EC RECEIVED APR 1 6 2014 /lf- o SI.>:f­ EXBCtJTI'VEdm at OPTIIESECRET ARY-G.BNERAI,

14 April2014 ACTION M The Honourable Ban Ki-moon Secretary-General COPY D sf:, Headquarters c_cL c.... 2 United Nations Plaza £-s , New York 10017 of America AG

The Reqm:st by Palestinian Officials to Join UN Agencies and Accede ro International Conventions

Your Excellency:

By way of introduction, the European Centre for Law and Justice ("ECLJ") is an international, Non-Governmental Organisation ("NGO"), dedicated, inter alia, to the promotion and protection of human rights and to the fu rtherance of the rule of law in international affairs. The ECLJ has held Special Consultative Status before the United Nations/ECOSOC since 200i.

Recently, Palestinian Authority (PA) President Mahmoud Abbas submitted a series of letters to various UN agencies as well as to officials of and the requesting that "Palestine" be admitted to the respective UN agency or that "Palestine" be permitted to accede to the respective convention or treaty2• By submitting such requests, President Abbas is attempting to obtain recognition of Palestinian statehood "through the back door" by circumventing the provisions of solemn which the PA entered into in the past. Such a manoeuvre indicates that the Palestinians are prepared to violate the terms of agreements they have entered into when such terms become inconvenient or do not lead to the results the Palestinians otherwise desire. Such actions violate fo undational principles of , to wit, the principle of ·'good fa ith" 3 4 and the rule of ''pacta sunt servanda" regarding treaties , and cannot be permitted or tolerated.

:Consultative Status for the E::ropean Centre for Law and Justice, U.N. DEP'T ECON. & Soc. AFF., http://esango.un.org/civilsociety/consultativeStatusSummary .do?profileCode=30 10 (last visited 2 Nov. 201 2). � Rap�ael Ahren, Full List of Treaties, Conventions Where Abbas Seeks Membership, TIMES OF (2 Ap;-. 20 14, 3:50 PM), http://v.·-.vw.timesofisraei.com/full-1 ist-of-organizations-to-·v.·hich-abbas-appl ied-for­ membership. 3 Pacta sunt servanda means generally that agreements of the parties to a must be observed. See BLACK'S LAW DICTIONARY 1217 19th ed. 20 11). 4 Yienna Convention on the Law of Treaties, pmbl., 23 May 1969, 1155 U.N.T.S. 331, 332, available at http:;://treaties.un.org/doc/Publicat!on/UNTS!Yolume%20 1155/volume-1155-1- I S232-English.pdf. HECEIVED r (PoL-{ ' .J o; /o o s-i Pol-/ o1/ o 02 This most recent attempt by the Palestinians to circumvent treaties they have entered into fo llows on the heels of their seeking a change in status at the UN in November 2012 in violation of those same treaties. If a true and lasting peace is to be achieved between Israelis and Palestinians, it must be achieved via good fa ith, bilateral negotiations between the parties, not by seeking to circumvent agreements already made. Such circumvention simply demonstrates to the world community at large and to the Israelis in particular that the Palestinians do not keep the solemn agreements they enter into, do not negotiate in good faith, and, therefore, cannot be trusted. No State or organisation should be complicit in the Palestinians' betrayal of agreements they previously entered into.

In this letter, we discuss the fo llowing issues: First, the change in status adopted by the UN General Assembly in November 20 12 did not-indeed, could not-change the PA's actual statehood status. Accordingly, the PA remains a non-State entity that cannot accede to international treaties or join UN agencies. Second, by its own actions, the PA appears institutionally incapable of carrying out obligations it agrees to in treaties it fr eely enters into, thereby demonstrating that it is not ready to assume the burdens of responsible statehood. Accordingly, the PA is precluded fr om acceding to international treaties and joining UN agencies. Third, no sovereign Arab Palestinian political entity has ever existed in any territory that comprised the Mandate for Palestine, and no such entity exists today. Once again, the PA's lack of statehood precludes its attempts to accede to international treaties e>r join UN agencies, both of which limit accession to "States" or "Powers". In conclusion, the PA's only legitimate way ahead is to negotiate in good fa ith with Israel to resolve all outstanding issues between them. The process will be difficult and require often painful concessions by both sides, but it is the only route to the two-state solution and peace between Israelis and Palestinians.

I. THE UN GENERAL ASSEMBLY'S ADOPTION OF THE PALESTINIAN AUTHORITY'S 29 NOVEMBER 2012 STATUS CHANGE RESOLUTION DID NOT-INDEED, COULD NOT-CREATE A PALESTINIAN STATE.

Despite quite understandable Palestinian excitement over the 29 November 2012 General Assembly vote which changed the PA's status at the UN from "Entity" with Observer status to "Non-Member State" with Observer status, no legal change actually occurred with respect to the creation or existence of a Palestinian "State" for the fo llowing reasons:

First, under the UN Charter, the General Assembly has no lawful authority whatsoever to create or recognise a "State". The UN does not officially recognise states or declare statehood; such actions are the responsibility of individual governments:

The recognition of a new State or Government is an act that only other States and Governments may grant or withhold. It generally implies readiness to assume diplomatic relations. The United Nations is neither a State nor a Government, and therefore does not possess any authority to 5 recognize either a State or a Government .

5 Member States: About UN Membership. U.N., http://www.un.org/l!n/members/about.shtml (last ,·isited 10 · Apr. 2014) (emphasis added).

