by John V. Whitbeck
There is a strange, other-worldly quality to the current war of words over Palestinian statehood. In response to Prime Minister Netanyahu's insistence that he will never agree to the establishment of a Palestinian state, President Arafat has responded that a state "is the desire of the Palestinian people, and nobody can stop it," while President Mubarak has stated that "the Palestinians are going to establish a Palestinian state sooner or later." In fact, whether or not Mr. Netanyahu agrees to it, and whether or not Mr. Arafat and his supporters fully realize it, the State of Palestine already exists, and Palestinian statehood is not even an issue in the "permanent-status" negotiations which began this May  and must reach an agreement not later than May 1999.
According to the Declaration of Principles (DOP) signed on the White House lawn in September 1993, the issues to be covered during permanent-status negotiations are "Jerusalem, refugees, settlements, security arrangements, borders, relations with other neighbors, and other issues of common interest." Palestinian statehood is not mentioned, but the references to "borders" and "other neighbors" would make no sense except in the context of an agreement between states. Israel's eventual formal acceptance of Palestinian statehood is clearly implicit in the terms of the DOP, but legally, Israel's prior acceptance is not an essential condition for the State of Palestine to exist.
Criteria for Statehood
While extending diplomatic recognition to foreign states lies within the discretion of each sovereign state, there are, as a matter of international law, four customary criteria for sovereign statehood: first, a defined territory over which sovereignty is not seriously contested by any other state; second, a permanent population; third, the ability and willingness of the state to discharge international and conventional obligations; and fourth, effective control over the state's territory and population. Judged by these customary criteria, the State of Palestine is on at least as firm a legal footing as the State of Israel.
While Israel has never defined its ultimate borders, an act which would necessarily place limits on them, the State of Palestine has effectively done so. They encompass only that portion of historical Palestine occupied by Israel during the 1967 war. Sovereignty over expanded East Jerusalem is explicitly contested, even though, after nearly three decades, none of the world's other 192 sovereign states has recognized Israel's claim to sovereignty. However, the sovereignty of the State of Palestine over the Gaza Strip and the rest of the West Bank is uncontested.
Israel has never dared even to purport to annex these territories, recognizing that doing so would raise awkward questions about the rights (or lack of them) of those who live there. Jordan renounced all claims to the West Bank in July 1988, and, on June 5 , King Hussein reaffirmed that "we will never under any condition be a substitute for" the Palestinians. While Egypt administered the Gaza Strip for 19 years, it never asserted sovereignty over it. Since November 1988, when Palestinian statehood was formally proclaimed, the only state asserting sovereignty over those portions of historical Palestine which Israel conquered in 1967 (aside from expanded East Jerusalem) have been the State of Palestine, a state recognized as such by 124 other states encompassing the vast majority of humankind.
The permanence of Palestine's population is not in question. The state's ability and willingness to discharge international and conventional obligations has been demonstrated by its establishment of diplomatic relations with a majority of the world's other sovereign states and by its efforts to obtain membership in international organizations, such as the World Health Organization (WHO) and UNESCO, even if those efforts have been blocked by the United States.
The weak link in Palestine's claim to already exist as a state was, until recently, the fourth criterion, "effective control." When the state was proclaimed, its entire territory was under the military occupation of another sovereign state. (For seven months, Palestine and Kuwait had that much in common.) Yet a Palestinian executive and legislature, democratically elected with the enthusiastic approval of the international community, now exercises "effective control" over a portion of Palestinian territory in which the great majority of the state's population lives. It can no longer be seriously argued that Palestine's claim to exist falls at the fourth and final hurdle.
The State of Palestine Exists
Accordingly, as a matter of customary international law, if not yet of general public consciousness, the status of the Palestinian territories occupied in 1967 is today clear and (with the exception of expanded East Jerusalem) uncontested. The State of Palestine is sovereign, the State of Israel remains the occupying power in a portion of Palestinian territory and UN Security Council Resolution 242, explicitly premised on the "inadmissibility of the acquisition of territory by war," and explicitly cited as the basis of the future permanent-status settlement in all the Israeli-Palestinian accords, is the internationally accepted basis for terminating the occupation.
