THE AUTHOR
David J. strachman
Abbas Rejects Arafat's Statehood Strategy
For several obvious reasons, the strivings of advocacy groups and even legitimate nationalities for recognition of independence is not simply a political matter. For instance, without objective legal criteria of sovereignty, dissident groups could capriciously feign independence. BY DAVID J. STRACHMAN
Over the last several weeks the media has been enamored by
Palestinian Authority Mahmoud Abbas' push to obtain United Nations
recognition of a Palestinian state. The media coverage exclusively
focused on the political aspects of Abbas' effort and its
relationship to the so called "peace process" involving
Israel and the PA.
Lost in the circus-like coverage of the UN bid is virtually any
mention of the applicable legal issues, despite Abbas’ deliberate
departure from Yasser Arafat’s two decade strategy of seeking
approval of the PA’s statehood claim by invoking international law.
Starting in the late 80’s, the PA’s numerous legal advocates,
notably led by former U.S. Attorney General Ramsey Clark, have
repeatedly tried to wrest judicial recognition of a Palestinian
state in dozens of legal proceedings in the federal courts by
arguing that the Palestinians already have a sovereign state under
the legal standards of international law. Despite their best
efforts, every attempt (at both the district court and appellate
levels in Washington, New York, Rhode Island and Boston) has ended
in utter failure.
For several obvious reasons, the strivings of advocacy groups and
even legitimate nationalities for recognition of independence is not
simply a political matter. For instance, without objective legal
criteria of sovereignty, dissident groups could capriciously feign
independence. Therefore universally recognized norms of
international law contain criteria by which a true sovereign state
can be identified and recognized.
Unlike Abbas' current political gambit in the United Nations, Arafat
urged U.S. courts to apply these norms of international law to the
Palestinians. For decades, the PA's lawyers (personally supervised
by Arafat) have invoked the application of international law arguing
that it meets the criteria for statehood.
This strategy began after Palestinian terrorists pushed the wheel
chair bound 69 year old Leon Klinghoffer over the rails of the
Achille Lauro to his death in the Mediterranean Sea. In response to
a suit by the Klinghoffer family, Clark asserted that the PLO could
not be held liable because it was in actuality a "State of
Palestine" and thus shielded by the doctrine of sovereign immunity,
an ancient legal precept which immunizes foreign states from
lawsuits. The Klinghoffer court soundly rejected this argument.
Subsequently, enactment of the Anti Terrorism Act of 1990 (also
known as the “Klinghoffer Act”) ushered in the modern era of
terrorism litigation during which dozens of victims brought suit
against the PLO and the PA. Each time they were sued, Ramsey Clark
again raised the sovereign immunity defense, trying both to ward off
damage claims and to give judicial birth by obtaining legal
recognition of a Palestinian state. However, every attempt was
rebuffed by the federal judges who consistently ruled that the PA
did not meet the criteria of sovereignty under international law.
Ironically, in each case the terror victims agreed with Arafat and
Clark that the determinative standards for statehood were based on
the Montevideo Convention of 1933 as later codified in the
Restatement (Third) of Foreign Relations § 201 (1987) which requires
“an entity that has a defined territory and a permanent population,
under the control of its own government, and that engages in, or has
the capacity to engage in, formal relations with other such
entities.”
The Ungar case, in which two orphans sued the PA for the murder of
their parents, was the first to wind its way to an appellate court.
After a thorough routing at the trial level, the PA revived its
sovereignty arguments in the First Circuit Court of Appeals in
Boston. In the leading opinion on the subject, Judge Bruce Selya
wrote that the PA's statehood claim "has a quicksilver quality: it
is hard to pin down exactly when or how the defendants assert that
Palestine achieved statehood."
Judge Selya found that the PA did not have a "defined territory."
After an exhaustive historical analysis, he ruled that "the net
result is that, at all times, other states had control over the
defined territory." The Ottoman Empire, England, Egypt, Jordan and
Israel have all controlled Palestine over the last century and
locals have never exercised independent control. Similarly, he
rejected as specious claim the PA’s claim that it exercised control
of a "permanent population from time immemorial.” Lastly, Judge
Selya ruled that the Oslo accords (the constituent documents of the
PA, in which Israel and the PLO entered an agreement to create a
"Palestinian Authority" out of whole cloth) “expressly denie[s] the
PA the right to conduct foreign relations.”
Similar rulings followed in numerous other terror victims' suits
against the PA. Also, the Supreme Court rejected Clark’s attempt to
seek review of the denial of its sovereignty claims. Thus wall to
wall authority conclusively demonstrates that simply asserting
sovereignty (or even obtaining international support for statehood)
does not make a non-state into a state under international law. As
Judge Selya stated, "The fact remains, however, that neither
political recognition of the PLO nor United Nations support for
self-governance is sufficient to signify that the Restatement's
conditions for statehood have been met.”
These legal rulings should be kept in mind when considering Abbas'
new tactic which attempts an end run around international law while
deviating and undermining Arafat’s historic approach, which is still
the PA’s position in court. As judges have repeatedly ruled, merely
obtaining UN approval does not countenance a violation of
international law. And as Arafat and Clark acknowledged for two
decades, any purported “State of Palestine” must comply with
international law in order to be legitimate, no mater how many
anti-Israel UN members pile on in either a General Assembly or
Security Council vote.
About the Author
David J. Strachman, a Providence lawyer, represented dozen of victims in numerous lawsuits over the last decade against the Palestinian Authority.
He is an adjunct professor at UMASS Law School and Roger Williams University School of Law and author of Civil Terrorism Law (Lawyers & Judges Publishing 2008).
