Is Palestine a state? That may depend on the Palestinians

While international legal scholars debate the weight of ‘nonmember observer state’ status, the burden is ultimately on the Palestinians to show that they can act like a sovereign power

Raphael Ahren is a former diplomatic correspondent at The Times of Israel.

On the morning after the vote that upgraded Palestine to a nonmember observer state, United Nations officials were perplexed when they looked at the Palestinian delegation’s bench in the General Assembly Hall. A sign that used to say “Palestine” had been replaced with a sign reading “State of Palestine” — even though the special machine that usually produces these signs at the UN was temporarily out of order.

UN officials told the members of the Palestinian delegation — which had apparently produced its new sign somewhere else — that they were not authorized to change the sign on their own and had to replace the self-made sign declaring statehood with the old one, according to Haaretz. As long as Palestine is merely a nonmember state, the officials insisted, it cannot independently ask for its name to be changed on the sign adorning its bench.

So is “Palestine” a state now, or not? On November 29, the UN overwhelmingly voted in favor of a resolution according Palestine nonmember observer state status (with 138 states voting in favor, 9 opposing and 41 abstentions). But does a vote in the UN General Assembly — where pro-Palestinian resolutions have a near-automatic majority — have the power to confer bona fide statehood on an entity?

According to some, nonmember state status clearly implies that Palestine is indeed a state.

The Palestinian leadership evidently thinks so. “We now have a state,” Palestinian Authority President Mahmoud Abbas declared triumphantly in Ramallah after returning from New York last week.

Abbas knows full well that his victory at the UN changes little on the ground, and that he still doesn’t control large parts of the territory he claims for the state. But he argues that Palestine should henceforth be considered a state under occupation. History knows of many states that were occupied by foreign forces and did not lose their statehood status together with actual control.

Is it possible to reason that real statehood only comes with full membership in the UN? Currently, only Palestine and the Vatican hold nonmember state observer status, and one might be tempted to say that neither is a full-fledged state. However, Switzerland held precisely this status from 1948 to 2002. Nobody would argue that Switzerland wasn’t a real state before finally becoming a full UN member only 10 years ago.

Kosovo, which declared independence in 2008, doesn’t even have nonmember state status, yet half of the UN member states have recognized the country (including the US, Canada, and 22 out of 27 European Union member states — though not Israel).

Clearly, an entity’s status at the UN does not solely determine whether it’s a state or not. (Seeking clarification, The Times of Israel asked the UN office in Israel for comment, but no response had been received by the time this article was posted.)

What are international legal criteria for statehood?

“The United Nations does not have the authority to establish states,” declared Alan Baker, a former legal adviser to Israel’s Foreign Ministry. “The resolution merely upgraded the Palestinian observer delegation to a nonmember state for internal purposes within the UN and its constituent bodies,” he wrote in Tuesday’s Haaretz. “General Assembly resolutions cannot determine international law. They cannot obligate states. They are nonbinding recommendations indicating the positions of the countries that voted on them.”

Internationally accepted criteria for statehood include “unified territory, capability of responsible governance and readiness to abide by international obligations,” Baker noted, adding that “even the most optimistic Palestinian supporter could not but agree that the Palestinians have a long way to go until they fulfill these requirements.”

Baker was referring to certain measures outlined by the 1933 Montevideo Convention on the Rights and Duties of States, which has traditionally been recognized as the benchmark to determine what constitutes a state under international law. According to the convention’s first article, a state needs to 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.

Article 3 states that the “political existence of the state is independent of recognition by the other states,” which leads Baker and others to argue that the fact that 138 states have granted Palestine nonmember state status doesn’t necessarily mean it’s really a state — since it doesn’t fulfill the four criteria.

It can indeed be argued that Palestine as it exists today does not fulfill all the requirements of Montevideo. While it has a population, a defined territory (the UN resolution speaks of “pre-1967 borders”) and diplomatic ties with other nations, it is impossible to say that the Palestinian Authority is a functioning government that rules the area it claims for a state. Gaza is run by Hamas, and the Oslo Accords which the Palestine Liberation Organization signed with Israel in 1993 grant the Palestinians a certain level of autonomy over some areas of the West Bank. But no one would claim the Palestinians have complete sovereignty.

