Zionism has always been defined by its contradictions—a movement of national redemption and high moral purpose that from the start was openly predicated on a colonial enterprise that could not accept the presence of another people on what Zionists considered their ancestral homeland. Often Palestinians were simply made absent—at the start of the 20th century in the art of Nachum Gutman and writings of Israel Zangwill (the first Zionist to use the phrase “land without a people for a people without a land”); 100 years later, in the views of the majority of Israeli politicians who’ve governed the lives of approximately 10 million Israelis Jews and Palestinian Arabs during the Oslo era. Palestinians have always been and remain in this view a nuisance, a “renter” without permanent rights who did not “deserve to rule the country” since they had not made it modern and productive, as only (European) Jews could hope to do (as Israel’s founding prime minister Ben Gurion argued).
The core discourse of erasure and reinscription in which Palestinians have long been removed from the political, economic, historical and ultimately physical landscape of their homeland remains poorly understood by most Jews, either in Israel or the Diaspora. Even those who have taken the still difficult step of advocating for BDS, imagine that Zionism was a liberal movement that could have accommodated Palestinians, at least before the Occupation poisoned the Zionist soul. Thus Steven Levitsky and Glen Weyl argue in a recent Washington Post oped analyzed by Mondoweiss that Theodor Herzl was “repulsed by the Afrikaners’ ethno-religious fanaticism in South Africa, which led him to declare that “’We don’t want a Boer state, but a Venice.’ American Zionists must act to pressure Israel to preserve Herzl’s vision — and to save itself.”
Of course, Herzl’s vision wasn’t quite as these two “prestige” Jews envision it. He might have imagined a Venetian future for Palestine, but it was one largely without Palestinians. Instead, Herzl wrote that the Jewish state would be an “outpost of civilization against barbarism,” a goal to be achieved in good measure by buying up all the private land and leaving poor Palestinians to be “spirited across the border.” The rich ones (as described in his novel Altneuland) would then civilize themselves by selling all their land to Jews and joining the “Jewish society.”
Herzl’s vision of Palestine’s future wasn’t entirely wide of the mark. Hundreds of thousands of largely poor and working class Palestinians were indeed “spirited across the border” in 1948, 1967, and more slowly but steadily over the years since the Occupation began. A the same time, the Palestinian elite has, almost since Zionist first arrived on the soil of Palestine, sold land to Jews and otherwise used their position more often than not to strengthen their wealth and power at the expense of their fellow Palestinians. Thus we have the spectacle in the 1940s of Zionist Labor activists represent the Histadrut’s Arab labor union being forced to defend their support of Palestinian workers from wealthy Palestinians in Jaffa, who argued that their presence only served to give the workers dangerous idea about their “rights.” Seventy years later, the Oslo political and economic elite remain largely divorced from the broader Palestinian society, having been given all kinds of economic and political benefits by Israel in return for enabling the smooth perpetuation of the Occupation during the Oslo years.
These dynamics cannot but produce periodic outbursts of violence and greater than normal resistance by ordinary Palestinians, especially as Israel’s matrix of control grows ever tighter around the West Bank and East Jerusalem and, through the siege, around Gaza. Ultimately, these dynamics owe to the fact that well before Oslo, even before the first Intifada, Israeli settlements and the broader system they were enmeshed with were so integrated into Israel proper that any attempt to separate them, as Meron Benvenisti argued in the seminal West Bank Data Base Project argued in 1987, was already by then doomed to fail.
Oslo was not done in by the bad faith of Israelis or violence and irredentism of Palestinians. It was a stillborn peace precisely because the larger aims of the Israeli state, the reality of the settlement system, Israel’s role in the broader US imperium, and Palestinian broad weakness yet unwillingness to give up their nationalist aspirations and either leave or demand equal rights with Israeli Jews in a unitary or binational state, meant a territorially grounded two state solution was never going to come to pass.
Realizing these dynamics, a team of Israeli, Palestinian and international scholars, policymakers and activists began meeting in the mid-2000s to consider how a different conception of sovereignty, one no longer based on exclusive link between state and territory, but rather based on a direct relationship between the individual and her or his state wherever he or she lived in historic Palestine/Eretz Yisrael, could allow for an achievement of the majority of the national objectives and imperatives of both peoples in a non-zero sum manner.
Such a scenario, which we term a “parallel states” solution, rests on dividing sovereignty instead of territory, and builds upon two state structures, in parallel, one Israeli and one Palestinian. Both would coexist over the whole of the territory of Israel, the West Bank and Gaza. From the start it was clear that, at least in theory, our idea could solve most of the outstanding conflicts between the two parties, allowing both peoples to “return” and live throughout the full breadth of the territory of the country and claim sovereignty over it without upsetting the demographic balance and political viability of the individual, ethnically determined states.
In short, both Palestinians and Israelis could finally eat their nationalist and territorial cake, and still have enough left over to share with the other.
A utopian vision to be sure, but as the Oslo process slipped further into the diplomatic coma from which it will clearly never recover, and the alternative of increasingly violent occupation and political Apartheid or a moving towards a one state or binational solution increasingly came into view, this vision suddenly seemed less fantastical and in fact at least potentially practical, if the details could be worked out in a convincing manner.
This we have attempted to do with the publication last year of the book One Land, Two States: Israel and Palestine as Parallel States with the University of California Press, which details the findings of a half decade’s worth of joint research, discussions and debates in the areas of security, economics, diplomacy, international law, legal regimes and harmonization, and the role of religious and of culture more broadly in creating a new architecture for shared sovereignty yet politically independent life for both peoples on the same land. What follows is our broad introduction to our findings.
We offer them not so much as a set plan to be adopted by politicians as an intellectual and moral provocation, reminding all sides that even the most pessimistic and hostile realities can be overcome with creativity and a willingness to think outside the political, diplomatic, economic and cultural boxes in which both sides have for so long been trapped.
