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Palestinian Statehood under International Law

An Analysis and Discussion by John M. B. Balouziyeh, Esq.


1.

Introduction

General Assembly Resolution A/67/L.28 on the Status of Palestine at the


United Nations was adopted on November 29, 2012 by a vote of 138 in favor
to nine against and forty one abstentions. The Resolution, which has
upgraded the status of the Palestinian Authority from a United Nations
permanent observer entity to that of a non-member observer State, raises
several questions under international law. For example, what place does the
Resolution have in the creation of binding international law? Has Palestine
been officially conferred statehood as a result of the Resolution? What rights
does Resolution A/67/L.28 grant Palestine that Palestine did not previously
hold? In response to these questions, this article will discuss the Resolution
and its place in customary international law and general principles of law.
2.

Is the General Assembly Resolution Binding Law?

Resolutions issued by the General Assembly are not per se legally binding.
The General Assembly, unlike the Security Council, only issues binding
resolutions in the area of budgetary matters regarding the allotment and
collection of dues. Therefore, the Resolution A/67/L.28 will have a largely
symbolic effect without any real, immediate impact on the on-the-ground
situation in Palestine.
However, while General Assembly resolutions are not legally binding on
United Nations member States, they can contribute to the creation of binding
international law. Resolutions of the General Assembly are a means through
which States express their opinions about the status of international
questions. A resolution that receives widespread support may therefore
shape the content of customary international law, a source of international
law. When a legal principle becomes customary international law, it becomes
binding on States to the extent that they do not repeatedly and publicly
announce opposition to the principle.
Moreover, the resolutions and declarations of international organizations,
including the United Nations, may constitute opinio juris, one of the five
sources of international law. While opinio juris is not itself a source of law, it
serves as a subsidiary means for the determination of rules of law under
article 38 of the Statute of the International Court of Justice.
Therefore, while Resolution a/67/l.28 is not itself binding, it may contribute to
and shape the content of binding international law.
3.
Does the Resolution Mean that Palestine Is Now a State?
a)
Overview

An overwhelming majority of 138 States (seventy three percent of those


present) voted in favor of Resolution a/67/l.28, with nine against and forty
one abstentions. The vote thus upgraded the Palestinian Authoritys status at
the United Nations from a permanent observer entity to a non-member
observer State. However, this upgrade in Palestines status at the United
Nations does not necessarily equate full-fledged membership in the
international community. The recognition of statehood is a rather complex
area of international law subject to competing tests and theories.
b)
Competing Theories of State Recognition
There are two theories that provide guidance as to the legal recognition of an
entitys sovereignty in the international community: (i) the declarative
theory; and (ii) the constitutive theory.
(1) Declarative Theory
The declarative theory is the prevailing theory for the recognition of State
sovereignty. It holds that an entity is recognized as a State when it satisfies
the following objective criteria for Statehood, which were laid down in article
1 of the Montevideo Convention of on the Rights and Duties of States (1933):
(i) permanent population; (ii) defined territory; (iii) effective government; and
(iv) capacity to enter into relations with other States.
Palestines status as a State suffers several defects under the declarative
theory test. First, Palestines territory is subject to much dispute, with some
proponents of a Palestinian state arguing that Palestine encompasses the
territory of the West Bank and Gaza Strip, and other advocates arguing that
Palestine encompasses all of modern day Israel, which they contend is not a
legitimate State. The question of a defined territory is thus subject to much
dispute. Moreover, the Palestinian Authority does not have exclusive
authority over any of the aforementioned territory: much of the West Bank is
co-administered with Israel and the Gaza
Strip is administered by Hamas.
The second issue that Palestine faces under the declarative theory is that of
an effective government. In order to qualify as a State, an entity must have a
government with effective control over the territory in question. There is
currently no single entity that is in effective control of the whole territory of
Palestine. The ruptures in the relationship between Hamas in the Gaza Strip
and Fatah in the West Bank is the main reason many critics including the
United States argue that there is no Palestinian government with
consolidated control over all of Palestines territory.
(2) Constitutive Theory
If Palestine were unable to meet the elements of the declarative theory test,
it may be able to turn to the constitutive theory of state recognition, which
holds that an entity is a State when recognized as such by the international

