ECAJ Exec­u­tive Direc­tor Peter Wertheim has writ­ten the fol­low­ing arti­cle, the pub­li­ca­tion of which is forth­com­ing in the Jerusalem Cen­tre for Pub­lic Affairs Jour­nal.
To access a PDF ver­sion of this arti­cle, click here: Recog­ni­tion of a Pales­tin­ian State JCPA Jour­nal (forth­comimg).

Recognising a Palestinian state, other than in the context of a comprehensive peace agreement with Israel, undermines the international rule of law

Peter Wertheim*

Jerusalem Centre for Public Affairs
(forthcoming 2017)

Abstract

• Among those who advo­cate imme­di­ate recog­ni­tion of a Pales­tin­ian state, oth­er than as an out­come of a peace agree­ment with Israel, there is a strik­ing irony in the con­trast between the legal­is­tic approach they pur­port­ed­ly adopt on one ques­tion, name­ly set­tle­ments, and their cav­a­lier dis­re­gard for well-estab­lished legal prin­ci­ples on anoth­er, name­ly the cre­ation of states and their recog­ni­tion. One either sup­ports the inter­na­tion­al rule of law as a gen­er­al prin­ci­ple, or not at all. One does not get to pick and choose.

• The four cri­te­ria of state­hood set out in Arti­cle 1 of the Mon­te­v­ideo Con­ven­tion the Rights and Duties of States, 1933, are wide­ly accept­ed as the min­i­mum required by cus­tom­ary inter­na­tion­al law for the cre­ation of a new State. Two of the cri­te­ria – a sin­gle, cen­tral­ized gov­ern­ment and the capac­i­ty to enter into rela­tions with oth­er states – are man­i­fest­ly not sat­is­fied by any Pales­tin­ian enti­ty.

• The inter­nal divide between the sec­u­lar nation­al­ist move­ment among Pales­tini­ans (rep­re­sent­ed by the PLO and Pales­tin­ian Author­i­ty (PA) which con­trols parts of the West Bank), and the theo­crat­ic move­ment (rep­re­sent­ed by Hamas, which con­trols the Gaza Strip) has result­ed in internecine vio­lence on many occa­sions. All attempts at inter­nal rec­on­cil­i­a­tion have failed and appear to be intractable. They are at log­ger­heads on the most basic ques­tions, not only con­cern­ing peace with Israel and oth­er issues of for­eign and domes­tic pol­i­cy, but also on the essen­tial nature of a future Pales­tin­ian state. Thus, for rea­sons which are entire­ly inter­nal to Pales­tin­ian soci­ety, there is no rea­son­able prospect for the fore­see­able future of any gov­ern­ment being formed which would exer­cise effec­tive con­trol over both the West Bank and the Gaza Strip, and would have the capac­i­ty to give effect to any agree­ments pur­port­ed­ly entered into by “Pales­tine”.

• Although recog­ni­tion is a polit­i­cal act and a mat­ter of dis­cre­tion, it is “sub­ject to com­pli­ance with the imper­a­tives of gen­er­al inter­na­tion­al law”. Giv­en that the cri­te­ria of gov­ern­ment and the capac­i­ty to enter into rela­tions with oth­er States are at present not sat­is­fied by any Pales­tin­ian enti­ty, recog­ni­tion of any such enti­ty as a State would be to affirm a fic­tion, con­trary to the imper­a­tives of gen­er­al inter­na­tion­al law. Recog­ni­tion by even a large num­ber of oth­er States can­not over­come clear and com­pelling objec­tive evi­dence indi­cat­ing that the manda­to­ry legal cri­te­ria of state­hood have not been met. An excep­tion would be admis­sion of the enti­ty as a mem­ber State of the UN. If, notwith­stand­ing its admis­sion to the UN as a mem­ber State, the enti­ty does not in fact meet the cus­tom­ary law cri­te­ria of state­hood, at law it is still a State, albeit a failed State.

• Apply­ing the addi­tion­al require­ments for recog­ni­tion con­tained in the Euro­pean Com­mu­ni­ty Dec­la­ra­tion and Guide­lines (1991), the Pales­tini­ans have failed, and are like­ly to con­tin­ue for the fore­see­able future to be unwill­ing, to make com­mit­ments to respect the invi­o­la­bil­i­ty of the fron­tiers with Israel, to repu­di­ate all ter­ri­to­r­i­al claims by Pales­tine against Israel and to set­tle all dis­putes with Israel by peace­ful means.

• Recog­ni­tion of a Pales­tin­ian State at the present time would not only be con­trary to the well-estab­lished require­ments for state­hood stip­u­lat­ed by cus­tom­ary inter­na­tion­al law and the addi­tion­al require­ments man­dat­ed by the Euro­pean Com­mu­ni­ty Dec­la­ra­tion and Guide­lines in 1991, it would also con­tra­vene the inter­na­tion­al­ly rec­og­nized and wit­nessed Oslo Accords between the Pales­tini­ans and Israel and lay the foun­da­tions for open­ing a new phase of the Pales­tini­ans’ con­flict with Israel, rather than for resolv­ing the con­flict. Recog­ni­tion would there­fore under­mine the pri­ma­ry pur­pos­es of the UN Char­ter and the cur­rent inter­na­tion­al rules-based order, which is to main­tain inter­na­tion­al peace and secu­ri­ty.

