Many states have recognised “Palestine” as a state, and some others (like Australia) are considering doing so. However, recognising Palestine as a state is highly problematic under international law.
Palestine is not a State under international law
First of all, “Palestine” is not a state. While statehood recognition is primarily a political act, and states are free to recognise any territorial entity as a state, they should not do so if the entity in question does not, for some fundamental reason, qualify as a state under principles of international law.
The test of statehood endorsed by customary international law is reflected in article 1 of the Montevideo Convention. A state consists of four elements: a permanent population; a defined territory; an effective government; and capacity to enter into foreign relations. While these conditions are not necessarily exhaustive in all circumstances, and while the balance between them may vary in particular instances, it is clear that these four Montevideo criteria constitute the presumptive paradigm.
The key element is sovereignty or independence from the control of other states. It would take a formidable argument of exception, buttressed by clear proof, to displace the rule that the Montevideo criteria are required in order to display statehood in international law.
This means that in order to be a state, an entity must be independent of other state legal orders. An entity that has consented to another State managing its foreign relations, or has granted extensive territorial governance rights to another State, may be said not to be ‘sovereign’—‘a fortiori where the claimant in question never had those competences to grant to third States.’
“Palestine” is clearly not (yet) a State under these general principles of international law, as was recognised in 2021 even by the International Criminal Court. The main issue is that the Palestinian Authority (PA) lacks independence and sovereignty over territory.
The Palestinian Authority was created under the Oslo Accords, which granted governance powers in Areas B and C to Israel. The PA has no control in Gaza, which is ruled by Hamas. Israel has full control over Area C in the West Bank. Even in Areas A and B of the West Bank, the PA’s jurisdiction is limited under the Oslo Accords.
Treating Palestine as a State… would frustrate the Oslo Agreements and infringe Israel’s rights under them.
The Palestinians argue that the reason they do not enjoy such independence and sovereignty is because Israel is occupying their land. But that is a false and untrue position. The land does not belong to the Palestinians; its status is disputed, and can only be resolved by a negotiated agreement. In Area A of the West Bank, the Palestinian Authority has extensive powers, and the only reason Israel is maintaining a military administration in the other parts of the West Bank (Areas B and C) is because the PLO consistenty refuses every offer that is made to grant them more rights and freedoms.
Ignoring the governing principles of statehood would pave the way to random acts of international recognition of States. There are many other examples of peoples or non-state actors claiming statehood or independence. For example: the Basque in Spain, Kurds in Iraq and Turkey, Pattani in Thailand, Uighur in China, Maoris in New Zealand, and Aboriginals in Australia. If Palestine is recognized as a state, why should these peoples and entities also not be recognized as states?
The Palestinians do not have a right to statehood
It is, of course, a principle of international law that peoples have political rights to independent self-government.
However, that legal principle of self-determination does not prescribe the forms of specific its political outcomes.
In the limited context of decolonization, colonized peoples have a right to statehood. However, the Palestinian Authority is not a colony, and Israel does not claim colonial sovereignty.
Outside the decolonization context, peoples with a right to self-determination do not have an automatic legal right
to statehood. Sometimes it is argued that peoples in circumstances of extreme repression should have a right to secession. However, this is not a right existing as a matter of international law.
The Palestinian peoples’ right to self-determination is thus not a right to statehood under international law. Although Statehood is a political goal, it is not a legally prescribed requirement.
This means that Israel is not obliged to achieve Palestinian statehood. Neither is Israel nor any other State obliged to recognize Palestine as a State under the current facts and laws.
Recognition would undermine the Oslo Accords
Recognising Palestine as a state would also breach the Oslo Accords. These agreements created the Palestinian Authority and gave Palestinians significant autonomous governmental independence in Gaza and Areas A and B of the ‘West Bank’. The Oslo Accords are binding until either party abandons them (which is so far not the case).
Israel and the PLO agreed in the Oslo Accords a pathway to achieve further Palestinian self-determination. The intention was (and remains) that negotiations will resolve outstanding issues in dispute (Jerusalem, settlements, borders, security etc.). The Oslo Accords do not specify what the end-result of negotiations will be. They do not ensure that the Palestinians will achieve statehood. The Accords do not even mention statehood.
Treating Palestine as a State, or encouraging the PLO, Hamas or Palestinian Authority to act as a State beyond the limited jurisdiction the Palestinian Authority has under the Oslo Accords, would frustrate (render null) the Oslo Agreements and infringe Israel’s rights under them.
Recognition would breach Israel’s rights
Recognising Palestinian sovereignty over the West Bank, Gaza or East Jerusalem would infringe Israel’s sovereignty. Israel has legitimate (and legally strong) claims to territorial sovereignty over these territories. It has agreed to negotiation with the PLO, with a view to possibly compromising its rights, but in the meantime it has never abandoned its rights.
Uses and threats of Palestinian force undermine the rationale for recognition of statehood
There is another, very fundamental problem with Palestinian statehood. States must be peace-loving to join the community of nations. They may not be admitted as members of the United Nations if they use force or threaten force against other States (UN Charter, Articles 2 and 4).
The Palestinian Authority, Hamas and the PLO all promote “jihad” and the use of force (both armed attacks and terror) to destroy a neighbouring state: the State of Israel. This is clearly illegal. Recognising these entities as a “state” would undermine the premises of mutual respect and recognition, which was to achieve mutual peace, as originally conceived under the Treaty of Westphalia (1648).
Professor Gregory Rose and Andrew Tucker are affiliated with The Hague Initiative for International Cooperation (thinc.)—a global initiative to advance the fair and just application of international law in the middle east. For more information: www.thinc.info
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