‘When you have many states and UN institutions recognizing a state, it’s going to be hard to say it’s not a state, though some will say the essential conditions have never been met’

Yet the Montevideo criteria, which form the basis of what is called the declarative theory of statehood, are not the only point of reference that helps determine statehood. A contradicting school of thought, known as the constitutive theory, says that international law only recognizes an entity as a state if it was recognized by other states. Followers of the later theory will argue that, since a vast majority of the world’s nations voted in favor of Palestinian statehood, Palestine clearly has to be considered a state.

Some legal experts seem inclined to combine the two schools of thought when considering the Palestinian question.

“Collective recognition could perfect an otherwise imperfect fulfillment of the [Montevideo] criteria, and, alternatively, collective non-recognition could effectively prevent the fulfillment of the criteria,” argued John Cerone, the director of the Center for International Law and Policy at the New England School of Law in Boston.

“We used to say that recognition by other parties is declarative, but today we know that in reality it also plays a constitutive role,” agreed Tel Aviv University professor Aeyal Gross. “When you have many states and UN institutions recognizing a state, it is going to be very hard to say it’s not a state, even though some will continue to not recognize it and say the essential conditions have never been met.”

The Montevideo criteria might provide for iron-clad definitions of statehood, but the world’s perception can no longer be ignored, said Gross, an expert on international law. Take the Turkish Republic of Northern Cyprus as an example. Ankara is the only country that recognizes this “state”; the rest of the world considers the northern part of the Mediterranean island as illegally occupied by Turkey and rightfully belonging to the Republic of Cyprus. The Turks might exert full control over the territory, and fulfill the other Montevideo criteria, but no one accepts Turkish claims over this area and, therefore, the Turkish Republic of Northern Cyprus is not recognized as a state.

“When it comes to the occupied Palestinian territories, because they were not part of the territory of Israel and many in the international community think the Palestinians have a right to self determination in their own state, it’s easier for people to accept them as a state,” Gross said.

“The question is, do you check whether there is independent control of territory, or do you check whether there is a legitimate right to statehood? Today, there is more of a tendency to look at the rights to statehood. If you have the right for a state and managed to have some control over the territory, then we’re more and more willing to consider you a state, even if factually you’re not fully independent,” Gross said.

Denying Palestinian statehood, on the other hand, would be like handing a prize to those who deny the Palestinians their legitimate rights, he added.

Although nothing has changed on the ground since November 29, the question of Palestinian statehood goes beyond the theoretical realm. Jerusalem fiercely opposed the Palestinian quest for UN nonmember state status, regarding it as a betrayal of the bilateral negotiation process, worrying that it would encourage the Palestinians to believe that they could attain full independence without legitimizing and compromising with Israel, and fearing the upgrade could enable Palestine to drag Israel to the International Criminal Court over alleged war crimes.

In 2009, Palestinian Justice Minister Ali Khashan asked the ICC to investigate Israel’s conduct in the West Bank and Gaza. In April of this year, the prosecutor’s office declined the request, noting that, because Palestine’s status was that of “observer” and not a “non‐member state,” it had no jurisdiction to launch an investigation into acts committed in Palestine.

‘In whose name are the orders being given? This is the main test for statehood’

Today, this argument is no longer valid, and Palestinian leaders have already threatened to take Israel to the ICC. So far, the ICC has been mum over Palestine’s ability to sue Israel. One day after the vote in the GA the prosecutor’s office released a brief statement saying that it “will consider the legal implications of this resolution.”

“The challenge for the ICC will be to demonstrate that its decision is not a political choice, but that it is the result of legal analysis,” Cerone wrote in an article for the American Society of International Law. “Whatever decision it makes, it will likely be decried as a political choice by the opposing camps (either as yet another example of anti-Israel bias in international organizations or as caving to political pressure exerted by the United States).”

International law might not have a yes-or-no answer to the question of Palestinian statehood, but according to Israeli law professor Eyal Benvenisti, it is the Palestinians themselves who can determine whether Palestine will be recognized as a real state or not in the future.

“In whose name are the orders being given? This is the main test for statehood,” he said. “If the PA is exercising the power that is granted to them by the Oslo Accords, this means they’re an agency whose authority is based on an agreement between Israel and the PLO, which directly demonstrates that [Palestine] does not regard itself as a state.”

A state doesn’t become a state through declarations, but through actions, added Benvenisti, who is considered one of the world’s foremost experts on the question of statehood in international law.

“Statehood is responsibility,” he said. “You cannot be a state without the ability to act like a state and without effectively acting as such. The burden is on them to prove that they’re a state.”

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