Competing Oaths: Part II Niqabs and the Canadian Citizenship Oath

Competing Oaths: Part II Niqabs and the Canadian Citizenship Oath

by

Howard Adelman

I never did finish writing the second part of my discussion of Cliff Orwin’s opposition to Prime Minster Stephen Harper’s critique of wearing the niqab when taking the oath of citizenship. I said that Cliff’s critique was correct as far as it went, but that it did not go far enough in unpacking the deeper issue. While he discussed the issue in terms of constitutional protection of religious freedoms, which went further than the Supreme Court’s ruling against the Harper government which upheld Zunera Ishaq’s complaint, not on the basis of religious freedom, but because a requirement of administrative law – the government could not mandate a judge’s ruling – the issue in dispute went deeper than simply religious rights under the constitution. While I reviewed the case in detail in my previous blog, I now want to explore it at a deeper level.

First, I need to make clear the character of an oath has a long religious history, much longer than the practice of wearing a niqab. That is why taking an oath of citizenship in not simply a final ritual performance that simply publicly states what has already been put in writing, but is, in reality, the most important part of a ceremony. You can promise yourself or another person that you will do something, but a promise has only as much weight as the degree of commitment attached to it. You can even go further and indicate the depth of that commitment by turning a promise into a vow, as Prime Minister Harper did when he vowed to appeal the federal court decision supporting Zunera Ishaq’s right to wear a niqab when taking her oath of citizenship.

But an oath is of a different order again. When you take an oath of office or an oath of citizenship, it has a higher status that a promise or even a vow. For oaths, in making a personal commitment or cursing another, imply policing by a higher power. Traditionally, it was a deity, but in more secular societies taking an oath suggests making a public vow to be observed and monitored by at least society as a whole and sometimes by all of humanity.

This reference is clear in the Canadian oath of citizenship. The oath states: “I swear (or affirm) that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth II, Queen of Canada, Her Heirs and Successors, and that I will faithfully observe the laws of Canada and fulfil my duties as a Canadian citizen.” The individual pledges not only to uphold Canadian law, but also to be faithful and “bear true allegiance” to the Queen of Canada. Without getting into the legal and constitutional quagmire of this reference, it is quite clear that the reference is to a higher power to which you have pledged your liege, but that it is a higher power that goes far beyond the corporeal personage of the Queen as a natural person to refer to a non-corporeal entity that underpins the constitution itself, the corporate entity and legal personality of Canada itself.

Thus, when and if Zunera Ishaq takes her oath of citizenship, she will be vowing before all Canadians that she will uphold the Canadian constitution and its laws, wedding herself to uphold women’s equality among other fundamental principles of Canadian contemporary society. She will also, and, I believe, even more importantly, be taking an oath not only before but to the incorporeal underpinning of our society and committing her loyalty to that entity such that, in cases of conflict with other loyalties, it will be prior to and occupy the trump position.

Ironically, in refusing to remove her niqab when taking the oath, the Court ruled that she was indeed doing so according to Canadian law. In contrast, Prime Minister Harper and the allegedly 80% of Canadians who found it so offensive that she chose to wear the niqab when taking the oath were against the law in believing to this commitment as the highest priority and that the stance she took was against the law. However, they were not against the law for being offended, but only in trying to translate their feeling offended into a legal dictum. She was closer to upholding our rights and freedoms as Canadians than Harper, his minions and presumably the majority of Canadians.

Nevertheless, Harper et al in taking offence were attuned to a deeper underlying issue. When taking an oath to become a Canadian citizen you make a commitment not only to follow the Canadian constitution and Canadian law, but also that those laws will be the highest laws governing one’s behaviour. If any norms that one follows contravene the Canadian constitution and Canada as a collective corporate but non-corporeal entity, it is the Canadian constitution and Canada as a corporate entity that will be in the trump position. Harper et al, I suspect, think that Zunera in taking her oath may not be sincere. She perhaps does not support the principle of women’s equality and wearing the niqab may be such a symbol.

