Israel-Palestine: Do states have a “right to exist”?
Since the 1970s, Israel’s leaders have insisted that their Palestinian interlocutors acknowledge Israel’s “right to exist” as a pre-condition for negotiations on a final settlement of the conflict. Amongst other demands, the governments of Israel and the United States insist that Hamas makes precisely this declaration before being allowed to join Fatah in direct talks with their Israeli counterparts.
The problem with this demand is that no such abstract “right to exist” can be found in international law or in any theory of International Relations. To put it succinctly, a “right to exist” does not exist for states. Nor does such a right exist in political practice. Australia, for example, does not recognise Israel’s “right to exist”. Nor do any other states or non-state actors.
The primary reason that a state’s “right to exist” remains active in the discourse of international politics is its conflation with a number of similar but different existing rights. This chapter will explain the differences between these rights, why no right to exist applies to states, and how the assertion of that right in negotiations between Israelis and Palestinians occludes a final settlement of their conflict.
In international law and diplomatic practice, peoples, nations and states assert rights and extend them to each other. Through diplomatic recognition, for example, states recognise each other as equivalent actors on the international stage, exchanging diplomats and meeting as equals in international fora such as the United Nations or the World Trade Organisation. In the past, diplomatic recognition was formally a government to government relationship, but more recently — to avoid governments being forced to recognise others they despise when they need to maintain an ongoing bilateral relationship — this has become the recognition of one state by another. It is a political, legal and administrative convenience of international society.[i]
Diplomatic recognition is not an assertion of a state’s right to exist, merely an acknowledgement that it does currently exist: a mutual and reciprocal recognition of sovereignty. Nor does it make a state’s ongoing existence more likely. In the early 1980s, Australia recognised Yugoslavia, the USSR, East Germany and Czechoslovakia. All are now extinct, either by merger, absorption, voluntary or involuntary dissolution. In international politics it is normal for states to come into and go out of existence, as a comparison of political maps of the world in 1980 and 2019 will dramatically illustrate.
The right of self-determination became prominently asserted by the Bolsheviks, US President Woodrow Wilson and others after World War 1 as both a pathway to decolonisation and an antidote to global warfare. Subsequently it was written into the Charter of the United Nations. Self-determination is commonly defined as the right of a national group or groups to be governed in common as an independent or sovereign political community: usually taking the form of a state. It is therefore a right to a political process, not the right to exist in perpetuity, and it is vested in individuals and nations, not states.
In international law the right to self-determination is subordinated to prohibitions on the use of force and the right to territorial integrity. This is also true within the UN Charter. International law is more supportive of a right to self-determination as a means to accelerate decolonisation than it is of an equivalent right to secession or irredentist claims. In the past, the principle of national self-determination has been used to challenge the sovereign integrity of states: an example of the tension between order and justice in international politics.
The trend line is clear. As a consequence of decolonisation and the break-up of existing states, the number of independent political communities in the world has more than trebled since World War 2 and increases almost every year. Many stateless national groups invoke the right, including Kurds, Kashmiri, Basques, Tibetans, West Papuans, Western Saharans, the Québécois and Palestinians. Only the ongoing existence of multinational states such as Indonesia and the United Kingdom slows the proliferation of independent political communities across the world.
A state’s “right to exist” should not be confused with its people’s “right to live in peace within secure and recognised boundaries,” the wording of United Nations Security Council Resolution 242 with similar phrasing appearing un UNSC Resolution 338 and elsewhere. This right exists for all peoples regardless of their geographic location: for Israelis and Palestinians equally. Not for states.
The conflation of states and nations has also confused the discussion. In a frequently cited conclusion to a lecture titled What is a Nation?delivered by the French philosopher Ernest Renan at the Sorbonne in March 1882, support appears to have been given to a states right to exist:
So long as this moral consciousness gives proof of its strength by the sacrifices which demand the abdication of the individual to the advance of the community, it is legitimate and has the right to exist.[ii]
It is clear from the context of the lecture, however, that by “this moral consciousness” Renan is referring to national identity and national consciousness, not the political and bureaucratic apparatus of the state. This is clear from the discussion of what would replace the Ottoman Empire after World War 1, in particular the rights of Turks to govern themselves as opposed to the right of the state of Turkey to exist. The debate over whether a nation has a right to exist is at best tangential and largely unrelated to any particular right a state might have. Ultimately nations are similar to states in one sense: they continue to exist as long as they can maintain their integrity in the face of both internal and external pressures. No appeal to a higher legal or political authority to enforce a right to exist is available.