2 Hence, were the General Assembly to attempt to either create or recognise a "State", its actions would be ultra vires and void ab initio. As a consequence, the recent General Assembly decision to change the PA's status at the UN was, at most, simply an internal, administrative decision whose reach is limited to how the PA will henceforth be dealt with at the UN-and nothing more.

As U.S. Representative Susan Rice correctly noted at the time, "[ n ]o resolution can 6 create a state where none exists" . A similar sentiment was expressed by the Representative from : "The resolution adopted today could be understood as conferring privileges and rights in line with those of Non-Member Observer States; it did 7 not imply an automatic right fo r Palestine to join international organizations as a State" • Similarly, the Finnish Representative noted that "the Assembly's vote did not entail formal recognition of a Palestinian State. Finland's national position on the matter would 8 be considered at a later date" .

Moreover, while nothing can make the current Palestinian entity into an actual State, since it lacks all internationally-recognised attributes of statehood (notwithstanding a General Assembly resolution seemingly to the contrary), the various attempts to grant "Palestine" recognition as a State are, in fact, undermining international law. Law has to be applied generally and should never be changed to suit a particular instance of political expediency, which permitting the non-State entity "Palestine" to accede to international treaties and become a member of UN agencies truly is (since accession and membership, respectively, are limited to actual "States"). The trustees of international treaties and the heads of international organisations must be above politics.

In reality, the recently adopced resolution merely gives the Palestinians the rights and privileges of a Non-Member Observer State at the UN (like the Holy See) without actually conferring or recognising Palestinian statehood per se. Accordingly, the PA remains a non-State entity. which is incapable of joining UN agencies or acceding to

international conventions, since both limit· participation to "States" or ''Powers" (a term understood to mean States).

Second, the General Assembly hes no lawful authority to determine the borders, the territorial extent, or the capital city of any state, much less those of an entity whose very existence as a "State" is easily disproven under international law. Despite a clear lack of lawful authority to do so, the. status change resolution adopted by the General Assembly nevertheless explicitly incorporated the PA's view concerning borders, territory, and 9 national capital of a future Palestinian "State" while totally disregarding not only

6 Joe Lauria et al., UN. Gives Palestinians 'State' Status, WALL ST. J. (29 Nov. 2012, 11:13 PM), http://online.wsj.com/news/articles/SB I 0001424 127887323751 104578 1491933072345 14. 7 See Gen. Assembly, Dep't of Pub. Information, General Assembly Votes Overwhelmingly to Accord Palestine 'Non-Member Obse1 ver State' S:atus in United Nations, U.N. (29 Nov. 20 12), http://v1ww. un.org/News/Press/docs/20 12/ga II .1 I 7 .doc.htrn. 8!d. Moreover, the 's representative expressed grave concern "about the action the Assembly had taken, saying that 'the window for <: negotiated solution was rapidly closing'. Israel and Palestine must return to credible negotiations to save a two-State solution. The Palestinian leadership should, without precondition, return to the table"'. !d. Germany's representative expressed similar concern by stating that Palestinian statehood could only be achieved through '·direct negotiations". /d. 9 We say "future'" state for a number of reasons: First, because even PA President Mahmoud Abbas described what occurred at the Ger,eral Assembly as being the ''birth certificate" of Palestine, id.; and

3 Israel's well-established counterclaims but also the explicit means-to wit, bilateral negotiations-previously agreed to by both Palestinians and Israelis (under the auspices of the international community) for resolving such disputes as well as explicit language in prior Security Council resolutions.

Moreover, one cannot forget that the four indicia of statehood set fo rth in the 1 0 Montevideo Convention are considered to reflect the requirements for statehood under 11 customary international law , requirements that the PA has never met (i.e., either before or after adoption of the status change resolution by the General Assembly). In light of 12 the fact that the PA does not meet the Montevideo criteria , "Palestine" simply cannot be a "State", no matter how many say that it is. To be a "State", certain facts on the 13 ground must exist; such facts are wholly lacking in the case of Palestine • Consequently,

