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UN Week – 10/24/11

December 1, 2011

This blog entry is written by members of our blogging community and expresses those experts’ views alone.

by John and Douglas Carey www.unweek.blogspot.com

Contents of this issue: Is Palestine a “state”?

          The Palestine Liberation Organization (PLO) and/or the Palestine Authority want recognition as a “state,” preferably with membership in the United Nations. But what is a state? For that, I draw on memories of basic international law from when I studied at night for a Master of Laws Degree at New York University.  After getting the LLM in 1965, I taught for a few years at NYU, where one of my students was Mohammed ElBaradei, former head of the International Atomic Energy Agency.

          The requirements for statehood, as I recall, include control over a specific territory and population. Do the Palestinian applicants meet those criteria? Since Hamas controls Gaza while the Fatah-led PLO controls those parts of the West Bank not occupied byIsrael, our analysis is confined to those parts of theWest Bank. That is a small area, but so are Kosovo and South Sudan, both widely recognized as independent states.

          A true state is said to be sovereign. What does that mean? We in the United States are familiar with the concept of divided sovereignty. We know that our states are sovereign in those areas not delegated to the national government by the Federal Constitution. We know, for example, that our states cannot wage war while our national government cannot control local land use. So who is sovereign in the West Bank?

          We know that the UN General Assembly attempted to partition the former British Mandate of Palestine, and that the Armistice which ended the ensuing fighting drew lines that excluded the West Bank from Israeli territory. But in 1967, Israel took control of the West Bank as well as the Gaza Strip and the Sinai Peninsula. Although Israel relinquished control over Sinai and Gaza, the West Bank has been dominated by it for over forty years. Is the West Bank, or the parts of it under Palestinian control, a “state” today, so as to qualify it for recognition as such by the UN or by governments?      

          And a further question: if the West Bank has partial sovereignty, does that qualify it as a state entitled to recognition as such? A partial answer was given last year by the European Court of Justice. The European Community has two trade Agreements, one with Israel and the other with the PLO, “for the benefit of the Palestinian Authority of the West Bankand the Gaza Strip.”

         Israel’s agreement, signed in November 1995, names as the other party the European Community and the European Coal and Steel Community as well as these Member States: Belgium, Denmark, Germany, Greece, Spain, France, Ireland, Italy, Luxembourg, Netherlands, Austria, Portugal, Finland, Sweden and the United Kingdom.

          The parties to the PLO agreement dated 1997, as well as to its 2005 amendment, are simply the European Community and the PLO. The stated objectives in 1997 included “to establish the conditions for the progressive liberalization of trade.” In 2005 the purpose was “to attain the objective of greater liberalization in agriculture.”

          The Israel agreement, dated 1995, states broad aims including “through the expansion, inter alia, of trade in goods and services, the reciprocal liberalization of the right of establishment, the further progressive liberalization of public procurement, the free movement of capital and the intensification of cooperation in science and technology to promote the harmonious development of economic relations between the Community and Israel and thus to foster in the Community and in Israel the advance of economic activity, the improvement of living and employment conditions, and increased productivity and financial stability.”

          If international trade regulation is one aspect of sovereignty, then the EC would seem to have recognized in each ofIsraeland the PLO that attribute of sovereignty. And such would seem also to be the view of the European Court of Justice. That Court ruled that an Israeli company doing business in theWest Bankcould not issue a Certificate of Origin covering its products because such issuance would be contrary to the PLO agreement.

          Have the European Communities and their Member States recognized the PLO as to some extent a “state” by giving precedence to its trade agreement over that of Israel with regard to goods coming from the West Bank?  If so, that pertains to only one of the many aspects of sovereignty, and the PLO could not plausibly argue that it had thereby achieved a significant degree of state recognition.

          That’s all for this October 24th issue of United Nations Week: News and Views.  We’ll be back with the next issue.  Meantime, send along your own views on any UN-related issues, to www.unweek.blogspot.com.

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