Monday, September 21, 2009

In two separate but virtually identical paragraphs, the Goldstone Commission report says:
1582. Insofar that movement and access restrictions, the settlements and their infrastructure, demographic policies with regards to Jerusalem and Area C, and the separation of Gaza from the West Bank prevent a viable, contiguous and sovereign Palestinian State from being created, they are in violation of the jus cogens right to self-determination.

1744. Insofar as movement and access restrictions, the settlements and their infrastructure, demographic policies vis-à-vis Jerusalem and Area C of the West bank, as well as the separation of Gaza from the West Bank, prevent a viable, contiguous and sovereign Palestinian state from arising, they are in violation of the ius cogens [sic] right to self-determination.
(Jus cogens means a "higher law" that must be followed by all countries.)

I am not a lawyer and have no legal training. Even so, I believe that this is an astonishing statement from a number of legal perspectives.

First of all, the right of self-determination is defined by the UN in this way:
The two important United Nations studies on the right to self-determination set out factors of a people that give rise to possession of right to self-determination: a history of independence or self-rule in an identifiable territory, a distinct culture, and a will and capability to regain self-governance.
The first factor simply does not exist for Palestinian Arabs. The second is arguable; I believe that a distinct Palestinian Arab culture is a relatively new phenomenon that coincides with (at the earliest) 1948, and that the cultural differences between Palestinian Arabs and other Arabs is no different in scope than the cultural differences that exist within any country. And the third factor is specious, given the history of Palestinian Arab politics from the 1920s up until today. Even if you argue points 2 and 3, point 1 is demonstrably false and therefore the entire idea is wrong.

Even though the UN seems to have redefined "self-determination" in order to accommodate its pet Palestinian project, this does not make these factors automatically disappear.

Secondly, if you accept that there is a people called "Palestinians," the concept of "self-determination" does not automatically mean "the right to a state." The ICJ seems to define this as the right of a people to govern their own affairs free from outside interference - emphatically not statehood, a right that the world community would never accept for fear of every minority suddenly demanding the right of independence.

Thirdly, and most importantly, the UN Charter forbids nations from interfering with the territorial integrity of other nations. The idea that a Gaza and West Bank Palestine must be contiguous necessarily means that Israel's territory would be divided. (A bridge between the two could hardly be considered creating a "contiguous Palestinian state.")

Goldstone is not trying to give legal sanction to a Palestinian Arab state with free passage between two territories; he is not trying to innovate by saying that virtual contiguity via video and computer networks could be an alternative to physical contiguity. He is advocating that Israel cut itself in two and he is trying to say that the rights of Palestinian Arabs trump those of Israelis.

It may be politically incorrect to question Palestinian Arab peoplehood or to muse whether a state is the necessary means to achieve their self-determination. This does not make that opinion factually incorrect. Goldstone's sacrifice of legal definitions to the altar of political correctness is saddening, but not surprising.

However, the idea that somehow Palestinian Arab nationhood can rightfully impact Israeli national rights, as enshrined in the UN itself, is past sloppy interpretation of the law - it is illegal itself.

UPDATE: An email correspondent with real legal credentials told me that the idea that "self determination" falls under jus cogens is laughable.

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