A “right to exist”? Legal and self-arrogated rights
In the broader discussion of the capacity of states to bear rights, whether states are the beneficiaries of rights and what rights are conferred upon them, there are very few references to a state’s right to exist in international law. Lassa Oppenheim’s influential treatise on international law published before World War 1 does, however, contain the following relevant claim:
Until the last two decades of the nineteenth century all jurists agreed that the membership of the Family of Nations includes so-called rights for States. Such rights are chiefly enumerated as the right of existence, of self-preservation, of equality, of independence, of territorial supremacy, of holding and acquiring territory, of intercourse, and of good name and reputation. It was and is maintained that these fundamental rights are a matter of course and self-evident, since the Family of Nations consists of Sovereign States. But no unanimity exists with regard to the number, the names, and the contents of these alleged fundamental rights. A great confusion exists in this matter, and hardly two text-book writers agree in details with regard to it. This condition of things has led to a searching criticism of the whole matter, and several writers have in consequence thereof asked that the fundamental rights of States should totally disappear from the treatises on the Law of Nations. I certainly agree with this.[iii]
And disappear they have. Though what can be called sovereignty rights continue to appear in international law, and remain a key component of what Hedley Bull called international society, neither a “right of existence” for states nor a “right to exist” for states appears in James Crawford’s more recently published The Creation of States in International Law, widely considered the definitive statement on these matters.[iv]
It is reasonable to assume, therefore, that the right to exist should be considered a self-arrogated right, not a right that actually exists in international law. This is another way of saying that the right to exist is a tool invoked as part of a strategy in a political negotiation, rather than the assertion of an actually existing legal entitlement.
In the case of the Israel-Palestine conflict, it is significant that none of the early Zionist or international foundational documents, whether they be the statements of Theodore Herzl, the Balfour Declaration, the Mandate for Palestine issued in 1922 by the Council of the League of Nations, or the November 1947 UN Partition Plan, employ the language of rights. It is a much more recent confection.[v]
It was first raised as the British mandate in Palestine ended and conflict broke out between Jewish and Arab military forces. On 20 May 1948 the UN Security Council appointed Swedish mediator Count Folke Bernadotte to negotiate a ceasefire and end to the conflict. Bernadotte’s proposals ultimately proved no more successful than those issued by both his predecessors and his successors, however they were the first to implicitly, then later more explicitly, invoke the idea of Israel’s right to exist. An initial minor reference to Israel’s right to exist became more overtly explicit in Bernadotte’s subsequently amended peace plan. Neither concession placated the Israelis and Arab states not only refused to recognise such a right, they pointed out that its mere literal existence was one of the main reasons for rejecting the mediator’s entire plan.[vi]
Again it needs to be stressed that Bernadotte’s words were part of an attempted political solution to the first post-Mandate conflict in the area. They did not invoke long-held legal principles or rights. As will be shown, this pattern has been part of attempts to negotiate a solution to the Israel-Palestine conflict ever since.
International legal rights need not be enforceable to be recognised. Human rights are an important example of universal rights which are often impossible to enforce because of the absence of compliance mechanisms and sufficient global political will. The recent fates of East Germany, Czechoslovakia, Yugoslavia, the Soviet Union and others are a stark reminder of how meaningful proclaiming a right to exist would actually be for states. Politics trumps rights, whether they be legally enforceable or self-arrogated. States change their borders and come into and go out of existence all the time. No state has inherent legitimacy or greater legitimacy than any other. Proclaiming a “right to exist” gives states no additional security or greater sense of permanence in the international system.
Even if states were to reciprocally acknowledge each other’s “right to exist” (which they don’t), the suggestion that sub-state groups or political parties should do so is strange to say the least. The Liberal Party of Australia may issue policies respecting the territorial integrity of the Republic of Indonesia but it doesn’t recognise the right of the state to exist because it would be a meaningless gesture. The most it can do is state where it believes the current political boundaries of that state are, knowing that boundaries often shift.
In 1988, it was reported that the Chairman of the Palestine Liberation Organisation (PLO) Yasser Arafat declared that he had accepted Israel’s right to exist.[vii] Together with a renunciation of terrorism, this concession was a pre-condition for talks between the PLO on the one hand and the US and Israel on the other. There are doubts as to whether Arafat formerly stated this position or the broader right of all states in the region to exist within secure borders, with Israel accepted as one of those states together with Palestine. They are not the same thing.