community. Recognition refers to the formal acknowledgement by other


States that an entity is a State.
Under this theory, the General Assembly Resolution is highly relevant to the
question of Palestinian statehood. The vote of 138 nations affirming
Palestinian statehood reflects the voluntary and independent political
decision of States that is critical to the constitutive theory test. Since the
majority of the international community recognizes it as a State, Palestine
may invoke the legal construct of the constitutive theory in its bid for
statehood.
However, the constitutive theory is problematic in many respects. First, the
theory is weakened by the problem that may arise when some but not all
States recognize an entity as a State. What is to come of the nine nations
that voted against Palestinian statehood and the forty one abstentions,
constituting a total of twenty seven percent of General Assembly members
that were present during the vote?
Partial statehood does not exist in the international legal order, and the
constitutive theory does not provide an answer to the anomaly of partial
State recognition. The Institut de Droit International, recognizing this and
other weaknesses of the constitutive theory, has declared in its 1936
Resolutions concerning the Recognition of New States and New Governments
that the existence of new States with all connected legal effects is not
affected by the refusal of one or more States to recognize. This Resolution
essentially restricts the impact that recognition has when clothing an entity
with statehood.
c)

Conclusion

Although the Resolution does not constitute binding international law, it does
bring Palestine one step further towards statehood under both the
constitutive and declarative theories. The vote shows that Palestine has
significant recognition by the international community as a State, thus
fulfilling the criterion of the constitutive theory, which while being flawed is
still adhered to by some contemporary theorists. Moreover, with Palestines
formal recognition by 138 countries, it will be able to effectively enter into
relationship with other States, which is one of the four elements of the
declarative theory test. Thus, while the General Assembly Resolution is not
dispositive of Palestines statehood, it is evidence of a growing recognition of
Palestine as a State.
4.
What Rights does the General Assembly Resolution Confer on
Palestine?
Many commentators have rightfully pointed out that even with Resolution
a/67/l.28, the on-the-ground situation will remain largely unchanged. For
example, Israel continues to withhold recognition of Palestinian statehood,

retains its occupation of the West Bank and on December 20, 2012,
announced the construction of new settlements in East Jerusalem. The fifty
nations that voted against or abstained from the Resolution will continue to
refuse recognition of Palestinian statehood and future Palestinian diplomatic
missions and consulates.
However, there is one important consequence that the recognition of
Palestinian Statehood will have: it will grant Palestine access to United
Nations agencies and international organizations, including the International
Criminal Court. This will enable Palestine to initiate claims against Israel at
the International Criminal Court. Unlike in the past, where countries could
only pursue Israel at the International Criminal Court with Israels consent to
the Courts jurisdiction, if Palestine becomes a member of the International
Criminal Court, the Court would have jurisdiction against Israel as to conduct
that occurred on Palestinian territory, even without Israels consent. Under
article 12.2 of the Statute of the International Criminal Court, the Court has
jurisdiction whenever a State on whose territory crimes occurred (Palestine)
is a member, even if the defendant State (Israel) is a non-member.
Therefore, if Palestine claims that Israel committed crimes against humanity
or war crimes on Palestinian territory, the Court would have jurisdiction over
the matter.
This right was perceived as so significant that some nations, including Great
Britain, sought a commitment from Palestinian leadership that they would
not file a claim against Israel before the International Criminal Court as a
precondition to voting for the Resolution. However, the right is not as
vigorous as it is perceived. Even if Palestine were to join the International
Criminal Court and file a claim against Israel, Israel would immediately
retaliate with a counterclaim. Palestine would quickly find its membership
with the Court to be a double-edged sword: Palestine would not only enjoy
the right to bring actions before the Court but would also be vulnerable to
actions brought against it. Of the claims over which the Court holds
jurisdiction, one could make the argument that Palestine, through its Gaza
Strip arm ruled by Hamas, is far more vulnerable to claims brought against it
than is Israel.
For example, it would be difficult to characterize the blockade of the Gaza
Strip or Israels disproportionate counterattacks as crimes falling under the
Courts jurisdiction, such as murder or extermination committed as part of a
widespread or systematic attack directed against any civilian population,
with knowledge of the attack (art. 7.1 of the Statutes of the Court). Israel
would argue that the blockade and attacks were never aimed at civilians, but
rather at Hamas militants who have repeatedly fired rockets into civilian
areas of Israel. Other supposed crimes such as collective punishment of
Palestinians and the settlements are, in the words of Kevin Jon Hellers
November 29 Opinio Juris commentary, fraught with ambiguity and difficult

to prove. Palestine, in contrast, would encounter great difficulty defending


against an Israeli claim that Hamas rockets fired indiscriminately into Tel Aviv
and Jerusalem constituted crimes against humanity directed at civilians

