The international status of Palestine has been a thorny topic since “the question of Palestine” was first placed on the agenda of the UN and is rooted in the international community’s decision that both the Jewish and the Arab populations of the Mandate Historic
The international status of Palestine has been a thorny topic since “the question of Palestine” was first placed on the agenda of the UN and is rooted in the international community’s decision that both the Jewish and the Arab populations of the Mandate Historic Palestine have the right to self-determination. Whilst the initial “Partition Plan” the General Assembly (UNGA) adopted to give effect to this was ultimately abandoned, the vision of a two-state solution in Historic Palestine has endured and been endorsed by the international community and by both Parties. Israel’s declaration of independence after the termination of the British Mandate, its recognition by third States, and its subsequent admission into the UN was acknowledged to fulfill the Jewish population’s right to self-determination. The parallel right of the indigenous Arab population to self-determination in the remaining part of Historic Palestine is yet to be attained.
The status of Palestine is expected to be the center of attention next September as various reports suggest that the Palestinians will request the UNGA to adopt a resolution recognizing that Palestine is now a State. There has also been speculation that Palestine may submit an application to be admitted as a member of the UN. Both prospects have, in Henry Siegman’s words, provoked a “near-hysterical” reaction from some quarters. Three principal objections have so far been raised: 1) that the territory claimed by Palestine is currently in dispute and this needs to be resolved before recognition can be granted; 2) that the Palestinian National Authority (PA) does not have sufficient governmental control over the Palestinian territory; and 3) that the Palestinian move is a unilateral act which aims to change the status of territory and is accordingly prohibited by the instruments governing the Middle East Peace Process. There is also some confusion regarding the difference between a UNGA resolution granting recognition and the conditions for UN membership.
The traditional criteria for statehood in international law are set out in the 1933 Montevideo Convention on the Rights and Duties of States, namely: defined territory, permanent population, government and the capacity to enter into relations with other States. Applying these to Palestine, the question of its population and capacity to enter into relations with other States are uncontroversial. It is undeniable that Palestine has a permanent population and in relation to the latter, the overwhelming majority of States formally recognize the PLO or the PA as the representative of the Palestinian people and maintain bilateral relations with it, sometimes to the level of full diplomatic relations. The two remaining criteria, territory and government, however deserve closer inspection.
In relation to territory, Security Council (UNSC) resolutions 242 and 338 call upon Israel to withdraw to the 1949 armistice lines, thus indicating that the West Bank, including East Jerusalem, and the Gaza Strip occupied by Israel in 1967 constitute the territory of the Palestinian State. This has been accepted by the international community, including by the International Court of Justice and the Quartet on the Middle East (the UN, the US, the EU and Russia), as well as by the Palestinians and Israelis themselves. Both have agreed that negotiations on a permanent settlement will lead “to the implementation of Security Council Resolutions 242 and 338.”
The fact that its borders are not fully delineated does not preclude the possibility that Palestine is a State. Statehood implies exclusive control over some territory, however large or small. The territory does not have to be exactly demarcated by definite frontiers. Accordingly, arguing in support of Israel’s application for UN membership, the US representative to the UNSC declared in 1949 that “[b]oth reason and history demonstrated that the concept of territory did not necessarily include precise delimitation of the boundaries of that territory.”
A more serious obstacle for Palestinian statehood is the criterion of government. The risk of creation of a “puppet” government by an occupying power presents particular concerns, and consequently there is a presumption against the legitimacy of a State created on occupied territory. In essence, a puppet State is a non-independent entity established as an agent of the occupant. This is, however, not the case here. The claim to statehood for Palestine is not being advanced by Israel, the occupying power, but is rather being opposed by it. This indicates a Palestinian determination to assert its autonomy, and is evidence of some degree of an independent government.
Over the years doubts have been raised regarding the extent in which the Palestinians exercise governmental control over their territory. Although more than 114 States recognised Palestine following the 1988 Palestinian Declaration of Independence, the PLO did not exercise effective control over the West Bank or Gaza. These acts of recognition were premature. Conversely, since 1993, Israel has transferred to the PA certain governmental powers and responsibilities. The factual situation is different now.
It is true that this transfer of control is partial and limited both in terms of comprehensive governmental powers and in its territorial scope; the PA delivers governmental services in about 40 percent of the West Bank, the remaining 60 percent of the West Bank and East Jerusalem being controlled by Israel. Since June 2007 the Gaza Strip has been controlled by Hamas but some services – such as electricity, health, population registry, the salaries of public sector employees and the reconstruction and rehabilitation of the Gaza Strip following the Israeli “Cast Lead” military operation – are still provided by the PA. A recent UN report concluded that in the limited territory under the PA control, “gove