Subsequently in 1993 there was an official exchange of letters between Chairman Arafat and Israeli Prime Minister Yitzhak Rabin in which Arafat declared that “the PLO affirms that those articles in the Palestinian Covenant which deny Israel’s right to exist, and the provisions of the Covenant which are inconsistent with the commitments of this letter are now no longer valid”. The PLO committed itself to a negotiated settlement of “all outstanding issues relating to permanent status”. In return, Israel recognised the PLO “as the representative of the Palestinian people” and therefore its principal interlocuter in settlement negotiations.[viii]
It is important to recall that this is the leader of a political movement establishing the terms for the negotiation of disputed political arrangements, not one state recognising another’s right to exist. The same situation applied when Arafat’s successor as President of the Palestinian Authority Mahmood Abbas told the Dutch parliament in 2011 that the Palestinian people recognised Israel’s right to exist. Abbas was seeking wider diplomatic recognition of Palestine, including full membership of the United Nations. In other words, this and previous statements are about diplomatic recognition not some abstract right to exist.
In more recent times, the Israeli’s raised the bar for negotiations between themselves and the PLO, and Hamas. From 2009 Israeli leaders such as Ehud Olmert have upped the ante, insisting that the Palestinian Authority, largely controlled by the PLO, should recognise Israel’s right to exist as a Jewish state. This was formalised in July 2018 when the nation-state law was passed by the Israeli Knesset. The law states that “the right to exercise national self-determination in the State of Israel is unique to the Jewish people.” The implications of this law for Israeli Arabs who constitute a fifth of Israel’s population are profound, effectively consigning them to second class status without equal civil or political rights. As a formal discrimination against non-Jews, the law also makes it less likely that any Palestinian leader would formally recognise such an ethnically exclusive state and this consequently delays an outcome to any final status negotiations. This may well have been its intention.
What would a right to exist politically acknowledge?
Hamas, which is the ruling authority in Gaza, is required to follow the same rules that were set for the PLO before it can enter negotiations with either Israel or the United States: it must renounce terrorism and acknowledge Israel’s right to exist.
Setting aside the legal fiction of a right for states to exist, what would be the political consequences of accepting Israel’s self-arrogated claim that its interlocuters must acknowledge its right to exist before discussions can commence?
The first point to make here is that this is a unique demand. No other state imposes such a requirement on another state, nor on a government in waiting or opposition political party. This is even true of those national groups listed above who are seeking statehood.
Secondly, Israel and the United States demand that the former’s right to exist be acknowledged by all Palestinian groups before its boundaries are settled and internationally accepted — to say nothing about other outstanding issues such as the status of Jerusalem and the right of return for refugees. The a priori question of what Hamas would actually be recognising by accepting Israel’s “right to exist” has only one answer. It would be acknowledging the legitimacy and legality of the dispossession of the Palestinian people from their homelands. They would be defending the morality of the Nakba. Why would they want to concede this, let alone do so as a precondition for entering peace negotiations? It would amount to a pre-emptive surrender. As John Whitbeck explains:
There is an enormous difference between “recognizing Israel’s existence” and “recognizing Israel’s right to exist”. From a Palestinian perspective, the difference is in the same league as the difference between asking a Jew to acknowledge that the Holocaust happened and asking him to concede that the Holocaust was morally justified. For Palestinians to acknowledge the occurrence of the Nakba — the expulsion of the great majority of Palestinians from their homeland between 1947 and 1949 — is one thing. For them to publicly concede that it was “right” for the Nakba to have happened would be something else entirely.[ix]
Such an acknowledgement is certainly not necessary for a settlement to be reached, and it would undermine the bargaining position of Palestinians since 1948. Mexico extends diplomatic recognition to the United States despite its refusal to acknowledge the right of the US to incorporate half of Mexico into its republic. In recent years Hamas has effectively acknowledged de facto diplomatic recognition of Israel by accepting that a two state solution needs to be negotiated in accordance with the international consensus, which really only excludes Israel and the United States.[x] This should be sufficient for direct negotiations to commence. After all, Israel does not acknowledge Palestine’s right to exist nor does it see this mission as an impediment to negotiations. The 1999 platform of Israel’s governing party, Binyamin Netanyahu’s Likud, “flatly rejects the establishment of a Palestinian Arab state west of the Jordan river”, which is almost a mirror image of Hamas’s charter, though arguably more rejectionist.
Furthermore, according to the Australian jurist James Crawford, the “creeping expropriation” of Palestinian land in the Occupied Territories and the proliferation of Israeli settlements constitute a “de facto annexation of the West Bank territory … has prevented the Palestinian people from exercising their right to self-determination”.[xi] To put it another way, by insisting that Palestinians acknowledge a fictitious right (a right to exist), Israel is preventing them from exercising a related right which actually does exist.