second, because the entity known as Palestine utterly fai ls to meet the four indicia of statehood recognised and required under customary international law. Convention on the Rights and Duties of States, art. I, 26 Dec. 1933, 49 Stat. 3097, 3100, 165 L.N.T.S. 19, 25, available at https://treaties.ur..org/doc/Publication/ UNTS/LONIV olume%20165/ v 165.pdf [hereinafterMont evideo Convention]. 101d. Under the convention, a state "should possess the following qualifications: a) a permanent population; b) a defined territory; c) government; and d) capacity to enter into relations with other states". !d.at art. 1. 11 See. e.g, JOSHUA CASTSLUNO, INTERNATIONAL LAW'AND SELF-DETERMINATION 77 (2000) (citing D.J. HARRIS , CASES AND MATERIALS OF INTERNATIONAL LAW 102 (5th ed. 1997)) ("The Montevideo Convention is considered to be reflecting, in general terms. the requirements of statehood in �;ustomary international law".); Pamela Epstein, Behind Closed Doors: "Autonomous Coloni=ation" in Post United Nations Era-The Case for Western Sahara, 15 ANN. SURV. INT'L & COMP. L. 107, 119 (2009) (internal citation omitted) ("Although the Montevideo Convention was created as a regional treaty, it has developed into customary international law and the criteria have become a touchstone for the definition of a state ...". ); Tzu-Wen Lee, The lnternmional Legal Status of the Republic of on , 1 UCLA J. INT'L L. & FOREIGN AFF. 351, 392 n.70 (1997) ("[The Montevideo] Convention is regarded as representing in general terms the criteria of statehood under customary international law".). 11Palestine fails to meet the criteria of the Montevideo Convention for a variety of reasons. For instance, three political entities claim the nght to control Palestine (or, at least, parts thereof)-Israel, P.amas, and the PA. In addition, the PA "is subject to the Oslo Accords, which explicitly stipulated that this body is not independent and that its actual control of the area and ability to enter into relations with other states are not absolute, but rather subject to various limitations." Amichai Cohen, U.N. Recognition of a Palestinian State: A Legal Analysis, THE ISRAEL DEMOCRACY INSTITUTE (29 Nov. 2012), http://en.idi.org.ill analysis/articles/un-recognition-c.f-a-palestinian-state-a-legal-analysis-updated/. Moreover, Palestine lacks a defined territory and a permanent population because "the location of the borders and the size of the population of the [potential] Palestinian state are at the center of a controversy that has been the subject of negotiations ... for years". !d. 13 A specific example that is included under the Interim Agreement should serve to illustrate this point. Under that agreement, the West Bank is divided into three types of Areas, designated A, B, and C. The Israeli-Palestinian Interim Agreement, Jsr.-Palestinian Liberation Org., arts. III( I), IX(2), 28 Sep. 1995, 36 I.L.M. 551 (I997 _\ [hereinafter Interim Agreement), available at http://www.mfa.gov.il!MFA/Peace+ Process/Guide+to+the+Peace+Process/THE +I SKAELI-P A LESTIN lA N+ INTER! M+ A G REEMENT.htm. The degree of PA control varies in each area, with the most control in Areas A and the least control in Areas C. See id. Yet, even in Areas A, where the PA exercises the most control, the PA still does not control individual Israelis in such areas, and it does not control the airspace or external security. !d. arts. V(2)(a), VIII(l)(a), XIII(4). In Areas B, the PA controls public ordt:r and civilian affairs of Palestinian residents, but Israel retains control of Israelis and all airspace, security, and so on. !d. art. V(3). In Areas C, Israel continues to exercise control over most governmental fields. !d. Taken together, Areas A and B constitute approximately 40% of the entire West Bank; Areas C constitute the remainder, which remains under virtually total Israeli control. The Gaza Strip is currently under total Hamas (not PA) control, and the Hamas leaders who govern Gaza openly oppose the PA and its authority. Steven Erlanger, Hamas Sei:es Broad Control in Ga::a Strip, N.Y. TIMES, June 14, 2007, at A I, available at http://www.nytimes. com/2007/06/14/world/middleeast/14mideast.html, see ulso Hamas Says Ga:a Now Under Control, BBC

4 under customary international !aw, no Palestinian "State" currently exists, once again precluding membership in UN agencies and accession to international treaties and conventions.

Third, the General Assembly has no authority to set aside or supersede the terms of existing treaties, other international agreements and documents, or Security Council 14 resolutions. Because the PA had freely entered into a series of agreements with Israel whose terms explicitly ruled out " unilateral" actions (like attempting to accede to international treaties or seeking statehood status via membership in UN agencies), determining when a Palestinian state will come into existence and what territories it will encompass continues to depend on the results of direct, bilateral negotiations between Palestinian and Israeli officials, as called for in the prior agreements between them. Unless and until the PA explicitly repudiates such agreements, their terms continue to bind the Palestinians.

Further, Security Council Resolution 242 (1967) anticipated territorial adjustments as part of the peace process, adjustments which were to be determined via negotiations 15 between the parties • As Lord Caradon, the chief architect of Resolution 242, aptly noted,

[i]t would have been wrong to demand that Israel return to its positions of June 4, 1967, because those positions were undesirable and artificial. After all, they were just the places where the soldiers of each side happened to be on the day the fighting stopped in 1948. They were just armistice lines. That's why we didn't demand that the Israelis return to 16 them •

Security Council Resolution 338 ( 1973) reaffi rmed that Resolution 242 was to serve as 17 the basis for achieving a lasting peace between Israel and its Arab neighbours • Accordingly, final resolution of the issues between the Palestinians and Israelis,

NEWS, Aug. 15, 2009, http://news. bbc.co.uk/2/hi/middle_east/8203713.stm (detailing Hamas's restoration of order following an insurrection in southern Gaza). 14 lnterim Agreement, supra note 13; Oslo Accords, Declaration of Principles on Interim Self-Government, Sept. 13, 1993, 32 I. L. M. 1525 ( 199 3) [hereinafterOslo Accords]. 15S.C. Res. 242, S/RES/242 (22 Nov. 1967). 16 BEIRUT DAILY STAR, 12 June 1974, excerpt reprinted in LEONARD J. DAVIS, MYTHS AND FACTS 1985: A CONCISE RECORD OF THE ARAB-ISRAELI CONFLICT 44 (Near East Research 1984); see also MacNeil/ Lehrer Report, 30 March 1978 (Lord Caradon: "We didn't say there should be a withdrawal to the '67 line; we did not put the 'the' in, we did not say 'all the territories' deliberately. We all knew that the boundaries of '67 were not drawn as permanent frontiers, they were a cease-fire line of a couple of decades earlier .. .. We did not say that the ·67 boundaries must be forever". ); Proceedings of the 64th Annual Meeting of the American Society of International Law 894-96 (1970) (Eugene Rostow: "[T]he question remained, 'To what boundaries should Israel withdraw'? On this issue, the American position was sharply drawn, and rested on a critical provision of the Armistice Agreements of 1949. Those agreements provided in each case that the Armistice Demarcation Line 'is not to be construed in any sense as a political or territorial boundary, an.:J is delineated without prejudice to rights, claim� or positions of either party to the Armistice as regards ultimate settlement of the Palestine question' ....Th ese paragraphs, which were put into the agreements at Arab insistence, were the legal foundation for the controversies over the wording of paragraphs I and 3 of Security Council Resolution 242, of November 22, 1967" (emphasis added).). 17S.C. Res. 338, S/Res/338 (22 Oct. 1973).

