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, 2^nd 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