Chapter 1
One Land—Two States?
An Introduction to the Parallel States Concept
By: Mathias Mossberg
The conflict between Palestinians and Israelis has now raged for the better part of a century. Israel was established as a state in 1948, but the origins of the conflict go back much further, at least to the first days of the Zionist movement. Some say the conflict was born more than three thousand years ago, when Moses espied the green strip of Jericho from Mount Nebo, on the other side of the Jordan River; or earlier still, when Abraham first passed through the land of Canaan and rested in Shechem, close to today’s Nablus.
Cover of One Land, Two States: Israel and Palestine as Parallel States
From the biblical period through the present day the land between the Mediterranean Sea and the Jordan River has been the site of innu- merable conflicts over territory and the identities that have taken shape within it. As we go to press, prospects for peace between Israelis and Palestinians remain bleak despite yet another wave of U.S.-brokered diplomatic activity, primarily because a territorial division acceptable to both sides is not in sight. Israel continues to strengthen its presence across the West Bank, while remaining in control over many aspects of life in Gaza. Among increasing numbers of both Palestinians and Israe- lis the view is gaining ground that the time has run out for a traditional two-state solution—that is, a division of historic Palestine/Eretz Yisrael into two territorially distinct states.
If a two-state solution seems increasingly remote, a one-state solution remains unacceptable to the vast majority of Israelis for political and cultural as well as demographic reasons. A significant percentage of Palestinians is similarly not ready to give up the long-sought-after dream of a sovereign Palestinian state. Facts on the ground have led to loss of hope, and the belief is widespread that the two-state solution is dead. There is a growing debate about alternatives, and this book is a contri- bution to that debate.
The fundamental question that this book poses is whether it is possible to envisage a new kind of two-state structure that could meet some of the basic demands and desires from both sides. Could a concept with two parallel state structures, both covering the whole territory, with one answering to Palestinians and one to Israelis regardless of where they live, be envisaged? Could such a concept contribute to unlocking positions on key issues and thus opening up a way forward?
The contributors to this volume explore different aspects of this vision of a Parallel States structure, one Israeli state and one Palestinian, both states covering the whole area between the Mediterranean and the Jordan River. In such a scenario, military, political, and economic bar- riers would be lifted, and a joint security and defense policy, a common and equitable economic policy, and joint and harmonized legislation would replace existing divisions. Such a structure would allow both for an independent Palestinian state and for Israel to be both Jewish and democratic at the same time. It would bring an end to occupation and would permit free movement over the whole area for both peoples, as well as providing a vision for an end of conflict.
This vision of two states on the same land is, of course, only a vision. It may be that it is far too remote from present realities ever to be imple- mented or seriously contemplated as such. But considering the present lack of movement and of ways out of the present deadlock and even of ideas, more imaginative scenarios may have to be reflected upon. It can- not be excluded that such a discussion might reveal elements of solu- tions not previously considered, and thus indicate other ways forward.
The international situation is constantly changing, not least in the Middle East, where the Arab uprisings have created a completely new situation across the region. Old truths are being questioned and new thoughts introduced, while long-stable balances of power, alignments of forces, and strategic principles and concepts have been challenged and even upended.
Today, neither sovereignty nor the role of the nation-state is what it was even a generation ago. Despite the ongoing political and ideological salience of the nation-state, in practice national sovereignty is now divided and circumscribed in unprecedented ways, while control of territory has lost its power to determine the shape, path, and speed of development or the broader well-being of peoples.
Developments in international law; the growth and proliferation of international institutions; and economic, technological, and political globalization have all contributed to creating more porous borders between states, as well as limiting a state’s capacity to exercise indiscriminate power. The concept of power itself is gradually gaining both new content and new dimensions. The scope of military power is increasingly challenged and complemented by economic, technological, and political power, as well as the power of information. Economic and political power no longer flow mainly from control of land.
But the conflict between Israelis and Palestinians is like few others, stubbornly focused on control of land. Developments on the ground have in many ways gone too far to permit a workable territorial division of Palestinians and Israelis into distinct political entities. Physical and political obstacles continue to grow. Politically, the Israeli electorate is increasingly skeptical, not to say hostile, to a deal with the Palestinians built upon the principle of dividing the land (Pedazhur 2012). The thirst of the Israeli right to settle more and more land remains unquenched. Physically, the web of Israeli roads and settlements on the West Bank is forming a geological sediment on top of the existing Palestinian society, and politically the Israeli “matrix of control” is slowly making substan- tial and sustainable development impossible for the Palestinians (Halper 2008). In Gaza, economic and social conditions remain miserable, while the recently celebrated economic growth in the West Bank has been lim- ited to a few cities and is not built on a stable political framework or an autonomous economic foundation. The Palestinian Authority’s attempt to build a state under occupation has all but failed. Palestinians and other non-Jewish citizens of Israel, despite their citizenship, continue to suffer discrimination in various ways.
Israel continues to control almost all the territory of what was once the Mandate for Palestine, and has so far not been willing to part with what Palestinians regard as the minimum necessary to enable the crea- tion of a territorially viable Palestinian state. Demographic develop- ments are making Palestinians a majority in the whole area of pre-1948 Palestine (Eldar 2012). A situation with a minority controlling more than 80 percent of the territory and suppressing the majority of the population is not sustainable.
The so-called peace process has brought neither peace nor process. That is, not only has it failed to provide peace, but its continued existence is also owed to the necessity of maintaining the “process” at the expense of a peace whose contours and implications none of the interested parties would likely accept (LeVine 2009: 180f.). The failed Palestinian attempt in 2011 to gain recognition at the United Nations has been characterized as the final burial. The new UN vote in 2012 to grant Palestine nonmember state status was an important Palestinian psychological and political victory, but it changes little in reality.