PALESTINIAN STATEHOOD ACCORDING TO INTERNATIONAL LAW


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International law has various theories about the attributes of statehood, and
as a result there are widely-differing opinions among experts as to whether
Palestine possesses these attributes. The declarative theory recognises the
statehood of a territorial entity as long as the normative conditions of the
Montevideo Convention are met. In contrast, the constitutive theory requires
other countries to recognise the statehood of this territorial unit. There are
also other arguments which are based on historical considerations.
Attributes of Statehood as Defined by the Declarative Theory
Article 3 paragraph 1 of the Montevideo Convention states that the political
existence of the state is independent of recognition by the other states. This
is generally understood to mean that the sovereignty of a state should be
declarative, i.e. based on purely normative principles and independent of
political recognition by other states. If this declarative theory of statehood is
to be followed, then four basic criteria need to be present, as set out in the
1933 Convention. These are:
a) A permanent population: the criterion of a permanent population presents
no problems and is unchallenged in the case of the Palestinian territories.
b) A defined territory: here expert opinions vary widely. The Palestinian
territories are divided into the West Bank, the Gaza Strip and East Jerusalem
and the border between the Palestinian territories and Israel is disputed. This
has raised questions about whether this fragmentation and indeterminate
borders undermine the required conditions for territorial integrity. In answer
to this it has been pointed out that the territorial integrity of Palestine has
been recognised and confirmed in UN Security Council resolutions, by the
General Assembly and the International Court of Justice. The limited level of
control over the territories would not compromise its integrity because this is

due to a foreign occupation. So it is argued that the fragmentation of the


territories and the lack of defined borders are not relevant criteria.
Exclaves and fragmented territories such as Gaza, East Jerusalem and the
West Bank also exist in other regions and states such as Alaska, Gibraltar
and Kaliningrad. At the same time, it is difficult to use the lack of defined
borders between the Palestinian territories and Israel as an argument against
the criterion of a defined territory when the same undefined border also
applies to Israel, where it is not considered a problem.
c) A government: it is debatable whether, in terms of international law, the
Palestinian government exercises sufficient authority over its territories. The
problem is that the Palestinians only have full control over parts of their
territories. In the Oslo Accords only certain sections of the Palestinian
territories were granted limited autonomy, while 83 per cent of the West
Bank is under the total or partial control of Israel. Also in the Gaza Strip, after
the evacuation and the withdrawal of the Israeli military in 2005, the control
of external security still remained with Israel. However, it is disputed whether
it is absolutely necessary for the government to have effective control over
its territories or whether the existence of a normative government is
sufficient.
Supporters of Palestinian statehood argue that the word government is not
qualified by the adjective effective in the Montevideo Convention. Instead
it points to a new state practice where territorial units can be recognised as
states even if they do not exercise full authority at the time this recognition
is granted. This is the case with the Democratic Republic of Congo, Bosnia
and Herzegovina, East Timor, Kosovo and Guinea-Bissau. At the same time
other territorial units have been refused international recognition despite
exercising governmental authority because they lacked the right to selfdetermination (as happened in Rhodesia). Therefore it has been proposed
that the internationally-recognised right to self-determination should be
applied to balance out the lack of an effective government.
The right to self-determination is an inalienable right which applies equally to
all peoples and which is set out in Article 1 Paragraph 2 of the Charter of the
United Nations. This right has been granted to the Palestinians in a series of
UN resolutions. It is also argued that Palestines attributes of statehood
should not depend on the wishes of Israel, as an occupying force cannot
affect a governments sovereignty.