Two clarifications. The constitution of Canada does not require Canadians to believe men and women are equal, but only that men and women are treated as equals before the law and in all matters governed by that law where applicable. So it is not about attitudes, but about behaviour, and behaviour in a restricted, even if enormous, sphere. Second, just as the law presumes we are innocent until proven guilty, when taking an oath, the implicit assumption is that the person taking the oath is sincere. Unless evidence is brought before a tribunal or court to prove that Zunera is insincere when and if she takes the oath, the assumption is made that Zunera truly does intend to uphold the Canadian constitution and swear allegiance to the Queen of Canada.

An analysis of the notion of sincerity will help unpack the deeper issue beyond religious rights and the requirements of administrative law. In 1971, Lionel Trilling published his slim volume, Sincerity and Authenticity based on a series of lectures he gave at Harvard the year before. The book sketches the concept and development of the concept of sincerity over the previous 500 years and contrasts it with the concept of authenticity that seems to have displaced sincerity since WWII. The latter requires only that a person remain true to oneself. The former insists that being true to oneself can only be carried out by being true to others in a very public and social way. In our modern and somewhat cynical age when authenticity has upstaged sincerity, the ruling adage views sincerity as bad faith depicting it as simply the “honesty of people who cannot be honest with themselves.”

So we have to go back to a period in which sincerity reigned supreme and not authenticity, In Trilling’s exposition, sincerity is “a congruence between avowal and actual feeling.” As Polonius advises Laertes in Hamlet, “above all: to thine own self be true, And it doth follow, as the night the day Thou canst not then be false to any man.” Being true to oneself is not an end in itself, as in authenticity, but a means of ensuring truth to others. Without the psychological premise of sincerity, oaths make no sense. Whether it is the primacy of Socrates’ “know thyself” or of Shakespeare’s “to thine own self be true” abstracted from what follows, sincerity has stood in opposition to the adequacy of narcissistic inward self-gazing as an adequate ground for a polity. Sincerity emphasizes the public orientation of our fundamental attitudes.

Authenticity emphasizes the autonomous self in opposition to the self as an interpersonal political persona with a public face and role. With the primacy of the latter, oaths become solemn events that depend upon the primacy of sincerity as a prestigious and lofty ethical conception. Without it, we are reduced to the ironic spectator view of human relations and social entities, including political ones like nation-states. Harper, ironically, in refusing to accept Zunera Ishaq’s pledge at face value unless she shows her face, undercuts the concept of both sincerity and oaths that are even more basic foundation stones of our society than even the Canadian constitution. Instead of standing for a true conservative position, in allowing skepticism to become a ruling norm, Harper opens the floodgates to a post-modern despair at the whole political enterprise, feeding the cynicism and alienation of many of our youth from the political process.

Once you begin traveling down that path, the very convention of an oath taken of allegiance to one’s sovereign itself becomes suspect. Further, it feeds into what initially appears to be its opposite – detachment and an openness to a transcendent ideal detached from the context of community and politics. These are the dual and complementary threats to our polity. Harper in appearing to stand for inherited values and the importance of the oath, in reality undermines its most fundamental characteristic. While recognizing that language can be empty, that it may not express what is in one’s soul, that language is often ritualistic in a way that empties it of meaning, it is very different than insisting that language must be suspect.

But does language not become suspect when the linguistic expression is not given a face, when the professor of the oath hides behind a niqab? Does sincerity entail coming face to face with other members of the public, especially when one is taking an oath to the corporate but incorporeal body of those members? Do the conventions which both value and evaluate sincerity require the person unveil her face, that the person come face to face to those whom she pledges to join in upholding a set of values, what Harper called the Canadian family?

I, like Chris Orwin, do not believe it does, but I insist this is the deeper issue. For the oath is not just about the constitution and individual rights, it is also about the responsibility to the community one is joining. In that regard, I could be wrong. It could be that, to assess sincerity, one has to see a person’s full face, not just an official, but the public. In that case, oath taking may require removing the veil. I do not believe it does, but I do believe that a genuine and sincere argument can be made upholding that principle.

