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Analyzing the Israel-Palestine Conflict, the Two Nation-State Solution Vis-à-Vis the Right to Exist

Israel’s right to “exist” is an amalgam of words contrived less to promulgate a single clear idea of a secular democratic nation with equal rights for all but rather disseminates a lurid violent scene of military conquest, genocide, atrocities etc. However, moving away from the emotional punch of rhetoric of such kind to a more rational viewpoint, one might note that the international law rhetoric recognizes the Israel’ right to exist and function for its subsistence. International law is central to the understanding that “legitimacy and lawful authority are key components of political power” thereof making the assertion simple. However, only when this understanding is applied to the Israeli-Palestinian conflict and contrasted with Palestinian people's “right to self-determination”, the practicalities of the law in this situation become unclear. Many questions arise with this understanding such as whether the recognition of this “right of self-determination” outweighs Israel's right to exist, or how these conflicting rights are exercised in reality and balanced against each other. As a result, the conflict is not centered on a specific issue, but is rather contingent on a plethora of issues with several facets. This article's scope is limited to tracing out these parallel rights of self-determination and right to existence from an international law standpoint, as well as projecting the concerns raised by both sides of the parties in conflict when expressing their viewpoint.

Constitutive and Declaratory Theories of Statehood

Constitutive Theory

According to Thomas Grant, this idea is consistent with the nineteenth-century view of international law as ius Gentium voluntarium, which argues that international law is nothing more than nations' voluntary and consensual conduct within the international system. Thus, according to constitutive theory, recognition and, by extension, statehood is the sovereign prerogatives of those nations that are already acknowledged within the international system, both in theory and practice. According to the constitutive theory, recognition is "a required act before the recognized entity may have international personality”.

Declaratory Theory

The declaratory theory developed in response to the unprincipled consequences and conceptual problems associated with a purely constitutive approach to recognition. The declaratory theory maintains that statehood exists independently of recognition; that the act of other nations in the international system recognizing another state is simply declaratory. Thus, in terms of international public law, it contends that a state becomes a subject of international law the minute it satisfies the criteria of statehood, regardless of whether the international community recognizes it.

The Right to Self Determination and International Law

“The principle of self-determination” in international law refers historically to the right of people living in a territory to decide on the political and legal status of that territory, for example, by establishing their state or choosing to become a part of another state. With the enactment of the United Nations Charter, this right became recognized as a legal right, under “Article 1(2)”, “Article 55”, and impliedly under “Articles 73 and 76(b)”. Furthermore, this right is mentioned in several international conventions and resolutions, for instance in “Article 1 of both the International Covenant on Civil and Political Rights (ICCPR)” and “the International Covenant on Economic, Social, and Cultural Rights (ICESCR)”. According to the “Friendly Relations Declaration of 1970”, the principle of “equal rights and self-determination of peoples” protects the right of all peoples to “freely determine, without external interference, their political status and to pursue their economic, social, and cultural development,” as well as the duty of every state to “respect this right per the provisions of the Charter.” The right to “self determination” is dependent on international recognition of state sovereignty, but it spreads to the governance and rights of minority communities from around the world. Thus, it extends to Palestinians, even though the recognition of Palestine as a state is debatable under customary International Law[1].

