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 the Israel and Palestinian Authority (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 wheelchair-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 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).
The views presented in this article are the author’s own and do not necessarily represent the views of any other organization.