I        Intro­duc­tion
Accord­ing to the Pales­tin­ian Author­i­ty, 136 (70.5%) of the 193-mem­ber states of the Unit­ed Nations and two non-mem­ber states have offi­cial­ly recog­nised a State of Pales­tine.¹ This paper con­sid­ers the rules of inter­na­tion­al law which gov­ern the cre­ation of new states and their recog­ni­tion by estab­lished States, and the appli­ca­tion of those rules to the ques­tion of whether, at law, a State of Pales­tine has been cre­at­ed and is capa­ble of being recog­nised.
Advo­cates of imme­di­ate recog­ni­tion of a State of Pales­tine, oth­er than as an out­come of a com­pre­hen­sive peace agree­ment with Israel, fre­quent­ly refer to Israel’s civil­ian set­tle­ments in the West Bank as “ille­gal” – an alleged vio­la­tion of Arti­cle 49(6) of the Fourth Gene­va Con­ven­tion and oth­er inter­na­tion­al instru­ments – and cite the fail­ure to reach a peace agree­ment and the growth in the num­ber of set­tlers and con­tin­u­ing set­tle­ment con­struc­tion as rea­sons to recog­nise a State of Pales­tine.
The con­fla­tion of the ques­tion of recog­ni­tion of a Pales­tin­ian state with the ques­tion of the legal sta­tus of the set­tle­ments is clear­ly mis­con­ceived. The two issues raise entire­ly sep­a­rate legal and pol­i­cy con­sid­er­a­tions. There is also a strik­ing irony in the con­trast between the legal­is­tic approach pur­port­ed­ly adopt­ed by these advo­cates on one ques­tion, name­ly set­tle­ments, and their cav­a­lier dis­re­gard for well-estab­lished legal prin­ci­ples on anoth­er, name­ly the cre­ation of states and their recog­ni­tion. One either sup­ports the inter­na­tion­al rule of law as a gen­er­al prin­ci­ple, or not at all. One does not get to pick and choose.
II        Recog­ni­tion of States in cus­tom­ary inter­na­tion­al law²
In inter­na­tion­al law, there are two gen­er­al the­o­ries about the recog­ni­tion of States.
The con­sti­tu­tive the­o­ry main­tains that it is the act of recog­ni­tion by oth­er States that cre­ates a new State and endows it with legal per­son­al­i­ty.
The declara­to­ry the­o­ry adopts the oppo­site approach. It main­tains that recog­ni­tion is mere­ly an acknowl­edge­ment by States of an already-exist­ing sit­u­a­tion. A new State acquires a legal per­son­al­i­ty and legal capac­i­ty only if and when it actu­al­ly begins to oper­ate as a State ‘on the ground’. The issue of recog­ni­tion in any par­tic­u­lar case is there­fore not pri­mar­i­ly a ques­tion of whether a State should exist, but rather of whether such a State does in fact exist.
The con­sti­tu­tive the­o­ry has many dif­fi­cul­ties. A new State can­not sim­ply be wished into exis­tence. If a puta­tive State has no gov­ern­ment that is capa­ble of assert­ing its author­i­ty across its ter­ri­to­ry and of deliv­er­ing on any agree­ments it enters into, no amount of recog­ni­tion by oth­er States can cure those defects. These are prob­lems which ulti­mate­ly must be over­come by the puta­tive State itself and by the peo­ple it pur­ports to rep­re­sent.
States and inter­na­tion­al organ­i­sa­tions have gen­er­al­ly affirmed, and act­ed in accor­dance with, the declara­to­ry the­o­ry rather than the con­sti­tu­tive the­o­ry. For this rea­son, cus­tom­ary inter­na­tion­al law (the body of rules reflect­ing the actu­al prac­tices of estab­lished states and their legal opin­ions about those prac­tices) pre­dom­i­nant­ly reflects the declara­to­ry the­o­ry.³ Accord­ing­ly, under the rules of cus­tom­ary inter­na­tion­al law, which are bind­ing on all States, a polit­i­cal enti­ty does not become a new State unless and until it meets cer­tain objec­tive cri­te­ria ‘on the ground’.
Whilst legal writ­ers have sug­gest­ed many def­i­n­i­tions of a state,⁴ Arti­cle 1 of the Mon­te­v­ideo Con­ven­tion the Rights and Duties of States, 1933,⁵ is the best-known for­mu­la­tion of the basic cri­te­ria for state­hood (the Mon­te­v­ideo cri­te­ria). The puta­tive State must have (i) a per­ma­nent pop­u­la­tion (ii) a defined ter­ri­to­ry (iii) gov­ern­ment (that is, a sin­gle cen­tralised admin­is­tra­tion that can effec­tive­ly assert its author­i­ty over, and main­tain order among, the peo­ple with­in its claimed ter­ri­to­ry, with­out the assis­tance of anoth­er State⁶); and (iv) capac­i­ty to enter into rela­tions with oth­er States (includ­ing the capac­i­ty to ful­fill any inter­na­tion­al agree­ments it may enter into).
The inclu­sion of the fourth require­ment has been ques­tioned by some writ­ers,⁷ and fur­ther cri­te­ria have been pro­posed by oth­ers. Yet lead­ing up to the Mon­te­v­ideo Con­ven­tion there was a con­sen­sus that the first three cri­te­ria at least must be ful­filled in order for there to be any legal basis for claim­ing that an enti­ty is a state.⁸
It fol­lows that recog­ni­tion does not con­fer state­hood on a polit­i­cal enti­ty. Recog­ni­tion is a polit­i­cal, not a legal act. It must fol­low the fact of state­hood and is pure­ly declara­to­ry. Recog­ni­tion can­not cre­ate a State where none exists on the ground.
