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A comment on Palestine’s statehood, recognition and UN membership

The Palestinian government plans to issue a declaration of independence in September 2011 as its latest strategy to bring about further recognition and UN membership. In an Op-Ed in the New York Times, Palestinian President Mahmoud Abbas said “this September, at the United Nations General Assembly, we will request international recognition of the State of Palestine on the 1967 border and that our state be admitted as a full member of the United Nations.” He proceeded to assert that there is “tremendous value for all Palestinians” in such recognition, claiming that this would allow Palestinians to “pursue claims against Israel at the United Nations, human rights treaty bodies and the International Court of Justice” and gain more political leverage against Israel through the international community and the mechanisms of the international legal system.

These developments over the past year or so have brought a largely neglected issue to the headlines of international legal scholarship and formed a sustained debate on the question of statehood, which has largely fallen out of the legal discourse. When addressed, the political questions arising out of this discussion although manifold are often conflated with the legal ones, which largely can fall into the following three queries: (1) what is the current statehood status of Palestine, in light of the present international law and practice on statehood? (2) what are the prospective legal effects, if any, of the steps that the Palestinian government plans to take in order to bring about further recognitions of Palestine’s statehood? and (3) what can Palestine gain through further recognitions of its statehood?

Palestine’s statehood has been discussed at some length in the context of the Palestinian declaration under Art 12(3) of the Rome Statute of the ICC transferring jurisdiction to the Court over international crimes committed in Palestine as a state that is not a party to the Statute. The deliberation of the declaration by scholars, states’ legal services and different groups brought about a debate over Palestine’s statehood, examining whether it is for the purpose of the Statute, or otherwise, a state under international law.

The anomalous nature of the question of Palestine’s statehood is produced by the fact that statehood as a concept or status is often described as not being ascertainable under an objective lens consisting of a clear set of international legal standards. It is further been widely accepted that neither the Montevideo Convention, nor the varying theories on recognition are helpful in ascertaining an entity’s statehood status. Statehood is largely a “purely factual phenomenon” (as per Jean d’Aspremont) that can be understood mainly in terms of state practice vis-à-vis the entity concerned, including its admission as a member of international organisations or accession as a party to international treaties and conventions, such as the Rome Statute of the ICC.  As such, questions concerning the exact parameters of a state, including its borders, are unrelated to the question of whether it is or is not a state, and their impeding resolution cannot be seen as a bar to statehood.

John Deiss, the President of the General Assembly, reportedly said that the recognition of Palestine as a state by more countries “is one way to get statehood.” So far, most states (112 nations) have recognised Palestine, and the Palestinian government reportedly predicts it will have 135 recognitions by September 2011 (more than two-thirds of the General Assembly). Even Israel has recognised Palestinian sovereignty and Palestine’s statehood through its relation therewith. Although recognition does not constitute statehood as such, it does practically substantiate Palestine’s statehood (see also, Kattan’s legal opinion) and additional recognitions would provide Palestine with further means to gain more rights and obligations in the international legal order.

Since recognition does not determine statehood, this begs the question whether Palestinian Prime Minister Fayyad’s plan to obtain UN membership and further recognition is purely a political strategy of limited legal value as such? Most scholars who have written on the issue of statehood in international law have upheld the position that despite the colossal symbolic political value of UN membership and recognition at the level of the General Assembly (which could be said to be a ‘passport for statehood’) – that is also likely to bring about more countries to individually recognise Palestine’s statehood implicitly or explicitly – it does not arguably bear any legal value as such. Deiss also recalled the important difference between recognition of Palestine’s statehood and its admission as a member of the UN; the two can happen concurrently or interchangeably. UN membership, importantly, does not determine statehood (although can be seen as a strong indication thereof), and neither does the General Assembly have the powers to constitute a state by endorsing the Palestinian declaration in September 2011. Notwithstanding, a Palestinian declaration of independence, which would arguably not add much to the current legal status of Palestine, is an important means to an end, the latter being to gain further recognitions from individual states on the road to UN membership and other international organisations and conventions. This would allow Palestine to stand on an equal footing with Israel and other states (see Kattan’s argument on ‘equal formality’) and open new avenues for Palestinians to gain access to international justice and accountability mechanisms for violations of international law, which is in many ways a condition sine qua non for bringing to an end and resolving the Israeli-Palestinian conflict.

