Palestinian Statehood and International Law

by Elizabeth Samson
inFocus Quarterly
Fall 2011

http://www.jewishpolicycenter.org/2498/palestinian-statehood-international-law

Immense anxiety has surrounded the unilateral declaration of Palestinian independence (known as the UDI) by the Palestinian Authority (PA), and an accompanying UN resolution supporting that declaration. Although the political impact of such a declaration and resolution remains to be seen, there will be no immediate legal effect for two reasons. First, a UN resolution alone does not create a state; it is not a legally binding document but rather a mere expression of collective sentiment. And second, with respect to the legal qualifications for statehood, any act undertaken to establish a Palestinian state will be insufficient to confer membership in the community of nations, even in the presence of a significant display of support for a state of Palestine. This will largely be due to the Palestinians’ inability to satisfy the Security Council that, once a state, it will abide by the principles of the United Nations Charter.

Theories of Statehood

Recognition and formation of states in international law have evolved around two dominant theories—the declarative theory and the constitutive theory.

The declarative theory was first codified in the Montevideo Convention on the Rights and Duties of States, signed at Montevideo, Uruguay on December 26, 1933. It holds that “[t]he political existence of the state is independent of recognition by the other states” (Article 3), and outlines that states must have: (1) a defined territory; (2) a permanent population; (3) a functioning government; and (4) the capacity to enter into relations with other states. The idea is that once these qualifications are fulfilled, the entity automatically may be considered a state.

Conversely, the constitutive theory represents the notion that simply obtaining the characteristics of statehood is not sufficient to create a state. In the constitutive view, a state may only come into existence if it is recognized as such by other states, and even more specifically, recognized by what are termed in international relations as the “great powers”—a nation or state with the ability to exert its influence on a global scale through economic, military, diplomatic, or cultural strength.

There is no official definition of recognition in international law, and in practice the criteria for recognition are heavily political and often depend on regional developments. However, under customary international law, state practice in relation to recognition falls somewhere in between the declarative and the constitutive theories; it has developed into a combination of the two, with an aspiring state fulfilling its requirements for statehood and the subsequent recognition of its existence by other states, particularly the great powers.

UN Support

On its own, the United Nations does not possess the authority to recognize either a state or a government. However, the granting of membership in its organization may arguably carry greater weight with regard to a state’s legitimacy than recognition alone. Whether a state has received recognition may have political import though no practical effect and minimal legal strength, since without membership in the United Nations a state will have little power as a player on the global stage.

To become a member of the United Nations, a state must first submit an application and letter to the Secretary-General formally stating its acceptance of the obligations under the UN Charter. The Security Council then reviews the application, whereupon nine of its 15 members must vote in favor of recommending UN membership to the General Assembly (GA). So long as a permanent Security Council member does not veto the action, and the Security Council has sufficient votes to recommend membership, the vote for membership is handed over to the General Assembly, of which two-thirds must vote in favor for it to be approved. Upon achieving the two-thirds majority vote, membership is only effective when a resolution for admission of the new state is adopted by the GA.

This is precisely the path that South Sudan took toward becoming the UN’s 193rd member state on July 14. After officially becoming the world’s newest country five days prior, South Sudanese President Salva Kiir applied for UN membership, which the Security Council approved and recommended to the General Assembly. In an interesting comparison to the PA’s situation, the South Sudanese gained independence not through a declaration at the UN, but negotiations. Earlier this year, the South Sudanese voted in favor of seceding from its north in a referendum born from a 2005 peace treaty that ended two decades of civil war. There were no unilateral moves or measures taken and the UN did not create South Sudan, but it certainly bolstered the country’s standing by accepting it into the forum for community of nations.

Will ‘Palestine’ Join the UN?

If the creation of a Palestinian state were only dependent upon recognition by a majority of UN member states, statehood would have been achieved the first time Palestinians declared independence on November 15, 1988—supported by 100 UN member states. And despite that, to date, roughly 121 of the 193 UN members have recognized a state of Palestine, such a state still has not been established. This is largely due to the fact that the Palestinians’ actions with respect to their neighbors routinely violate the UN Charter, and a UN membership application would not pass muster in the Security Council.