The present paradigm of dividing the land geographically has not worked, in spite of thirty years of continual efforts, numerous plans, and endless talks—or talks about talks—involving the two parties, the United States, the European Union, and large parts of the international community (Tyler 2012). And there are solid reasons why it is not working: physically there is not much left to divide, and politically the necessary political will has not been mobilized.
Put simply, a two-state solution seems no longer in the cards. A one- state solution most likely never was. In the view of the authors of this volume, it is time for a rethink. If the land cannot be shared by geo- graphical division, and if a one-state solution remains unacceptable, can the land be shared in some other way? Is it possible to imagine another way that can provide an opening out of the present deadlock?
It is into this situation that we introduce the concept of parallel states. Can one design a scenario with a new type of two-state solution: one Israeli state structure and one Palestinian state structure, in parallel, each covering the whole area, and with equal but separate political and civil rights for all? Such a scenario would mean decoupling the exclusive link between state and territory, and replacing it with a link between the state and the individual, regardless of where he or she lives. Two state structures, parallel to or “superimposed” upon each other, would thus cover the whole area of Mandatory Palestine.
The question of who should belong to which state could be addressed either by nationality or by choice or by some combination of both. Thus people in the whole area could be able to choose freely to which state they would belong, and at the same time have the right—at least in principle—to settle where they liked within the whole territory. Citizen- ship could then be the result of an individual’s free choice or national- ity, and would follow the citizen throughout the territory.
Such an arrangement would likely lead, on the one hand, to a mainly Jewish-Israeli area consisting of the bulk of present-day Israel and a number of the larger Jewish settlements in the West Bank. But this area should also be open for Palestinians wishing to live there, initially perhaps in limited numbers, until the structure won general acceptance and confidence from both sides. Israelis living in this area would be under Israeli jurisdiction, but individuals living there could also be free to choose to belong to the Palestinian state, and thus to be under Palestinian jurisdiction.
In the same way, one could imagine a Palestinian area consisting of the West Bank and Gaza, and maybe parts of the areas in Israel where Palestinians now predominate. Such an area would, however, in the same way be open for Jews-Israelis—and others—who wished to live there, perhaps with corresponding numerical limitations initially. These Jews-Israelis would be under Israeli jurisdiction and belong to the Israeli state, despite living in Palestinian-predominant areas. Dual citizenship could be an option in some cases, while differing levels of political rights could be elaborated, allowing Palestinians or Jews to participate in local or regional governance while maintaining national ties to their own state.
The application of such a structure to present geographic and demo- graphic realities might have to be complemented with the notion of separate “heartlands”: areas where present separation patterns remain and continue to be legally protected. These should be more limited areas around the major economic and security concentrations, such as Tel Aviv and Ramallah.
Thus, two parallel state structures could cover the whole area, with separate heartlands but with soft and porous borders between them. Israelis and Palestinians could each claim their own state with its own special character and identity, but they would complement each other and not be mutually exclusive.
In such a structure, both states would keep their own national sym- bols and their own government and parliament, as well as maintaining distinct foreign policy and foreign representation. They could choose to join in a defense union, an economic union, or a customs union, or any combination of these, with one currency, one labor market, and joint external border management. Elements of this can, to some extent and in practical terms, be said to be in place today, even if one-sidedly and with strong forces pulling in different directions.
Of course, there would have to be joint, integrated, or in any case harmonized legislation in a number of areas, including areas like com- munications, road traffic, police, and taxation. In other areas, such as civil law and family matters, jurisdiction in many parts of the world has already followed religion rather than territory for hundreds of years, and such areas would thus not necessarily present a major problem, although admittedly parallel legal systems by definition involve complications.
The Parallel States framework would be an innovation in international politics, in international law, and in basic constitutional matters. The scenario would differ from both a federal and a binational system but would have elements of both.
Before outlining in more detail how such a scenario could be imag- ined, we need to take a look at some basic elements of the conflict, and also at recent developments in the understanding of sovereignty and what they mean in the present-day world.
back to basics
The contemporary conflict between Israelis and Palestinians is generally regarded as territorial at its core, with the key issues said to include land and borders, Jerusalem, settlements, and refugees. Yet defining the con- flict in these terms has not yielded meaningful progress toward a peace- ful resolution. A longer and deeper perspective is inevitable. The search for an end to the conflict must go back to its beginning (Agha and Mal- ley 2009).
Basic fears, concerns, and aspirations of the two sides have to be addressed. Exploring these is likely to highlight different perspectives and concerns from Israelis and Palestinians, but also to reveal some fundamental elements common to both.
For Israelis, security is a sine qua non, and an existential issue. The quest for security was the basis for the establishment of the state of Israel, and the Jewish state satisfies the fundamental Jewish-Israeli need for Jews to be in charge of their own destiny, to have a place on earth secure from persecution, and to protect their own identity (see, e.g., Strömbom 2010). Closely linked to the Jewish identity is the Jewish people’s specific attachment to the Holy Land.
For Palestinians, the defining issue is not security as such but the loss of land—in itself a key security issue—linked to existential fears of an ultimate loss of identity. Palestinians feel a physical threat wherever they are, be it in Israel, the Occupied Territory, in camps, in neighbor- ing states, or in the diaspora. Palestinians also have a need for dignity, equality, and justice—focused in particular on the issue of return and on a full recognition of the right to return.
In contrast to Israelis, many Palestinians early on did not in the same way consider statehood a primary objective, even if this appeared to be the case for several decades, particularly for the leadership of the Pales- tine Liberation Organization (see, e.g., Khalidi 1997: 19ff.). Palestinian nationalism and the drive for a nation-state found institutional expres- sion in the PLO in the late 1960s. As the peace process has waned, the notion of statehood has been receding for many Palestinians. They wish to get rid of Israeli occupation, but not necessarily to divide the land. Ending the occupation and implementing justice remain central, along with an abiding attachment to the land (Karmi et al. 2011; Klein 2010).