Some Israelis argue and some Palestinians fear that the PLO's signature on its accords with Israel constitutes, at least implicitly, an acquiescence in the occupation and a renunciation of Palestine's 1988 declaration of independence. However, the interim agreements signed in Cairo in May 1994 and in Washington in September 1995, both contain the following significant provision: "Neither Party shall be deemed, by virtue of having entered into this Agreement, to have renounced or waived any of its existing rights, claims or positions." This provision was inserted at Palestinian insistence during the final stages of the Cairo negotiations, specifically to protect Palestine against such an interpretation.
Out of deference to Israeli sensibilities, President Arafat has in recent years kept the third of his three presidential "hats," that of President of the State of Palestine, largely on a back shelf. There is every reason to believe that he will now wear it more prominently. If the United States and other Western countries, which already welcome President Arafat with the honors and protocol due to a head of state, are seriously interested in actually achieving peace in the Middle East, as opposed to simply ensuring that an interminable and increasingly euphemistic "peace process" continues, there could be no more constructive act than adding their names to the long list of countries which have extended diplomatic recognition to the State of Palestine.
Even if the State of Palestine did not already exist, and if Israel were free to pursue its own perception of its self-interest with no concern for justice, morality, world public opinion, UN resolutions and its own signed agreements, what would be Israel's "permanent-status" alternative?
A Dead-End Road
Most broadly, there might seem to be three alternatives: making the status quo permanent, asserting (for the first time) Israeli sovereignty over the occupied territories beyond expanded East Jerusalem or accepting Palestinian sovereignty over the Palestinian lands occupied in 1967 (with some agreed formula for sharing Jerusalem).
The status quo is "belligerent occupation," a status which, as a matter of international law, is inherently temporary, pending annexation or withdrawal. While this status can be maintained indefinitely as long as the military force and political will to maintain it exist, it is logically and legally inconceivable that it could be made "permanent." The status of "perpetual belligerent occupation" does not exist. A major virtue of the DOP signed in September 1993 is to require the negotiation of some permanent-status solution within an agreed time-frame.
If Israel asserted sovereignty over the occupied territories, it could either provide or deny the full rights of Israeli citizenship to those who live there. If it took the former course, Israel would be renouncing Zionism and negating its raison d'etre. If, however, it took the latter course, leaving the disenfranchised indigenous people to rot in "autonomous areas," "reservations" or "black spots," without even the option of "independent homelands," it would be creating a system and a state more heinous and blatantly racist than South Africa at the height of apartheid.
Even in the worst days of apartheid, the settler-colonial regime in power offered the indigenous peoples independent states in a small portion of the land that once was theirs. That is all that the Palestinian people are asking for. The indigenous South Africans ended up getting much more. Can anyone honestly believe that the Palestinians will accept less?
Since the Palestinian people could never accept such an ultra-apartheid solution, it would have to be imposed by force. No country other than the United States could possibly support Israel if it adopted such a course. Far from achieving acceptance in its region, Israel would replace the old South Africa as the world's ultimate pariah state. Is this really an option which Israelis would wish to implement or even to contemplate? Do Israelis really believe that their long-term interests would be served by veering off down a dead-end road to a winner-take-all fight to the finish between four million Jews and one billion Muslims?
Since the first apparent option is impossible while the second is unthinkable, only one viable option exists - accepting Palestinian sovereignty in the Palestinian lands occupied in 1967 subject to an agreed formula for an equitable sharing of an undivided Jerusalem. It is high time for Israeli leaders to stop pretending that the earth is flat and to actually lead by telling their people, clearly and honestly, that Israeli acceptance of Palestinian statehood is essential if a lasting peace in the Middle East is ever to be achieved. Such acceptance is thus, fundamentally, in the interest of Israel and Israelis.
The true challenge for all who are seriously interested in achieving a genuine peace is to find a way to structure the Palestinian state and its relationship with Israel which serves the interests of both Israelis and Palestinians, and which permits a majority of Israelis to perceive such a state, as so structured, as enhancing their security and the quality of their lives. They can, then, recognize that it is in their own self-interest to accept Palestine's right to exist in peaceful coexistence alongside Israel. Peace is unimaginable on any other basis.