The Law School Magazine  ·  In Print 2011 : Departments

The Statehood of Palestine: International Law in the Middle East Conflict

By - Fall 2011
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In the midst of recent debates on the question of the statehood of Palestine and its recognition by the United Nations, The Ohio State University Moritz College of Law Professor John B. Quigley turned to international law to argue Palestine is a country – and has been since 1924 – in his most recent book, The Statehood of Palestine: International Law in the Middle East Conflict, published by Cambridge University Press in 2011.

Quigley, the President’s Club Professor of Law, traces the Palestine state back to 1924 when the Treaty of Lausanne finalized the demise of the Ottoman Empire and established three of the former territories – Iraq, Syria, and Palestine – as states.   By arrangement with the League of Nations, Syria was administered by France and Great Britain administered both Iraq and Palestine.  Quigley reviews the language of the treaty and supporting documents with great detail.  In the 1930s and 1940s, courts in Great Britain and Egypt both found Palestine to be a state in cases questioning nationality.

Between 1924 and 1948, several international institutions recognized Palestine as a state, Quigley said.  So too did the United States.

“In this insightful work, John Quigley begins by acknowledging that Palestine’s identity and culture have long been an enigma, but that the ambiguity of its status in the international community of nations is unacceptable,” said Cheryl A. Rubenberg, Editor, Encyclopedia of the Israeli-Palestinian Conflict, in a review.  “‘Palestine became and remains a state’ and he demonstrates that it should enjoy all the privileges, responsibilities and obligations of every other state. Through assiduous research and astute analysis Quigley peels back the dark encrusted layers of misinformation that have shrouded the question of Palestine and statehood for more than 100 years…I highly and unequivocally recommend this book to all those concerned about the fate of Palestine.”

In 1932, Great Britain formally pulled out of Iraq, but remained the administrator of Palestine.

“Palestine was more complicated because of the possibility of the establishment of a Jewish settlement in the area,” Quigley said. “There was no consensus on a government, unlike Iraq.”

In 1948, the Jewish community declared itself a state in the bulk of the Palestinian territory. Great Britain “booked” – as Quigley described – and left Jordan and Egypt to administer the remainder of the Palestinian territory, which included the West Bank and Gaza Strip.

“During this time, Jordan and Egypt took on a caretaker role,” Quigley said.

In 1967, Israel occupied the West Bank and the Gaza Strip, an act Quigley argues did not change the status of Palestine as a state.

“Israel did not claim sovereignty of the West Bank or the Gaza Strip in 1967,” Quigley said. “Just because a state is occupied does not mean it is no longer a state. No one argues that Denmark was no longer a country when Germany occupied it in World War II. No one argues Kuwait was no longer a country when it was occupied by Iraq in 1990.”

In 1988, the Palestinian community reasserted its statehood.  The 20-year occupation by Israel is not an obstacle in Palestine’s claim for continued statehood, says Quigley.  Other countries – including Estonia and Latvia, both of which were occupied by Russia for decades – have successfully argued continued statehood in spite of occupation, Quigley argues.

“Palestine is not a state because Israel says it is not, a refrain echoed by the United States and Western European states,” said John Dugard, Former Special Rapporteur on Human Rights in the Occupied Palestinian Territory, in a review. “But, as Quigley shows, the situation is more complex. Palestine appears to meet the criteria of statehood and is certainly better qualified for statehood than entities accepted as states such as Kosovo, Micronesia, the Marshall Islands and Palau. Moreover it has been accepted as a state since the 1920s and is at present recognized by over 100 states. The occupation of Palestine presents problems but international law has never allowed occupation to undermine statehood. Statehood has become the ransom price Palestine must pay Israel and the United States for concessions on territory, refugees and security. Quigley’s thoroughly researched and carefully written study shows that international law is the loser as consistency in international practice on statehood is sacrificed to the realpolitik of a world subservient to Israel.”

Scholars arguing against Quigley’s position often cite a lack of control over its territory and population as the reasoning against Palestinian statehood.  But, as noted above, when the lack of control is caused by military occupation, the international community has repeatedly recognized statehood.

“The view that Palestine is not a state suffers from four errors,” Quigley wrote. “It disregards historical facts that show Palestine statehood dating from the mandate period [the Lausanne Treaty]. It applies criteria for Palestine statehood that are more stringent than those actually followed in the international community. It fails to account for the fact that Palestine’s territory is under belligerent occupation. It fails to account for facts showing the implied recognition of Palestine.”

If Palestine is recognized as a state, it could join the United Nations. More importantly, according to Quigley, the International Criminal Court (ICC) would also have jurisdiction for any war crimes committed in its territory.   The ICC defines the establishment of civilian settlements in the territory of a state under military occupation as a war crime. The ICC would have jurisdiction over any such acts that took place after July 1, 2002, when the ICC was established.

“Palestine should be brought into the community of nations as a full-fledged citizen,” Quigley wrote. “Given that microstates are admitted as members of interstate organizations, it is anomalous that Palestine is not similarly admitted. The international community purports to operate on the basis of principle, but the differential treatment that international organizations accord Palestine shows that they are constrained by other considerations. The very aims of peace and stability that the international community poses as its objectives would be served by following through on the logical implications of Palestine’s statehood.”

 

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