Critically assess the claim that Palestine is a state under international law
In order to determine whether Palestine is a state we must first identify what makes a ‘state’ under international law (IL). The Montevideo Convention on Right and Duties of States (MC) 1933 sets out the traditional criteria for statehood. Apart from the four conditions set out in Article 1, Article 3 and 61 on recognition are equally significant. Palestine statehood is in question because MC has “no mention of putatively relevant matters such as independence, legitimacy, democracy or self-determination”.2 These post-1933 concepts apply to state practice over time, and need to be taken into consideration when assessing Palestine’s statehood today. The first two conditions of MC have mostly remained the same. The latter two, when applied to state practice, alter the criteria for a ‘state’ under IL. This paper will observe to what extent Palestine meets the MC criteria, and how it has altered post-1933. The last condition with reference to Article 3 brings into question the current role recognition plays towards the legality of a state. Taking into account these new developments, this paper will critically evaluate whether Palestine can be considered a state under IL, today.
I Population and Territory
The first condition under MC is for an entity to possess a permanent population. While there are varying numbers of inhabitants that make up a state, there is “no lower limit to the size of a state’s population”.3 Nauru has only 10,000 inhabitants, and the Vatican City has even fewer.4 I have emphasised permanent because the inhabitants need to be accepted as “fixed and determinate”5 in order to meet the criteria. In the Advisory Opinion on Western Sahara Case 6, the International Court of Justice (ICJ), granted Western Sahara independence from Spain on the basis of right to self-determination of the ‘indigenous population’7, the nomadic Saharan tribesman. Palestine also has an indigenous ‘Palestine population’, that are the “original inhabitants and occupants”8 of Palestine territory. In the relatively recent UN Resolution of 29 November 2012, discussing the Status of Palestine in the UN, the document referred to the Palestine Liberation Organisation (PLO), as the representative of ‘Palestine People’. In addition, the court observes that the existence of a “Palestine people” is no longer an issue.9 Thus, there is no ambiguity on the existence and permanency of the Palestine population under IL.
The next criterion of MC is territory. Unlike the population that needs to be ‘fixed and determined’ the expectation of territory is for it to be ‘defined’. However, in Deutsche Continental Gas-Gesellschaft v Polish State Case, the tribunal stated that it is enough for an entity to have “sufficient consistency, even though its boundaries have not yet been accurately delimited”.10 Therefore it is sufficient that the PLO roughly identified its boundaries in the Palestine Declaration of Independence (PDI), as consisting of West Bank and Gaza Strip with its capital in East Jerusalem.11 It can be argued that although Palestine claimed this territory it is still under Israel’s control as a belligerent occupant12, and thus invalidates its claim. However, Israel is a ‘state’ under IL, although its boarders have never been settled.13 The condition, under which the UN accepted Israel’s membership, was partly a result of US Ambassador Jessup’s argument in favour of Israel’s admission. His requirement of territory read: “One does not find in the general classic treatment of this subject any insistence that the territory of a State must be exactly fixed by definitive frontiers.”14 Having been granted membership at the UN, Israel automatically became a state in 1949.15 Thus, with respect to the aforementioned examples of state practice post 1933, there is no specific requirement for territories to be ‘definitive’. The boarders as defined in the PDI can be identified as Palestine territory, under IL, therefore meeting the second criteria.
II Government, Self-Determination and Independence
The traditional rule under MC submits, a government needs to have ‘effective and exclusive’ control over its people and territory. The Finnish independence from Russia in May 1918 marks the beginning of IL towards the creation of states in special cases of civil war. While the state of Finland wasn’t denounced a state “until the public authorities had become strong enough to assert themselves throughout the territories of the State without the assistance of foreign troops,”16 there was no specific requirement of a “stable political organisation”17. During the1940’s, these special cases took the form of decolonization. This led to the GA Resolution 1514 on self-determination in 1960.18 As a result, entities with less-than-effective government were still considered states; Baltic Republics between 1940 and 1990 and Kuwait in 1990-9119 on the basis of the new declaration, “all peoples have the right to self-determination”20
It should be noted that MC was drafted at a time when the principle of self-determination was recognized but not lawful. In 1974, the U.N. General Assembly resolved in favour of self-determination rights of the Palestine people21 and further formalized this in the GA 2012 Resolution on Palestine’s Status, urging all states to support ‘Palestine people in the early realization of their right to self-determination’22. In light of this, regardless of Crawford’s argument stating “its whole territory is occupied by Israel, which functions as a government in the territory”23 right to self-determination trumps that. Although this argument might question the government’s ‘exclusivity’, one can conclude that the requirement of ‘government’ in particular contexts is less stringent than might otherwise be thought. Thus it can be noted that state practice towards the right to self-determination, aids Palestine’s condition in a way that it discounts the standard of ‘effectiveness and exclusiveness’ of the government. Palestine to this effect, meets the minimum conditions of a government and more importantly has the right to self-determination to be considered a state.