However, as long as the opposition is simply based on what appalls people instead of an in-depth exploration of conventions and the impact on sincerity, on oaths and the incorporeal corporate being of Canada, as long as sincerity is dismissed simply on the basis of a wholly subjective and affective response of others and not on a public evaluative process, I will accept the Federal Court ruling, even if only grounded in administrative law, for I fundamentally believe that sincerity itself and the value of oaths is undermined when attacked simply by those who are appalled or offended. Until then, the question of whether the conventions which value and evaluate expressions of sincerity require the face to be unveiled remains an open possibility, but oaths and sincerity until then should be taken at face value.

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Niqabs and the Canadian Citizenship Oath

Niqabs and the Canadian Citizenship Oath

by

Howard Adelman

Preamble

I am en route back to Canada so a requirement of Canadian citizenship for new Canadians, namely the oath of allegiance, is an appropriate topic raised in Michiel’s email to me yesterday which I first read last evening. Further since this issue is primarily a thought exercise requiring only reading the documents referred to as well as the federal court ruling, and does not require extensive research, it is a great way to fill my early morning hours.

Michiel Horn sent me Cliff Orwin’s discussion of Harper’s opposition to wearing the niqab when an immigrant takes a citizenship oath to become a Canadian citizen. A niqab, a veil that covers all but the eyes of the face of a Muslim woman, is required by some ultra-orthodox Muslims to be worn when in public in the presence of a non-mahram male, that is, a mature male past puberty who is not a relative of the immediate extended familys. Thus, fathers, grandfathers, great-grandfathers, siblings, children, grandchildren, uncles, cousins, nephews, father-in-law, son-in-law, and further refinements are mahraim. Essentially, if a Muslim married a mahram, this would constitute incest.

I have forwarded Michiel Horn’s e-mail separately since I was not able to technically include it within this blog. The references were to the following:

http://www.theglobeandmail.com/globe-debate/stephen-harpers-veiled-attack-on-religious-freedom/article23044095/

http://tvo.org/video/211154/clifford-orwin-niqab-or-no-niqab

http://www.theglobeandmail.com/globe-debate/no-room-at-the-inn-for-veiled-women-get-real-canada/article1214841/

My response has little to do with Harper’s political motives – which are often questionable. It has more to do with Cliff’s critique that is correct as far as it goes. However, the critique, on the one hand, went too far since the court found in favour of Zunera Ishaq, not on the basis of the constitutional challenge and the respect for religion and requirement of tolerance, but on errors in administrative law in a government making something mandatory and incumbent on judges to implement when the applicable legislation permitted no such action. More importantly for the point I want to make, Cliff’s argument does not go nearly far enough to unpack the underlying issue. Once unpacked, a whole different dimension of the issue emerges. But first let me briefly recapitulate first Harper’s position, Cliff’s response and that of the Federal Court that found in favour of Zunera Ishaq.  

Minister Stephen Harper’s Position

Harper stated in parliament, and did so most vociferously, that it is “offensive” for a new applicant for Canadian citizenship to wear a face covering niqab when taking an oath to become a Canadian citizen. Actually, he said it was offensive because at the time of the oath the individual was “joining the Canadian family” not becoming a Canadian citizen. The two are not the same as Cliff noted. This policy was introduced by Jason Kenney as Minister of Immigration and Citizenship on 11 December 2011. Kenney argued that 80% of Canadians oppose wearing a niqab when taking an oath of citizenship. Harper vowed to appeal the Federal Court decision. (More tomorrow on that vow.)

Clifford Orwin’s Views

Cliff Orwin argued that Harper’s position is totally wrong and made Jason Kenney’s tending to religious suppression even more heinous. It is not an issue of numbers. Cliff does not care that the ruling only applies to one hundred women in Canada – actually, it applies to one hundred women per year, but this is a technicality since the point is the rule affects relatively few of the quarter million individuals who become citizens each year. Nor does it matter that 80% of Canadians follow Harper’s lead and abhor that a religious Muslim woman be allowed to wear a niqab at a public ceremony where the oath of allegiance to Canada is sworn. Nor does Cliff think that Harper’s appeal to transparency and openness is at all relevant. “Liberal democracy isn’t about compulsory baring of ourselves (or our faces) to others.” Nor is calling the Canadian society a “family” relevant, for in taking the oath of citizenship, one is not joining one big family, but simply acquiring membership in a state. For Cliff, it is about the fundamental small “l” liberal belief in “the right of each of us to lead a life of our own, in religious matters as elsewhere,” as long as in doing so we do not harm another. Offending someone is not prohibited by the Charter of Rights and Freedoms.