At some point in the 1970s the right of Israelis to “live in peace within secure and recognised boundaries” morphed into the right of the state of Israel to exist. This was part of a political strategy designed to leave borders unfinalised and self-determination for Palestinians unrealised. By raising the threshold test beyond the point that any Palestinian group could accept, the Israelis and Americans were preventing serious negotiations towards a settlement of the conflict from proceeding. As Noam Chomsky argues,
In the mid-1970s, it was clear that the Arabs were perfectly willing to make a political settlement. Syria, Egypt, and Jordan proposed a two-state settlement at the Security Council; the USA had to veto it. Egypt had already offered a full peace treaty with Israel. It was necessary to raise barriers to block negotiations. So the concept of Zionism changed. Everyone had to accept the “right to exist” of Israel. States do not have a right to exist. Mexico does not accept the right of the USA to exist sitting on half of Mexico. States recognise each other but not their right to exist. There is no such thing. But Israel raised that barrier to require that Palestinians accept that their oppression and expulsion is justified. Not just that it happened, but that it is justified. Of course they are not going to accept that. So it was a nice barrier to stop negotiations. Now it’s harder. The support for a settlement is now so overwhelming that Israel has been forced to raise the barrier still higher. The Palestinians now have to recognise Israel as a Jewish state. That’s the core element of most of the speeches that Netanyahu gives. Why that? Because that’s understood to be impossible.[xii]
Today they are still demanding of a political movement something that has never before been required of any state. In fact they have raised the threshold test to recognizing Israel’s right to exist as a racially exclusive state. This is a strategy of rejectionism and it should be a surprise to no one that this conflict is now in its seventh decade.
According to critical anthropologist Patrick Wolfe, Israel’s demand that Palestinians recognise Israel’s “right to exist” is a product of the “incomplete foundations” of the Zionist project in Palestine, which is fraught with insecurity and anxiety. No other state, comfortable in its own skin of legitimacy, would feel the need to issue such a petulant demand [xiii] And none have.
[i] John V. Whitbeck, ‘What “Israel’s right to exist” means to Palestinians’, The Christian Science Monitor, 2 February, 2007
[ii] Ernest Renan, ‘What is a Nation?”, lecture delivered at the Sorbonne, 11 March 1882 — English translation http://www.cooper.edu/humanities/core/hss3/e_renan.html
[iii] L. Oppenheim, International Law: A Treatise, Volume 1, (2nd ed, Longmans, London 1912), Chapter II, paragraph 112
[iv] James Crawford, The Creation of States in International Law (2nd ed, OUP 2006).
[v] Joseph Massad, ‘The rights of Israel’, Aljazeera (online), 6 May 2001 — https://www.aljazeera.com/indepth/opinion/2011/05/20115684218533873.html
[vi] Ilan Pappé, The Making of the Arab-Israeli Conflict 1947–1951 (I.B. Tauris, London 2001), pp.144 & 149
[vii] ‘Arafat Says P.L.O. Accepted Israel’, New York Times, 8 December, 1988; ‘PLO Accepts Israel’s Right To Exist, Opposes Terrorism, Arafat Says, Los Angeles Times, 7 December, 1988; Arthur Max, ‘Arafat Endorses Statement Recognising Israel’s Right To Exist’, AP, 8 December, 1988
[viii] https://mfa.gov.il/mfa/foreignpolicy/peace/guide/pages/israel-plo%20recognition%20-%20exchange%20of%20letters%20betwe.aspx and James Crawford, The Creation of States in International Law (2nd ed, OUP 2006)., p.443
[ix] John V. Whitbeck, ‘What “Israel’s right to exist” means to Palestinians’, The Christian Science Monitor, 2 February, 2007
[x] Paul Scham & Osama Abu-Irshaid, ‘Hamas: Ideological Rigidity and Political Flexibility’, United States Institute Of Peace, 1 June, 2009 — https://www.usip.org/publications/2009/06/hamas-ideological-rigidity-and-political-flexibility
[xi] James Crawford, The Creation of States in International Law (2nd ed, OUP, New York 2006), p.435 and Crawford quoted in Norman G. Finkelstein, Gaza: An Inquest Into Its Martyrdom (Uni of California Press, Oakland 2018)., p.372.
[xii] Noam Chomsky & Ilan Pappé, On Palestine (Haymarket Books, Chicago 2015), pp.52–3.
[xiii] Wolfe quoted in Saree Makdisi, ‘Elimination as a Structure: Tracing and Racing Zionism with Patrick Wolfe’, American Quarterly, Volume 69, Number 2, June 2017, pp.282–3.
(from Scott Burchill, Misunderstanding International Relations: A Focus on Liberal Democracies (Palgrave Macmillan, Singapore 2020), ch.4.