This is countered by the argument that even before the occupation the West
Bank and Gaza Strip were not sovereign, so the assumption that an
occupying force has no effect on sovereignty is not applicable in this case.
d) A capacity to enter into relations with other states: there is disagreement
about whether Palestine has this capacity. On the one hand it is argued that
the Palestinians have signed and ratified a range of international agreements
such as the Arab Charter on Human Rights and the UNESCO Cultural
Heritage Charter. In addition, the Palestinian government is holding talks with
other states. On the other hand the argument is that the Oslo Accords
excluded certain basic functions of statehood from the Palestinian
governments area of responsibility, such as the decision on the
establishment of Palestinian diplomatic missions abroad or international
diplomatic missions in the West Bank and Gaza Strip.
Recognition by other States
This purely declarative theory has, however, been widely questioned. The
fact that a country meets the requirements of the Montevideo Convention is
meaningless if it is not internationally recognised. The constitutive theory of
sovereignty requires recognition by other states as a prerequisite for
statehood. Reference is often made to the fact that Palestine has already
been recognised by a number of states (129, as of January 27 2012), is a
member of many different international organisations and has diplomatic
status in various different countries. And the fact that the General Assembly
recognised the Declaration of Independence by the Palestinian National
Council of November 15, 1988 in Resolution 43/177 is seen as further
evidence of recognition of the state. Only the USA and Israel had voted
against recognition, Germany abstained.
The opposing argument is that there is still a significant number of states
within the international community which have not granted their recognition.
Supporters of this view claim that it is also important that the territorial unit
in question actually feels ready to claim statehood, but that the Palestinian
National Authority is not yet convinced of its own statehood. Instead it uses
the concept of statehood as something it hopes to achieve in the future.
These arguments may not be so persuasive in future, as the Palestinians are
indeed trying to have their status changed through their application to the
United Nations for acceptance and recognition.
Historical Considerations

Further arguments for and against Palestinian statehood are based on


historical considerations. It has been argued that the State of Palestine has
been a sovereign state since the end of the Ottoman Mandate. During the
subsequent British Mandate Palestine was run in accordance with Article 22
of the Versailles Treaty under a class A mandate, a category that was
intended for independent nations. In Article 22 of the 1919 treaty it states:
Certain communities formerly belonging to the Turkish Empire have reached
a stage of development where their existence as independent nations can be
provisionally recognised subject to the rendering of administrative advice
and assistance by a Mandatory until such time as they are able to stand
alone. The wishes of these communities must be a principal consideration in
the selection of the Mandatory. At this time Palestinians were also given
their own nationality and passports for the first time. Their sovereignty was
confirmed in the 1947 resolution of the UN General Assembly that
established the partitioning of the historical Palestine and which envisaged
the setting up of two individual states. The 1988 Declaration of
Independence was therefore declared on behalf of the state that had already
been formed in 1948. Others argue on the other hand, that a provisional
recognition of sovereignty, as came about through Article 22 of the Versailles
Treaty, does not necessarily mean that Palestine should be seen as a state
today.
A State or Not a State?
The complexity of the discussions as to whether Palestine is a state or not a
state is due to the fact that there is no relevant international regulatory
framework under which the issue of statehood can be dealt with in its
entirety. It is generally recognised that neither the fulfilment of the
requirements of the Montevideo Convention nor the many common theories
of recognition by other states can definitively settle the issue of the
statehood of a territorial unit. Neither the fulfilment of the normative
requirements nor recognition as a state can in themselves create a new
state. In reality the question of statehood seems to revolve more around how
other states actually behave towards a particular territorial unit. This
includes acceptance in international organisations (such as the United
Nations), diplomatic recognition and being party to international agreements.
James Crawford argues that while international recognition is important and
can help to strengthen the status of a territorial unit, these days the founding
of a state is more a question of law and effectiveness, such as the ability of a
state to carry out the functions and take on the responsibilities which are

linked to statehood. In short, if you act like a state and are treated like a
state, then you are a state. One thing surely does not state a hindrance: the
internal preconditions of a state: the United Nations and the World Bank have
both attested to the fact that the National Authority is now in a position to
govern a stable Palestinian state. According to a report by Robert Serry, the
UN Special Coordinator for the Middle East, published on April 12, 2011, the
Palestinian National Authority is functioning like a state in all areas such as
health, education, energy, justice and security. The World Bank announced
at the beginning of April that the Palestinian Leadership had improved their
financial administration and the health and education systems were now at a
similar level to those of other countries in the region.