For both sides, basic issues are thus security, identity, and access to the land. Most other issues can be subsumed under these basic catego- ries. To have a chance to succeed, the quest for peace must begin by imagining ways to ensure mutually satisfactory solutions to the follow- ing issues:
• Is it possible to end the occupation and fulfill Palestinian needs of return in ways that can be harmonized with Israeli security needs?
• Can a Palestinian state be set up, and a Jewish state preserved, while at the same time both peoples have access to the whole land?
• Is there a way to think in terms of a new kind of two-state structure that could meet the most important demands of the two sides?
These are questions that need to be addressed in the search for ways forward, in place of the tired focus on geographical division of the ter- ritory. Instead of dividing ownership of the land horizontally into two different sovereignties, ownership could be divided vertically into dif- ferent functions, and the hitherto-exclusive link between statehood and territory loosened. Thus an alternative scenario is imagined, based on the principle of shared sovereignty and political authority. But let us first take a quick look at how the concept of sovereignty has come under debate, in academic circles and elsewhere, in the past few decades.
divisible sovereignty
In the world outside the Middle East, control of territory has ceased to carry the same meaning it once did, and also in the Middle East changes are taking place. Economic and political power no longer grows only out of power over the land. Access to markets, technology, information, and the rule of law are equal—and often more important—elements creating economic and political power. Power has new contents, bor- ders are becoming porous, and states are no longer the only important actors. Many argue that sovereignty as we used to understand it is largely becoming a thing of the past.
The concept of sovereignty has eroded under the pressure of globalization. The impact of universal principles and universal structures sug- gests new dimensions in how states relate to one another and to their citizens. The role of borders is changing (see, e.g., Newman and Pasi 1998). People and goods can still largely be kept out—or in—but bor- ders no longer protect against ideas, modern communications systems, or modern weapons systems. Recent developments in various parts of the Middle East serve to underscore this point.
International law and principles have been perforating national boundaries, and various transnational structures limit both the legislative and the executive space of national political bodies. External influ- ence is increasing at all levels. Political leaders are now not only deemed responsible to their own people, but are also increasingly held account- able to international bodies for their deeds. National economic sover- eignty is being undermined, and is in some cases little more than a for- mality, and even large countries can find their scope of action limited by international institutions. A growing body of international legislation and international administrative law is regulating ever-larger fields of national life (Kingsbury, Krish, and Stewart 2005).
The nation-state as we know it is no longer the undisputed final product of the international system. History did not end, as some have suggested, but the Westphalian era—characterized by the primacy of the nation-state—may be coming to an end, and the nation-state may in the future be regarded as a historical parenthesis stretching from the mid-seventeenth century until the twenty-first.
The erosion of sovereign political authority has affected both external and internal aspects of sovereignty. In both cases, sovereign space has been ceded to other actors than the nation-state as such: international institutions, transnational companies, major cities and organizations, and even private citizens and other nonstate actors.
As a consequence, the indivisibility of sovereignty has come to be increasingly questioned (Krasner 2005). The “classical” view of Westphalian sovereignty—that sovereignty lies exclusively in the hands of states, is inherently indivisible and inherently territorial—is now much disputed. Scholars from a number of fields claim that this classical, traditional view of undivided sovereignty is in need of being critically rethought (Agnew 2004; Sidaway 2003). It is pointed out that the norm of indivisibility has throughout history served as a veil, hiding actual power relations. In reality, sovereignty has always been divisible, and the exercise of political authority has often been derived from several sources, both external and internal. Thus it is argued that Westphalian sovereignty has constantly been violated (Krasner 1999), and that “it is the myth of Westphalia, rather than Westphalia itself, on which today’s understanding of the principle of sovereignty rests” (Lake 2006). Stephen Krasner has termed this state of affairs “organized hypocrisy” (Krasner 1999).
Several scholars have proposed a distinction between de jure and de facto sovereignty (Murphy 1996) and implied that de facto sovereignty differs from the pure de jure, “original” Westphalian notion. Some argue that discussions about sovereignty have always concerned de facto sovereignty, and cannot be seen from an either-or perspective (Lake 2003). Exploring the concept of divisible sovereignty, Oliver Jütersonke and Rolf Schwartz argue that the current world order might be better described by transcending the Westphalian notion of indivisi- ble absolute sovereignty and replacing it with one “that allows for the transferral of sovereign prerogatives across multiple agents” (Jüter- sonke and Schwartz 2007).
They, along with other scholars, also argue that divisibility of sover- eignty is nothing new, and that the pre-Westphalian understanding of sovereignty, as expressed by Hugo Grotius (in principle indivisible but with “a division sometimes . . . made into parts designated as potential and subjective”), is more open to the notion of divisibility. In the West- phalian era the idea of divisible sovereignty was manifested in several respects, in particular during the colonial period with, for example, the Protectorate and Dominions system or the Mandate system of the League of Nations. The federal system of government found in many states is also heir to this politico-epistemological tradition.
In the present world, “new governance structures have emerged that reflect the de facto holders of sovereign powers within states” as well as power asymmetries between sovereign states, write Jütersonke and Schwartz (2007). Scholars have come to speak of a “New Middle Ages” (Rapley 2006). Several elements point to a state of affairs in which sov- ereign equality and indivisible sovereignty are no longer the central pillars of statehood. Not only have new governance structures and new international structures widened the spectrum of de facto power holders, but the content of power itself has also changed, acquiring new dimensions. All of this has led to an increasing fragmentation of public space, and in many cases situations in which the state no longer controls parts of its territory. In some cases this has gone as far as functional state failure, where “the state may continue to have international legal sovereignty, but the element of territorial control that defines Westphal- ian conceptions of sovereignty no longer applies” (Jütersonke and Schwartz 2007).