Instead, recog­ni­tion by oth­er States may serve as an expres­sion of their view that the enti­ty meets the req­ui­site cri­te­ria of state­hood. Although recog­ni­tion is a polit­i­cal act and a mat­ter of dis­cre­tion, it is “sub­ject to com­pli­ance with the imper­a­tives of gen­er­al inter­na­tion­al law”.⁹ Thus, recog­ni­tion by even a large num­ber of oth­er States can­not over­come clear and com­pelling objec­tive evi­dence indi­cat­ing that the req­ui­site cri­te­ria of state­hood have not been met.
An excep­tion would be if the puta­tive state is admit­ted as a mem­ber State of the Unit­ed Nations. Admis­sion as a mem­ber State of the UN requires a deci­sion of the Gen­er­al Assem­bly on the rec­om­men­da­tion of the Secu­ri­ty Coun­cil.¹⁰ Accord­ing to the UN Char­ter, the UN as an orga­ni­za­tion is based on the prin­ci­ple of the sov­er­eign equal­i­ty of all its Mem­bers.¹¹ There is there­fore lit­tle doubt that once admit­ted as a mem­ber State of the UN, a polit­i­cal enti­ty has the legal per­son­al­i­ty of a State in inter­na­tion­al law. If, notwith­stand­ing its admis­sion to the UN as a mem­ber State, the enti­ty does not in fact meet the cus­tom­ary law cri­te­ria of state­hood, at law it is still a State, albeit a failed State.¹²
Apply­ing the four Mon­te­v­ideo cri­te­ria to the Pales­tini­ans, the first two cri­te­ria appear to be sat­is­fied. The Pales­tini­ans are a per­ma­nent pop­u­la­tion locat­ed in a defined ter­ri­to­ry, name­ly the West Bank and the Gaza Strip. These two ter­ri­to­ries would be regard­ed as hav­ing “suf­fi­cient con­sis­ten­cy” to be con­sid­ered “defined”, even though their pre­cise bound­aries have not yet been accu­rate­ly delim­it­ed.¹³
The two remain­ing Mon­te­v­ideo cri­te­ria of state­hood – gov­ern­ment and the capac­i­ty to enter into rela­tions with oth­er States – are at present not sat­is­fied by any Pales­tin­ian enti­ty.
Giv­en what has thus far been an irrec­on­cil­able philo­soph­i­cal and polit­i­cal divi­sion between the Pales­tin­ian Author­i­ty and Hamas, which each con­trol dif­fer­ent parts of the ter­ri­to­ry claimed by the Pales­tini­ans, there is cur­rent­ly no Pales­tin­ian enti­ty which sat­is­fies the third cri­te­ri­on: that of a gov­ern­ment capa­ble of assert­ing its author­i­ty over its ter­ri­to­ry and peo­ple.
The Pales­tine Lib­er­a­tion Organ­i­sa­tion (PLO), and the Pales­tin­ian Author­i­ty (PA) which it con­trols, are pub­licly com­mit­ted to a State based on the sov­er­eign­ty of the Pales­tin­ian peo­ple. In their con­cep­tion of a Pales­tin­ian state, the peo­ple would have the final say on all decisions.14 Hamas, on the oth­er hand, believes in the sov­er­eign­ty of God (alter­na­tive­ly expressed as “the sov­er­eign­ty of Islam”),¹⁵ and the pri­ma­cy of reli­gious author­i­ty over the sec­u­lar.¹⁶ Hamas thus envis­ages a theo­crat­ic State in which the peo­ple may get to vote, but don’t have the final say. The final say would lie with some form of reli­gious author­i­ty.
The inter­nal divide between the sec­u­lar nation­al­ist and theo­crat­ic move­ments with­in Pales­tin­ian soci­ety is per­haps the most pow­er­ful obsta­cle to the achieve­ment of Pales­tin­ian state­hood at present. The divi­sion is not only ide­o­log­i­cal but also geo­graph­ic. The PLO and the PA exer­cise lim­it­ed con­trol over the West Bank. Hamas has effec­tive con­trol in Gaza. The bit­ter dif­fer­ences between these two move­ments have degen­er­at­ed into internecine vio­lence on many occa­sions.
Rep­re­sen­ta­tives of the PLO/PA and Hamas have met many times over the years, both direct­ly and through medi­a­tors, to try to resolve the fun­da­men­tal dif­fer­ences between them, and to for­mu­late a sin­gle vision of the kind of State which a State of Pales­tine would be. All of these attempts have failed. The dif­fer­ences between them appear to be intractable.
This means that, for rea­sons which are entire­ly inter­nal to Pales­tin­ian soci­ety, there is no rea­son­able prospect for the fore­see­able future of any gov­ern­ment being formed which would exer­cise effec­tive con­trol over both the West Bank and the Gaza Strip. Hamas does not con­sid­er itself, or the peo­ple and ter­ri­to­ry of Gaza, to be bound by any agree­ment that the PLO/PA may enter into.¹⁷ Sim­i­lar­ly, the PLO/PA do not con­sid­er them­selves, or the peo­ple and ter­ri­to­ry of the West Bank, to be bound by any agree­ment that Hamas may enter into. This pre­cludes any pos­si­bil­i­ty of the fourth of the Mon­te­v­ideo cri­te­ria being ful­filled, name­ly the capac­i­ty to enter into inter­na­tion­al rela­tions, includ­ing the capac­i­ty to ful­fil treaty oblig­a­tions affect­ing both the West Bank and the Gaza Strip.
Pro­fes­sor Guy Good­win-Gill, an emi­nent inter­na­tion­al lawyer who rep­re­sent­ed the Pales­tini­ans before the Inter­na­tion­al Court of Jus­tice in the 2004 “Wall” case,¹⁸ has expressed the fol­low­ing opin­ion, as appo­site now as when it was first pub­lished in 2011:

“Until such a time as a final set­tle­ment is agreed, the puta­tive State of Pales­tine will have no ter­ri­to­ry over which it exer­cis­es effec­tive sov­er­eign­ty, its bor­ders will be inde­ter­mi­nate or dis­put­ed, its pop­u­la­tion, actu­al and poten­tial, unde­ter­mined and many of them con­tin­u­ing to live under occu­pa­tion or in States of refuge. While it may be an observ­er State in the Unit­ed Nations, it will fall short of meet­ing the inter­na­tion­al­ly agreed cri­te­ria of state­hood, with seri­ous impli­ca­tions for Pales­tini­ans at large, par­tic­u­lar­ly as con­cerns the pop­u­lar rep­re­sen­ta­tion of those not cur­rent­ly present in the Occu­pied Pales­tin­ian Ter­ri­to­ry.”¹⁹

Quite apart from the polit­i­cal real­i­ty that there is no enti­ty which present­ly meets the descrip­tion of a gov­ern­ment that can assert con­trol and main­tain order over both the West Bank and the Gaza Strip, and enter into rela­tions and live up to any agree­ments with oth­er States, the Pales­tini­ans’ inter­na­tion­al­ly recog­nised rep­re­sen­ta­tive orga­ni­za­tion – the PLO – has itself accept­ed lim­i­ta­tions on the juris­dic­tion and pow­ers of the PA. (For fur­ther details, see sec­tion below on bilat­er­al agree­ments between Israel and the Pales­tini­ans which are cur­rent­ly in force). These lim­i­ta­tions, by def­i­n­i­tion, are incom­pat­i­ble with any claim of sov­er­eign state­hood.
Giv­en that no Pales­tin­ian enti­ty present­ly exists which meets the essen­tial cri­te­ria of state­hood or UN mem­ber­ship, recog­ni­tion of any such enti­ty as a state would be to affirm a fic­tion which, in the words of the Yugoslav Arbi­tra­tion Com­mis­sion cit­ed above, would be con­trary to “the imper­a­tives of gen­er­al inter­na­tion­al law”.
Fur­ther, the Mon­te­v­ideo cri­te­ria are only the most basic and min­i­mal require­ments that a polit­i­cal enti­ty needs to sat­is­fy in order legit­i­mate­ly to be recog­nised as a State. On 16 Decem­ber 1991, the Euro­pean Com­mu­ni­ty adopt­ed a Dec­la­ra­tion on the ‘Guide­lines on the Recog­ni­tion of New States in East­ern Europe and in the Sovi­et Union’, which stip­u­lat­ed the fol­low­ing addi­tion­al require­ments for recog­ni­tion:

• respect for the pro­vi­sions of the Char­ter of the Unit­ed Nations and the com­mit­ments sub­scribed to in the Final Act of Helsin­ki and in the Char­ter of Paris, espe­cial­ly with regard to the rule of law, democ­ra­cy and human rights

• guar­an­tees for the rights of eth­nic and nation­al groups and minori­ties in accor­dance with the com­mit­ments sub­scribed to in the frame­work of the CSCE

• respect for the invi­o­la­bil­i­ty of all fron­tiers which can only be changed by peace­ful means and by com­mon agree­ment

• accep­tance of all rel­e­vant com­mit­ments with regard to dis­ar­ma­ment and nuclear non-pro­lif­er­a­tion as well as to secu­ri­ty and region­al sta­bil­i­ty

• com­mit­ment to set­tle by agree­ment, includ­ing where appro­pri­ate by recourse to arbi­tra­tion, all ques­tions con­cern­ing State suc­ces­sion and region­al dis­putes.²⁰

The Euro­pean Com­mu­ni­ty addi­tion­al­ly required the new Yugoslav Repub­lic, “to com­mit itself, pri­or to recog­ni­tion, to adopt con­sti­tu­tion­al and polit­i­cal guar­an­tees ensur­ing that it has no ter­ri­to­r­i­al claims towards a neigh­bour­ing… State and that it will con­duct no hos­tile pro­pa­gan­da activ­i­ties ver­sus a neigh­bour­ing … State”.²¹
If iden­ti­cal require­ments were to be imposed on a puta­tive State of Pales­tine as a pre­con­di­tion of recog­ni­tion, it is vir­tu­al­ly cer­tain that such require­ments would not be met. Com­mit­ments to respect the invi­o­la­bil­i­ty of the fron­tiers with Israel, to repu­di­ate all ter­ri­to­r­i­al claims by Pales­tine against Israel and to set­tle all dis­putes with Israel by peace­ful means, would at present be polit­i­cal­ly unac­cept­able to the PLO/PA and Hamas and, it has to be said, to most Pales­tini­ans.
We know this because of the results of Pales­tin­ian sur­vey research. Polls of Pales­tini­ans are car­ried out fre­quent­ly and by a vari­ety of rep­utable insti­tutes, and they are gen­er­al­ly of a very high qual­i­ty. A recent exam­i­na­tion of the results of 400 sur­veys car­ried out by five Pales­tin­ian research cen­ters, each of which has con­duct­ed reg­u­lar polls in the West Bank and Gaza for many years and has made the results avail­able online in Eng­lish and Ara­bic, con­clud­ed that:

1. When asked to choose among three options—an Israeli State and a Pales­tin­ian state liv­ing side by side in peace, a uni­tary state with equal rights for Pales­tini­ans and Israelis, and a Pales­tin­ian state from the Jor­dan Riv­er to the Mediter­ranean Sea (ie end­ing Israel’s exis­tence) – most Pales­tini­ans chose the last option; and
2. When asked what ought to be done if Pales­tin­ian lead­ers strike a two-state deal with Israel, most declared that the strug­gle should go on until all of his­tor­i­cal Pales­tine is “lib­er­at­ed.” Only a minor­i­ty of Pales­tini­ans have declared them­selves in favour of a two-state solu­tion as a per­ma­nent out­come. This minor­i­ty has remained at about 30 per­cent of Pales­tini­ans for about the last 20 years.²²

Recog­ni­tion of a State of Pales­tine in these cir­cum­stances would there­fore not only be con­trary to the min­i­mum require­ments for state­hood stip­u­lat­ed by cus­tom­ary inter­na­tion­al law, and the addi­tion­al require­ments man­dat­ed by the Euro­pean Com­mu­ni­ty Dec­la­ra­tion and Guide­lines in 1991, but would also lay the foun­da­tions for open­ing a new phase of the Pales­tini­ans’ con­flict with Israel, rather than for resolv­ing the con­flict. Recog­ni­tion would there­fore under­mine the pri­ma­ry pur­pose of the UN Char­ter and the cur­rent inter­na­tion­al rules-based order, which is to main­tain inter­na­tion­al peace and secu­ri­ty.
III        The effect of exist­ing Israeli-Pales­tin­ian bilat­er­al agree­ments and inter­na­tion­al frame­works
Recog­ni­tion of a State of Pales­tine, oth­er than in the con­text of a com­pre­hen­sive peace agree­ment between Israel and the Pales­tini­ans, would be con­trary to both the let­ter and the spir­it of cer­tain bilat­er­al agree­ments that have been entered into by the State of Israel and the PLO.
The first such agree­ment was set out in an exchange of let­ters between Israel’s Prime Min­is­ter Yitzhak Rabin and PLO Chair­man Yass­er Arafat on 9 Sep­tem­ber 1993. The exchange of let­ters pro­vid­ed the foun­da­tion for the Dec­la­ra­tion of Prin­ci­ples on Inter­im Self-Gov­ern­ment Arrange­ments (known as “the Oslo Accord” or “Oslo I”) which was signed by the par­ties in Wash­ing­ton four days lat­er (13 Sep­tem­ber 1993).²³
In the let­ter from Yass­er Arafat to Yitzhak Rabin, repro­duced below, the PLO com­mit­ted itself to resolv­ing “all out­stand­ing issues relat­ing to per­ma­nent sta­tus will be resolved through nego­ti­a­tions.”

LETTER FROM YASSER ARAFAT TO PRIME MINISTER RABIN:
Sep­tem­ber 9, 1993
Yitzhak Rabin, Prime Min­is­ter of Israel
Mr. Prime Min­is­ter,
The sign­ing of the Dec­la­ra­tion of Prin­ci­ples marks a new era in the his­to­ry of the Mid­dle East. In firm con­vic­tion there­of, I would like to con­firm the fol­low­ing PLO com­mit­ments:
The PLO rec­og­nizes the right of the State of Israel to exist in peace and secu­ri­ty.
The PLO accepts Unit­ed Nations Secu­ri­ty Coun­cil Res­o­lu­tions 242 and 338.
The PLO com­mits itself to the Mid­dle East peace process, and to a peace­ful res­o­lu­tion of the con­flict between the two sides and declares that all out­stand­ing issues relat­ing to per­ma­nent sta­tus will be resolved through nego­ti­a­tions.²⁴ (Empha­sis added)

There is no doubt that the issue of Pales­tin­ian state­hood is “an issue relat­ing to per­ma­nent sta­tus”. Attempts by the PLO or the PA to try to resolve the issue of Pales­tin­ian state­hood oth­er than “through nego­ti­a­tions”, whether through UN res­o­lu­tions or through polit­i­cal dec­la­ra­tions of recog­ni­tion by indi­vid­ual states and par­lia­ments, are there­fore incom­pat­i­ble with, and con­sti­tute a clear breach of the fore­go­ing Pales­tin­ian com­mit­ment.
The Israeli-Pales­tin­ian Inter­im Agree­ment on the West Bank and the Gaza Strip (also known as ‘Oslo II’) was entered into by Israel and the PLO in 1995.25 Oslo II explic­it­ly pro­vides that the Pales­tin­ian Author­i­ty will not have juris­dic­tion or con­trol over the exter­nal bor­ders of the ter­ri­to­ry in which it oper­ates (Arti­cle XII), its air­space (Arti­cle XIII, para 4 of Annex 1), for­eign rela­tions (Arti­cle IX, para 5), Israeli nation­als and set­tle­ments locat­ed with­in the ter­ri­to­ry of the West Bank and Gaza (Arti­cle XII) and ele­ments of inter­nal secu­ri­ty and pub­lic order (depend­ing on the par­tic­u­lar area involved, Area A, B, or C). The fact that the Pales­tin­ian Author­i­ty, by agree­ment, does not exer­cise juris­dic­tion or con­trol over any of these mat­ters – which are fun­da­men­tal indi­cia of sov­er­eign­ty – con­tra­dicts its claims that “Pales­tine” is a State.
If, in the agree­ments they have entered into, those rep­re­sent­ing the PLO and PA have acknowl­edged that the issue of state­hood is on the agen­da of the per­ma­nent sta­tus nego­ti­a­tions, then clear­ly, pend­ing the out­come of such nego­ti­a­tions any Pales­tin­ian enti­ty can­not be seen to be a state. An enti­ty that does not rec­og­nize itself as a state can­not, log­i­cal­ly or legal­ly, be rec­og­nized as such by oth­ers.²⁶
Oslo II also con­tains cer­tain pro­vi­sions relat­ing to final sta­tus issues. Arti­cle XXXI, para­graph 7, pro­vides:

“Nei­ther side shall ini­ti­ate or take any step that will change the sta­tus of the West Bank and the Gaza Strip pend­ing the out­come of the per­ma­nent sta­tus nego­ti­a­tions.”