Considering that the duty of the Security Council is to maintain international peace and security pursuant to Article 24(1) of the UN Charter, a recommendation for admitting a state of Palestine would not survive the veto power of the Security Council’s permanent members, specifically the United States, a staunch ally of Israel. And while it is argued that U.S. support for Israel is unconditional, the United States has consistently supported a two-state solution and encouraged the establishment of a Palestinian state, but only after negotiations between Israel and the Palestinians sufficiently indicate that Israel’s security would not be jeopardized by a neighboring state of Palestine.

While the Palestinians have arguably attained the requirements for statehood under the declaratory view, and recognition by more than half of the UN member states in accordance with the constitutive view, they stand in violation of UN Charter Articles 2(4) and 4(1), which prohibits the threat or use of force against UN member states, and requires that Palestine be “peace-loving” and abide by “the obligations contained in the…Charter,” respectively. So long as a prospective state of Palestine poses a threat to Israel and violates the principles of the UN Charter, it will not achieve the Security Council votes needed in order to be recommended to the General Assembly for a resolution establishing UN membership—the sine qua non of meaningful statehood.

The PA’s Plan

This is not to say that the General Assembly’s recognition of a state of Palestine is meaningless, but that it is meaningless when it comes to actually creating a tangible state for the Palestinian people to become citizens of and govern. Indeed, the legitimacy gained from the passage of a resolution accepting a Palestinian state on the 1967 borders will bolster Palestinian efforts for statehood by continuing to sway public opinion against Israel.

The Palestinian Authority has explicitly stated its plans to use the UN declaration as a tool to make further claims against the Jewish state. As PA President Mahmoud Abbas explained in a May 16, 2011 op-ed in The New York Times, UN recognition of Palestinian statehood “would pave the way for the internationalisation of the conflict as a legal matter, not only a political one. It would also pave the way for us to pursue claims against Israel at the United Nations, human rights treaty bodies and the International Court of Justice.”

Further clarifying the PA’s plan, in an interview printed in the Qatari newspaper Al Watan at the end of August and just weeks away from his bid at statehood, Abbas said, “when Palestine gains international recognition of a Palestinian state within the 1967 borders, it will be a country under occupation, thus our reference will be the United Nations (UN), and we will discuss our issues there according to article four of the Geneva convention.”

In short, the PA plans to use UN recognition to evade sitting down and negotiating a settlement to the decades-long conflict with Israel. Recognition will simply be another tool in the Palestinian arsenal used to delegitimize Israel in the international arena.

Legal Backfire?

The Palestinian Authority’s plan to unilaterally declare a state on the 1967 borders, however, also has the potential to backfire. According to international law expert Guy Goodwin-Gill, the success of the PA’s unilateral declaration in the UN General Assembly may inadvertently transform the way Palestinian people are represented in the international community and with it, their future.

In 1974, the Palestine Liberation Organization (PLO), created only ten years prior, was granted observer status at the UN as the representative body of the Palestinian people—a position the PLO has held ever since. However, if this September the UN approves a resolution recognizing a state of Palestine, that PLO mission may be replaced by an envoy of a future state based in the West Bank and Gaza Strip—an envoy that will only represent the Palestinian people in those regions.

This may pose a problem. As Goodwin-Gill concludes, as a result of a successful declaration at the UN, Palestinians not living in the West Bank and Gaza, such as the refugees living in camps in neighboring Arab countries, can lose “their entitlement to equal representation… their ability to vocalise their views, to participate in matters of national governance, including the formation and political identity of the state, and to exercise the right of return.” The legality of the Palestinian refugees’ “right” of return is currently disputed, and the UN bid just may put an end to that (not that it would stop the PA from still declaring all Palestinians have the “right to return” to Israel).

Statehood Awaits

Neither a unilateral declaration of independence by the Palestinians, nor the passage of a UN resolution supporting that declaration, will create a Palestinian state or bestow UN membership on that state.

What the Palestinian Authority is asking of the UN is, for all intents and purposes, legally insignificant without the endorsement of the permanent members of the Security Council—an endorsement that will only come if the states adjacent to a state of Palestine feel that no threat or use of force will emanate from its territory. Indeed, UN membership and real statehood awaits the Palestinians, if only they would put down their weapons for good.

Elizabeth Samson is a visiting fellow at the Hudson Institute. She is an attorney specializing in International Law and Constitutional Law.