They argue further, following on the work of seminal twentieth- century explorations of the issue (cf. Henry Sumner Maine, as quoted in Keene 2002: 107), that sovereignty is best understood as a bundle of sovereign prerogatives that can be delegated and disaggregated, and they offer examples such as security control, the provision of external security, the right to legislate, the right to pass judgment and to grant pardon, and the right to tax people. Such an understanding of sover- eignty differs from the traditional legal understanding based on the sov- ereign equality of states. For a further discussion of how sovereignty can be deconstructed and how this relates directly to the notion of par- allel state structures, see chapter 3 in this volume, “Parallel Sovereignty: Dividing and Sharing Core State Functions,” by Peter Wallensteen.
This view of sovereignty, as linked to the fulfillment of basic state services in the effort to guarantee and protect citizens’ basic human needs, is a backdrop to the debate about the introduction of the princi- ple of “Responsibility to Protect” in the international legal framework (ICISS 2001). The growing international acceptance of this principle constitutes a major blow to the traditional understanding of sovereign equality, what Krasner has named “conventional sovereignty” (Krasner 2005: 85), and points to a performance-based notion of sovereignty, where a state has to “earn” its sovereignty by fulfilling its obligations toward the people residing in its territory (Jütersonke and Schwartz 2007).
This being said, it must be noted that when we look at current state practice the principle of indivisibility remains strongly held. An important aspect of this reality is that the political projects behind the intel- lectual construction of indivisibility are not taken into account. The idea of sovereignty, and with it the presumption of indivisibility, was born with the modern state, in the midst of political conflict and trans- formation. Jean Bodin, Thomas Hobbes, and others at the time sought to justify the creation of central authority in the wake of internal unrest and civil war, and “to legitimize and propagate a central secular state against the remnants of feudalism and the external vestiges of the uni- versal church.” Thus “the principle of sovereignty was never meant as a description of practice nor as a foundation for a positive theory of international politics but as a normative ideal in the service of state- building” (Lake 2006).
In much the same way, in the present situation, the principle of indivisibility is asserted as part of a state-building process, on the one hand against the vestiges of colonialism, on the other against tribal or other subnational or transnational loyalties. Indivisibility was asserted in opposition to rival theories and principles, in the Middle Ages as now, and all the time in practice sovereignty remained divisible. “We ought not to mistake political programs for reality,” writes Lake (2006).
One of those who have taken the lead in developing a critique of the notion of the indivisibility of sovereignty is Jens Bartelson. In chapter 2 of this study—“Can Sovereignty Be Divided?”—he discusses the para- doxical relation between the ideal of indivisibility in theory and the recurrent division of sovereignty in political practice, and suggests a reconceptualization of sovereignty in terms of the relationship between rulers and ruled. Bartelson suggests that whenever there is a mismatch between the claims to sovereignty made by a ruler and the subjects’ perception of that ruler’s legitimacy, sovereignty has to be divided to sustain or restore legitimacy.
parallel sovereignty
Applying the preceding discussion and Bartelson’s comments on the division of sovereignty to the basic ideas of the Parallel States Project (PSP) could begin by addressing the dilemma that occurs when “recognition fails to take place because of the absence of a common allegiance among those subjected to governmental authority,” when “any claim to sovereign authority on behalf of the latter is likely to remain unrecognized and thus also unsuccessful.” Bartelson mentions several different solutions: secession, federation, regional autonomy, the special case of the European Union, and division along communal lines leading to parallel structures of government.
The two latter forms of solution—the EU model of division along functional lines and parallel structures of government—are examples of shared sovereignty. History shows many cases of shared sovereignty, such as federations like the United States and Switzerland, as well as condominiums. While a federation is characterized by vertically shared sovereignty, with different levels exercising different functions, a con- dominium represents horizontally shared sovereignty, with two states sharing power over a certain territory, normally in borderlands between them. This model has applied to land areas such as Andorra and the Sudan, and to lakes and seas such as Lake Constance and the Caspian Sea, as well as to rivers such as the Mosel (Samuels 2008).
With sovereignty eroded and divisible, the exclusive and previously sacrosanct link between sovereignty and territory has begun to fade. In other words, sovereignty’s function as political authority may be divided into, on the one hand, the authority over citizens, and on the other, authority over the territory. Until now these two have been exclusively linked. The questions then arise: Is it possible to cut this previously exclusive, if now in many cases fading, link between sovereignty and territory? And is it possible to imagine political authority over a particular territory exercised in common by two actors, while at the same time those two exercise exclusive authority over their respective citizens? In such a case, the mutual links of loyalty between state and citi- zen would be retained, and thus the legitimacy of the state in relation to its citizens. The territory itself, on the other hand, would become objectified and able to be given over to common administration.
How would such a construct relate to the notion of self-determination, a crucial partner-concept to sovereignty, particularly in regard to the issues of “right to rule” and state legitimacy? In the previous century, liberation movements the world over contested Westphalian sovereignty and the legitimacy of colonial states. In this way they success- fully contributed to the development of the right to self-determination of peoples as an international norm. This principle dates back to the American and French revolutions, and was revived after World War I and particularly after World War II, as a guiding principle in international relations in general and in the decolonization process in particular. It is an irony of history that many of the regimes that took power from the colonials turned to clinging even harder to the Westphalian sovereignty vis-à-vis their citizens, with often disastrous consequences for their peoples.
The principle of self-determination underwent a reassertion over the past fifty-some years. In effect it calls for the people’s sovereign rights. The Universal Declaration of Human Rights refers in Article 21 to the will of the people as the basis for the authority of government. In other words, state sovereignty should not derive its legitimacy from the control of a specific territory per se; the will of the people it claims to have under its control must also be respected and must be the source of the state’s authority. As expressed in the International Covenants on Human Rights, the core of the international human rights law, “All peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development” (Deng 2010).
Self-determination is a principle that sets the framework for the people’s political rights. In exercising their right to self-determination, a people can “freely determine” their status and thus decide which status and form of government suit them best. There is consequently no contradiction between the right of self-determination and the choice of a different form of sovereignty, such as parallel sovereignty, and of a state structure other than the classical, traditional, territorially determined state.