III Capacity to enter into relations with other states and Recognition of a state
The Capacity to enter into relations with other states, takes on a new meaning post 1945, with the establishment of the UN and other International Organizations. In this respect one can assume that ‘ collective recognition’24 by the international community plays a large role in determining the extent to which an entity can enter into relation with other states, and therefore be considered a ‘state’. More recently, there has even been a guideline for recognising new states in Eastern Europe25 based on the rule of law, democracy and human rights. This can be observed as a case of conditional recognition applied towards Yugoslavia 1991-92.26
Palestine sits on the fence in this regard: on the one hand its membership has been accepted by UNESCO27, ICC28 and very recently it even became the president of G7729, while on the other, it is still a ‘non-member observer’ state at the UN.30 If we consider Article 3 of MC stating “the political existence of the State is independent of recognition by the other States” in line with the declaratory school of thought, recognition by other states should not effect Palestine’s statehood. However, once we witness the ripple effects of the lack of recognition by states such as US31 (unlike in Kosovo32 ) and Israel on Palestine’s acceptance as a member at the UN, and earlier at WHO33, and the 1949 Geneva Convention34, this affects Palestine from meeting the fourth criteria of statehood.
Palestine comfortably meets the first two criteria of MC, Population and Territory . The third condition is slightly contentious, given that Palestine’s government cannot be proved to be both “effective and exclusive”. However, the introduction of the Resolution of self-determination under the UN lessens the importance of this condition, and trumps independence of Palestine people over the condition. While state practice over the years aided Palestine in meeting the third condition, it worked in reverse for meeting the fourth condition. State practice of recognition of states plays a vital role in the ‘states’ capacity to enter into relations with other states, and with Palestine’s current situation, where it is not recognized by US, Israel and the UN as a member state, prevents it from meeting the fourth condition.
1 MCRDS 1933 165 LNTS (1934) 19; AJIL Supp. 75 (1934)
2 Matthew Craven, ‘Statehood, Self-determination, and Recognition’ in Malcolm Evans (eds), International Law (OUP 2014) 217
3 David Harris and Sandesh Sivakumaran (eds), Cases and Materials on International Law (8th edn, Sweet & Maxwell 2015) 88
4 Duursma, Fragmentation and the International Relations of Micro-States (1996)
5 Francis, A. Boyle ‘Forum: The Algiers Deceleration on Palestine’ (1990) 1 EJIL 302
6 Western Sahara (Advisory Opinion) 1975, ICJ Rep 61
7 G.A. Res. 2229, G.A.O.R., 21st Session, Supp, (1966) 72
8 Supra 302
9 Legal Consequences of the Construction of a Wall (Advisory Opinion) <https://www.icj-cij.org/files/case-related/131/131-20040709-ADV-01-00-EN.pdf> accessed on 20 December 2018 
10 (1929) 5 A.D. 11 at 15
11 Palestine National Council, Declaration of Independence, Nov. 15, 1988, U.N. Doc. A/43/827, S/20278, Annex III, Nov. 18, 1988, reprinted in I.L.M. 1668 (1988)
12 John Quigley, ‘The Palestine Declaration to the International Criminal Court (Rutgers Law Record, 2009) 4
13 UNSC Res 242 (22 November 1967) UN Doc S/RES/273
14 UNSC 383rd mtg (2 December 1948) 11
15 UN Charter 1945 Article 4(1)
16 L.N.O.J., Special Supp. No.3, p.3 (1920)
17 Supra 89
18 UNGA Res 1514 (XV) (14 December 1960)
19 Supra 222
20 Supra 66
21 UNGA Res 3236 (XXIX) (22 November 1974)
22 UNGA Res 67/19 (29 November 2012) UN Doc A/RES/67/19
23 James Crawford: The Creation of States (2nd edition, Oxford University Press, 2006)
24 Dopa Akande Palestine as a UN Observer Stat: Does this make Palestine a State? (2012) EJIL
25 Guidelines (EC) 1991/ 62 on the Recognition of New States in Eastern Europe and in the Soviet Union (16 December 1991) BYIL/art 6
27 UN News, UNESCO votes to admit Palestine as full member (31 October 2011)
28 Presidents Appeal (20 March, 2015) The ICC and Palestine Consent ASIL 19(6)
29 UN Doc. G77 + China Annual Ministerial Meeting (27 September 2018)
30 UNGA Status of Palestine in the UN (26 November 2012) UN Doc A/67/L.28
31 Victor Kattan, Its Time to Take Palestine v United States of America seriously (2018) OpinioJuris
32 Kosovo Thanks You (17 February 2018) Website: http://www.kosovothanksyou.com
33 WHO Res (12 May 1989) UN Doc A/42/VR/10
34 Embassy of Switzerland, Note of Information sent to States Parties to the Convention and Protocol (13 September 1989)
- Quote paper
- Tanya Keswani (Author), 2019, Can Palestine be considered a state under International Law, today?, Munich, GRIN Verlag, https://www.grin.com/document/535087