5 including the issue of Palestinian statehood (and all that that entails), awaits final determination via bilateral negotiations.

The Quartet Roadmap, which was adopted by the United States, the , , and the UN, and which was explicitly endorsed by the UN Security Council 18 through Resolution 1515 , states that

[a] two-state solution to the Isradi-Palestinian conflict will only be achieved through an end to violence and terrorism, when the Palestinian people have a leadership acting decisively against terror and willing and able to build a practicing democracy based on tolerance and liberty, and through Israel's readiness to do what is necessary for a democratic Palestinian state to be established and a clear, unambiguous acceptance 19 by both parties of the goal of a negotiated settlement as described below •

0 The full title of the Roadmap itself , as well as the above paragraph, could not more clearly demonstrate that the international community considers a two-state scenario to be a!>pirational, not reflective of current reality. Not to belabor the point-although it is crucial given how problematic any attempted exercise of jurisdiction on statehood or quasi-statehood grounds would be--but the Roadmap continues as follo\Vs: "A settlement, negotiated between the parties, will result in the emergence of an independent, democratic, and viable Palestinian state living side by side in peace and 21 security with Israel and its .other neighbors" . Again, the reference to the "emergence" of a Palestinian State demonstrates that such a State does not currently exist, irrespective of the PA's change in status at the UN.

In addition, Jews have a legitimate, continuing right to settle throughout Palestine, based on the Mandate for Palestine22, which was sanctioned in international law in the 1920s 3 und which has yet to be supersedecf- , thereby establishing a legally cognisable Israeli territorial counterclaim to Arab Palestinian territorial claims. As such, much of the territory that Arab Palestinians claim to be theirs is, in reality, disputed territory whose ownership must be determined ·;ia negotiations between the parties (as had already been

18See S.C. Res. 1515, U.N. Doc. S/RES!l515 ( 19 Nov. 2003). 19 A Performance-Based Roadmap to a Permanent Two-State Solution to the Israe-li-Palestinian Conflict, 30 Apr. 2003, [hereinafter"Ro admap"J (emphasis added). 20 See id. 21 /d. 22 See Mandate for Palestine, Doc. C.529M.3 14 1922 VI, pmbl. ( 1922), available at http://unispal.un.org/UNISPAL.NSF/0.'2FCA2C681C6FllAB05256BCF007BF3CB [hereinafter Mandate fo r Palestine]. 23 See, e.g., Legal Consequences fo r States of the Continued Presence of in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, 197 1 I.J.C. 53 (21 June), available at http:i/www.icj-cij.org/docket/tiles/53/5595.pdf (noting, concerning League of Nations mandates, that "[s]ince [the Mandate's] fu lfillment did not depend on the existence of the League of Nations, [it] could not be brought to an end merely because this supervisory organ ceased to ex ist. Nor could the right of the population to have the Territcry administered in accordance with these rules depend thereon"). Hence, until negotiations determine ownership of the West Bank and Gaza Strip, the Mandate for Palestine still governs. Accordingly, Jews are still permitted to settle there. Mandate for Palestine, supra note 22. As such, Jewish settlements ir. such territories remain lawful.

6 4 agreed to by both Israelis and Palestinians2 ). In the interim, since the PA remains a non­ State entity, it fails to meet the criteria for joining UN agencies and acceding to international treaties and conventions.

Finally, with respect to the issue of Palestinian statehood, former PA spokesman Ghassan Khatib may have summed up the status of Palestinian statehood best when he admitted the following afier the status change resolution had been overwhelmingly adopted by the UN General Asembly: "We have too many symbols of a state, what we 25 lack is attributes of a state" . Yet, attributes of statehood ar� essential to establish actual statehood, and actual statehood is a requirement to join UN agencies and accede to international treaties and conventions. Symbols alone are insufficient.

* * * * *

Accordingly, the 29 November 2012 General Assembly resolution simply determined that, henceforth, administratively at the UN, the UN would deal with "Palestine" as a "non-Member State" rather than as an "Entity". Nothing whatsoever changed on the ground. The situation on the ground in the so-called "State of Palestine" was no different on 30 November 2012 (after the change of status at the UN) than it had been on 28 November 2012 (before the change in status at the UN). And it is no different today, some 18 months after the General Assembly resolution was adopted.

II. THE PA'S INABILITY TO ABIDE BY THE TERMS OF TREATIES IT HAS ALREADY SOLEMNLY ENTERED INTO INDICATES THAT THE PA IS NOT READY TO ASSUME THE OBLIGATIONS OF STATEHOOD AND SHOULD, THEREFORE, NOT BE PERMITTED TO ACCEDE TO INTERNATIONAL TREATIES OR JOIN UN AGENCIES.

