The neglected three-state solution

Friday's proposed resolution at the UN regarding Palestine simply ignores reality and history - both of which indicate that a three state option is the most sensible solution to pursue.

By STEPHEN I. SILLER
PA President Mahmoud Abbas at the United Nations 311 (R) (photo credit: REUTERS/Chip East)
PA President Mahmoud Abbas at the United Nations 311 (R)
(photo credit: REUTERS/Chip East)
Last week we witnessed the commemoration of September 11 and immediately following that occasion, many of us turned our attention toward the upcoming UN vote on a Palestinian state. The proximity of these two events begs us to ask whether US President Barack Obama intentionally "piggybacked" on the Osama Bin Laden victory in order to promote a two state solution for the Israeli-Arab conflict.
Obama's "solution," predicated on 1967 “boundaries” not seen for 44 years, seems to be more of an Arab do-over rather than a legally and politically viable path toward peace. It seems that the president's post-Bin Laden arrogance caused him to mistakenly settle upon some Neville Chamberlain-type sop that holds the vague promise of temporary “peace”—no matter what the price. 
It is important to note that no country exists in non-contiguous territory that is not separated by water. This being the case, are Gaza and the West Bank really any different from conventional states? If not, it may be worthwhile exploring the option of a three-state solution. The threat of a new UN resolution simply ignores reality. This is what could work if the UN truly desires a solution:
1.         The West Bank becomes Palestine.
2.         Gaza becomes its own state or is put under a Mandate administered by the UN or Egypt until Gaza is rendered to no longer be a terrorist-run state (this is based on the assumption that Egypt does not undergo an Islamist takeover.)
3.         Israel renounces its legal rights to the territory of the Palestine Mandate that it does not control, and the final boundaries are either declared by Israel or negotiated with Palestine, with Israel being recognized as sovereign in its territory by every Arab state.
With this proposal in mind, let's examine the history of the territory in question: Turkey formally renounced its sovereignty in Palestine in the 1923 Treaty of Lausanne. The 1922 League of Nations created the Palestine Mandate, which stated that “certain communities formerly belonging to the Turkish Empire have reached a stage of development where their existence as independent nations can be provisionally recognized subject to the rendering of administrative advice and assistance by a Mandatory until such time as they are able to stand alone.” That is to say that the future of Palestine was “to be settled by the parties concerned.”
The Mandate deprived the Palestinian Arab and Palestinian Jewish communities of the right to exercise sovereignty until the Mandate ended and those communities could “stand alone.”  The Mandate prohibited any foreign power from acquiring any part of Palestine. Under the Mandate, Britain was responsible for putting into effect the 1917 Balfour Declaration. While Jewish immigration into Palestine was promoted, civil and religious rights were guaranteed to all minorities in a “Jewish national home.” Britain had the power to render almost any provision of the Palestine Mandate inapplicable east of the Jordan River. Yet instead of creating a “Palestinian Arab national home” in that territory, Britain in 1922 declared that territory to be Jordan.
When the Mandate ended at midnight on May 14-15, 1948, the UN wanted two states in Palestine exclusive of Jordan – one Jewish and one Arab, with Jerusalem to be an international city. Israel, representing the Palestinian Jewish community, accepted that partition plan if it was accepted by the Palestinian Arab community. It was not and Israel was subsequently invaded. Whether the invaders, had they been victorious, would have permitted the creation of a Palestinian Arab state is something the world will never know. The 1948 war ended with the surrounding Arab states carving up non-Israel Palestine for themselves. The UN retained no jurisdiction once Israel was created.
In the1950 Jericho Congress, Jordan unsuccessfully attempted to annex the West Bank. In 1967, a Palestinian organization asserted that, “Palestinian aspirations were discouraged by the Hashemite regime, whose dynastic territorial interests in the West Bank clearly ran counter to aspirations for the recovery of all of Palestine, followed by its establishment as an independent state.” The territories of the Palestinian Arab community were occupied by Arab states who, as “foreign powers,” could never become sovereigns in Palestine.
By the conclusion of the 1967 and 1973 wars, Israel captured the remainder of Palestine. As one of the communities entitled to exercise the rights of a sovereign in Palestine, Israel could have legally become the sovereign in the West Bank and Gaza. With the exception of Jerusalem, that did not transpire.
On June 27, 1967, the Knesset extended Israeli law, jurisdiction and administration to any area of Palestine designated by the Israeli government. The next day, Israel proclaimed new boundaries for Jerusalem, uniting the Old City of Jerusalem with Israel’s Jerusalem. Since the Old City was within the territory of the Mandate and previously occupied by Jordan, Israel was legally able to proclaim all of Jerusalem as part of Israel – notwithstanding the protestations and condemnations by some voices in the international community. By extending the law of Protection of Holy Places to all of Jerusalem, Israel voluntarily subjected itself to a functional internationalization access to the capital's holy sites.
The 1995 Oslo Interim Agreement between Israel and the PLO as “the Palestinian Interim Self-Government Authority” provided that: “neither Israel nor the PLO was deemed to have renounced or waived any of its existing rights, claims or positions.” Disputes were to be settled by negotiation, consultation or, if agreed, by party-approved arbitrators. The UN was given no authority to decide anything.
Just as Turkey relinquished its sovereignty in Palestine, Israel had and still has the ability to relinquish any claim or right to exercise the rights of a sovereign in any portion of the West Bank and Gaza it occupies or could occupy. This means that Israel could fix its territorial boundaries within the territory of the Mandate that Israel controls, which is something Israel could choose to do ahead of any UN vote.
As part of a peace settlement, Israel could relinquish its rights to Gaza and parts of the West Bank to a trusteeship or other international arrangement, such as a Mandate that would work in favor of the Palestinian Arab community.
We've already learned that appeasement, rhetoric and the UN will solve nothing, so the foundation for moving forward should be the three state solution as outlined above. But as long as the Arab world insists on using 9-11 methodology with suicide bombers and rockets to destabilize the process, there will never be a solution that seeks a regional or global Caliphate to control of all of what was once known as Palestine.
The writer is an international business lawyer based in New York.