INTRODUCTION
Due to the application of Hans Kelsen’s theory in a foundational constitutional case in Pakistan, he is not offered charitable reviews by Pakistan’s legal scholars. He has, however, another introduction within the international law scholars, and that is that he questioned the very existence of international law on the basis of his monistic theory that he expounded in his book ‘Principles of International Law’, which was published in 1952 in the US. The monistic theory stated that there must be a central system of law-making with sanctions against ‘juris delicts’ (legal wrongs) if international law is to be treated as a legal order. At that time, his monistic theory was severely criticized, but Israel’s actions of committing genocide in full view (and to some extent complicity) of the international community and aggression against seven countries have brought back the discourse on the very existence of international law. The last few months have highlighted many an issue that disproved international law and reaffirmed the monistic theory of Hans Kelsen. The instant write-up will briefly examine the issue of recognition of the state of Palestine by many Western countries, followed by a brief discussion about the so-called Peace Plan given by the US President.
STATEHOOD AND RECOGNITION OF PALESTINE
Statehood and recognition are two distinct concepts. In lawyerly jargon, statehood is a question of fact, whereas recognition is a question of law. While the statehood is a question of fact, still, in order to determine this fact, international lawyers offer a sort of criteria for statehood that is found in the Montevideo Convention on Rights and Duties of States, 1933 (which was originally for some regional countries) but has been refined over time. The four criteria contained in the Montevideo Convention are: (a) population; (b) defined territory; (c) government; and (d) independence. While population and territory are, to some extent, objective factual criteria, the concepts of government and independence require much attention, as these are subjective to a large extent. For example, when a regime is not liked by the international community for political reasons, it may not recognize the state on the basis of the state not having an ‘effective’ or ‘legitimate’ government. Likewise, the question of ‘independence’ is also open to interpretation. The Montevideo Convention requires that a state be independent to enter into relations with other states. The discourse on the criteria makes it arguable, and therefore, there is a fair amount of critique on the criteria, and it is not as universal as it sounds. Power-driven cases like the invention of the state of Israel that did not meet any of the criteria offered by international law have negated the very perception of international law. On the contrary, Palestine suited most of the criteria provided in the Montevideo Convention, and its statehood was established on much better legal and factual grounds. However, the politics of deceit, fraud, and excessive legalese through the UN machinations that crafted the two-state solution tried to pettifog the issue and took away the clarity of the issue. Therefore, any debate about the recognition of the state of Palestine without its statehood is a non-starter. It may be noted that the politics of recognition has been a diplomatic and legal tool to punctuate the relations with different countries. Recognition of statehood is different, and the recognition of regime/government is different. Therefore, we see that while Pakistan does not recognize the statehood of Israel, it does recognize the state of Afghanistan, but only recognizes the Interim Government of Afghanistan (in line with the Western countries’ policy not to recognize the Taliban regime). Recently, major Western countries like the UK, France, Canada, and Australia recognized the state of Palestine. By any standard, this is not enough and is against the facts and against the very grain of the UN resolutions on the subject. The fact is that Western countries should have renounced recognition of Israel instead of recognizing Palestine, as the former is clearly a usurper and has no legal right to be there. The claim of statehood of Israel is as thin as sand, and that point must be articulated through diplomatic narrative building by the Muslim countries. France is trying to garner the support of Muslim and European countries by evincing its humanitarian credentials by recognizing Palestine, but this approach is presenting an inchoate perspective that does not question the statehood of Israel.
PEACE PLAN
A ceasefire and a peace plan are two different things. The twenty points rolled out by the US through its President Trump only propose a ceasefire and no peace. Peace is a product of truth and reconciliation, whereas a ceasefire is a temporary pause. To borrow the phrase of Hans Kelsen, after committing so many ‘juris delicts’ (ranging from illegal occupation, war crimes, and genocide), and still acting with impunity, how can any reference to international law sustain? Nevertheless, for the sake of diplomatic advancement of the cause of killed women and children, one has to argue on the strength of the international normative regimes that emanated from the UN Charter and from the International Humanitarian Law (IHL). For the last many decades, the UN Charter has offered a detailed UN System that has brought in a plethora of international human rights instruments, including the international dispute resolution systems through specialized tribunals and courts, including (but not limited to) the International Court of Justice and International Criminal Court. Likewise, Israel’s acts clearly violated the four 1949 Geneva Conventions and Additional Protocol I of 1977 to which Israel is a party and that constitute the international humanitarian law regime that is disseminated through the International Committee of the Red Cross (ICRC). Abruptly, disregarding these normative international legal regimes to protect Israel has serious consequences for the international political system, which is already on a breaking point and is likely to imperil the interests of the US that painstakingly developed these regimes.
