Author's Note: This brief is limited to the practical legal barriers that would prevent the recognition of Palestine as a nation. It is not a moral or ethical argument for ether side of the Israeli/Palestine question.
In order to determine if Palestine is a state under international law, it must be determined if Palestine meets the requirements for de facto or de jure statehood. De facto statehood is determined under the 1933 Montevideo Inter-America Convention and has four requirements. In order to achieve de facto statehood the entity must have a) permanent population; b) a defined territory; c) government; and d) the capacity to enter into relations with the other states.
Palestine does meet the first requirement of a permanent population in some aspects. There is a definable group of people that identify as Palestinian and share a common culture, history, and nationality. However, Palestine cannot exert sole control over the population and therefore does not have a permanent population under some interpretations of international law[ii]. The second requirement that an entity has a defined territory is the hardest for Palestine to meet. In order to meet this requirement, the entity must have sovereignty over the land and the capability to defend it[iii]. In 1917 the British granted the disputed area to Israel with the Balfour Declaration. The British determined the need for a Jewish state and used Palestinian land for this purpose. Britain would later turn over the issue to the League of Nations and the League of Nations would uphold the Balfour Declaration through the Mandate for Palestine[iv]. The Mandate for Palestine established the legal right of the Jewish people to the land of Palestine. The issue of Palestine was inherited by the United Nations with the dissolution of the League of Nations. The United Nations called for Palestine to be divided in to a Jewish State and an Arabic State with UN Resolution 181[v]. While this resolution is used as evidence of Palestine’s sovereignty over the West Bank and Gaza Strip, the United Nations does not have the authority to create binding law, only recommendations.[vi]. Palestine rejected Resolution 181 with its adoption of the Palestine National Charter, which declares the partition of Palestine to be unlawful[vii]. Palestine has also declared that the issue of the sovereignty of the West Bank and Gaza Strip has not settled[viii]. Palestine’s territory does not have a definition. The territory Palestine claims to control is fragmented and interspersed with Israelis to have a defined territory. The third requirement of de facto statehood is that the entity must have a government. By definition, a state must be capable of acting independently of foreign governments[ix]. Under the Declaration of Principles, which Palestine signed, the Palestinian National Authority has limited powers and operates under the authority of the Israeli government. Palestine is also required Israel’s help in maintaining its own infrastructure, and industry[x]. Since all of Palestine’s powers are granted by Israel and Palestine needs Israel to perform basic governmental functions, Palestine cannot be said to have an independent functional government. Finally, Palestine must be able to enter into foreign relations. Under the Interim Accords of 1995, the Palestine Council does not have the authority to conduct foreign relations including the forming of embassies or permitting their establishment within the West Bank and the Gaza Strip. Until Palestine can act without the consent of Israel, Palestine fails to meet any of the conditions outlined for de facto statehood.
Palestine also argues that it has obtained de jure statehood through recognition by other nations. However, under international law, premature recognition of a state before it has de facto statehood is a violation[xi]. International organizations have also not recognized Palestine’s statehood. Palestine’s admission to the UN was as a Non-member Observer, not as a member state. Such status does not grant statehood and is the same status given to such international organizations as the Red Cross. Therefore, the UN does not consider Palestine as a nation-state, but as an international community. Since under international law, an entity cannot reach de jure statehood without meeting the conditions of de facto statehood, Palestine is an autonomous entity and not a state. Palestine can only operate with the same framework of international laws that regulate international organizations and with the consent of Israel.
1933 Montevideo Inter-America Convention of the Rights and Duties of a State, 26 December, 1933 Article 1
[ii] American Law Institute, Third Restatement of the Foreign Relation Law of the United States §201 (1986)
[iii] Becker, Tal. “International Recognition of a Unilaterally Declared Palestinian State Legal and Policy Dilemmas.” Jerusalem Center for Public Affairs. http://www.jcpa.org/art/becker2.htm
[iv] The Mandate for Palestine, 24 July, 1922. The Council of the League of Nations. Preamble, para. 2.
[v] United Nations General Assembly Resolution 181. 29 November, 1947. Part II
[vi] United Nations Charter, Chapter IV, Article 10.1945
[vii] The Palestine National Charter. 17 July 1968. Art. 19
[viii] Declaration of Principles On Interim Self-Government Arrangements. 13 September 1993. Article V(3)
[ix] Doehring, Karl. “State,” Encyclopedia of Public International Law. R. Bernhardt, ed. 423,424,1981.