Since the early 1990s, Palestinian authorities have freely entered into a number of agreements with Israel that obligate both sides to resolve their outstanding difterences solely via bilateral negotiations. Under international law, parties to a treaty or convention are expected to act in good faith in carrying out the terms of the agreements to which they accede. Yet, Palestinian 0fficials routinely violate the terms of treaties they have freely entered into. As such, they demonstrate that they are not ready to shoulder the burdens of responsible statehood in the community of nations and cannot be trusted.

By way of example, under the Interim Agreement between Israel and the PLO I PA, the PA explicirly agreed to forego a general capacity lO engage in diplomatic relations with 6 other statei • Specifically, under Article 9(5 ), with the exception of "economic agreements", "agreements with donor countries", "cultural, scientific and educational agreements", and the like, the PA does "not have powers and responsibilities in the sphere of foreign relations ... and the exercise of diplomatic functions", which includes

24 See, e.g., Trilateral Statement on the Middle East Peace Summit at Camp David, 25 July 2000, avarlable

at http://www.m fa.gov .ii/MF A/MF AArchive/2000_ 2009/2\J00/7/Trilateral+Statement+on+the+Middle+

East+Peace+Summ.htm; Interim Agreement , supra note 13, art. XI. 25 Joshua Mitnik, Palestinians Adopt tvame to Show Off New 'State' Status. Middle East News (Jan. 6, 20 13), available at http://on1ine.wsj.com/article/SB I 000142412788732348250457822552376048338 6.html (emphasis added). 26 See Interim Agreement, supra note 13, art. IX(5).

7 "the establishment abroad of embassies. con�ulates or other types vf foreign missions and posts or permitting their esrablisnment in the West Bank or the Gaza Strip, the appointment of or admission of diplomatic and (;Onsular staff, and the exercise of m diplomatic functions' . Additionally, Article 9(5)(c) of the Interim Agreement expressly declares that dealings between PA offici::ll sand foreign officials "shall not be considered 28 foreign relations" .

International law s�holars have interpreted exactly wh�t it r.1eans to have the "capacity to conduct foreign relations". One writer has sugges1ed that the term "capac;ty" must be 29 interpreted as "legal competenct"" Another explains that legal independence is necessary, which enables a government to make such arran§ements as !t wishes to make with other states and to implement them when necessarl . Still another says it is the capacity �o enter into the full set-up of imernatioP-al relations, with the government being capable of and authorized to repres€nt the state, and to subordinat� it legally and 31 politically in relationships with additional bodies that are subject to international law •

Under the Interim Agreements, PA representatives have been at>le to enter into a limited number of agreements with foreign states, but that fact certainly does not render "Palestinian territories" a "State" or a quasi-State, since the PA was able to act solely due to Israel's expres$ agreement. A number of those agreements were peace 32 arrangements to which Israel alld the f>alestir.ians w�re the only parties . .ln instances involving third parties, the PA was acting according to the power conferred by the 3 Interim Agreemene • For instance, the Greater Arab Agreement ("GAFTA"), which the PA signed in 1998, is validated by the Interim Agreement because GAFTA is " . ,34 an "economtc agreement .

International legal· documents, such as the Oslo Accords and the Interim Agreement, which were entered into by Israel and the Palestinians, as well as the 2003 "Roadmap", which was endorsed by the UN Security Council, clar!fy th;lt there is no Palestinian "State". The Interim Agreement specified that "Israel shall transfer powers and 35 responsibilities as specified in this Agreement .. . " , meaning that the PA received powers that it did not previously possess, thereby undermining any notion of inherent powers that can simply be reclaiined at any time. Funher, the Interim Agreement provides that "[n]either side shall initiate or take any step that will change the status of the West Bank and the Gaza Strip pending the outcome of the permanent status

27ld. art. IX(S)(aHb). 28/d. art. IX(5)(c). 2�ll LANTE WALLACE· BRUCE, CLAl!--IS TO STATEHOOD 11' INTERNATIONAL LAW 55 ( 1994 ) . 3° Colin Warbrick, States and Recognition in International £aw, in INTERNATIONAL LAW 229 (Malcolm D. Evans ed. , I st ed. 2003) . 31 DAV!D RAIC, STATEHOOD AND THE LAW Of SELF-0ETERl\1lNATION 73-74 (2002). 32 , E.g., Wye l<.iver Memorandum, Isr.-PLO, Oct. 23, 1998, J7 I.L.M. 125 1; Interim Agreement supra note 13; The Ag;eemen: on Gaza anc! k�icho, lsr.-?lO, May 4, 1994, 33 I L.M. 622; Oslo Accords, supra note 14. 33 The Interim Agreement specifi.::ally allows the Palestinians to sign and negotiate agreements pertaiuing 13, to economics, education, regional development, science, ar:J cultu.-c. ln,erim Agreement, supra note art. IX(S). ) 4/d 35 Interim Agreement, supra note 13, pmbl. ( eu1phasis add�d�.

8

• ' ' " ' ' ' """' ' ' ' I•' lJ I h I I ' I I I " I· I I I· \ II I< ()I I \ IJ F I II () \1 \1 I· 36 negotiations" . That is exactly what the PA is currently attempting to do in violation of the agreements the Palestinians freely entered into.

In conclusion, any claim that :he PA can engage in.for�ign relations or that it represents a State would illegally contravene the terms of the PA ·s existing agreements and must be rejected outright by the international community.

