Daily Times

Although the Resolution passed by the UNGA in 2012 does not constitute binding international law, it does bring Palestine one step further towards statehood under both the constitutive and declarative theories argued in international law. Ultimately, the vote shows that Palestine has had a significant recognition by the international community as a State, thus fulfilling the criterion of the constitutive theory, which while being flawed is still adhered to by some contemporary theorists. Moreover, with Palestine’s formal recognition by 138 countries, it will be able to effectively enter into a relationship with other States, which is one of the four elements of the declarative theory test. Thus, while the General Assembly Resolution is not dispositive of Palestine’s statehood, it is evidence of a growing recognition of Palestine as a State.

And yet, the resolutions and declarations of international organizations (including the United Nations) may constitute opinio juris, one of the five sources of international law. While opinio juris is not itself a source of law, it serves as a subsidiary means for the determination of rules of law. Under article 38 of the Statute of the International Court of Justice. Understandably, there is one important consequence that the recognition of Palestinian Statehood will have: it will grant Palestine access to United Nations agencies and international organizations, including the International Criminal Court.

This will further empower Palestine to initiate claims against Israel at the International Criminal Court. Unlike in the past, where countries could only pursue Israel at the International Criminal Court with Israel’s consent to the Court’s jurisdiction, if Palestine becomes a member of the International Criminal Court, the Court would have jurisdiction against Israel as to conduct that occurred on Palestinian territory, even without Israel’s consent. Under article 12.2 of the Statute of the International Criminal Court, the Court has jurisdiction whenever a State on whose territory crimes occurred (Palestine) is a member, even if the defendant State (Israel) is a non-member.

Importantly, the PA is already a party to several multilateral treaties, registered with five depositaries: the United Kingdom, UNESCO United Nations, the Netherlands and Switzerland. Whereas the ratification of the UNESCO conventions took place in 2011/2012 and followed Palestine becoming a member of UNESCO, whilst the ratification of the other conventions was performed in 2014 while negotiations with Israel were in an impasse. Arguably, the UN Charter empowers the General Assembly (GA) to initiate studies and make recommendations to promote the development and codification of international law. Many subsidiary bodies of the General Assembly consider specific areas of international law and report to the plenary. Most legal matters are referred to the Sixth Committee, which then reports to the plenary. The International Law Commission and the UN Commission on International Trade Law report to the General Assembly. The General Assembly also considers topics related to the institutional law of the United Nations, such as the adoption of the Staff Regulations and the establishment of the system of internal justice.

The geopolitical honeymoon enjoyed by the Trump-Netanyahu partnership has created a new peace crucible between the Palestinians and the Israelis

Simply put, any act by Israel that would partly or wholly constitute de facto or de jure annexation of parts of the Occupied Palestinian Territory is null and void under international law. By no means, it changes the internationally accepted status of the occupied territory nor it does affect the protections afforded by international humanitarian law (IHL) and international human rights law (IHRL) to the Palestinians living in it. Therefore, it is a settled fact: act of annexation is critical not by virtue of their effect on the legal status of the OPT. Rather, it is to underscore that recent developments have signalled a clear evolution in the scope and nature of the unlawful occupation and its correlative IHL and IHRL consequences.

Netanyahu’s unity government (as an occupying power) has constantly escaped the obligations while downplaying the significance of leading instruments of international law: the regulations respecting the laws and customs of war on land, the Fourth Convention respecting the laws of war on land signed in The Hague on 18 October 1907 (“the Hague Regulations); the Fourth Convention relative to the protection of civilian persons in time of war signed in Geneva on 12 August 1949 (“the Fourth Geneva Convention”). The International Commission of Jurists calls on Israel, to comply with its obligations under international law by recognizing the de jure applicability of the law of occupation as well as international human rights law to the Occupied Palestinian Territory (POT).

The geopolitical honeymoon enjoyed by the Trump-Netanyahu partnership has created a new peace crucible between the Palestinians and the Israelis. The history of Arab-Israeli vicissitudes of political conflict is reflective of the fact that since the Arab-Israeli war of 1967, it has been an Israeli policy to subjugate the Palestinian lands by dint of force, firstly –rendering the status of the Palestinian territories into occupied territories and secondly trying to transform the said status via an annexation trajectory.

Recently a group of the Canadian politician wrote to the PM Justin Trudeau joining the call of 127 British Parliamentarians- strongly resisting the Israeli annexation move: “We are writing to you as retired Canadian diplomats, proud of Canada’s historical commitment to multilateral institutions and its reputation for supporting the rule of law,” the letter begins. In their condemnation of the Israeli plan, they stated: “In the coming weeks a significant amount of land that Canada, and the international community, recognise as occupied Palestinian territory” will be annexed. “Territorial conquest and annexation are notorious for contributing to fateful results: war, political instability, economic ruin, systematic discrimination and human suffering,” the letter went on to express.

Next month, Israel’s PM Netanyahu has a lethal plan to annex more than 30% of the occupied West Bank, including parts of East Jerusalem-dealing a final fatal blow to the hard-earned Oslo Accords, thus the only pragmatic choice left before the Palestinian Authority was to announce a withdrawal from all agreements and security deals with Israel and the US, hammering a final nail in the coffin of these agreements. ”The annexation means the termination of the Oslo agreement completely,” President Mahmoud Abbas said. The Netanyahu-led annexation trajectory to annex the West Bank is not only a black stigma on the Global rule of law but also a faux pas as it establishes an Apartheid-based system in the West Bank.

Netanyahu’s annexationist approach is lethal to undermine the decades-old peace legacy-espoused by the collective wisdom of diplomacy astutely sponsored by the people from East and West The European Union’s recognition of Palestine as a state would become “inevitable” if Israel moves forward with its controversial plan to annex the West Bank, Luxembourg’s foreign minister Jean Asselborn said while speaking to German weekly Der Spiegel.

Concluded

The writer is an independent ‘IR’ researcher and international law analyst based in Pakistan