Freedom of worship is a Canadian value. The Canadian Charter of Rights requires respect for religious freedom. Transparency and openness are appreciated by Canadians, but unburdening ourselves, as one might do in a family, is neither protected nor expected by the Charter. Nor is the issue one of respecting local customs – “when in Rome” – for wearing a niqab is a religious practice, not an expression of local custom. So custom is not the issue. The right to wear the niqab as a form of religious expression is. When Paikin asked Cliff whether it was alright for an immigrant to wear a Nazi storm trooper uniform when taking an oath of citizenship, Cliff insisted the issue was not the same. Wearing a Nazi storm trooper uniform is not ok because it is not a religious expression, but an expression of intolerance. Therefore, it is not a parallel circumstance.

To repeat, the issue for Cliff was not whether the vast majority of Canadians abhorred the practice of women who believe it is appropriate to wear a niqab, particularly at a Canadian citizenship ceremony when taking an oath of citizenship. What the vast majority of Canadians abhor about a piece of apparel when that apparel is worn for religious reasons is of no consequence. There are indeed legitimate reasons why wearing a niqab rubs people the wrong way. A man wearing shorts and sandals leading a woman in a burka in a doctor’s office may be repugnant to someone also sitting in that office, but the woman wearing the burka has as much right to wear the burka as the other woman in the office has the right to be repulsed by the practice. Again, the reaction to wearing a niqab is irrelevant to the right of the woman to wear the niqab, including when taking an oath of citizenship. A niqab-wearing Muslim woman may not be Harper’s type of Canadian, but hopefully all Canadians do not and will not conform to what Harper thinks is a right kind of Canadian but, rather, what the law determines.

Paikin offered another example posed by a commentator to Cliff’s Globe and Mail op-ed. She said that, at a citizenship oath ceremony, she had observed a man taking the oath of citizenship, shaking the judge’s hand and receiving a certificate but when his wife took the oath, he insisted that she could not shake the judge’s hand and the husband took the certificate on her behalf. Cliff insisted this was not ok. The reason was because, in this case, the man was interfering with the wife’s freedoms. Presumably, if she declined to shake hands with the judge and personally requested that her husband receive the certificate on her behalf, that would be ok. It is the interference with the right of the individual to make her own religious beliefs known that was evidently the problem.

Paikin asked whether some aspects of the Muslim religion were essentially intolerant, especially of other religious beliefs. Whether or not that was the case, Cliff replied, was not relevant since the person taking the oath vowed to subscribe to the laws of Canada that dictated respect for the religious beliefs of others. It was presumed that just as her avowal of her religious beliefs was sincere, so it must be presumed that her oath of Canadian citizenship must be presumed to be sincere. I will return to this issue, but as a segue into the next section it has to be noted that while Cliff defended the right of the woman to wear the niqab on charter grounds, these were not the grounds the federal court struck down the 11 December 2011 policy banning women from wearing a niqab at a citizenship oath ceremony.

The Legal Case

The case arose when Ms. Zunera Ishaq, a Pakistani Muslim immigrant, following Hanafi beliefs that require devout Muslim women to wear a niqab in public, applied to have her citizenship ratified by taking an oath of allegiance to Canada. A permanent resident of Canada as of 25 October 2008, her citizenship was approved by a citizenship judge on 30 December 2013 after proper identification was made on 22 November 2013 (at which time she removed her niqab in front of a female immigration officer). Zunera Ishaq was granted citizenship on 2 January 2014. The citizenship ceremony to consummate the awarding of that citizenship was scheduled for 14 January 2014. However, for the citizenship to be consummated, she had to take an oath of allegiance to Canada before a citizenship judge. The citizenship oath that she was still required to take reads as follows:

I swear (or affirm) that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Queen of Canada, Her Heirs and Successors, and that I will faithfully observe the laws of Canada and fulfil my duties as a Canadian citizen.