The notion of parallel sovereignty is, in the context of other forms of organization of political power, a novelty in degree rather than in kind. The difference from a condominium arrangement is that parallel sovereignty denotes shared power not just over a specific territory between two states, but over the whole area covered by the two states. This can be regarded as revolutionary compared to the traditional notion of con- dominium, wherein common or joint sovereignty normally is exercised as an additional feature on the periphery, while exclusive sovereignty still reigns at home. But parallel sovereignty, or parallel political authority, can also in principle be regarded as yet another form of shared power, even if its application implies a specific set of institutional arrangements.
To a certain extent, it can be argued that a Parallel States structure is reminiscent of the European Union’s architecture, wherein the member states have voluntarily ceded layers of sovereignty to a common supra- national level of government, while retaining other layers on an exclusively national level. A Parallel States structure could however be seen as an inverted EU model, wherein the two states retain separate superstructures on the top level and create a body of common elements thereunder.
The closest comparison from all the various peace proposals that have been made in the Israeli-Palestinian context is probably the Clinton parameters, and more specifically the ideas about Jerusalem. In these parameters, certain areas would be subject to Palestinian and others to Israeli sovereignty, divided along ethnic lines, while certain areas would have shared sovereignty.
In chapter 3, Peter Wallensteen deconstructs the notion of sovereignty, develops the notion of divided sovereignty, and divides sovereignty in practice first into horizontal and vertical dimensions and then further into different government functions. He demonstrates that there are different ways of distributing the exercise of these functions between different bodies-states.
What, then, could a Parallel States structure look like in practical terms?
parallel states—a provocation against conventional wisdom
In a Parallel States structure, sovereignty or political authority over the territory could be shared between the two states in layers, with a number of state functions being exercised separately and a number of functions performed in common. State sovereignty could be primarily linked directly with the individual, and only in a secondary way with territory. Citizens of both states could be free to move and settle in the whole area, and internal physical barriers could be lifted.
Obviously it is conceptually demanding to imagine such a structure in practice, with two states existing in parallel on the same piece of land. To think in these terms is a provocation against both conventional wisdom and international law. There is no direct precedence in history, although parallel power structures and legislations were not uncommon in medieval Europe, as well as in the Ottoman Empire (Majer 1997). The closest historically proven model is the condominium. Two states covering the whole of the same piece of land is something else—the states’ structure, though similar in architecture, would, in important respects, have to be of a different character from the modern state as we know it.
The basic question is how two parallel sets of political agency could exist side by side and cooperate on the same territory. Such a structure would require a clear horizontal division of powers between the two states, as well as a vertical division between different state functions— with some functions exercised separately and some held in common— combined with some form of permanent bilateral negotiation mechanism to resolve issues as they arise.
The states could retain their national symbols, have separate political bodies, be responsible to their own separate electorates, and retain a high degree of independence both in internal and in international matters. But this independence would obviously have to be curbed by mutual regard for the other in a reciprocal manner. There could be two heads of state, two governments, two Parliaments, and two administrations. Foreign policy is an area where one could imagine two separate policies and each state having its own international representation; but naturally a certain degree of coordination would have to take place in matters of common interest. There would have to be clear limitations on the authority that either state could exercise over the territory. Many state institutions could retain a “normal” character, but the scope of their power would have to be modified and take into account the power of the other, parallel, state structure.
A number of the questions that would have to be addressed are not unique for a Parallel States structure—they are relevant both in a one- state solution and—for some of them—in a two-state solution of the more traditional character. In this volume, focus has been directed particularly toward security, economic, and legal aspects, all of which present unique challenges.
security a key issue
Security and defense would be of paramount importance in a Parallel States structure, as well as in a more conventional two-state structure. This poses particularly vital questions, in that security is a basic need for each side in existential and concrete ways. To craft a common Israeli-Palestinian security strategy, outlining how Israelis and Palestinians could cooperate and ultimately join forces in a common security system, covering external borders as well as internal order, is a challenge that should not be underestimated.
A joint external security envelope, with a high degree of cooperation on external security and with joint or coordinated external border control, has to be envisaged. It is worth noting, though, that already today there are elements of an internal security structure that contains separate institutions and security forces, but also a high degree of coordination.
Because of the centrality of the security issue, two extensive chapters in this volume deal with it, one from each side. They each outline basic security needs, discuss the implications of a Parallel States structure for the realm of security, and outline basic issues to be addressed in a joint security strategy.
In chapter 4, “Security Strategy for the Parallel States Project: An Israeli Perspective,” Nimrod Hurvitz and Dror Zeevi discuss the preva- lent Israeli narrative and how it has shaped the Jewish identity and the sense of being under siege, with all of the consequent distrust implied. They outline Israeli threat perceptions, and discuss the risks and oppor- tunities of a Parallel States structure against this background. Hurvitz and Zeevi also analyze security concerns from an Israeli perspective, and discuss how to maintain the security of Israeli citizens in a Parallel States structure—envisioning a situation in which Israeli military capa- bilities are somewhat reduced over time, the Palestinian party develops some defensive capabilities, and a third, international military force is introduced, both to deter and to tackle threats.
In the corresponding chapter from a Palestinian perspective, “Palestinian National Security” (chapter 5), Hussein Agha and Ahmad Samih Khalidi discuss the basics of Palestinian national security, its needs, interests, and threat perceptions, as well as doctrinal elements such as “nonoffensive defense,” and outline Palestinian strategic dilemmas. Agha and Khalidi relate Palestinian national aspirations to the Parallel States framework, and discuss how it addresses as a matter of principle many fundamental issues of the conflict. But they also note that it con- tains significant problems and raises a number of security issues, such as how to address the imbalance in military capability and create a system of constraints. It is worth noting that all the authors underline the need for a lengthy implementation period.
regional structure and “heartlands”
A Parallel States structure can be designed in different ways, but in principle the basic building block is the individual and the cement is the loyalty of the individual to the state. In its pure form, two state structures would extend in parallel over the whole territory, with only the individual at the base. But of course in reality, there are a number of substructures between the state and the individual—regions, counties, cities, villages—each with its own administration.
