For over decades, the question upon legal status of Palestine has continued despites its progressing milestones in performing as a state domestically and internationally. To fully enjoy the equal rights and duties among international community, a legal personality, a State status, under international law is required. In statehood, the person automatically binds to international law1as international law operates primarily between states. Looking through the lens of international law, the statehood of Palestine concerns the conception of statehood criteria based on effectiveness from the Montevideo Convention on the Rights and Duties of States 1933 (Montevideo Convention), international customary law of the right to self-determination supporting the right of Palestinian to create a state, and state recognitions. In practice, under international law, there are exceptions and underlying politics that make a State a State. Evaluating these legal concepts, Palestine is a state de jure.
Montevideo Convention is a regional convention that has become an international customary law as a source of contemporary statehood2:
Article 1: The state as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states.
The article is used as a practice guideline in considering statehood as shown in United States’ foreign relations law3. There is an argument that Palestine lacks effectiveness in certain criteria especially the government control over the territory. However, not fulfilling the criteria is not an impediment to statehood under international law.
Analysing Palestine situation under Montevideo Convention criteria, for criterion (a) permanent population, there are currently Palestinian citizen4 inhabit in Palestinian territory whose ancestors may have lived since time immemorial5. As for (b) defined territory, only clear core territory is needed while the fully delimited frontiers are not6. Palestine has a clear core territory, West Bank and Gaza Strip, stated in its Declaration of Independence 1988.
Following (c) government, Palestine has a government ruling over territory for its people in multiple aspects such as administration, judiciary, civil services7. The lack of factual government control over territory has long been an issue for Palestine statehood, strongly asserted by the US and Israel: (i) Israeli occupation in Area C of West Bank, and (ii) split in state administration. The (i) is a belligerent occupancy found by ICJ, UNSC, and UNGA8. The occupation, particularly unlawful one, is not an obstacle to statehood as seen in the Namibia precedent. The case shows emergence of State of Namibia during an unlawful occupation of South Africa via admission to the International Labor Organisation (ILO)9, even though it had no control over its territory. The (ii) was caused from internal conflict and not fully completed unlike Vietnam split administration in 1954 or Korea that remained statehood. Furthermore, both leaders signed a declaration affirming the “unity of Palestinian people, territory, and authority”, also the international relations solely run by Palestinian representative body10. Thus, the effectiveness of government control does not negate Palestinian statehood.
Lastly for Montevideo Convention criteria, (d) capacity to enter into relations with other states can refer to independence11 that free from other states’ authority. However, an entity can become a State without fully gained independence nor no power to make decision like Bosnia’s government that was under the authority and decision of the “high representative” but its statehood was not questioned12. As for Palestine, it has diplomatic relations with other states as both Palestinian representatives in other states and hosts other states representatives, also is a member or observer in international organization of states, and becomes a party in treaties related to commerce, transport, health, and national resource13both then and now.
Another international customary law certifies the State of Palestine is the right of peoples to self-determination, based on the principle of legitimacy concerning the right to be state14. It is in accordance with the purpose of United Nations (UN) Charter 1945, Article 1(2) along with its instrument of United Nations General Assembly (UNGA) Resolution 1514 (XV) 1960 and UNGA Resolution 2625 (XXV) 197015 that asserts the equal rights and self-determination of peoples to freely determine their political states and pursue own economic, social and cultural development. Referring to the Western Sahara Advisory Opinion of ICJ16, in pursuing the right to self-determination, it proved (i) legal ties of Western Sahara to the claimed territory, (ii) wish of the population, and (iii) no violation to general principle of international law.
After a withdrawal of British Mandate in 1948, in 1988, Palestine National Council (PNC) proclaimed the establishment of the state of Palestine through declaration of independence based on the right of self-determination with a claimed territory of West Bank, Gaza strip and East Jerusalem as a longstanding occupation17. Applying the Western Sahara case, it found that, (i) Palestine emerged since the fall of Ottoman Empire and continuing under the British mandates – waiting for the readiness to stand on its own18; (ii) Palestinian citizenship was used since the mandates and before the Declaration, Palestinians were forced to leave Palestine becoming refugees to other Arab states19; and (iii) Palestine rejected the use of violence in becoming a state20 and the claimed territory does not challenge the Israeli territory of the UN Partition Resolution 181 (II)1947 that Israel accepted21. In return, UNGA acknowledged such proclamation22 with no strong opposition as in the Turkish Republic of Northern Cyprus case23 this means Palestine entitled of the right to self-determination and approved internationally as the resolution is legally binding on States.