At the time she removed her veil for identity purposes, she was also advised that when taking the citizenship oath, she would also be required to remove her veil. She presumed that this also could take place in private in front of a female citizenship judge. However, she learned that Operational Bulletin 359 introduced by CIC on 12 December 2011 required removal of any face covering for the oath taking part of the citizenship public ceremony. As the CIC officials testified in court, prior to 12 December 2011 the judge only needed to be satisfied that people had taken the oath; after 12 December, the judge was required to witness the person taking the oath and not simply hear the oath, meaning that neither monks sworn to silence nor mutes could take the oath. More specifically,

[C]andidates wearing face coverings are required to remove their face coverings for the oath-taking portion of the ceremony.

However, the regulation went on:

“If they do not [take off the face covering], they will not receive their citizenship certificates and will have to attend a different ceremony. If they again do not comply, then their application for citizenship will be ended.”

The presumption was that this alternative ceremony would allow her to take off her niqab in private before a female citizenship judge. However, she was warned that this would not be the case. Further, all compromises proposed meant that she would be required to remove her veil before unrelated adult males. Both the initial and the alternative ceremonies were public. So Zunera Ishaq appealed to the Federal Appeal Court in accordance with the provisions of the Immigration Act. She did not wait to be ordered to remove her face covering but appealed the regulation in anticipation of this outcome.

The government would claim in court that this made the whole appeal moot since no action had been taken that either did or did not abuse her rights. I would argue it was a silly argument – since the issue is that you are affected by a regulation, and not whether you are affected in a very specific way. The government further claimed that the citizenship judge, as an independent official, might have disregarded the policy, but section 1 of the manual specifically says the regulations bind the judges. Both of these government responses to Zunera Ishaq’s claims were rightly ruled as invalid.

The issues were as follows:

  1. a declaration that the Policy infringes paragraph 2(a) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter] [regarding respect for religious beliefs];
  2. a declaration that the Policy infringes section 15(1) of the Charter [prohibits discrimination on the grounds of religion and sex];
  3. a declaration that the Policy is inconsistent with the governing legislation and is therefore beyond the powers of the Respondent [what constitutes proof that she took the oath];
  4. a declaration that the Policy unduly fetters the discretion of citizenship judges [a contention under administrative law];
  5. an order enjoining the Respondent and any officials of the Respondent from refusing citizenship to the Applicant on the basis of the Bulletin; and
  6. her costs.

In this case, there were technical issues as well as constitutional ones at stake concerning dates of notice and to whom notice was to be given, but we can ignore these for they had no effect on the substantive case and were ruled as inapplicable. Further, the above-mentioned CIC regulation was not

promulgated under sections 27(g) and 27(h) of the Act, which permit the Governor in Council to make regulations “(g) prescribing the ceremonial procedures to be followed by citizenship judges” and “(h) respecting the taking of the oath of citizenship.”

The intention of the policy was that it be mandatory. On that ground, and on that ground alone, the court found the position of the government to be inconsistent with the legislation and invalid.

Tomorrow: The Deeper Issue – Potentially Conflicting Oaths

Partition and a Two-State Solution.11.04.13

Partition and a Two-State Solution 11.04.13

by

Howard Adelman

Last evening I went to hear Derek Penslar and Cliff Orwin at Holy Blossom Temple to "debate" the topic, "Is a Two-State Solution Possible? Desirable?" But it was not a debate. It was a discussion. Both speakers agreed that a two-state solution was desirable. Both also agreed that such a solution was not possible in the near future. They differed in the perspective from which they approached the issue and the degree, source and nature of their pessimism.

Derek Penslar spoke first focusing on the concept of partition. Derek is a comparative historian of modern European Jewry, Zionism and Israel. From 2002 until last year, he held the Samuel J. Zacks Chair in Jewish History at the University of Toronto and, from 2002-2008, directed U of T’s Centre for Jewish Studies. He is currently the Stanley Lewis Professor of Israel Studies at Oxford University. Derek’s historical sketch of the concept of partition in the history of Zionist thought and political action allowed him to approach the topic of a Two-State Solution through its central idea – one land divided between two people.

