Creating Palestine

Speaking at the White House during his recent visit to Washington, Israeli Prime Minister Ehud Olmert renewed his call for negotiations with Palestinian Authority President Mahmoud Abbas on the withdrawal of Israeli settlements from historically Jewish lands of Judea and Samaria — today's West Bank — a move that would allow for the formation of a Palestinian state as well as “guarantee Israel's security as a Jewish state with the borders it desires.” However, he warned that Israel would not be “held hostage by a terrorist entity which refuses to change or to promote dialogue. If we come to the conclusion that no progress is possible, we will be compelled to try a different route,” that of unilateral withdrawal and border demarcation.

Olmert's advancement of the vision conceived by his predecessor, former Prime Minister Ariel Sharon, received the qualified endorsement of President George W. Bush, who praised the Israel's willingness “to consider ways to move the process forward” even “if he's unable to find a partner in peace.” However, the plan has met with outrage on the part of many pundits, including the editors of the New York Times, which called it “misbegotten” and “a recipe for disaster.”

We are not surprised by the Grey Lady's reaction. As we have previously argued here, nothing in United Nations Security Council Resolution 242 or in any other binding instruments or rule of international law requires Israel to withdraw from all the territories it came to possess in the wake of the 1967 Six Day War. Not having the law on their side, advocates for the Palestinian cause have started invoking a host of new criteria for the “legitimacy” of more advantageous international borders between Israel and the PA. Interestingly, these criteria are usually cast in such a way as to be most advantageous to the Palestinian cause and disadvantageous to Israel — thus the sleight of hand at the Times, which would make the Jewish state responsible for ensuring the birth of a viable Palestinian state.

Perhaps taking their cue from Yasir Arafat, who had infamously dismissed Israeli Prime Minister Barak's offer to turn over more than 97 percent of the West Bank, Gaza, and Arab East Jerusalem as “less than a Bantustan for your information,” some argue that Israel's desired borders are illegitimate because they leave one portion of the future Palestinian state geographically unconnected with the rest. Leaving aside proposals that have been discussed over the years to mitigate this difficulty, including a secure elevated highway connecting the two Palestinian areas, there is no juridical principle that requires contiguity as a condition for the legitimacy of borders, much less that requires states whose territory interposes to bear the territorial cost of connecting their neighbors. If such were the case, the borders of a host of countries could be called into question, including Brunei (where the administrative district of Temburong, 20 percent of national territory, is separated from the rest of the country by Malaysia), Oman (where the strategic Musandam Peninsula is separated from the rest of the sultanate by the United Arab Emirates), Russia (where the Kaliningrad oblast is surrounded by Lithuania and Poland), and Uzbekistan (where four enclaves in the Fergana Valley are entirely surrounded by Kyrgyz territory). In fact, by the contorted “logic” of the contiguous state argument, Canada would be required to surrender the coastline of British Colombia in order to permit contiguity of Alaska and the lower 48 United States.

[Ironically, in an earlier period, the Jewish Agency in Mandatory Palestine was willing to accept the 1937 Peel Commission's proposal to carve the future Jewish state into several non-contiguous areas connected by an “open travel corridor” connecting Tel Aviv and Jewish settlements in the south. Even this was too much for the Arab world.]

Closely related to the contiguity argument is one we might call the “materialist fetish” of viability: that the sustainability of any state is somehow a function of size (“critical mass”) or of other geographical attributes. The PA is too small; the PA has few resources; the West Bank has no coastline. But to international law as well as to the actors on the global stage, size does not matter. The world comprises states such as the Vatican City (0.2 square miles), the Principality of Monaco (0.7 square miles), and the Principality of Liechtenstein (62 square miles) which fight far above their geographical weight. For lack of natural resources, it is hard to beat Singapore, which has neither rivers nor lakes to tap for fresh water and is dependant for this basic necessity of life entirely upon insufficient rainfall and two treaties allowing it to buy water from the Malaysian state of Johor. [And let's not forget resource-poor Israel!] As for lack of a coastline, aside from the fact that Gaza is on the Mediterranean and that the PA can negotiate for West Bank access to the Gulf of Aqaba with Israel or Jordan, being landlocked has not been regarded as a casus in international law, nor has the law rejected settlements depriving states of sea access. A prime example is the treaty following the War of the Pacific (1879-1884), which left Bolivia landlocked to the benefit of Chile, who eventually agreed to guarantee peaceful freedom of transit for Bolivian commerce through Chilean ports and territory.

What is important for viability is less a nation's contiguity, size, or natural resources, and much more that state's human capital. The latter depends crucially on the quality of said state's governance, including a liberal (as opposed to democratic) constitution, economic freedom, educational investment, and commitment to the rule of law — four criteria on which the PA, even before it was taken over by Hamas, fails lamentably.

As does Prime Minister Olmert, we hope there will one day be a prosperous Palestine living side by side in peace and security with Israel. And like President Bush, we hope that Palestinian entity is democratic. However, the responsibility for achieving those lofty goals rests squarely with the Palestinian people and government. The responsibility, moral and legal, of Israel's leaders is to protect the real-life individuals — Jewish, Muslim, and Christian — who are citizens of Israel. Israel has no duty to ensure the “viability” of an entity that is, at best, notional.

Michael I. Krauss is professor of law at George Mason University School of Law. J. Peter Pham is director of the Nelson Institute for International and Public Affairs at James Madison University. Both are academic fellows of the Foundation for the Defense of Democracies.