A Palestinian state and dropping the other shoe

Palestinian declaration of statehood is good for Israel; the int’l community will be far more sympathetic towards a border-centric conflict between neighboring states.

Beduins wave flags and hold up a shoe during a cou (photo credit: AP)
Beduins wave flags and hold up a shoe during a cou
(photo credit: AP)
A well known parable tells of a man living in an apartment building who disturbed the sleep of his downstairs neighbor every night by noisily dropping his boots on the floor. One night the man only dropped one boot, so the neighbor went up to complain that he couldn't fall asleep because he was waiting for the other boot to drop. In Israel, we have been hearing continuous threats by the Palestinians to unilaterally declare statehood. The Israeli government has reacted by conducting a diplomatic campaign to persuade foreign governments not to recognize such unilateral action, a campaign which has not been successful thus far.
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The question could be posed as to whether it wouldn't be better for Israel for the "other boot" to drop and have the Palestinians consummate their threat. At present, the Arab-Israel conflict is conveyed to the world as a dispute between the State of Israel and the homeless Palestinian people living under occupation. If the dispute were to transform into a border issue between two neighboring states it may change the international perception of the conflict. After all, the international community is used to neighboring states engaging in border disputes, and the general rule is that unless some other form of resolution is reached, these disagreements should be negotiated between the parties.
A unilateral declaration of Palestinian statehood would be a clear Palestinian violation of the Oslo interim agreement which stipulates that neither side should “take any step that will change the status of the West Bank and the Gaza Strip pending the outcome of the permanent status negotiations.” In terms of the Oslo agreement, such a Palestinian violation would leave Israel free to institute its own unilateral changes to the borders. However since general international law requires that borders be agreed upon, unilateral changes made by either side would not be recognized.
International law does not require fixed borders in order for a geographic entity to be accepted as a state, but it must have effective control of a defined area. This means that a Palestinian unilateral declaration of statehood may have legal consequences for the areas under Palestinian Authority control. However, a declaration of statehood would have little legal effect on Israeli controlled areas and Hamas controlled Gaza and would therefore simply be a statement of intent, similar to the 1988 Palestinian declaration of independence.If the Palestinians declare statehood within the 1967 borders, it would have one positive outcome in that it clearly implies recognition of Israeli sovereignty on the Israeli side of the border - an area that includes west Jerusalem. International recognition of such is an outcome that Israel should perhaps welcome. It may also be one of the reasons the Palestinians have until now refrained from declaring a state within the 1967 borders.
If such a Palestinian state is unilaterally declared, its boundaries with Israel will have to be negotiated. The Palestinians will no doubt try and buttress their claim for the 1967 boundary by reference to UN Security Council Resolution 242 and the broad international support for the 1967 line as a border. They might argue that, with the exception of east Jerusalem (and the Latrun bulge) Israel has refrained from applying Israeli law to areas beyond the 1967 line. Israel could in turn argue that among other legal, demographic and security considerations, the 1967 border was - at Arab insistence - designated as a temporary armistice line and not as a boundary. Furthermore, UN Resolution 242 makes no reference to the 1967 border but rather refers to "secure and recognized boundaries."
A strict adherence to the 1967 line would also mean that in addition to the 180,000 Jews in east Jerusalem, all Jewish towns and townships east of the line would either be transferred to an Arab Palestinian state or evicted. Such a demand would be a gross violation of human rights and deny the right to self determination. In reference to this issue, former President George W. Bush wrote that "it is unrealistic to expect that the outcome of final status negotiations will be a full and complete return to the armistice lines of 1949" and with regards to east Jerusalem, former President Bill Clinton proposed that "what is Arab in the City should be Palestinian and what is Jewish should be Israeli."
International law does not recognize unilateral delimitations of boundaries nor, in the absence of authorization by the parties, does it authorize the UN or any other international organization to make such a decision. It will be up to the two parties to reach an agreement as to the final boundary between them. Such negotiations will no doubt prove difficult but there are a multitude of precedents whereby neighboring states have reached agreement on seemingly intractable issues of boundaries.
The writer teaches international law at the Hebrew University and is the former Legal Advisor to the Israel Ministry of Foreign Affairs