III. TO DATE, THERE HAS !'lEVER BEEN AN ARAB PALESTINIAN STATE, SOVEREIGN OR OTHERWISE� IN ANY TERRITORY OF THE MANDATE FOR PALESTINE LOCATED BETWEEN THE 37 RIVER AND THE MEDITERRANEAN SEA •

Since the collapse of the following the First World War and the post­ Ottoman Turkish government's subsequent renunciation of claims to non-Turkish 38 territories (including Palestine), no indigenous Arab Palestinian political entity has ever �xercised sovereignty over any portion of the West Bank or Gaza Strip. Instead, from the end of the First World War until the end of the June 1967 Ara!J-lsraeli war, the West Bank and Gaza Strip had been ruled by a series of foreign sovereigns.

Following the Turkish renunciatiun-·of all claims t9 non-Turkish territory (first, in the 39 40 Treaty of Sevres and, then, in the ), including Palestine, the international community (in the· form of the League of Nations) assumed control of 1 42 Palestine and committed it to Great Britain (as Ma,ndator/ ) to administer • Yet, the

36ld. art. XXX1(7). 37We limit our discussion to this territory because territory east of the Jordan River (which compris10dover 75% of the original Palestinian Mandate) was at one time part of the Y!andate for Palestine. That territory was redesignated by Great Brit

9

• ,. "' "' ' ' """ r L' ,, ,, I IJ I ' I I ' I II I I I I I ' IJ H l) · i I' ]) F I H ( ) \1 \1 r Palestinian Mandate, unlike the Mandates for Syria (which included Lebanon) and (Iraq), was unique. The Palestinian Mandate required the Mandatory to 43 actively assist in the creation of a homeland for th� Jewish people in Palestine • From 1922 until Britain's departure in 1948, the British \\-ere under the internationally sanctioned, legal obligation to help establish a Jewish homeland in Palestine. Only in 1947 did the United Nations, as successo:- in interest to the League of Nations and at the 44 request of Great Britain, take action to try w resolve the fu ture of Palestine . The UN Special Committee on Palestine (UNSCOP), fo rmed to study how to resolve the Palestine problem in light of the British announcement of its intention to withJraw from 5 the region, proposed to partition the territor/ . The UN General Assembly ultimately adopted the UNSCOP plan and voted to partition Palestine into three parts: an Arab state, a Jewish state, and a UN-controlled portion around Jerusalem to oversee and protect religious sites of the three great monotheistic religions (Judaism, Christianity, and Islam).

Jewish Palestinians accepted the UNSCOP partition p!an, while Arab Palestinians 46 rejected it • Upon. Britain's withdrawal in 1948, the Jewish population declared the 47 existence of the Jewish Palestinian state, which they called the State of Israel . On the day after declaring its independence, the newborn State of israel was attacked by its Arab 48 neighbours {with the active support of Arab Palestinians) . The resulting war continued

Transjordan (and later became the Hashemite Kingdom ::>f Jordan). The remaining area of the Mandate to the west of the Jordan River (constituting the remaining 22% of the M::ndate) retained the name Palestine. It was in the smaller, western (i.e., rump) portion of Palestine that the Jews were r.llowed to settle pursuant to the Balfour Declaration; they were forbidden to settle in Transjordan. In one sense, Arab Palestinians already have an Arab state, and it is JorJ::r.. 43Whereas the Mandatory power!> for Syria and Mesopotamia were dire.::ted to assist the mhabitants of those Mandates to establish the underlying institutions necessary to become independent states, Treaty Between the Allied and Associated Powers and Turkey Signec.1 ut Sevres, I 0 Aug. 1920, reprinted in I THE TR EATIES OF PEACE, 1919-- 1923, at 816 (The Lawbook Exch. 2007) '(Lawrence Martin ed., 1924), the Mandatory for Palestine was directed to establish a natior.al home for the Jews. Mandate for Palestine, supra note 22, ::�t rmbl. Syria and Mesopotamia were dealt with differently than Palestine from the very establishment of the �ar.dates. Nowhere in the Palestinian Ma:-�date is there any express indication that the Mandatory was to prepare underlyinl'> institutions to assist the indigenous population to acl">ieve inrlependence. See generally Mandate for Palestine, �upra nott: 22. 44 The UN General Assembly voted to partition Paiestine, i e., that portion of the original Mandate west of the Jordan River. Although, under the UN Charter, the General Assembly has no authority to enact binding resolutions, see U.N. Charter art. 10, had both Arab and Jewish Palestinians agreed to its tern1s, the proposed partition could have occurred, and two states-one Arab and one Jewish--could have emerged in 1948. 45 G.A. Res. 181 (II), U.N. Doc. A/RES/181 (II) (Nov. 29, 1947). Note that �he UNGA h!t.s no authority to make such judgments under the UN Charter. U.N. Charter art. 13 Note further that theie had been prior plans to partition Palest:ne, all of which had been acr.epted by Jewish Palestinians and rejected by Arab Palestinians. Side, e.g. , SEC ' Y OF STATE FOR THE COLON:ES, PALESTINE ROYAL COMMISSION REPORT 376 ( 1937), available at http://unispal.un.org/pdfs/Cmd5479 .plif. Hence, Palestinians have had multiple opportunities t0 create a state, opportunities that they have repeatedly missed. 4G Had both sides accepted the partition plan, the borders of the two states would have beeu fixed by that plan. When the Arabs rejected the plan, sinc.e thcr� had beer. no meeting of the minds as to bow (i:.•r even whether) to partition the Mandate territory and !>ince the UN General Assembly has no authority to enact f>ir.ding resolutions, see u.N Charter art. 10.- ti-Je terms of the partitioi1 plan were not binding on either side. As such, when the nascent State of' Israel acquired additional territory during the fignting of 1948- 1949 over and above what had been al located to the Jewish state ir. the UNSCOP plan, such territory was recognised by most of the world a!> a lcgilimat� part of the- State of lsrael. 47 1sraeli independence was declared on May 14, i94lS. 48 Arab armies from , Jordan, Syria, Lebanon, and l�aq a�tacked the nasc�nt Jewish state.

