Again with the Formalist Worries

The forthcoming UN General Assembly vote on admitting Palestine as a state is perhaps the highest profile example of the Netanyahu administration's catastrophic failure at managing both Israel's perception abroad and crafting any sort of progress on resolving the Israeli/Palestinian conflict at home. To be sure, at this stage in the game, there is little any Israeli government could do to stop the vote (though the American threat to slash aid to Palestine might). But this is not something that came up out of nowhere -- it is the upshot of months of blunders and unforced errors by the Keystone Cops which comprise the current Israeli cabinet. I cannot think of an Israeli government in my lifetime which has done more damage to the state of Israel than this one.

But anyway. One of the more 7-dimensional chess worries to emerge from the statehood vote was claims by Palestinian legal adviser Guy Goodwin Gil that the statehood vote could imperil various claims made by Palestinians who do not currently reside in the West Bank or Gaza (the "diaspora", so to speak). In essence, the current state of affairs has the PLO as the recognized representative of the Palestinian people (wherever they live). "Palestine", as a state, would take over that role in the United Nations. The problem, though, is that the state of Palestine has little basis for claiming the right to represent Palestinians who aren't inside its borders (and, to the extent it wants to push for a "right of return" to Israel proper, Palestinians who have no desire to move inside its borders).

Another Palestinian legal adviser, my Illinois colleague (though we have not yet met) Francis Boyle, argues that these worries will not come to pass. His reasons are a little vague, but no matter -- I suspect he is correct. But the reasons why have nothing to do with "all the legal and constitutional technicalities that were originally built into the Palestinian Declaration of Independence," or, for that matter, technicalities in international law.

For starters, it is hardly unknown for states to maintain concern about the status and rights of people -- even non-citizens -- outside their borders that the state nonetheless possesses an affinity towards. Mexico, for example, cares quite a bit about the rights of Chicana/os in the United States -- including those who are United States citizens. That is part and parcel of having nation-states in the first place where, in addition to (hopefully) promising some sort of open, liberal political order, states also hold themselves out as the homeland of Mexicans or the Irish or Jews or Palestinians.

But more importantly, the entire debate relies on formal notions of the structure of international law and the effect international legal machinations of which I'm dubious exert any strong force. Relying on formal rules of international law to exert any constraining force on what international law is said to be in politically "hot" conflicts is almost invariably a mistake. To the contrary, the international legal system is overwhelmingly results-oriented, and in particularly it fervently desires results that redound to the benefit of Palestinians (and to the disadvantage of Israelis). To the extent there might be precedents which seem to imperil a given Palestinian interest, they'll be modified accordingly or cast aside. In the worst case, an entirely sui generis regime will be carved out to accommodate the dissonance (see, e.g., the UNRWA).

To be honest, though, in a sense this is how it should be. Not the part about international law being entirely results-oriented (though honestly, I'm mostly an international law skeptic even conceptually at this point -- it is not a system I think presents a particularly prime candidate for meaningful reform, so I prefer not to try). But the various claims of Israelis and Palestinians shouldn't be extinguished by technocratic reshuffling of categories, and it bothers me how often people try to play this game. One sees it with respect to Jews when folks alternatively label them a "religion", "race", or "ethnicity" depending on which one best defeats any particular Jewish political claim. The idea that the category system might not map onto the territory -- might simply be inadequate to encompass the Jewish experience and respond to just Jewish political claims -- is pushed aside as Jews are forced into a legalistic game whose rules, at best, we didn't write and at worst were written precisely to maintain Jewish subjugation.

And that's silly. I'm no fan of a Palestinian right of return, and everybody knows that it will not be a part of any final peace agreement except perhaps as some limited symbolism. But that end is and should flow out of a negotiated settlement -- it should not be the result of some legalistic trap.