He began with the original vision of Zionism at the end of the nineteenth and beginning of the twentieth century. At that time, Zionist thinkers had no clear conception of borders let alone of a Palestinian nation with which to share the land. Only with the removal by the British of Transjordan in 1921 from the definition of Palestine and the fixing of the borders with Syria, Lebanon and Egypt did Palestine finally have distinct boundaries — though revisionist Zionists would erroneously insist for decades that the land east of the Jordan still belonged to Palestine.

The concept of partition was first raised in the Peel Commission appointed in response to the Arab revolt or terrorism at the time. The Commission was charged with investigating the causes of the unrest and grievances of Arabs or Jews without bringing into question the fundamental terms of the Mandate. Sir Reginald Coupland, a member of the commission, who was a professor at Oxford University where Derek now teaches and an expert in both colonial history and nationalistic politics, introduced the possibility of partition. (Except for Sir Harold Morris, Chairman of the Industrial Court in Britain and a member of the House of Commons for the Liberals from 1922-1923, the other three members of the Commission were all very experienced colonialists: Sir Horace Rumbold, an experienced politician and diplomat, Sir Laurie Hammond, a former Indian Civil Servant, and Sir William Morris Carter, an ex-Colonial Chief Justice with in-depth experience in Rhodesia and Kenya.)

Derek did not have time to go into the details of the Peel Commission Report, but it is helpful if a few of its highlights are mentioned. First, the Commission was a unanimous report that did question the fundamental terms of the Mandate and recommended that it be terminated in the interests of a "lasting settlement". Second, the Report insisted that there was no prospect of fusion or assimilation between Jewish and Arab cultures even in a federated state. "The gulf between the races is thus already wide and will continue to widen if the present Mandate is maintained." Third, the plan of partition involved three, not two entities, a Jewish state (the Galilee, the Jezreel Valley, most of Beisan and all of the coastal plain from Rosh Hanikra to Beer-Tuvia), an Arab state in the rest of Palestine west of the Jordan River that would be united with Transjordan, and a British enclave (Jerusalem, Bethlehem and Nazareth) and temporarily, until ceded to the Jewish state, Haifa, Acre, Tiberias and Safed.

Population factors were also issues — including exchanges, migration, reproduction rates and characteristics. Thus, the plan recommended a population exchange to deal with the 250,000 Arabs within the proposed Jewish state and 500 Jews within the Arab state consistent with the Nansen conception of "unmixing" ethnic groups and forced exchange of populations, a doctrine of ethnic cleansing that became preeminent between the two world wars and immediately after WWII to deal with what was then called the "minority problem". (See Ch. 2 in Howard Adelman and Elazar Barkan (2011) No Return, No Refuge, Columbia University Press.) Section 10 of chapter xxii of the Peel Commission Report, “Exchange of Land and Population,” recommended that "there should be a transfer of land, and as far as possible, an exchange of population.”

Fifth, the Jewish nation was depicted as a highly educated, democratic community for which existence as a crown colony was unsuitable while the passion and intensity behind Arab nationalism made colonial government extremely difficult if not impossible. Finally, given the closing down of immigration to the United States, the persecution of Jews in Germany and Poland, pressures for immigration by Jews to Palestine were powerful but understandably resisted by Arabs bent on self-determination and unwilling to be swamped by a Jewish majority while the growth of the Arab population, because of a high birth rate, placed an opposite pressure on Jewish national self-determination.

As Derek said, Coupland reversed his position when it came to India. What he did not add – again probably because of time – is that Professor Coupland changed, not because he later rejected the idea of partition and exchange of populations, but because he thought that it was not practicable for India. Partition there would involve millions of people, exchanged over great distances, with no natural dividing lines in a population so intermixed. There was the impossible problem of dealing with Sikhs.

