Moving forward with Palestine, the state

If Canada truly believes in a two-state solution, it should reframe the issue as two states negotiating solutions.

By: /
March 15, 2019
Palestinian demonstrators protest at the Israel-Gaza border fence, in the southern Gaza Strip, March 1, 2019. REUTERS/Ibraheem Abu Mustafa
CraigScott

Professor of Law, Osgoode Hall Law School

In a tumultuous world, the Israeli-Palestinian conflict is a constant. While many other foreign policy challenges have been competing for our top-of-mind attention in recent times, you can be sure that this one will continue to surge forward periodically — with unpredictable ripple effects on international stability.

Canada has long been among many states to declare support for a “two-state solution” to the conflict, regardless of whether federal governments have been Liberal or Conservative. Last November, Canadian Foreign Minister Chrystia Freeland gave a speech to the Israeli Council on Foreign Relations in which she reiterated this policy, stating: “We do believe that a lasting peace in the Middle East is possible, but that it can only be achieved through a two-state solution resulting from direct negotiations between the parties.” Note that the corollary of this policy is that Canada only supports Palestine emerging as a state when (or, if) bilateral negotiations someday produce an agreement leading to two states.

In contrast to continuing this approach to Palestinian statehood as an untouchable plank of Canadian foreign policy, the time may be right — outside of an immediate crisis moment — to make a case for bringing to an end Canada’s official policy of non-recognition of Palestine as a state. Allow me to outline some of my thinking, in an effort to open a wider discussion — one that is ripe for parties to address in the lead up to and during the October federal election campaign.

A Liberal-Conservative consensus

At the moment, there is little daylight between Canada’s two establishment parties. The Liberal government’s approach to Israel, regardless of how much the country’s ‘facts on the ground’ occupation has continued to deepen, is essentially unchanged from that of the previous Conservative government. For example, a bill implementing a revised Canada-Israel trade agreement passed the House of Commons without any human rights clause (such as the one the Conservative government negotiated with Colombia) and with provisions that effectively allow internationally-illegal settlement goods and products to enter Canada not just free of tariffs but free of labelling other than “Made in Israel.” Meanwhile, the Conservatives have signalled that they may want to make ‘Who supports Israel more?’ a ballot-box question, given Andrew Scheer’s recent commitment that a Conservative government would move Canada’s embassy to Jerusalem, following on from the United States’ recent move.

Consider, further, another indicator of where we currently are in terms of parties’ approaches to Palestine’s status. At the time of Palestine’s acceptance as a non-member observer state by the United Nations General Assembly in 2012, the NDP welcomed this development. In contrast, both the Conservative Party — as government at the time, voting against according Palestine this status — and the Liberal Party framed such admission as somehow a manifestation of ‘unilateralism’ on the part of Palestinians. At its heart, however, their objection is not truly about even-handed treatment but rather about its opposite: maintaining the profoundly unequal power dynamic between two peoples negotiating the shape of their relationship where one (in this case, Israel) benefits from already operating as a recognized state in the international system.

Also lurking out there as a sleeper election issue is Canada’s bid to be re-elected to the United Nations Security Council. Some observers are noting that Canada not only now has inferior credentials to its competitors Norway and Ireland on some indicators like peacekeeping and foreign aid, but also has almost entirely followed the same pattern of voting as the Conservative-led Canada with respect to matters relating to Israel. For example, in December 2017, as CBC reports, “Canada abstained on a [UN General Assembly] vote condemning a unilateral decision by the U.S. to move its embassy from Tel Aviv to Jerusalem. Ireland and Norway both supported the motion, along with 126 other countries.” In that regard, Freeland, after saying in her speech to the Israeli Council on Foreign Relations that Canada is running for a seat on the Security Council in order to be part of constructive multilateralism, quite remarkably went on to add: “We believe our presence on the council can be an asset for Israel and can strengthen our collaboration.” That may have not been simply a tailored argument for a specific audience but a broader signal — possibly even for Canadian election purposes — of how the Liberals may be situating their effort.

A formal recognition

A combination of moral considerations and evolution of many countries’ approach to the Israeli-Palestinian conflict leads me to the belief that Canada must now formally recognize Palestine as a state. Simultaneously, we should push to reframe the idea of a negotiated two-state solution in terms of two states negotiating solutions to a range of challenges that, in the final analysis, can only be addressed through state regulation and interstate cooperation.

United Nations General Assembly Resolution 181 (II) of 1947 has legitimately been treated as foundational to Israel’s statehood, but we cannot forget that it recommended the recognition of two states upon the departure of Britain, not just Israel. In that regard, there is a tendency amongst some to focus only on the post-mandate colonialist reasons for Israel having become a full member of the UN while Palestine remains under external domination — including the fact that a politically influential current in Israeli society believes occupied West Bank territory (“Judea and Samaria”) is part of Israel’s religiously ordained destiny.

“Countries like Canada must be pushed to understand how their acceptance of the status quo fundamentally contributes to that status quo.”

