Over the past several weeks the media have been enamored by Palestinian Authority President Mahmoud Abbas’s push to obtain United Nations recognition of a Palestinian state. The media coverage has exclusively focused on the political aspects of Abbas’s effort and its relationship to the so called peace process involving the Israel and PA.
Lost in the circus-like coverage of the UN bid is virtually any mention of the applicable legal issues, despite Abbas’s deliberate departure from Yasir Arafat’s two-decade strategy of seeking approval of the PA’s statehood claim by invoking international law.
Starting in the late 1980s, the PA’s numerous legal advocates, notably led by former U.S. attorney general Ramsey Clark, have repeatedly tried to wrest judicial recognition of a Palestinian state in dozens of legal proceedings in the federal courts by arguing that the Palestinians already have a sovereign state under the legal standards of international law.
Despite their best efforts, every attempt (at both the district court and appellate levels in Washington, New York, Rhode Island and Boston) has ended in utter failure.
For several obvious reasons, the strivings of advocacy groups, and even legitimate nationalities, for recognition of independence is not simply a political matter. For instance, without objective legal criteria of sovereignty, dissident groups could capriciously feign independence. Therefore universally recognized norms of international law contain criteria by which a true sovereign state can be identified and recognized.
Unlike Abbas’s current political gambit in the United Nations, Arafat urged U.S. courts to apply these norms of international law to the Palestinians. For decades, the PA’s lawyers (personally supervised by Arafat) have invoked the application of international law arguing that it meets the criteria for statehood.
This strategy began after Palestinian terrorists pushed the wheelchair-bound 69-year-old Leon Klinghoffer over the rails of the Achille Lauro and into the Mediterranean Sea. In response to a suit by the Klinghoffer family, Clark asserted that the PLO could not be held liable because it was in actuality a “State of Palestine” and thus shielded by the doctrine of sovereign immunity, an ancient legal precept that immunizes foreign states from lawsuits. The Klinghoffer court soundly rejected this argument.
Subsequently, enactment of the Anti Terrorism Act of 1990 (also known as the “Klinghoffer Act”) ushered in the modern era of terrorism litigation during which dozens of victims brought suit against the PLO and the PA. Each time they were sued, Ramsey Clark again raised the sovereign immunity defense, trying both to ward off damage claims and to give judicial birth by obtaining legal recognition of a Palestinian state. However, every attempt was rebuffed by the federal judges who consistently ruled that the PA did not meet the criteria of sovereignty under international law.
Ironically, in each case the terror victims agreed with Arafat and Clark that the determinative standards for statehood were based on the Montevideo Convention of 1933 as later codified in the Restatement (Third) of Foreign Relations § 201 (1987) which requires “an entity that has a defined territory and a permanent population, under the control of its own government, and that engages in, or has the capacity to engage in, formal relations with other such entities.”
The Ungar case, in which two orphans sued the PA for the murder of their parents, was the first to wind its way to an appellate court. After a thorough routing at the trial level, the PA revived its sovereignty arguments in the First Circuit Court of Appeals in Boston. In the leading opinion on the subject, Judge Bruce Selya wrote that the PA’s statehood claim “has a quicksilver quality: it is hard to pin down exactly when or how the defendants assert that Palestine achieved statehood.”