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. .. . , • , , .. ",r ", u", " 1 ,, 11 ' 1 11 1 1 1 1 I·'11 I! o 1 1 � 11 b I H 11 \·\ VI r · into 1949, when armistice agreements between the nascent St:lte of Israel and its Arab 49 neighbours were negotiated, thereby ending fo rmal hostilities • The 1948-49 Arab­ Israeli war resulted in the establishment of Israeli sovereignty and control over the greater portion of the territory of the Mandate of Palestine. The portions of the Palestinian Mandate not under Israeli control (i.e., the so-called West Bank and the Gaza 50 Strip) remained under military control of fo reign Arab armies • Foreign Arab occupation essentially remained in place for 18 y�ars, until the end of the 1967 Six-Day War, when Jordanian and Egyptian fo rces withdrew and both the West Bank and the 51 Gaza Strip came under Israeli ccntroi • At no time during the 18-year period of foreign Arab occupation did Palestinian Arabs exercise any fo rm of sovereign control over any portion of the West Bank or Gaza Strip.

In June 1967, Israeli fo:-ces captured the ent!re West Bank f�om Jordan and the Gaza Strip from Egypt. At no time since Israel assumeJ control of the West Bank and .Gaza Strip in 1967 ha5> any Arab Palestinian entity-including the current Palestinian Authority-exercised any form of control that remotely resembles sovereign control. Further, when Israel captured the West Bank and Gaza Strip, there had never been any lawful Arab Palestinian sovereign rule over those territories. Hence, Israel was in co!ltrol of territories that had no prior, internationally rec.ognised sovereign since the Ottoman 52 Turks ru !ed . Moreover, when it captured the West Bank and Gaza Strip, Israel acquired

49 General Armistice Agreement, Egypt-lsr .. Feb. 23, 1949, U.N.S.C. Doc. S/1264/Corr. J, available at http://unispa!.un.org; UN ISPAL.NSF/0/9EC4A332E2FF9A 128525643 D007702E6; General Armistice Agreement, Leb.-lsr., Mar. 23, 1949, U.N.S.C. Doc. S/1296, available r.u http://unispal.un.org/ UNlSPAL.NSFt0/7 1260B776D62FA6E852564420059C4FE; General Armistice Agreement, Jordan-lsr., Apr. 3, 1949, U.N.S.C. Doc. S/1302tRev. l, available at ilttp://unispal.un.org/UNISPAL.NSF/0/ f'03D55E48F77AB698525643BOOS08D34; General Armistice Agreement, Syria-Jsr., July 20, 1949, U.N.S.C. Doc. S/1353, available at http://unispal.un.org/UNISPAL.NSF/O/E845CAOB92BE4E348525 644200790 ICC. 50 The Gaza Strip remained under Egyptian control (exct:pt for a short period during the 1956 Sinai War \\'hen it was under Israeli control), and the West Bank remained under Jordanian control. 51 Israel also. captured the (up to the east bank of the ) from Egypt :1ndthe Golan Heights from Syria. Since oniy ti'e West Bani< and G&za Strip are territories claimed by the Palestinians to be part of the Arab state of Palestine, there will be no fu rther discussion wncerning th..- Sinai Peninsula or th� Golan IIeig hts. 52't"he last internationally tecognized national sovereign over Palestine had been the Ottoman Empire. When the Turks renounced all prior claims to non-Turkish territory, the League of Nations assumed control and decided that the mdigenous population needed assistance from a more advanced country before it could rule itself. Great Britain was choser. as the Mandatory for Palestine, but it was not recognized as sovereign over Palestine. When Britain departed, the UN, as successor in interest to the League of NatiCons, decided to partition the territory of the Mandate and cor, fer sovereignty on both a Jewish state and an Arab st:�te (while retaining control over Jerusalem and environs). The Jewish Palestinians accepted the grant of sovereignty; the Arab Palestinians rejected it and chose to go to war to achieve independence for Arab Palestinians in all of the Mandate and deny it to the Palestinian Jews. The Arab� gambled and lost. At the end of the war, Israel was larger in territory than it.wou ld ·.llherwise have been under the partiti.:lnpla n, and the territories in Palestine still under Arab sontroi remained under the control of Egyptian and Jordanian Arabs, not Fate�tinian Arabs. Foreign Arab arrn:es remained in control for an additional 18 years, during which time Palestiniart Arabs were denied the right to g0vern themselves by their putative Arab allies. When Israel captured the West Bank and GaLa Strip in the 1967 Six-Dav War, Arab Pakstinians had never governed themselves, and under Israeli rule, they have yet to achieve an;-thing close to independence. l-ienee, there has rtever beer, any sovereign Palestinian Arab rule over the West Bank and Gaza Strip since the Turks renounced their claims r.u non-Turkish territ(·iit>s after W,)ild War I. A� such, :srae! has no responsibility to any prior sovereign in those territories. 5inre i 967, the internationally recognized Jewish Palestinian State of Israel, the only currently existing su::cessor state to the British Mandate, has controlled the West Bank. The only (slightly) col0urable counterclaim that might be made is that Jordan s0ught to

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• " , , ...... , 1, 1 1: 1. , , .. , • " , 11 1 A �· 1 , 1 1 1 I· I· 1 1 I· , 1 1 11 o 1 1 ' IJ 1. 1 11 o \ ·1 \1 r control of territories in which Jewish settlement had not only been permitted, but 53 encouraged and sanctioned, by international law , as set forth in the Mandate for Palestine, a document enshrining a "sacred t.·ust" which has neither lapsed nor been 54 replaced .