However, we also cannot ignore historical and current realities that contribute to Palestine’s contested status being bound up in Israel’s legitimate felt need to ensure its own security. Regional states went to war against Israel in opposition to the UN’s two-state ‘birth certificate’ and to Israel’s associated declaration of independence. Successive wars led to outcomes far removed from what Resolution 181 (II) had in mind: first, Jordan and Egypt assumed authority over Palestinian territory not controlled by Israel and, later, Israel became the occupying power over those territories (which it remains to this day, over 50 years later). Meanwhile, Israel’s presentation of the relationship with Palestinians in security terms not only is shored up by periodic bouts of violence emanating from the West Bank in the past and by outbreaks of warfare with Hamas in Gaza but also is nurtured by a more general sense of insecurity, given the threats presented by Iran as a region-wide actor and by the presence of heavily-armed Hezbollah in Lebanon on the northern border.

The geopolitical combination of colonial-mindset and military-security reasons for Palestinian subordination to an occupying power leads many to assume the situation is fated to continue indefinitely, oscillating between conflict management and outbreaks of violence. We cannot give in to such resignation. And not just for the sake of Palestinians. If the already extraordinarily long delay in Palestinians achieving full control over their own destiny in a state of their own does not end, Israel’s retention of a repressive occupation will continue to undermine its standing and its stability.

Countries like Canada must be pushed to understand how their acceptance of the status quo fundamentally contributes to that status quo. A new frame is quite desperately needed.

Peace processes oriented to securing a negotiated two-state solution are approached by key actors, Canada included, on the implied assumption that the underlying question is when and how Palestine will become a state — and thus whether Palestine will even become a state. Instead, two-state negotiations should be re-imagined in light of both international legal baselines, including Resolution 181(II), and primordial considerations of international justice that include the right of peoples to self-determination — a right that only took full shape as a liberating force in the decades following both the founding of the UN and the near-contemporaneous birth of the state of Israel.

Be clear that official recognition by Canada of Palestine as a state would not risk being ahead of the curve. In the last decade, for example, two states known for their orientation towards promoting peace and reducing conflict formally recognized Palestine’s statehood — Sweden (2014) and Costa Rica (2008); in addition, 135 other states also recognize Palestine. Sweden and Costa Rica clearly would not have done so if they did not expect that recognition would help push matters forward in a positive direction.

Benefits of statehood for the negotiations dynamic

Among the reasons recognition of Palestine as a state is a productive course of action are the following considerations. First, it registers a kind of out-of-patience discontent with Israel’s actions on the ground that have bolstered the occupation and that increasingly put in jeopardy the viability of the two-states vision. Second, it keeps the eyes of the Palestinians on international diplomacy and encourages non-violent resistance to the occupation as the pathway to diplomatic gains. Third, it keeps the world focused on the urgency of finding a just and durable settlement to a conflict that has ever-dangerous global ramifications.

Finally, recognition of Palestine’s claim to existing statehood goes hand in hand with the benefits of reframing the relationship in terms of solution-seeking via state-to-state diplomatic negotiations. In such a frame, Israel-Palestine negotiations must continue (or be re-started) on a myriad of details that are central to resolving the shape of the relationship between the two negotiating states. Such negotiations can be freed from the ‘all or nothing’ straitjacket that assumes that all issues necessarily have to be resolved simultaneously and comprehensively because they are deemed to be bound up in a final-status outcome (i.e. ‘Palestinians, agree on everything and you get to be a state, Palestine.’) Instead, in a reframed state-to-state dynamic, Israel and Palestine may be more likely to reach agreement on issues sequentially in the same way that all states in their bilateral relations — take Canada and the US for example — generally try to tackle issues on their own terms, actively de-linking issues so as to achieve progress on one front even when progress on other fronts looks fraught. In the process, disaggregating issues to allow some solutions to emerge ahead of others can contribute to building the trust and confidence that allows more difficult questions to then be approached more productively.

None of this is to be naïve about the fact that negotiations — reframed as negotiations between two states about how those states will co-exist and ideally even prosper alongside each other — will still have to overcome many stubborn disputes that have proved seemingly intractable to date: over precise boundaries; over the status of Jerusalem; over regional water scarcity; over West Bank-Gaza connections; over ocean access and jurisdiction; over mutual security in light of the realities of Israel’s military power (and associated methods of conducting hostilities) being paralleled by the armed capacity (and associated methods of conducting hostilities) of actors like Hamas, Hezbollah, Islamic Jihad and Iranian surrogates — and so on.

Of course, treatment of Palestine as a state does not somehow magically resolve such seemingly intractable issues. However, it does very much adjust the frame of negotiations in a way that is more structurally oriented towards achieving a just and peaceful relationship between two equals. Such recognition of Palestine’s statehood will contribute to placing productive pressure on peace processes that cannot occur — and generally have not occurred for most of the last half-century — when one state is supported in the idea that it can veto whether or not the negotiating partner can ever become a state.

At the intersection of international law and international politics, the achievement of statehood has long been, in significant part, a matter of the world community playing a constitutive role through the combination of admission to international organizations and the collective effect of individual states’ cumulative recognition of others’ statehood claims. Canada should be part of such a world-community effort by officially recognizing Palestine as a state.