Deiss further noted that there is no other way for Palestinians to achieve UN membership if a Security Council resolution is vetoed. This came after US President Obama said that a UN vote would not create a Palestinian state and that the US would veto a resolution on this matter at the Security Council. Deiss recalls that the procedure for being accepted as a member of the UN is commenced when a state fills out an application stating its adherence to the UN Charter. It is then that the 15-member Security Council must make a recommendation that requires nine yes votes and no veto by a permanent member, and only then can the General Assembly vote on membership, which must be approved by a two-thirds majority. Deiss held that the General Assembly ‘Uniting for Peace’ powers (Resolution 377) are unlikely to allow to bypass a deadlock at the Security Council on the question of membership (see, ICJ Admission case 1950 examining the competence of the General Assembly). Considering the current political state of affairs at the UN, however, one is left to believe that, at most, the Palestinian government could achieve a General Assembly resolution in support of the declaration. President Abbas has also indicated the possibility of asking the ICJ to provide an advisory opinion on the issue of Palestine’s statehood.

Importantly, Deiss recalled General Assembly resolution 181 of 1947 as already providing for the creation of two states, one Arab, one Jewish, at the end of the British mandate in Palestine, which should be understood in terms of the right of all Palestinian refugees, including those from Mandate Palestine, to return. He said that if the Palestinians get a large number of recognitions, this has to be taken into consideration along with the 1947 resolution (see Elaraby on the legal implications of the Partition plan and the Armistice agreements). The relevance of this, amongst other pertinent past and contemporary facts, should be seen as supportive evidence of the international community’s perception and age-old practice in relation to Palestine’s statehood (in addition to certain obligations owed by the international community to Palestine and the Palestinian people in this regard).

An essential and prominent backdrop to the discussion of Palestine’s statehood is the ongoing, already over four-decade-long, occupation of Palestinian territory by Israel (which involves the unlawful exercise of sovereign rights over Palestinian territory), having an illegal colonial character, which does not as such offset statehood, i.e. ex injuria jus non oritur. The occupation in its illegal character (see Ben-Naftali’s chapter in her recent edited collection), drawing on the international law prohibitions of colonialism and apartheid, also amounts to a serious breach of the Palestinian right to self-determination, giving rise to the responsibility of third party states (erga omnes) towards the international community as a whole, who are under a duty not to recognize the situation, not to render aid or assistance and to actively cooperate to bring an end to the violations (see also, ICJ Advisory Opinion on Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970)).

In all cases, these upcoming steps by the Palestinian government geared towards furthering Palestine’s statehood in the international arena, should be undertaken with the necessary precautions and with a clear political and legal strategy in mind, as well as the called for popular participation of the Palestinian people (not limited to Palestinians presently residing in the Gaza Strip and West Bank, including East Jerusalem). Palestine’s statehood is an important human rights issue for the resolution of the Palestinian-Israeli conflict, which should consequently feature in the work of local and international legal experts and scholars, Palestinian civil society organisations as well as the foreign governments that fund them. The duty of those involved in this process, intrinsically and politically, to ensure the effective representation of the Palestinian people in this consequential process of political decision-making (namely with regards to the definition of borders, as indicated in the intentions of President Abbas) is predicated on the responsibility of the international community to ensure the enjoyment by all Palestinians of their right to self-determination.

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For those who would like to explore this topic further, the most recent publications on the question of Palestine’s statehood as such, is lead by Prof John Quigley’s book on ‘The Statehood of Palestine: International Law in the Middle East Conflict’ (Cambridge University Press, 2010), for which Victor Kattan has provided an erudite and incisive review.

2 Comments

  1. Musa Musa 3 October 2011

    I wish that Palestine soon becomes part of the international community and that Palestinians fully enjoy their rights. The world must treat Palestine with respect. There should be no veto against Palestine.

  2. Olga Werby Olga Werby 4 June 2012

    On the UCLA’s Human Rights and International Criminal Law Online Forum, the ICC OTP (then Luis Moreno-Ocampo) asked the following question which explored the Palestinian statehood: Does the Prosecutor of the ICC have the authority to open an investigation into alleged crimes committed in the 2008-2009 Gaza conflict? Experts on the subject — Fletcher, Glasius, Kearney, Quigley, Ronen — provided extensive commentary. Please check it out and join the debate.

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