaterally extended his term for another year until January 2010 (an extension that also has expired), but that extension did not adhere to Article 65 of the Palestinian constitution, the Basic Law. Hamas, which controls a majority in the now defunct Palestinian Legislative Council (PLC), opposed the extension. According to Article 65 of the Basic Law, the legally empowered president of Palestine, since January 2009, has been PLC Speaker Abdel Aziz Dweik, a deputy representing Hamas. Palestine's ruling party, Hamas, considers Dweik, not Abbas, to be the legal president of Palestine, and it has a strong case.
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