Israel’s Right to Exist: An Analysis

“The Declaratory Theory of Statehood” establishes the following criteria for statehood under “Article 1 of the Montevideo Convention on the Rights and Duties of States (1933)”: (i) a permanent population base; (ii) a defined territory; (iii) effective government; and (iv) capacity to enter into relations with other States. Israel by virtue of satisfying these criteria unquestionably qualifies as a state under the purview of international law. Religion has always played an important role in Israel’s politics considering the confluence of Christianity, Islam and Judaism the territory has witnessed since time immemorial. Against the backdrop of the Holocaust and World War II, the demand for a separate Jewish State resonated in political discussions and concerns regarding how to handle and who should handle this region were raised. As a result, the United Nations devised a Partition Plan for the province in 1947, delineating the Arab state of Palestine, the Jewish State of Israel, and the capital city Jerusalem, which both Israel and Palestine contended as an international territory carrying special status. The Palestinian Arabs strongly opposed to and rejected this plan. Nonetheless, despite the strong opposition, the present state of Israel was established in May 1948. Following that, in protest, the Arab states of Egypt, Jordan, Iraq, Syria, and Lebanon, invaded Israel, leading to the Arab-Israeli War of 1948. Consequentially, the territories of the West Bank and the Gaza Strip came under the control of Jordan and Egypt, respectively. These territories were recaptured by Israel during the 1967 Six-Day War, along with the Syrian Golan Heights, which have remained under Israeli control to this day. While the latter territorial acquisition has been vilified internationally, with the international community urging Israel to forgo its claim, the former territorial acquisitions (West Bank and Gaza Strip) are recognized and justified under the right to self-defense against foreign interference. However, despite recognition under International Law even in the former territories Israel’s claim becomes contentious because the Arab state of Palestine claims the land as its own per the divisions laid out hitherto.

The Right to Statehood for Palestinians

According to the Declaratory theory, the Palestinian claim to statehood is flawed because the four preconditions of statehood are not satisfied. The Palestinian Mandate implemented in 1920, gave the British control over the territory as well as the responsibility of establishing a Jewish state and bringing peace and stability. With the UN Partition Plan dismissed and the British withdrawing from a temporary armistice, the region with the professed Palestinian land is now under different sectorial controls. Various parties vied for control of the territories defined as Palestine. As a result of its geopolitical and symbolic significance, the area saw many wars throughout the twentieth century spilling over into the twenty-first century and consequentially the state never achieved the traditional composition of a state. However, contrary to the Constitutive Theoryof Statehood, Palestine can be considered a state under the purview of international law because its presence is officially recognized by the majority of countries. The UN Non-Member Observer State status granted to it attests to its international recognition and acceptance. The status is also foundational in granting the right to self-determination to both the State entities and the people living there or identifying with it. This recognition is however undermined when the multiple states exercising control over territory claimed to be under the control of one Palestinian State claims the right to determination, as well.

The Israel- Palestine Conflict: A Critique

Religion and cultural affiliations play a significant role in influencing ideologies in the Israel-Palestine conflict, which already was politically and historically sensitive. In the current case, both Israel and Palestine have the “right to self-determination” under “international law”, but because there is no institution to ensure the implementation of the law over the states, the question of its clinical utility goes unresolved. The conflict is multidimensional, but for this article, it is important to note that, in addition to territorial control over parts of the West Bank and the Gaza Strip, the dispute between the warring factions also includes Israel's unwillingness to come to terms with Palestinians due to their affiliation with Hamas and territorial claims. The conflict is a recurring issue in the region, entangling the security and economic interests of multiple neighboring states. The current resurgence of the conflict can be traced back to the growing number of Israeli settlements in the West Bank region, which are supported and incentivized and dominated by the Israeli government. The dominion offends the Palestinian State by undermining its autonomy in the region and challenging its right to self-determination guaranteed under international law.

On February 5, the International Criminal Court declared that it had jurisdiction over war crimes committed in the Palestinian territories, a decision that was hailed by Palestinians but condemned by Israel.

