Declaring A Palestine

By Vijay Rajiva

Yasser Abed Rabbo, the Secretary General of the PLO Executive Committee recently suggested calling for a restatement of the PLO Declaration of Independence, which was first called in 1988 by the PLO, and was revived post Oslo by late President Yasser Arafat and some senior PLO leaders.

120 states recognised the Palestinian state in 1988, while Israel and the US, predictably withheld recognition. Europe gave it de facto recognition, promising de jure recognition in the future.

On December 15, 1988, the United Nations General Assembly adopted Resolution 43/177 essentially recognising the state of Palestine and giving it observer status at the UN. The formal admission to the UN would have given the fledgling state all powers given to member states, such as voting rights. But that move was not made since it was anticipated that the US would exercise its veto.  Palestinian Authority President Mahmoud Abbas was cool to Rabbo’s suggestion and chief Palestinian negotiator Saeb Erakat rejected it on the excuse that it was not necessary since negotiations were underway.

In 1998, the Israelis threatened annexation of the Jordan valley in retaliation. Today, the situation has changed in favour of Palestine. The EU has recently called on Israel to lift the vile siege of Gaza and urged Abbas to unite with Hamas, a call that Hamas has consistently made and has hitherto been turned down by Fatah. At a recent Damascus conference, the Hamas position seemed even more encouraging. Musa Abu Marzouk, deputy to Khalid Mishal, said that the struggle for freedom would continue under the umbrella of the PLO. And in the last few days Hamas leaders have signalled that they continue to want reconciliation with Abbas.  Since the circumstances have changed ineluctably, it seems almost imperative that the PLO make the Declaration of Independence unilaterally and call for Israel’s evacuation of its territory. Admission to the UN is also an urgent necessity. The vote for admission to the UN is still in practice.  What is the legal basis for this Declaration?

Here is a brief account presented by Dr. Francis Boyle in his book Palestine, Palestinians and International Law. Dr. Boyle is well known expert International law and a professor at the University of Illinois. He was involved with the PLO since 1987 and helped draft the PLO Declaration of Independence in 1988.

The Legal Basis  The Declaration is a statement of the Palestinian right of self-determination recognised as a basic right by the UN Charter, Article 1(4).This is a widely known fact. What is less well known is that already in 1919 the Palestinian people were provisionally recognised as an independent nation by the League of Nations Covenant Article 22(4) and the 1922 Mandate for Palestine. This provisional recognition continues into effect until today because of what is called the ‘Conservatory Clause’ found in Article 80(1) of the United Nations Charter.  The Conservatory Clause may be briefly characterised as stating that existing international agreements (unless explicitly stated to the contrary) such as the provisional recognition of the state of Palestine by the League of Nations Covenant and the 1922 Mandate are to be respected.

Indeed, whether they know it or not, all state parties to the UN Charter-including the US and Israel-have already provisionally recognised the Palestinian people as an independent nation by virtue of the UN Charter article 80(1) and the League Covenant article 22(4) (Boyle,2003,p.31).  Palestine easily satisfies the 4 criteria of an independent state: (1) a determinable territory; (2) a fixed population; (3) a functioning government; (4) the capacity to enter into relations with other states.  Palestine has the population, a functioning government and one which can enter into relations with other states.

Needless to say, Israel will put up a fight against the Declaration, this time not with threats perhaps, since the geopolitics of the region have altered in favour of Palestine and since the superpower that supports it is in decline. The additional encouraging feature is the new Presidency in the U.S. which will most certainly break with the destructive foreign policy of the Bush regime.  Palestinians must hold on to the democratically elected government of Palestine. It was a fair and free election in 2006, so attested by international observers. Subsequent blockades and sieges cannot overturn this indisputable fact.  The Declaration of Independence is inevitable with the patent failure of the charades of endless peace meets, the last of them being Annapolis.

The vigorous call for admission to the UN must now result in its fulfilment.

Carpe Diem – seize the day.

-Dr. Vijaya Rajiva taught Political Philosophy. She contributed this article to PalestineChronicle.com

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