This commitment is largely the predictable and tragic outcome of a peace process advanced and accepted in one form or another by six successive Israeli governments. For Rabin or Peres or Netanyahu or Barak or Sharon or Olmert to ever have believed the Palestinians would be content with a non-state “entity” (Netanyahu had spoken with notable naiveté of a quasi-sovereign actor like “Andorra or Puerto Rico”) is beyond intelligent understanding.
A second problem with Israel’s denial of legal right to declare a Palestinian state is that such a denial would overlook broader pertinent issues of authoritative international law. These are issues to which the Palestinian side, however fragmented, can now be expected to cite meticulously as its divided elements seek to legalize an already agreed-upon course of political action. Though Israel would be entirely correct that the Declaration of Principles (DOP) was originally intended to establish an “autonomy,” not a state, and that (according to Ambassador Shoval), “Palestinian statehood is contingent on the Palestinians destroying their terrorist infrastructure, of which Hamas itself is an integral part,” the Palestinians themselves will certainly understand something very different, something distinctly helpful to their common cause: There are applicable norms supporting statehood that exist outside the narrow legal context of the specific Israeli-Palestinian agreements.
For example, both Fatah and Hamas will certainly assert that the right to “self-determination” is a peremptory or jus cogens norm under international law, a rule that permits “no derogation.” Hence, they will maintain, even a formal agreement that denies the right of Palestinian statehood is null and void, to the extent that it might prevent Palestinian “self-determination.”
Do the Palestinians actually have such a peremptory right? They assuredly do not. In Israel’s official judgment, one hopes, they do not.
More important, in the effective judgment of a majority of the world’s states, they do have such a right. In the end, despite what international law calls “the general principles of law recognized by civilized nations,” few states will likely act contrary to Palestinian statehood. This is true even if the Israeli contra position remains firmly grounded in the underlying texts of Oslo/Road Map and in the June 24, 2002 landmark statement of President George W. Bush: “If Palestinians embrace democracy, confront corruption and firmly reject terror they can count on American support for the creation of a provisional state of Palestine.”
The original Oslo Agreements made it perfectly clear that, pending the outcome of final status negotiations, all options must remain open. Hence, the DOP, at Article V.4, provided that the “outcome of the permanent status negotiations should not be prejudiced or preempted by agreements reached for the interim period.” The Interim Agreement, at Article XXXI.6 added: “Neither party shall be deemed, by virtue of having entered into this Agreement, to have renounced or waived any of its existing rights, claims or positions.”
Pending the outcome of the permanent status negotiations, neither side was permitted to engage in any attempt to change the legal status of Judea/Samaria/West Bank. (Gaza, of course, is already a moot issue after Prime Minister Sharon’s unilateral “disengagement.”) This was provided explicitly at Article XXI.7 of the Interim Agreement.
These points notwithstanding, Israel’s argument will likely be countered by the larger and more “flexible” context of international law. The norms that would bind Palestinians and Israelis are determined not only by the precise written agreements negotiated between them, but also by the broader body of relevant international norms and principles. Within this more expansive body lies a number of peremptory rules that can override Oslo/Road Map expectations.
These rules can be used decisively to Palestinian advantage and to Israeli disadvantage. Most important, perhaps, is that the world generally wants to focus on such particular rules because it still desires, for a variety of different reasons, to justify the creation of “Palestine.”
Zalman Shoval was right to argue that Israel must make every effort to prevent a Palestinian state. Whether or not Israel still actually “holds the keys to the very idea of Palestinian statehood,” as the ambassador had argued, is now rather doubtful. Such doubt, of course, has been enlarged by Washington’s steadfast refusal to call things by their correct names, and to resolutely demand that Palestinian statehood actually be contingent on Palestinian compliance with the binding legal rules of civilized international relations.