In Israel, both before independence and after, Herut rejected partition and kept insisting that Jordan east of the river was part of the original Palestine. Two of the three parties that came together to form the Labour Party also opposed partition. Ben Gurion, who came from Mapai, was equivocal. Partition was accepted, not because the Zionists believed it was a good idea, but because of pragmatics. Whatever land they agreed to "surrender" in the whole of Palestine, would go to Jordan.

In 1967, everything changed. Israel had just given up being an occupying power with respect to Israeli Arabs. In 1967, Israel became an occupying power of Arabs in Gaza and the West Bank, not because of any plan to do so, though the desire, hope and aspiration were there, but because of circumstances. With the Palestinians opposed to a two-state solution and many Israeli politicians not disposed to accept a Palestinian and a Jewish state side-by-side in the area west of the Jordan, partition was not possible.

Partition became possible in the late 1980s. Mark Heller and Sari Nusseibeh in No Trumpets, No Drums: A Two-State Settlement of the Israeli-Palestinian Conflict in 1991 offered the solution. As Sari once told me, in 1988 the PLO had given him permission to put forth this proposed change in the Palestinian position. Further, in a press conference in Geneva on 14 December 1988, Yasser Arafat, head of the PLO, renounced terrorism and stated that all parties in the Middle East conflict had the right to exist in peace and security, including the states of Palestine and Israel. 
On 9 September 1993, this was followed up with the PLO exchange of letters between Arafat and the Prime Minister of Israel in which the PLO recognized the right of the State of Israel to exist in peace and security, accepted United Nations Security Council Resolutions 242 and 338, agreed to the resolution of all outstanding issues in the conflict between the two sides through negotiations and exclusively peaceful means, renounced the use of terrorism and all other acts of violence, assumed responsibility over all PLO elements and personnel in order to assure their compliance, prevent violations, and agreed to discipline violators. That exchange of letters formally ended the hostilities of the uprising of the Palestinians against occupation that was known as the first intifada that had started in 1987. 
The Palestinian Authority came into existence as a result of that historic agreement with the Declaration of Principles on Interim Self-Government Arrangements of 1993. These were followed by the Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip of 1995, the Palestinian National Council decision in April of 1996 to cancel the articles of its Charter that were contrary to the 1993 exchange of letters, and the Wye River Memorandum of 1998 in which Arafat wrote President Clinton affirming that, "all of the provisions of the Covenant which are inconsistent with the P.L.O. commitment to recognize and live in peace side by side with Israel are no longer in effect. As a result, Articles 6-10, 15, 19-23, and 30 have been nullified, and the parts in Articles 1-5, 11-14, 16-18, 25-27 and 29 that are inconsistent with the above mentioned commitments have also been nullified."
Derek then side-tracked to refer to a number of other quasi-states that had been created by de facto partition: Cyprus, the Nagorno-Karabakh Republic (NKR) in Azerbaijan, Abkhaziand. South Ossetia in Georgia, and he could have mentioned Kosovo in Serbia. He then took up the moves on the Israeli side following the breakthroughs on the acceptance of partition on the Palestinian side. With the assassination of Yitzhak Rabin, they came much later.
At Annapolis in November 2007, the PLO, Israel and the USA agreed on a two-state solution as the basis for negotiations. On 14 June 2009, Benjamin Netanyahu at Bar Ilan University finally endorsed the establishment of a Palestinian state west of the Jordan River -- conditional on Palestine not controlling its borders, that it be demilitarized, not control its airspace, or have foreign relations with any state that did not recognize Israel, renounce the right of return and recognize Israel as a Jewish state. 

Derek then went into the issue of settlements. In 1988 when this dialectical dance of partition and mutual recognition had begun, the West Bank’s settler population was 63,000. Today it is 350,000 with another 200,000 living in the enlarged Jerusalem basin. In Derek’s narrative, up until the 1990s, the Israeli leadership was characterized as ideological zealots but real life pragmatists. Since then, that position had become inverted; they had become ideological moderates but the zealots on the ground had established the new political facts.

The historical sketch did not allow much room for optimism.