A Parallel States structure could thus on the one hand be said to be a top-bottom creation, where the political architecture is constructed from the top. On the other hand it could also be seen as a bottom-up structure, where the building blocks are the local communities and the division at the top a logical consequence of their different composition.
The basic principle for deciding who should belong to which state is—like the rest of a Parallel States structure—something that has to be negotiated between the two parties. The division could be based on nationality or individual choice or some other mutually agreed-upon mechanism. The option of dual nationality must also be taken into account, and would most likely play a substantial role—not least regarding Palestinians who are currently Israeli citizens.
One possible architecture involves substructures being given the right to choose which state to belong to, on a regional level. This would most likely yield a rather broad patchwork of different allegiances. Another possibility is to have local communities given the choice, which would provide a more fine-tuned patchwork. In both cases, the result would most likely follow rather closely existing population concentrations.
The question then arises, Would this not be the same as a classic territorial division, but on a different basis? Well, no, because these different regions or local communities would have no state borders between them, only their populations’ different allegiances. The two states’ powers would extend over the whole territory, to their respective citizens in the whole area, with the economy eventually integrated, and legislation and jurisdiction either unified, harmonized, or in many cases based on criteria other than nationality. Local communities would, for example, have powers over certain matters of regional import, whereas matters such as communications, roads, traffic rules, and the like would have to be unified or at least harmonized.
If a village were to opt out of belonging to a particular state— a choice that could be made by referendum or could be based on nationality—there must remain a possibility for individuals living in that village to choose to belong to the other state. One could imagine a system not unlike that in present-day Europe, where individuals living in a city or village can carry different passports, and thus have one national identity and another local or regional identity.
Regardless of the approach chosen, two distinct “heartlands,” each corresponding to population concentrations, would most likely be formed, building on present realities. One can picture a scenario with a Jewish heartland around the coastal plains, and particularly the area around greater Tel Aviv. Likewise, one can see a Palestinian heartland in areas around Ramallah and other cities in the West Bank, as well as in Gaza. Jerusalem is a special case that would require its own approach (more on this later). Such heartlands could be given special characteristics and be of different sizes and shapes. They should in principle be thought of as different from, for instance, the core areas that are dis- cussed in the security chapter by Hurvitz and Zeevi, which exist mainly for military purposes such as barracks and training areas.
Thus there is a continuum of different scenarios that could be envisaged, depending on how the question of administrative division was addressed. At one end there would be a total spread of two separate but parallel state structures over the whole territory, and at the other one could imagine two separate heartlands covering most of the territory, each with extraterritorial jurisdiction over its citizens in border areas and possible enclaves. The latter scenario would not be very far from some of the models discussed in certain previous negotiations and peace initiatives (Quandt 2005). To a certain extent it can be said to take its point of departure from the thinking behind the so-called Beilin–Abu Mazen Plan of 1996 but extending the notion of extraterritorial juris- diction to cover larger areas on both sides of a border, areas that would be subject to parallel jurisdiction. Such a construct could possibly be labeled “overlapping states.”
The situation of Gaza in a Parallel States scenario, as in any scenario, would require special attention. In comparison to a territorial division with two Palestinian entities, which would have to be physically connected one way or another, a Parallel States concept would by definition open up borders and make such a connection unnecessary, at least in the longer run. In a transition period, present borders and crossings might have to be retained temporarily, and could be lifted gradually.
Gaza occupies a limited but territorially contiguous area, and has a demographically homogeneous population of purely Palestinian origin. This makes Gaza a natural candidate to become a core area in a future Palestinian state, as well as in a Parallel States scenario.
Special attention to the specific problems of Gaza would be necessary, particularly in the economic arena. The Gaza economy would on the one hand have to be rapidly strengthened, and on the other especially pro- tected in order to have a chance to grow from its present level and not become a bottomless pit of poverty in an otherwise wealth-producing economy. These issues are discussed in the chapters on economy.
To the extent that the political and religious climate of Gaza is different from other Palestinian areas and Palestinians in Israel today, special attention would also have to be devoted to these issues. The religious dimension is discussed in a special chapter.
economic structure
In spite of all their differences, the Israeli economy and the Palestinian economy can be said to constitute one macroeconomy. There are both institutional and real links among the various nodes of this system. The whole creates very unequal dynamics, largely characterized by a center- periphery relationship. The integration that many imagined would occur in time has not taken place; nevertheless, elements of an economic union are present. There is an external customs envelope, a common currency, and the remains of a joint labor market, albeit with great obstacles, as there are also to the flow of goods.
One of the most important lessons of Oslo is that no sustainable economic development is possible without a stable political environment and a resolution of basic political issues. This lesson has, to a certain extent, been repeated in the past few years. Odds are that concepts such as Netanyahu’s “economic peace” will suffer a similar fate (Alpher 2008).
A Parallel States structure could build upon the remaining elements of economic cooperation, but also upon the basic principle of the free flow of goods and people between the different parts of the macroeconomy. The aim would be real integration between the Israeli and Palestinian economies, building upon their complementarities while avoiding the continued Israeli structural dominance that was written into the economic component of the Oslo Accords. Indeed, avoiding the risk of cementing present inequalities would be a crucial goal and component of any Parallel States structure. Palestinian development needs would have to be addressed in a realistic and comprehensive way.
