By Iain Scobbie, Alon Margalit and Sarah Hibbin*

This article is based on an extensive brief entitled “Palestinian Statehood and Collective Recognition by the United Nations,” which is available at http://www.soas.ac.uk/lawpeacemideast/.

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.

Statehood

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, “governmental functions are now sufficient for a functioning government of a State.” This observation is shared by the International Monetary Fund, the World Bank, and the Quartet Representative.

It must be acknowledged that the persistence of the occupation and the political divide between the West Bank and Gaza deprives the PA of the ability to extend its institutional authority. Nonetheless, there is no question that the PA provides services to the Palestinian population in most aspects of daily life in a defined territory and that Palestine has its own legislature and a judicial system; constitutive elements of effective governance. The role and control of the PA in Gaza may be extended in the near future in light of the conciliation agreement recently signed in Cairo between Palestinian factions which might lead to a national unity government that will control both the West Bank and Gaza.

If some uncertainty still remains, it should be noted that contemporary international law accords primordial importance to the realisation of the right to self-determination, and thus is more flexible when it considers the effectiveness of the government of a new State.  A striking example of this was the recognition of the former Belgian Congo as the Republic of the Congo in 1960 in circumstances where, as James Crawford comments, “Anything less like effective government it would be hard to imagine.” But once Belgium had renounced its right to govern the Congo, it had to be presumed that the new entity thus granted independence had the right to exercise authority. As self-determination is “one of the essential principles of contemporary international law,” which all States have the duty to promote, and the Palestinian people possess the right to self-determination, recognition of Palestine’s Statehood would contribute to the realisation of both peoples' – the Jewish/Israeli and Palestinian – right to self-determination.

Unilateral Act?

It has been argued that a Palestinian request to the UNGA to recognize Palestine as a State would be in breach of its commitment under previous agreements and UNSC resolutions to refrain from unilateral acts which might change the status of the territory or prejudice the outcome of the peace negotiations. This objection misses the fundamental point that in any act of recognition, the unilateral act lies with the States according recognition and not with the entity thus recognized. Indeed, as over 120 States have shown, recognition of Palestine as a State is a unilateral act that may be done on their own initiative, and is not dependent on any request that they do so.

In addition, Israel does not have clean hands in this matter given its continuous settlement activity in East Jerusalem and the West Bank.  It is not only in violation of international humanitarian law, bilateral agreements and UNSC resolutions, and itself a unilateral act. The settlements aim to change the status of the West Bank and East Jerusalem by creating "facts on the ground."  Israel cannot complain about the Palestinian relying on the instruments which Israel has itself disregarded

A Palestinian request for recognition cannot be considered separately from the broader context of the deadlock in the bilateral negotiations. These negotiations have continued for almost 20 years and yet a final permanent agreement has not been reached. Since 2008 there has been no substantial progress and the Parties have not been engaged in direct negotiations. Thus far, the Israeli government has dismissed calls to impose a permanent freeze on settlement activity. It also rejected US President Obama’s initiative to resume negotiations based on the 1967 borders with mutually agreed land swaps.

Collective Recognition v. UN Membership

The recognition of a Palestinian State is significant. Given the special circumstances of Palestine – confronted by Israeli occupation and an internal political divide – collective recognition by the UNGA would constitute strong evidence that Palestine is nevertheless a State that fulfills the requirements laid down by international law. Thus a somewhat ambiguous Palestinian statehood might be consolidated by a UNGA resolution that receives unequivocal support.

However as the act of recognition is a discretionary political act, a prerogative of the recognizing State, a UNGA resolution does not bind other States that refuse to recognize the new State. It is suffice to mention that Israel itself is not recognized by many Arab and Muslim States. Moreover, collective recognition does not entail UN membership. While admission to the UN is, by definition, recognition of statehood, as according to Article 4 of the UN Charter membership is open only to States, it does not work the other way: recognition of statehood does not entail or guarantee UN membership. A political entity may meet the formal criteria of statehood without being admitted to the UN or even applying for membership.

Admission to the UN requires a decision of the UNGA upon the recommendation of the UNSC. In the Palestinian case, that recommendation might be vetoed by one or more Permanent Members of the UNSC. While the UNGA could "certify" the statehood of Palestine in a resolution, this would not bind the UNSC.

There might be another obstacle to UN membership. The Palestinian application might be vetoed not only due to a reluctance to support any avenue that is not based on bilateral negotiations, but it might also reflect a material doubt whether Palestine qualifies for membership at this stage.  Under the UN Charter membership is open to “peace-loving states” that are able and willing to carry out the obligations contained in the Charter. According to the Fatah-Hamas reconciliation agreement, Hamas, the de facto government in control of Gaza, is expected to participate in future elections and to become a full partner in the de jure government of a Palestinian State. Because some States consider Hamas to be a terrorist organization, its anticipated role in the government of Palestine might cause them to argue that Palestine cannot be regarded as a “peace-loving State.” Further, because the territory of Palestine is still under Israeli occupation, some might judge that this places such impediments on the exercise of power by the Palestinian government that it cannot discharge Charter obligations.

The Palestinians might well succeed in obtaining recognition of its statehood from the UNGA. Recognition would be in accordance with international law and does not require a prior application to the UNSC. However, considering the projected involvement of Hamas, as well as the continuing Israeli occupation which makes it unclear whether Palestine is able and willing to fulfill the obligations contained in the UN Charter, the question of its UN membership remains open.

*IAIN SCOBBIE is the Sir Joseph Hotung Research Professor at the Hotung Programme for Law, Human Rights and Peace Building in the Middle East, School of Oriental and African Studies (SOAS), University of London. ALON MARGALIT and SARAH HIBBIN are PhD candidates and research associates at the Hotung Programme.