MEDIA RELEASE
17 July 2017

Judge Theodor Meron confirms that legality of
set­tle­ments and recog­ni­tion of Palestini­an state are
com­pletely separate issues
Former Aus­trali­an Foreign Minister, Bob Carr, has on several occasions (see example here) cited the well-known opinion of Theodor Meron to Israel’s Prime Minister Levi Eshkol in September 1967, when Mr Meron (now Judge Meron) was Legal Adviser to the Israeli Ministry of Foreign Affairs, in which he concluded that “civilian set­tle­ment in the admin­istered ter­rit­or­ies con­tra­venes explicit pro­vi­sions of the Fourth Geneva Con­ven­tion”.
Whilst Mr Carr has not purported directly to cite Theodor Meron’s opinion about the set­tle­ments in support of his advocacy of immediate Aus­trali­an recog­ni­tion of a Palestini­an State, Mr Carr has jux­ta­posed the question of recog­ni­tion with the legal status of the set­tle­ments. (A recent example was at a talk he gave to a NSW ALP federal elect­or­ate council meeting in Sydney on 27 June 2017, which was widely reported in the media).
In much of the public dis­cus­sion in Australia the two issues have been conflated, and advocates of recog­ni­tion of a Palestini­an state have done nothing to acknow­ledge that the legal and policy con­sid­er­a­tions that are relevant to the two issues are different. In fact they have falsely and mis­lead­ingly suggested the opposite.
In the interests of accuracy, the ECAJ wrote to Judge Meron and asked him to clarify his views.
Judge Meron has now confirmed by letter that his opinion related to the legality of the set­tle­ments only, and that he was not taking, and has never taken, a position on whether any Palestini­an entity currently satisfies the legal criteria for statehood and recog­ni­tion.
According to Judge Meron, the two issues are “wholly distinct”, and there are “no con­sequences which neces­sar­ily follow” from his opinion con­cern­ing the legality of set­tle­ments “for the separate legal question of con­tem­por­ary recog­ni­tion of states”.
With his Honour’s per­mis­sion we now publish his complete letter.
Although other eminent inter­na­tion­al lawyers such as the late Julius Stone, Judge Stephen Shwebel and Eugene Rostow, among others, have published contrary opinions to those of Judge Meron con­cern­ing the legality of Israel’s civilian set­tle­ments in the West Bank, we know of no inter­na­tion­al lawyer of similar standing who disagrees with Judge Meron’s statement that the set­tle­ments issue and the recog­ni­tion issue are wholly distinct from one another.
As to the latter issue, given what has thus far been an irre­con­cil­able philo­soph­ic­al and political division between the Palestini­an Authority and Hamas (whose armed wing has been listed as a terrorist organ­isa­tion by the Aus­trali­an Gov­ern­ment since 2003), each of which controls different parts of the territory claimed by the Palestini­ans, there is currently no Palestini­an organ­isa­tion which is capable of asserting its authority and main­tain­ing order through­out that territory. This means that the Palestini­ans at present do not meet at least one of the essential require­ments for a State according to inter­na­tion­al law (and common sense) namely, a gov­ern­ment.
Guy Goodwin-Gill, a barrister and a professor of public inter­na­tion­al law at Oxford Uni­ver­sity, rep­res­en­ted the Palestini­ans before the Inter­na­tion­al Court of Justice in the 2004 “Wall” case. He 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.” (Emphasis added)

(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).
We note the striking contrast between the leg­al­ist­ic approach pur­portedly adopted by Mr Carr on the question of Israeli set­tle­ments, and his cavalier disregard for well-estab­lished legal prin­ciples con­cern­ing the creation of states and their recog­ni­tion. The inter­na­tion­al rule of law has meaning only if it is supported as a general principle, not select­ively.
Letter from Judge Theodor Meron 13.7.2017
Contact:
Peter Wertheim AM
ECAJ Executive Director
phone: 02 8353 8500 | m: 0408 160 904 | fax 02 9361 5888
e: [email protected] | www.ecaj.org.au