Only if Israel’s economic supremacy (owing to its advanced state of development in all areas) is balanced with massive international sup- port directed toward Palestinian development can there be long-term prospects for a viable and sustainable joint Israeli-Palestinian economy. Should this be realized, prospects for long-term economic development in a joint economy under a Parallel States structure could be more promising than under division in a traditional two-state structure.
One area where the developmental cost of taking a benign view of the realities of Israeli occupation of Palestinian territory has been particularly evident is that of water resources. The uneven distribution of scarce resources is all too apparent, and the gaps appear to be growing. Sharing authority over common resources is a central pillar of a Parallel States structure, which makes such a structure particularly suited to deal with scarce natural resources such as water. Shared sovereignty over water resources is likely to lead not only to more equitable distribution of resources, but also to more efficient ways of using them.
In his chapter “An Israel-Palestine Parallel States Economy by 2035” (chapter 6), Raja Khalidi outlines components of Palestinian national economic security and underlines the need for a transfer of sovereignty to Palestinian institutions. He discusses how a Parallel States economy can apply to, and exploit, the concept of divisible sovereignty to create a more functional and equitable economic relationship between the two states, and concludes that the road to convergence could go through either initial separation—to allow a robust Palestinian economy to be built up—or integration to correct the distorted economic union.
In a corresponding chapter from an Israeli point of view, “Economic Considerations in Implementing a Parallel States Structure” (chapter 7), Rafi Bar-El discusses the benefits and constraints of the forced openness that a Parallel States structure implies. To minimize the negative effects and the risk of economic colonization, he suggests development in two stages, with an initial period of independence and economic borders leading eventually to full openness. The two authors thus are not too far apart in their analyses.
legal integration and harmonization
Legal pluralism is nothing new. Two or more legal systems have existed side by side in several countries and regions throughout history. Medieval Europe is one example, with the Catholic church, princes and fiefdoms, the guild system, and other entities each exercising jurisdiction over their subjects regardless of location. The Ottoman Millet system had Muslim, Christian (both Armenian and Orthodox), and Jewish jurisdictions existing side by side, with the legal system following the individual regardless of location within the empire (Majer 1997). In the Middle East as well, civil legislation has often followed religion, and parallel jurisdiction is a fact of life, including in Israel.
In a Parallel States structure, each state would have jurisdiction over its own citizens. This would probably be rather uncontroversial in areas of Jewish or Palestinian concentration, such as in the “heartlands” that would be likely to develop. In other regions—such as border areas between the two communities, in mixed neighborhoods, as well as in Jerusalem—a certain element of extraterritorial jurisdiction could be envisaged. A large part of the jurisdiction in these areas would have to be joint or at least harmonized. Each side could keep its court system, but a system of mixed courts might have to be developed to take care of clashes of jurisdiction and other conflicts likely to arise. All of this is complicated, but hardly impossible to solve, considering historical precedents and similar situations in other parts of the world.
A Parallel States structure is not inherently designed to promote social, human rights, or gender issues. Obviously, by addressing the conflict as such the PSP aims to improve the human rights situation for those who are oppressed, be it by the other side or by their own. As to gender issues, by suggesting changes in the legal system on both sides, the PSP offers an opportunity to introduce legislation that can promote change. These issues are further discussed in the relevant chapters.
Bearing in mind that the nature of the issues in the legal field is more technical than political, and so to say reflects the political choices to be made, we have decided to treat this area from a technical legal perspective, rather than from separate national perspectives. The chapter on law is thus a compilation of written and oral contributions from various participants throughout the course of the project.
jerusalem—one city
Jerusalem is a special case—in a Parallel States scenario as well as in any other scenario. Jerusalem as a political and religious symbol requires a carefully crafted system of government that takes into account the interests of the two sides, of the three religions, and of all other elements that together make up the city’s unique character. A system of parallel juris- diction seems particularly suited to satisfying the needs of both Palestinians and Jews, and perhaps Jerusalem might be seen as a microcosm that could serve as a laboratory for a Parallel States structure writ large.
Neither a renewed division of Jerusalem nor the continued domination of one side over the other can be a recipe for a sustainable long- term solution. The two communities will in all likelihood have to be given a more equal say in the running of their city, and more equal spaces to live and work there. A Parallel States scenario could provide the institutional structure for living together and organizing the limited space in the interests of both communities and of other stakeholders.
There is nothing in a Parallel States structure preventing both states from having Jerusalem as their capital. The Israeli side already has its main political institutions in Jerusalem, and many previous proposals for a two-state solution have contained provisions for Jerusalem to be the Palestinian capital.
It would seem that an initial implementation of parallel sovereignty could be applied to Jerusalem. In fact, many of the various proposed solutions to the complex issue of Jerusalem have contained elements that are in some cases close to the Parallel States framework, and some
kind of joint administration is part of almost all proposed solutions, apart from those that involve one side’s total domination of the other. This applies in varying degrees to proposals such as the Beilin–Abu Mazen Plan, the Geneva initiative, the Clinton parameters, and more lately the Jerusalem Old City initiative, an academic exercise initiated by the University of Windsor in Canada. The Clinton parameters, with their mix of shared sovereignty both horizontally and vertically when it comes to the Old City and East Jerusalem, offer perhaps the closest comparison. A Parallel States scenario would, however, go much fur- ther than any of these proposals in creating a structure that would guarantee both access for all and the right to live in the city, as well as a long-term basis for security and the preservation of identity for both peoples and all three religions.
religion—from obstacle to peace to force for reconciliation?
It is clear that any discussion of parallel states must involve considerable attention to culture and religion, an issue that Mark LeVine and Liam O’Mara IV take up in their contribution to this volume. The Israeli-Palestinian conflict may have its origins in a nationalist conflict over land but it has always been significantly “culturalized,” and this is nowhere more obvious than in the religious rhetoric on both sides. Only by appreciating the unique concerns of the different religious constituencies can their needs be addressed, and religious belief—Jewish, Chris- tian, and Muslim alike—potentially become a more positive force for peace and justic