The Constitution of Palestine.

I now believe the conventional “two-state” model for Palestine is not only dead, but an abused corpse. Look at a map of the West Bank and Israel. Then notice Gaza discontinuously off to the west. Even under the best of circumstances, with some kind of Berlin-access-type corridor between Gaza and the Hebron area, Israeli cooperation would be required if the two areas are to be part of one state.

What makes it worse is that the West Bank is not nearly as contiguous as it appears, either. Even if you use the security fence as a starting point, this still leaves the even more patchwork problem of the greater Jerusalem area.

But, as the saying goes, when your only tool is a hammer, every problem looks like a nail. If it were as simple as declaring a Palestinian state, there would not be much of a problem. Yet this doctrine of “the 1967 borders with agreed upon swaps” is only laying out the territorial arrangement. The Palestinian state as already imagined in most people’s minds would be fairly unconventional.

For one thing, there will be all sorts of security guarantees. Palestine won’t have an army. So, I suppose, Israel has to defend it against external threats? I’m sure all of these things are spelled out in different formulas in different proposals, but they are, to me, more or less nonsense.

From the Israeli perspective, they’re buying a pig in a poke. Two states, even if it became real, is no “solution” any more than the lowering of the French flag in Nigeria “solved” the problem of colonialism, the 1964 Civil Rights Act in the US “solved” the race problem here (or the legacy of slavery) and so on. People at a loss to explain the plight of Africa these days tend to blame colonialism’s legacy—and we’re getting close to 50 years since that era ended. Yet most African states have a fighting chance that Palestine lacks in their natural resources. I don’t think selling faux shards of the true cross to Christian tourists is a natural resource. Tourism will only work if the place isn’t a dump and if its revenues can be fairly distributed. Furthermore, I seriously doubt that over a century of preaching hate against Zionists will simply disappear in the afterglow of such an agreement. It won’t make Israel safe. It may not harm its interests, but this “solution” will at best give some Muslim majority countries breathing room in diplomacy and not much else. It won’t restore the comity of the Golden Age in Cordoba.

But that doesn’t matter much to Palestinians, some of whom live in diaspora and some of whom live in a bizarre quasi-state. They also suffer under divided leadership one branch of whom is a masturbatory and corrupt committee leaching funds from other Arab states… or a terrorist organization.

A further problem is the creation of a Palestinian state at all. Arguably, many Arab countries only have the exterior trappings of a state, but actually lack the power to function as such. For better or worse, the fragility of these governments was shown over the course of this past year. Most of these governments simply lack the legitimacy, the ability to provide for the rule of law, or the power to carry out the decisions of the government throughout huge portions of their territory. This is actually a problem world-wide. Most Arab states were created out of whole cloth out of the Ottoman Empire after World War I, or out of other Imperial powers in the case of the Maghreb countries. We think of many of these countries as crushing dictatorships. Certainly, the places people have in mind are places where western notions of freedom are limited. Rule can be arbitrary, but it is actually quite finite. This, again, was shown in stark relief over the course of this year.

I doubt that the Israel-Palestine dispute admits of any solution outside of a broader solution to the dreadful condition of governments in the Arab world at large. But it is theoretically possible that a legitimate and effective government in Palestine that could deliver the rule of law could come about on its own. But the PA is nowhere close. Any agreement ultimately is only as good as the de facto existence of both parties as effective states.

I think a creative constitution is called for. One that sees a slightly different model of state and sovereignty—one which is currently based on territory, population, and so on. I’m not entirely clear, first of all, why Gaza can’t be one independent state and Palestine another—they’ve been on a divergent path for 5 years now.

Two models that come to mind are that of the co-principality of Andorra and the former British dominions. In a modified version of the former, the Palestinian state(s) could elect a parliament whose prime minister would be the head of government, and which would exercise normal functions of sovereignty. A designee of Israel and another body (the UN, the Arab League, whoever) could serve as co-presidents, who would have the power to veto certain laws affecting certain issues, such as foreign relations and security.

Another model is the British Dominion model. Marketing this idea might be hard for historical reasons, but the basic framework can be called whatever. In this model, Palestine is granted home rule, and even conducts foreign relations on its own, but certain constitutional functions are exercised by a Governor-General, leaving technical “sovereignty” with the “sovereign,” here, as it is now, Israel. This would simplify a number of issues where the two have to cooperate without creating a multiplicity of entities or requiring a treaty every time the road between Gaza and Hebron needs to be repaved.

With a clever conflict of laws provision embedded in it, the latter model could even work to provide Palestinian rule over whatever exclaves may be agreed to, or even to persons outside the territory. (For example, two Palestinian citizens involved in a dispute over an incident that occurred in one of their houses in Israeli land could seek to have their disputes resolved in a Palestinian court, could vote for the Palestinian parliament but would not be entitled to do so if they resided outside of Mandatory Palestine—this would essentially allow for an approximation of a binational state without undermining the Jewish majority within Israel—you might even be able to get a similar arrangements for Israelis living in settlements that do not get included within Israel’s borders.)

These are just a couple of thoughts that sprung to my mind while thinking about the unlikely resolution of this matter any time soon while thinking about some of the anomalies in comparative law.

Whether or not any of this comes to pass doesn’t matter. But what does matter, I think, is that if there is to be any edifying progress (even if not a solution) it will require new and different ways of thinking about states so that such coinages as “two-state solution” will ultimately be misnomers.

It might even show the way to a broader solution to some kind of stability to the broader and many-peopled Arab world.