[x] Interim Accord of 1995, Annex VI Article 4 and 5
[xi] UN Charter, Supra Note 7 at Article 2(4)
In order to determine if Palestine is a state under international law, it must be determined if Palestine meets the requirements for de facto or de jure statehood. De facto statehood is determined under the 1933 Montevideo Inter-America Convention and has four requirements. In order to achieve de facto statehood the entity must have a) permanent population; b) a defined territory; c) government; and d) the capacity to enter into relations with the other states.
Palestine does meet the first requirement of a permanent population in some aspects. There is a definable group of people that identify as Palestinian and share a common culture, history, and nationality. However, Palestine cannot exert sole control over the population and therefore does not have a permanent population under some interpretations of international law[ii]. The second requirement that an entity has a defined territory is the hardest for Palestine to meet. In order to meet this requirement, the entity must have sovereignty over the land and the capability to defend it[iii]. In 1917 the British granted the disputed area to Israel with the Balfour Declaration. The British determined the need for a Jewish state and used Palestinian land for this purpose. Britain would later turn over the issue to the League of Nations and the League of Nations would uphold the Balfour Declaration through the Mandate for Palestine[iv]. The Mandate for Palestine established the legal right of the Jewish people to the land of Palestine. The issue of Palestine was inherited by the United Nations with the dissolution of the League of Nations. The United Nations called for Palestine to be divided in to a Jewish State and an Arabic State with UN Resolution 181[v]. While this resolution is used as evidence of Palestine’s sovereignty over the West Bank and Gaza Strip, the United Nations does not have the authority to create binding law, only recommendations.[vi]. Palestine rejected Resolution 181 with its adoption of the Palestine National Charter, which declares the partition of Palestine to be unlawful[vii]. Palestine has also declared that the issue of the sovereignty of the West Bank and Gaza Strip has not settled[viii]. Palestine’s territory does not have a definition. The territory Palestine claims to control is fragmented and interspersed with Israelis to have a defined territory. The third requirement of de facto statehood is that the entity must have a government. By definition, a state must be capable of acting independently of foreign governments[ix]. Under the Declaration of Principles, which Palestine signed, the Palestinian National Authority has limited powers and operates under the authority of the Israeli government. Palestine is also required Israel’s help in maintaining its own infrastructure, and industry[x]. Since all of Palestine’s powers are granted by Israel and Palestine needs Israel to perform basic governmental functions, Palestine cannot be said to have an independent functional government. Finally, Palestine must be able to enter into foreign relations. Under the Interim Accords of 1995, the Palestine Council does not have the authority to conduct foreign relations including the forming of embassies or permitting their establishment within the West Bank and the Gaza Strip. Until Palestine can act without the consent of Israel, Palestine fails to meet any of the conditions outlined for de facto statehood.
Palestine also argues that it has obtained de jure statehood through recognition by other nations. However, under international law, premature recognition of a state before it has de facto statehood is a violation[xi]. International organizations have also not recognized Palestine’s statehood. Palestine’s admission to the UN was as a Non-member Observer, not as a member state. Such status does not grant statehood and is the same status given to such international organizations as the Red Cross. Therefore, the UN does not consider Palestine as a nation-state, but as an international community. Since under international law, an entity cannot reach de jure statehood without meeting the conditions of de facto statehood, Palestine is an autonomous entity and not a state. Palestine can only operate with the same framework of international laws that regulate international organizations and with the consent of Israel.
1933 Montevideo Inter-America Convention of the Rights and Duties of a State, 26 December, 1933 Article 1
[ii] American Law Institute, Third Restatement of the Foreign Relation Law of the United States §201 (1986)
[iii] Becker, Tal. “International Recognition of a Unilaterally Declared Palestinian State Legal and Policy Dilemmas.” Jerusalem Center for Public Affairs. http://www.jcpa.org/art/becker2.htm
[iv] The Mandate for Palestine, 24 July, 1922. The Council of the League of Nations. Preamble, para. 2.
[v] United Nations General Assembly Resolution 181. 29 November, 1947. Part II
[vi] United Nations Charter, Chapter IV, Article 10.1945
[vii] The Palestine National Charter. 17 July 1968. Art. 19
[viii] Declaration of Principles On Interim Self-Government Arrangements. 13 September 1993. Article V(3)
[ix] Doehring, Karl. “State,” Encyclopedia of Public International Law. R. Bernhardt, ed. 423,424,1981.
[x] Interim Accord of 1995, Annex VI Article 4 and 5
[xi] UN Charter, Supra Note 7 at Article 2(4)
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