Although Statehood is independent of recognition as stated in Article 3 of Montevideo Convention, recognition is a political act causing legal effects to States that it can modify or reaffirm the existing order24. Moreover, the Montevideo Convention Article 1(d) bears elements of recognition. Palestine has been recognized as a state by 136 countries, become a ‘non-member observer state’ of UN in 201225, the same status as the Holy See – widely regarded as a state, a member of UNESCO and ICC and other state only organisations, and a party in agreement between states. Considering the recognition as declaratory and constitutive, the State of Palestine has been recognized as a state. With declaratory, Palestine meets the legal criteria along with the right to be a state of customary law which binding on all state, it should be recognised as a state. For the constitutive, despites a non-member state of UN, admission to open-to-state-only organization implies the state status of Palestine or at least it satisfied with the state elements of statute of that organization. The power of collective recognition can be seen in the Namibia case that found as a state after a membership UN-related organisation26even barely met other legal norms; and the non-recognition of the Southern because of its apartheid value which violated the UN Charter, despites meeting other criteria27. Some might argue that the changing status of Palestine in UN or recognition of international community would not change the fact that Palestine is not a state nor create statehood28. However, with the progress in international level supported by international law, the state status may grant a state right to Palestine i.e. to bring the conflict with Israel to ICJ one day regarding state status de jure.
To conclude, Palestine is a State under international law as (i) it meets the Montevideo Convention criteria, despites lack of defined territory and effective government, the precedent suggests the deficiency is not negate the statehood; (ii) it has the right of self-determination in declaration of independence of Palestine; and (iii) the received recognition causes legal effect to the status of Palestine and its right as a state.
1 Montevideo Convention art 4: States are juridically equal, enjoy the same rights, and have equal capacity in their exercise … as a person under international law.
2 International Court of Justice (ICJ) Statute art. 38.1(b).
3 Restatement (third) Foreign Relations Law of the United States (1987) 201.
4 John Quigley, ‘The Palestine Declaration to the International Criminal Court (ICC) : the Statehood Issue’ (2009) Rutgers Law Record 6.
5 Francis Boyle, ‘The Creation of the State of Palestine’ (1990) 1 EJIL 302.
6 North Sea Continental Shelf Case (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. Netherlands), I.C.J. Reports 1969, p. 32, para. 46.; Deutsche Continental Gas-Gesellschaft v. Polish State (1929), 5 A.D. 11. at 15; Quigley (n 4) 210.
7 John Quigley, The Statehood of Palestine: International Law in the Middle East Conflict (2010) 212-215; Boyle (n 5) 302; World Bank, Bringing Citizen voice into service delivery.
8 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 ICJ 136, at 183; GA Res. 61/184, 20 December 2006; SC Res. 1322, 7 October 2000.
9 Quigley (n 7) 223; International Labor Conference, 64th session, Record of Proceedings, Resolution 5, at 50 (1978).
10 Quigley (n 7) 217.
11 Cases and materials on international law (2015) 949: Judge Anzilotti’s opinion.
12 Quigley (n 7) 237; General Framework Agreement for Peace in Bosnia and Herzegovina, Annex 10, Art. 1(2), 14 December 1995, UN Doc. A/50/790.
13 Quigley (n 4) 6, (n 7) 212-213.
14 Crawford (n 2) 107.
15 ICJ Statute art. 38.1(a)
16 Western Sahara, Advisory Opinion, I.C.J. Reports 1975; ICJ Statute art 38.1(d).
17 UN doc A/43/827
18 Boyle (n 5) 301. Quigley (n 4) 6
19 Quigley (n 4) 6
20 (n 20)
21 UNGA Res 181; Correspondence between Eliahu Epstein, Chaim Weizmann, and Harry S. Truman, with related material, Truman Papers (1948)
22 UNGA resolution 43/177
23 UNSC Res 541 (1984).
24 Montevideo Convention, art 6: The recognition of a state merely signifies that the state which recognizes it accepts the personality of the other with all the rights and duties determined by international law…; Ralph Wilde, ‘Recognition in International Law’ (International Law Discussion Group meeting, London February 2010).
25 UNGA Res 67/19
26 Quigley (n 4) 224; Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, 1971 ICJ 16.
27 UNSC Res 277: call not to recognize Southern Rhodesia.
28 Jure Vidmar, ‘Palestine and the Conceptual Problem of Implicit Statehood’ (2003) 12 Chinese Int’l L 19.