Does statehood make a difference?

Three different concepts are often confounded:  statehood, sovereignty and independence.  There is good reason for this:  most states are also sovereign and independent. But the three attributes are distinct and they are acquired in different ways.  My approach on this issue differs from the usual one, which regards the concepts as essentially identical and distinguishes between “declarative” and “constitutive” theories of how independent, sovereign statehood is acquired.

Statehood in my way of thinking comes from acquiring the institutions needed to govern.  Arkansas is therefore a state not only in the sense of being one of the 50 Federal units of the United States but also in the sense that it has the institutions that enable it to govern itself, within limits set by the constitution, the Federal courts and Federal legislation.

Sovereignty refers to an international entity with a legitimate monopoly on the means of violence on a particular territory.  Sovereignty is acquired through recognition by other sovereign states, an admittedly tautological definition that is nevertheless well established (the “constitutive” theory).  Arkansas may believe it has a monopoly on the legitimate means of violence, and on most days it does.  But it is not recognized as sovereign by other sovereign states.

That’s because Arkansas is not independent.  Independence is declared by a state on its own volition once it meets minimal criteria (the “declarative theory”) with little restriction in international law, as became apparent in the recent decision of the International Court of Justice in an advisory opinion requested by Serbia about Kosovo.

While these three concepts usually go together, there are times when they don’t.  Taiwan is clearly a sovereign state, but it does not claim to be independent (at least not yet).  Somalia lacks a state (or has too many of them, depending on how you look at it) and is not sovereign, since none of its state-like entities has a legitimate monopoly on the means of force in the whole territory known as Somalia.  It is nevertheless more or less independent because no other state has claimed the dubious honor of governing it.  Kosovo is a state and independent, and is recognized as sovereign by 82 UN members but depends on foreign forces to exert a legitimate monopoly on the means of violence, which is generally referred to as a condition of “limited” sovereignty.

Which brings us to the important but confusing case of Palestine.  It is recognized by 126 states, even though the territory on which it might claim to exert a legitimate monopoly on the means of violence is not clearly defined.  Whatever its precise boundaries, that territory is divided into two distinct pieces, the West Bank and Gaza, with different state institutions governing in each.  A nominal agreement to unify them has not been fully implemented.

Palestine cannot be said to be independent, despite its declaration of independence in 1988.  That is at least in part because its territory is “occupied,” or at least controlled, by Israel.

This week’s jockeying at the UN should be viewed in the light of these three distinct attributes.  UN General Assembly acceptance of Palestine as a non-member state is the maximum the Palestinians can hope for.  The United States will veto full membership in the UN, which has to pass through the Security Council before approval in the General Assembly.  Palestine will not become independent or more sovereign than it already is no matter what the General Assembly does.  The GA can, however, put Palestine on the same footing as the Vatican, which is not saying much in my view.

The Palestinians hope it will enable them to pursue cases against Israel in the International Court of Justice and at the International Criminal Court.  I am not a lawyer and dare tread only lightly on legal turf, but it seems to me Israel has little to fear in the ICJ, which allows states not members of the United Nations to come before it, but only under conditions set by the Security Council.  Here are the relevant provisions of its Statute (Article 35):

1. The Court shall be open to the states parties to the present Statute [all members of the UN].

2. The conditions under which the Court shall be open to other states shall, subject to the special provisions contained in treaties in force, be laid down by the Security Council, but in no case shall such conditions place the parties in a position of inequality before the Court.

3. When a state which is not a Member of the United Nations is a party to a case, the Court shall fix the amount which that party is to contribute towards the expenses of the Court. This provision shall not apply if such state is bearing a share of the expenses of the Court.

So if the Security Council were to allow a non-member state (The Vatican today or Palestine tomorrow) access to the ICJ, then it would be the equal of any parties to the case (say Israel), but that if is a big one.

The ICC is different.  It summarizes its jurisdiction as follows:

The Court does not have universal jurisdiction. The Court may only exercise jurisdiction if:

• The accused is a national of a State Party or a State otherwise accepting the jurisdiction of the Court;
• The crime took place on the territory of a State Party or a State otherwise accepting the jurisdiction of the Court; or
• The United Nations Security Council has referred the situation to the Prosecutor, irrespective of the nationality of the accused or the location of the crime.

The Court’s jurisdiction is further limited to events taking place since 1 July 2002. In addition, the ICC has no jurisdiction in a state before the date on which that state joins. Bottom line: even if Palestine were to become a state party to the ICJ, there could be no prosecutions for anything occurring on its territory before it became a state party.

The Palestinians  have come up with something that has at the very least made everyone sit up and pay attention.  With increased support from Egypt and Turkey, they have put Israel and the U.S. in a bind.  Hearing Prime Minister Netanyahu, the master of unilateral settlement activity, insisting that nothing can be achieved away from the negotiating table is–as I put it earlier in a tweet–“chutzpahdik.”

That said, the best way out is still one that leads to serious negotiations, which everyone (even Netanyahu) now seems to agree begin with the 1967 borders, subject to land swaps.  A UN General Assembly resolution that accords some degree of recognition to the serious efforts that have been made in recent years to build a Palestinian state capable of providing security, at least on the West Bank, while getting the parties back to negotiations, would be a step forward.

Some will object that the Palestinians are just trying to delegitimize Israel.  I suppose there is some truth in that.  They are certainly trying to take Israel down a peg.  But in my way of thinking it is Netanyahu who has done Israel the most damage.  His failure to make up with Turkey after the Gaza flotilla incident and his refusal to apologize to Egypt for killing its security forces–not to mention his grandstanding at the U.S. Congress in May–has caused more damage than anything the Palestinians could have dreamed up.