ON July 31 King Hussein announced that he would no longer claim the West Bank territories as part of his kingdom of Jordan. Two days later he cut off Jordanian funding for the administrative infrastructure of those territories. To ``realists'' who do not regard the law as significant in international affairs, nothing important has changed; the step appears to be merely a public relations gesture. As usual, these realists are wrong. The step has great consequences in the world of law, and will therefore greatly affect the political future of the Middle East.
The central question is, who represents the self-identified Palestinian people? The Israeli position is that Israel can choose the party with which it will negotiate the future of the occupied territories; it will choose as a negotiating opposite only people who enter the negotiation disposed to accede to an Israeli position.
If no such people can be found, then the occupation continues, and in due course the territories will simply be absorbed into the state of Israel proper.
Under this approach, the Palestinians who reject the idea of being governed by laws they play no role in making and by an administrative order that regards them as mere objects to be governed can either leave or submit, as do the Armenians in the Soviet Union, the Kurds in Iran and Iraq, and many other ethnic blocks in many other countries.
Legal and political problems exist with this approach.
Legally, it is not for Israel to determine who represents anybody except the people within the political society of Israel. As a matter of law, nobody can determine such matters for others. ``Recognition'' has been a political tool that politicians have frequently tried to expand into the legal sphere by differentiating between ``de facto'' and ``de jure'' worlds. That manipulation has never worked. In the world of law, facts determine legal relations unless the law says otherwise, and in the world of international law, the law rarely says otherwise.
Politically, for any party to purport to represent the Palestinian people in ways that reflect the desires of foreigners more than of the people they purport to represent is self-defeating. They would be regarded by the Palestinians as Israeli agents, and any agreements they negotiated would be rejected in principle by their supposed constituents, even if its contents were in substance the best those constituents could hope to achieve. The Israeli position is a way station on the road to chaos.
The position being negotiated by the leadership of the Palestine Liberation Organization within the Palestine National Council, a body of about 500 members that purports to represent the Palestinian people and fix policy for the PLO, has legal and political pitfalls the mirror image of Israel's. Just as Israel cannot accept as negotiators for Palestinians people who are not amenable to Israeli wishes, so the PNC cannot keep its major constituencies in line if it recedes from the principle of total supersession of Israel as a state.
But the existence of Israel as a state is a fact that cannot be changed by any declarations of principle or policies of ``nonrecognition'' by anybody except the Israeli legal order itself. So the bedrock Palestinian position will have to be made an aspiration rather than a statement of practical policy if the real negotiators for the Palestinians are to have the flexibility to reach any agreement beyond a military cease-fire or exchange of prisoners with the negotiators for the state of Israel.
In both societies there are constituency complications. Competition for influence within the policymaking bodies must involve posturing and the staking out of ideological positions that could render the entire exercise futile. That is the way democracies work. And if there is to be any negotiation between representatives of Israel and of the Palestinians, the Israelis must try to stack the cards by insisting on negotiating advantages for the established state that won its territory in several bloody wars. The Palestinians must insist on being treated as the sovereign equals of the Israelis even before any state of Palestine is established in fact; that is, before the law would require their treatment as sovereign equals. As a matter of practical politics the Israelis cannot concede a legal position to the Palestinians that the law does not require that they concede.
In sum, there are bound to be many firm assertions of political position in the next few months in the Middle East. Most of those assertions will be wrong in law and shortsighted in policy. For the sake of both the people of Israel who want peace and the Palestinian people who want to form a state but lack the military strength to create a state against Israeli opposition, the United States should try to encourage the leadership of both sides to distinguish law from policy and use both to accommodate to unpleasant facts while protecting vital interests. The path is difficult, but if Israel really wants peace and security, and if the Palestinians really want a state of their own, there is no reason in law or policy why the basic goals of both cannot be achieved now.
Alfred P. Rubin is professor of international law at the Fletcher School of Law and Diplomacy, Tufts University.