Landmark Decision of the Pre-Trial Chamber of the International Criminal Court

The International Criminal Court (ICC) would have judicial power over potential war crimes committed in the Palestinian territories, according to a recent ruling by the International Criminal Court's Pre-Trial Chamber. According to Reuters, the judgement was reached by a three-judge International Criminal Court pre-trial panel, and the judgement may result in criminal investigations against Israel and Palestinian terrorist organizations such as Hamas. The Pre-Trial Chamber decreed that the Prosecutor possesses complete authority to investigate all alleged war crimes and crimes against humanity and categorically stated that the Oslo Accords do not negate the Court from investigating and trying to prosecute Israeli military personnel, including Israeli occupation forces and Israeli officials in the occupied West Bank. Similarly, the Chamber affirmed the Court's full authority over the Gaza Strip, dating back to June 2014, including Israel's military attacks on unarmed demonstrators taking part in the Great Return March. The decision is crucial in reviving the rule of law and preserving the integrity of the Palestinian people, whose right to self-determination has been denied and have been subjected to a regime of racial segregation, forced evictions, widespread property destruction and appropriation, despoil, assassinations, and repression, among other crimes. Israel's subjection of the protected Palestinian people through incursions, incarceration, and mass imprisonment is cruel actions committed by an organized system of racial dominance and oppression and constituted the crime of apartheid. The judgement acknowledged the State of Palestine, which joined the Court in 2015, as a completely legitimate State Party to the Rome Statute, as well as clarified that the state comes within the court's geographical jurisdiction to investigate violations of international law.

Prospective Solutions to the Conflict: What are the Possible Consequences if the Two-State Solution Fails?

The Israel-Palestine power struggle because of its deep historical and sociopolitical frictions interlaced with cultural and religious strife, reduces the probability of a practical alternative. Even though there have not been any negotiations since 2014, there have been calls for unilateral action, some of which support a two-state solution. Of course, no matter how significant or hopeful the suggestions for unilateral steps are, they will never contribute to the final cessation of hostilities if the warring factions refuse to comprise, at all. The 'Two Nation Theory,' a political settlement based on the modalities of “international law” that grants both the states the “right to self-determination”, sounds the most appropriate unilateral step as of now. There are comprehensive proposals for "coordinated unilateral" strategies, such as those postulated by the Institute for “National Security Studies or Commanders for Israel's Security”, that suggests preemptive Israeli measures aimed at reducing the incursion and sustain the likelihood of a two-state solution.

If the two-state solution fails, we may witness Israeli propositions for some form of Palestinian national sovereignty under Israeli control—variations on the “state-minus” approach as also advocated by Israeli right-wingers. Concerningly, the US administration was also contemplating this strategy during Trump's presidency, and key personnel working on this file have asserted that they do not foresee a Palestinian state under the dominion of Israel. Such a strategy, if pursued, would be objected to by Palestinians and the Arab world in general. In such a situation, we could witness a shift towards a one-state workaround. This would insinuate either Israeli absolute control of the territory, but with an exclusionary schema of unequal rights for the Jewish and Palestinian communities, or a single binational state with equal rights for all, but disregarding the geopolitical goals of the Jewish and Palestinian peoples. Palestinian activists are already advocating for a rights-based approach to resolving conflict as opposed to the current territory-based technique. A binational state, that is home to two national identities that have been at odds for decades is more likely to be a recipe for perpetual conflict than peaceful coexistence. This begs the question of whether any negotiated or Ad-hoc steps, coupled with the two-state solution, could be considered. If no progress is made toward a comprehensive final resolution to the conflict, we could see more proposals for transitional arrangements, either as pathways to encourage and facilitate a two-state response or as temporary agreements with no guarantees of attaining a two-state workable alternative. The Palestinians would almost undoubtedly reject the latter scheme in support of a deal based on a two-state solvent. In a declaration to the United Nations General Assembly in September 2015, Mahmoud Abbas stated that the Palestinians “will not accept temporary solutions or a fragmented state,” a position that the Palestinians have maintained for many years and will most probably maintain in the near future, as well.

[1] Customary international law is one component of international law. Customary international law refers to international obligations arising from established international practices, as opposed to obligations arising from formal written conventions and treaties. Customary international law results from a general and consistent practice of states that they follow from a sense of legal obligation. See;

Indrasish Majumder is a 4th-year law student pursuing a B.A L.L. B (Hons.) from National Law University Odisha. Indrasish is an experienced writer – having been in the position of columnist at several International and National Law Blogs namely: 1) Oxford Business Review 2) Human Rights Pulse 3) International Agora Law Blog (Jindal Global Law School). Indrasish has a keen interest in the intersection of human rights law, Humanitarian Law and International Business Law.

Image: Credit to Mohammad Sabaaneh


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