For the Pales­tini­ans to declare that the West Bank and the Gaza Strip are parts of the sov­er­eign ter­ri­to­ry of a State of Pales­tine is an attempt to “change the sta­tus” of those ter­ri­to­ries. Accord­ing­ly, any such dec­la­ra­tion also con­sti­tutes a breach by the PLO and PA of that bind­ing com­mit­ment.
It fol­lows that any dec­la­ra­tion of a Pales­tin­ian state, oth­er than as an out­come of a direct­ly-nego­ti­at­ed agree­ment with Israel, would be in clear vio­la­tion of Oslo II, and that any recog­ni­tion of such a State by par­lia­ments and gov­ern­ments in the inter­na­tion­al com­mu­ni­ty would be com­plic­it with such a breach.²⁷ It is a gen­er­al­ly accept­ed prin­ci­ple of inter­na­tion­al law that a state may not arise out of an ille­gal act, as an ille­gal act can­not pro­duce legal rights – ex injuria non orit­ur jus.²⁸
The Per­for­mance Based Roadmap to a Per­ma­nent Two-State Solu­tion to the Israeli-Pales­tin­ian Con­flict (2003) (the “Roadmap”) was adopt­ed by the Inter­na­tion­al Quar­tet (UN, US, Rus­sia and the EU) and endorsed by the UN Secu­ri­ty Coun­cil in Res­o­lu­tion 1515 (2003). On 1 July 2003, in Jerusalem, Israeli Prime Min­is­ter Ariel Sharon and PA Prime Min­is­ter Mah­moud Abbas held a cer­e­mo­ni­al open­ing to peace talks, tele­vised live in both Ara­bic and Hebrew. Both gov­ern­ment lead­ers said the vio­lence of the con­flict had gone on too long and that they were com­mit­ted to the Roadmap for peace.²⁹
The Roadmap requires both sides not to act uni­lat­er­al­ly but rather to nego­ti­ate with one anoth­er to resolve the con­flict. It pro­vides for the estab­lish­ment of a Pales­tin­ian state as an out­come of the final stage of such nego­ti­a­tions:

“A two-state solu­tion to the Israeli-Pales­tin­ian con­flict will only be achieved through an end to vio­lence and ter­ror­ism, when the Pales­tin­ian peo­ple have a lead­er­ship act­ing deci­sive­ly against ter­ror and will­ing and able to build a prac­tic­ing democ­ra­cy based on tol­er­ance and lib­er­ty, and through Israel’s readi­ness to do what is nec­es­sary for a demo­c­ra­t­ic Pales­tin­ian state to be estab­lished, and a clear, unam­bigu­ous accep­tance by both par­ties of the goal of a nego­ti­at­ed set­tle­ment as described below.
A set­tle­ment, nego­ti­at­ed between the par­ties, will result in the emer­gence of an inde­pen­dent, demo­c­ra­t­ic, and viable Pales­tin­ian State liv­ing side by side in peace and secu­ri­ty with Israel and its oth­er neigh­bours.”³⁰ [Empha­sis added]