Accordingly, Jewish settlers in the West Ba.nk are lawfully there under the specific terms of the Mandate for Palestine, an internationally-sanctioned agreement that has not lapsed. The Mandate wili !apse only when both Jewish and Arab Palestinians negotiate its end by resolving their outstanding differences ar.d distributing currently disputed territories between the two peoples. As the interr.ational community has long recognised, such resolution must occur via good fa ith, bilateral negotiations between the parties at interest. It cannot occur by one side's breaking its word and disregarding its agreements. That is a recipe for failure and is exactly what the PA is doing by seeking to achieve recognition of Palestinian statehood via the "back door". If negotiations for peaceful resolution are to have a chance of success, the PA' s approach m�st be rejected.

IV. UNDER UNITED STATES LAW, NO FUNDS MAY LAWFULLY BE GIVEN TO UN AGENCIES THAT ADMIT NON-STATE ENTITIES TO MEMBERSHIP.

· As Your Excellency well knows, the United States Congress has ena�ted statutes that preclude the paying of dues to any UN agen;:::y that admits into membership a non-State entity. When UNESCO admitted the non-State entity ·'Palestine" to its membership, the United States cut off all funds to UNESCO. The same laws remain in effect today in the United States. It is incumbent upon UN leaders to recognise the potential impact tha t a cut-off of U.S. funds could have on UN agencies, should they admit a non-State entity like Palestine to membership.

CONCLUSION

Palestinian officials are once again seeking to achieve outside negotiations that which they have been unable to achieve via negotiations. Creation of an actual, real-life Palestinian state can only occur through good faith negotiatjons, not by alteruate means. Israel currently controls territory claimed by two opposing parties-the State of Israel and the Palestinians. Israel understands-and has ag; ·eed-that an Arab Palestinian state must be established to fulfill the national aspirations of Arab Palestinians, but the

incorpo:ate the West Bank into the Hashemite Kingdom of jordan, but that attempt never received widespread international re cognitbr. ar.d was ultimately renaunced by Jordan itself. Israel controlled the Gaza Strip from 1967 until Israeli forces withdrew in 2005. 53 See, e.g. , Mandate for Palestine, supra note 22, at art. 6. Nvte that, under the League of Nations Covenant, the various Mandates were declared to be "sacred tru�ts." Le'igue of Nations Covenant art. 22, para. I. Yet, si nce a trust does not cease to exist merely becai)S� the trustee dep'irts, absent a contrary legal disposition of the Palestinian Ma ndate, its terms remain in �ffect today, and Article 6 of the Mandate calls for Jewi sh settlement within the territory kno\Vr, as PalestinE. Mandate for Palestine, supra note 22, a� art. 6. !-- urther, after Britain severed Transjordan fr om The Mandate fo r Palestine and fo;bade Jewish settlement there, the terms of the Mandate regarding Jewish immtgration and· settlement were confined to the remaining portion vf the ManJate, i.e., the portion b�tv:een the J ordan River and the Mediterranean Sea, which incl udes the West Bank. Accordingly, Jewish settlcmcr.t of the West Bank remains lawful. Only a bi lateral agreement betweeri Jewish Palestinians (i.e., l sr'lel i s) and Arab Palestinians can change th"t. 54 See supra note 23.

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• , " , , ... .. , " " " 1.• h � " 1 11 1 A , 1 , 1 1 1 I· I· -r 1 � \ IJ I< o 1 i ' IJ I· 1 11 t' \1 11 r establishment of such an Arab state must result fr om mutual negotiations between the parties. To that end, both Israelis and Palestinians have agreed to a process to resolve the outstanding issues between them, one of which is the eventual establishment of a viable, independent Palestinian state. It is that process that the Palestinians have rejected in seeking to achieve statehood by another route. And it is that Palestinian rejection that fundamentally imperils the creation of an Arab Palestinian state.

Accordingly, members of the international community must reject current Palestinian attempts to avoid bilateral negotiations anci compel the PA to return to the difficult, but necessary, task of resolving outstanding issues with Israel via negotiations. To do so, it is necessary for members of the international community to utterly reject the Palestinian attempt to achieve statehood by the misguided route they are currently taking. No state of Palestine currently exists. As such, Palestine may not accede to international covenants or treaties (whose membership is limited to "States" or "Powers"), and it cannot become a member of UN agencies (whose membership is limited to "States").

We, therefore, urge Your Excellency to reject the Palestinian attempt to accede to international treaties and covenants and to seek membership in various UN agencies (all of which limit accession and membership, respectively, to actual "States"). We strongly J urge Your Excellency to encourage the Palestinians, instead, to return to good faith, bilateral negotiations as the only viable means of ach ieving their long-sought goal of independence and statehood.

Respectfully submitted, ?Jc; � � Jay Alan Sekulow Robert W. Ash Chief Counsel Senior Counsel

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