Cliff Orwin was introduced as a Straussian political philosopher and former student of Allan Bloom teaching at the University of Toronto with a keen interest in the Middle East. He focused on the prospective future rather than the past and insisted that though partition and the Two-State Solution was desirable, it was not feasible in the foreseeable future. On the other hand, various versions of a one state solution were impossible. The two-state solution was the desirable alternative because national self-determination was now the international norm. Israel was a liberal democracy and that ethos may permit occupation of another people but not on a long term basis. Occupation was a drag on security. Israel accepted its responsibilities to the international community seriously.

However, though desirable, such a solution was not feasible at this time. The two sides had incompatible aims. Further, the most powerful force in political life was inertia; without a powerful incentive for change, drift was the most likely prospect. Further, Israel was faced with far more impending issues including the irreversible Islamicization of the region, the world wide efforts to delegitimize Israel and the Iranian nuclear threat. Of those three, partition would only address the second.

For Cliff, Obama’s speeches and Kerry’s shuttling around were both irrelevant phenomena with respect to having any impact in bringing partition to a conclusion. Further, partition itself was no guarantee of stability and one could envision a much more unstable situation if the risk was taken of establishing a Palestinian state on the West Bank and Gaza. Nevertheless, Cliff thought that each side could take steps in the interim to prepare for the day when such a solution could be implemented.

Plans for the long term on the Palestinian side could include a renunciation of the right of return, redrawing its educational maps to show Israel, ceasing to treat terrorists as heroes, ending its invective against Zionism, continuing the building of the institutions of government. Israel could cease the expansion of the settlements and improve the situation of Palestinians both within Israel and in the West Bank and continually signal its readiness for a two state solution. Essentially, as Derek noted, Cliff had painted a picture of congealment. Derek, on the other hand, pointed to the possibility of a third intifada in the air and history’s tale of sudden and unpredictable seismic shifts. Israelis were approaching a half century of occupation. Two generations of Israelis had grown up as occupiers and Derek feared the undemocratic forces threatening Israel as a democratic state.

It was obvious from the audience responses in questions and the discussion that the audience had been left in a despondent move about the prospects of implementing a two-state solution in the foreseeable future. Did a resurrection of the Arab peace initiative offer some hope? What about the prospects of economic investments of Israelis in the West Bank and the increase of civil society involvement? What about the possibility of unilateral withdrawal by Israel and moving back to a self-defined border leaving the final solution to be negotiated separately? The first was treated as an important but largely irrelevant side issue, even with Kerry’s efforts to tweak the Arab proposal to make it more acceptable to Israel. As Derek said in response to the second suggestion, economics influence politics but in the end peace is a political decision about power. As for unilateral moves by Israel, the response was that Israel was unlikely to take any such initiatives; it had been left traumatized by the unilateral withdrawal from Gaza.

I myself was not left in a pessimistic mood but was interested in the way academic analysis contributed and reinforced inertia. I had not been able to raise my questions which would have focused on Cliff’s false simplistic dichotomy of either a two-state deal or virtually nothing except for the unilateral confidence building and institutional proposals he offered. There was no discussion about the progress underway to ease the checkpoints and interference in Palestinian daily life in Area B and the larger possibility of creating and strengthening a de facto partition of the ground. Nor was there any discussion of the forces working the other way to push towards a solution much more quickly than Cliff suggested or relying on a seismic event to change the situation as Derek suggested. After all, the efforts of Obama and Kerry were not just superficial irrelevencies but a distinct change in approach to tactical moves rather than a head on assault pushing for a two state solution. Europe has signalled Israel that Israel could not develop the Leviathan gas fields and establish the pipelines and infrastructure for exporting gas to Europe unless meaningful progress had been made in moving towards a two-state solution. Further, given the new policies towards the Arab-Israeli sector and the shifts already underway among Palestinian Israelis, one could envision 20% of the Israeli population playing a much more positive and creative role in pushing a two-state solution.

As erudite as Derek always is and as brilliant as Cliff was in bring his pessimistic Straussian perspective on the perpetual condition of humanity to bear on the problem, I found the array of detailed omissions and trends in the current context to be more revealing than what was actually said.

Partition.Two-State.Solution.11.04.13.doc