The Quar­tet on the Mid­dle East has repeat­ed­ly reaf­firmed this prin­ci­ple, most strik­ing­ly in the State­ment it issued in Munich on 5 Feb­ru­ary 2011:
“The Quar­tet reaf­firmed that nego­ti­a­tions should lead to an out­come that ends the occu­pa­tion that began in 1967 and resolves all per­ma­nent sta­tus issues….[The Quar­tet] reaf­firms that uni­lat­er­al actions by either par­ty can­not pre­judge the out­come of nego­ti­a­tions and will not be rec­og­nized by the inter­na­tion­al com­mu­ni­ty.” ³¹ [Empha­sis added].
It fol­lows that any dec­la­ra­tion of the estab­lish­ment of a Pales­tin­ian State oth­er than as an out­come of nego­ti­a­tions with Israel con­sti­tutes a breach by the PLO and PA of the com­mit­ments to which they agreed to be bound under the Roadmap “and will not be rec­og­nized by the inter­na­tion­al com­mu­ni­ty”.
IV.        Unre­solved issues
Recog­ni­tion of a State of Pales­tine oth­er than in the con­text of a com­pre­hen­sive peace agree­ment with Israel would do noth­ing to resolve the core issues of the Israel-Pales­tin­ian con­flict, in par­tic­u­lar Jerusalem, refugees, bor­ders, set­tle­ments, secu­ri­ty and water. The com­plex arrange­ments required to address the core issues will require co-oper­a­tion between the par­ties pur­suant to detailed agree­ments, not grandil­o­quent, sym­bol­ic state­ments of recog­ni­tion by out­side par­ties.
For exam­ple, any attempt by third par­ties to impose a bor­der between Israel and the Pales­tini­ans would be a nul­li­ty at law. It is a well-accept­ed prin­ci­ple of inter­na­tion­al law that only the rel­e­vant States can mutu­al­ly resolve out­stand­ing bor­der dis­putes. Out­side actors that are not par­ty to the dis­pute can­not force a res­o­lu­tion of the issue of bor­ders.³²
At present, bilat­er­al arrange­ments exist in over 40 spheres of civil­ian activ­i­ty, which serve as the basis for eco­nom­ic, legal and secu­ri­ty coop­er­a­tion between Israel and the PA, includ­ing tax trans­fers and water allo­ca­tion. The estab­lish­ment of a State of Pales­tine oth­er than in the con­text of a com­pre­hen­sive peace agree­ment with Israel would vio­late fun­da­men­tal pro­vi­sions of these agree­ments (see sec­tion III above) and there­by throw into doubt their con­tin­u­ing valid­i­ty and oper­a­tion. For oth­er states to abet this would be to under­mine the integri­ty of inter­na­tion­al law.
If the ter­ri­to­ry of the recog­nised State were to con­sist of both the West Bank and Gaza Strip, ques­tions would also arise as to the rel­a­tive sta­tus to be accord­ed to the PA, which has par­tial con­trol of the West Bank, and Hamas, which has effec­tive con­trol over the Gaza Strip. Hamas, despite its recent pub­li­ca­tion of a sup­ple­ment to its noto­ri­ous Char­ter, has nev­er amend­ed the Char­ter, and has declared that the Char­ter remains in full force and effect. Hamas has been out­lawed as a ter­ror­ist organ­i­sa­tion in var­i­ous coun­tries through­out the world, includ­ing the US and EU. Hamas rejects out­right Israel’s right to exist, repu­di­ates exist­ing agree­ments, embraces ter­ror­ist vio­lence and con­tin­ues unabashed­ly to call for the destruc­tion of the State of Israel.³³
The Pales­tini­ans’ attempts to pro­cure recog­ni­tion of a Pales­tin­ian State from oth­er States is man­i­fest­ly an attempt to achieve Pales­tin­ian state­hood with­out resolv­ing the con­flict with Israel. This will only serve to val­i­date hard­lin­ers on both sides in the eyes of their own peo­ple, and thus cement Israelis and Pales­tini­ans into mutu­al­ly irrec­on­cil­able posi­tions. It will like­ly result in more, not less, blood­shed.
V.        His­tor­i­cal analo­gies
The pro­pos­al that a State of Pales­tine should be recog­nised oth­er than in the con­text of a com­pre­hen­sive peace agree­ment between Israel and the Pales­tini­ans has been com­pared, inac­cu­rate­ly, to the UN Gen­er­al Assembly’s endorse­ment of the estab­lish­ment of a Jew­ish State in Res­o­lu­tion 181 on 29 Novem­ber 1947. That res­o­lu­tion rec­om­mend­ed the par­ti­tion of the for­mer Man­date ter­ri­to­ry of Pales­tine into a Jew­ish state and an Arab state. It did not pur­port to extend recog­ni­tion to either State, because nei­ther State then exist­ed. The res­o­lu­tion nev­er entered into force in light of its rejec­tion by the Arab states, and their deci­sion to pre­vent its imple­men­ta­tion by declar­ing and ini­ti­at­ing war, ini­tial­ly against the Jew­ish com­mu­ni­ty in the coun­try, and then against the new Israeli state.

*Peter Wertheim AM is the Executive Director of the Executive Council of Australian Jewry, the elected national representative body of the Australian Jewish community. He has degrees in Arts and Law from the University of Sydney, and a Master of Laws degree in Public International Law from the University of New South Wales. In 2003 he was made a member of the Order of Australia for services to the Jewish and wider communities and for work in a variety of projects promoting communal harmony and understanding. He has been a Statutory Board Member of the New South Wales Anti Discrimination Board, and a member of the Australian Multicultural Council.

All internet references are as accessed on 19 July 2017.
¹ “Diplomatic Relations”, Permanent Observer of the State of Palestine to the United Nations: http://palestineun.org/about-palestine/diplomatic-relations/
² For a general overview of this subject, and the relevant literature, see Malcolm N. Shaw, International Law, (Seventh edition), (Cambridge: Cambridge University Press, 2014), pp. 322–328.
³ Ibid, p.323: “Practice over the last century or so is not unambiguous but does point to the declaratory approach as the better of the two theories”.
⁴ There is a useful analysis by Thomas D. Grant, in ‘Defining Statehood: The Montevideo Convention and its Discontents’ in 37 Columbian Journal of Transnational Law, 403 at 409 et seq, 1998–1999: https://www.ilsa.org/jessup/jessup13/Defining%20Statehood,%20The%20Montevideo%20Convention%20and%20its%20Discontents.pdf
⁵ (1934) 165 League of Nations Treaty Series 19: http://avalon.law.yale.edu/20th_century/intam03.asp
⁶ Aaland Islands case (1920), League of Nations Official Journal, Special Supplement No.3, p.3: https://www.ilsa.org/jessup/jessup10/basicmats/aaland1.pdf
⁷ These writers are named, and their arguments on this point are summarised, in Thomas D. Grant, ‘Defining Statehood: The Montevideo Convention and its Discontents’ in 37 Columbian Journal of Transnational Law, 403 at 434–435, 1998–1999:
https://www.ilsa.org/jessup/jessup13/Defining%20Statehood,%20The%20Montevideo%20Convention%20and%20its%20Discontents.pdf
⁸ Ibid, p.418.
⁹ Yugoslav Arbitration Commission, Opinion No. 10, July 1992, para 4: https://www.liverpool.ac.uk/library/sca/colldescs/owen/boda/opac4.pdf
¹⁰ Charter of the United Nations, 24 October 1945, 1 United Nations Treaty Series XVI, Article 4, paragraph 2: http://www.un.org/en/sections/un-charter/chapter-ii/index.html
¹¹ Ibid. Article 2, paragraph 1.
¹² Article 4, paragraph 1 of the UN Charter provides that membership in the UN is “open to all peace-loving states which accept the obligations contained in the …..Charter and, in the judgment of the organization, are able and willing to carry out those obligations”. These are a separate, additional set of requirements to the legal criteria for state creation and recognition, and it is therefore necessary that the latter criteria have already been met. Statehood is a prerequisite to UN membership; UN membership is not a prerequisite to statehood. In any event, it is the thesis of this article that there is at present no Palestinian entity which meets the essential legal criteria of statehood, let alone the additional criteria for membership of the UN mandated by Article 4, paragraph 1 of the UN Charter.
¹³ Deutsche Continental Gas Gesellschaft v Polish State (1929) 5 Annual Digest of Public International Law 11, p.15.
¹⁴ “The Palestinian Arab people…have the right to determine their destiny … in accordance with their wishes and entirely of their own accord and will”: Palestine National Charter 1968, Article 3: http://avalon.law.yale.edu/20th_century/plocov.asp
¹⁵ Hamas Charter 1988, Article 31: http://avalon.law.yale.edu/20th_century/hamas.asp
¹⁶ “Secularism completely contradicts religious ideology. Attitudes, conduct and decisions stem from ideologies. That is why, with all our appreciation for The Palestinian Liberation Organization – and what it can develop into – and without belittling its role in the Arab-Israeli conflict, we are unable to exchange the present or future Islamic Palestine with the secular idea”: Hamas Charter 1988, Article 27: http://avalon.law.yale.edu/20th_century/hamas.asp
¹⁷ For a recent example, see the statement of Hamas spokesperson Sami Abu Zuhri that “No one has authorized [PLO Chair and PA President] Mahmoud Abbas to represent the Palestinian people and no one is obligated to any position he’s issued”: Dov Lieber and Eric Cortellessa, ‘Hamas Rejects Abbas Peace Proposal Outline to Trump’, Times of Israel, 3 May 2017: http://www.timesofisrael.com/hamas-rejects-abbas-peace-proposal-outline-to-trump/
¹⁸ Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, International Court of Justice Reports, 2004, p. 136, available at:
http://www.icj-cij.org/files/case-related/131/131–20040709-ADV-01–00-EN.pdf
¹⁹ Guy S. Goodwin-Gill, ‘The Palestine Liberation Organization, the future State of Palestine, and the question of popular representation’, Legal Opinion dated 10 August 2011, para. 9. http://www.jmcc.org/Documentsandmaps.aspx?id=839
²⁰ Reproduced at 4 European Journal of International Law (1993), p. 72: http://www.ejil.org/pdfs/4/1/1227.pdf
²¹ Reproduced at 4 European Journal of International Law (1993), p. 73: http://www.ejil.org/pdfs/4/1/1227.pdf
²² Daniel Polisar, ‘Do Palestinians Want a Two-State Solution?’, Mosaic Magazine, 3 April 2017: https://mosaicmagazine.com/essay/2017/04/do-palestinians-want-a-two-state-solution/
²³ http://www.mfa.gov.il/mfa/foreignpolicy/peace/guide/pages/declaration%20of%20principles.aspx
²⁴ http://www.mfa.gov.il/mfa/foreignpolicy/mfadocuments/yearbook9/pages/107%20israel-plo%20mutual%20recognition-%20letters%20and%20spe.aspx
²⁵ http://www.mfa.gov.il/mfa/foreignpolicy/peace/guide/pages/the%20israeli-palestinian%20interim%20agreement.aspx
²⁶ See European Centre for Law and Justice, Legal Memorandum Opposing Accession to ICC Jurisdiction by non-State Entities, 9 Sept. 2009, pp. 12–15: http://iccforum.com/media/background/gaza/2009–09-09_European_Centre-Memo.pdf
²⁷ See ‘Opinion in the Matter of the Jurisdiction of the ICC with regard to the Declaration of the Palestinian Authority’, by Professor Malcolm Shaw QC, 9 September 2009, p.18, paras 41–42: https://www.icc-cpi.int/NR/rdonlyres/D3C77FA6-9DEE-45B1-ACC0-B41706BB41E5/282851/OTP2010000035449SupplementaryOpinionMalcolmShaw.pdf
²⁸ Ibid, p.20, para 46. See also James Crawford, The Creation of States in International Law, (Oxford: Oxford University Press, 2nd edition, 2006), Chapter 3, ‘International Law Conditions for the Creation of States’,
²⁹ Chris McGreal, Sharon and Abbas warm to road map, The Guardian, 2 July 2003: https://www.theguardian.com/world/2003/jul/02/israel
³⁰ ‘A Performance-Based Roadmap to a Permanent Two-State Solution to the Israeli-Palestinian Conflict’, 30 April 2003: http://www.mfa.gov.il/mfa/foreignpolicy/peace/guide/pages/a%20performance-based%20roadmap%20to%20a%20permanent%20two-sta.aspx
³¹ Middle East Quartet Statement, Munich, February 5, 2011: http://www.europarl.europa.eu/meetdocs/2009_2014/documents/wgme/dv/201/201103/20110309_3_quartetstatement_munich_en.pdf
³² Michael Bothe, ‘Boundaries’, in Rudolf Bernhardt (ed.), Encyclopedia of Public International Law, Vol. I, (North-Holland, 1992), p.444.
³³ ‘Leading Hamas official says no softened stance toward Israel’, Reuters, 10 May 2017: http://www.reuters.com/article/us-israel-palestinians-hamas-idUSKBN1862PK