There are compelling reasons why Australia should not recognise a Palestinian State, writes ECAJ co-CEO Peter Wertheim. An edited version of this article appears on ABC Religion and Ethics

Intro­duc­tion
At the ALP State Con­fer­ences in Queens­land and Vic­to­ria in June, motions were put for­ward urg­ing the Aus­tralian gov­ern­ment to com­mit itself to a dead­line for Aus­tralia to recog­nise a Pales­tin­ian State.  The Vic­to­ri­an State Con­fer­ence resolved that the dead­line should be “with­in the term of this par­lia­ment”.[1] A cam­paign to achieve this objec­tive has open­ly been spear-head­ed by for­mer ALP For­eign Min­is­ter Bob Carr. He and his sup­port­ers have declared that they intend to car­ry this cam­paign to the floor of the upcom­ing ALP Nation­al Con­fer­ence in Bris­bane from 17 to 19 August 2023.[2]

Yet recog­ni­tion can­not cre­ate a State where none exists on the ground.  Recog­ni­tion of a State is not an aspi­ra­tional state­ment; it is, as the word implies, an acknowl­edge­ment of real­i­ty.[3]  It is one thing to opine that a Pales­tin­ian State ought to exist, but anoth­er thing entire­ly to declare that such a State already does exist.

Rel­e­vant prin­ci­ples
Recog­ni­tion of a Pales­tin­ian State, oth­er than as an out­come of a nego­ti­at­ed peace agree­ment between Israel and the Pales­tini­ans, would con­sti­tute a repu­di­a­tion of the bipar­ti­san prin­ci­ple on which Aus­tralian pol­i­cy has been based for sev­er­al decades:  that Aus­tralia should encour­age Israel and the Pales­tini­ans to return to good faith nego­ti­a­tions on the final sta­tus issues of the con­flict, which include Pales­tin­ian state­hood, and refrain from doing any­thing to pre-empt the out­come of those nego­ti­a­tions.  It is a prin­ci­ple that For­eign Min­is­ter Pen­ny Wong strong­ly reaf­firmed in Octo­ber 2022, as the ratio­nale for revers­ing Australia’s pre­vi­ous recog­ni­tion of West Jerusalem as Israel’s cap­i­tal and seat of gov­ern­ment.[4]  Whilst crit­ics of this deci­sion, includ­ing the Exec­u­tive Coun­cil of Aus­tralian Jew­ry, strong­ly dis­agreed that West Jerusalem (as dis­tinct from oth­er parts of Jerusalem) is a final sta­tus issue, the prin­ci­ple artic­u­lat­ed by the For­eign Min­is­ter was, and is, unim­peach­able.

A sec­ond prin­ci­ple that was affirmed by the For­eign Min­is­ter at an Esti­mates hear­ing in April is that the plat­form res­o­lu­tion of the ALP Nation­al Con­fer­ence in 2021, which called on a Labor gov­ern­ment to recog­nise a Pales­tin­ian State, is “an expres­sion of the views of the nation­al con­fer­ence”, but that “this is ulti­mate­ly a deci­sion, a mat­ter for gov­ern­ment”.[5]  This last state­ment would be con­tra­dict­ed by any future Nation­al Con­fer­ence res­o­lu­tion that sets a dead­line for the gov­ern­ment to recog­nise a Pales­tin­ian State.

A third prin­ci­ple, which has also enjoyed decades of bipar­ti­san agree­ment, is that Aus­tralia acts to uphold the rules-based inter­na­tion­al order.  This is for both eth­i­cal rea­sons and rea­sons of nation­al self-inter­est.  As regards the ques­tion of Pales­tin­ian state­hood, even some of the Pales­tini­ans’ strongest advo­cates have con­ced­ed[6] that there is no Pales­tin­ian enti­ty that comes close to sat­is­fy­ing the inter­na­tion­al legal cri­te­ria that define a State, as set out in arti­cle 1 of the Mon­te­v­ideo Con­ven­tion on the Rights and Duties of States (1933),[7] which is com­mon­ly accept­ed as reflect­ing cus­tom­ary inter­na­tion­al law[8]:

“The state as a per­son of inter­na­tion­al law should pos­sess the fol­low­ing qual­i­fi­ca­tions: (a) a per­ma­nent pop­u­la­tion; (b) a defined ter­ri­to­ry; (c) gov­ern­ment; and (d) capac­i­ty to enter into rela­tions with the oth­er states.”

What­ev­er may be said of cri­te­ria (a) and (b)[9], it is clear that no Pales­tin­ian enti­ty present­ly sat­is­fies cri­te­ria (c) or (d).  There is no cen­tral gov­ern­ment author­i­ty that exer­cis­es con­trol over the ter­ri­to­ry claimed by the Pales­tini­ans (the West Bank and Gaza Strip), and which is capa­ble of enter­ing into or ful­fill­ing inter­na­tion­al agree­ments in respect of that ter­ri­to­ry as a whole.  Hamas, which admin­is­ters the Gaza Strip, has declared pub­licly that it does not con­sid­er itself or the peo­ple and ter­ri­to­ry of Gaza to be bound by any agree­ment that the Pales­tin­ian Author­i­ty may enter into.[10] Sim­i­lar­ly, the Pales­tin­ian Author­i­ty, which is rapid­ly los­ing con­trol over the areas it has admin­is­tered in the West Bank[11], does not con­sid­er itself or the peo­ple and ter­ri­to­ry of the West Bank to be bound by any agree­ment that Hamas may enter into.

It fol­lows that nei­ther Aus­tralia nor any oth­er coun­try, includ­ing Israel, could rely on any com­mit­ments that may be made by the Pales­tin­ian Author­i­ty or any oth­er enti­ty on behalf of “the State of Pales­tine” as a whole.  Until that sit­u­a­tion is reme­died, “the State of Pales­tine” is a fic­tion, not a real­i­ty. A mature democ­ra­cy like Aus­tralia should not demean itself by extend­ing offi­cial recog­ni­tion to a fic­tion.

Although recog­ni­tion is a polit­i­cal act and a mat­ter of dis­cre­tion, it is nonethe­less, accord­ing to an inter­na­tion­al tri­bunal, “sub­ject to com­pli­ance with the imper­a­tives of gen­er­al inter­na­tion­al law.”[12]  Thus, recog­ni­tion by even 138 oth­er States can­not over­come clear and com­pelling objec­tive evi­dence indi­cat­ing that the req­ui­site cri­te­ria of state­hood have not been met, espe­cial­ly as these oth­er States include only a small num­ber of mature democ­ra­cies com­pa­ra­ble to Aus­tralia. Nor is this defect over­come by a UN Gen­er­al Assem­bly res­o­lu­tion grant­i­ng non-mem­ber observ­er State sta­tus to “Pales­tine”.[13]  Such res­o­lu­tions are not legal­ly bind­ing on mem­ber States.[14]  To make a spe­cial excep­tion for the Pales­tini­ans by waiv­ing inter­na­tion­al norms con­cern­ing state­hood and recog­ni­tion as if they were of no con­se­quence, would be incom­pat­i­ble with Australia’s pro­fessed adher­ence to those norms.  One either sup­ports the inter­na­tion­al rule of law as a gen­er­al prin­ci­ple, or one does not.

Pol­i­cy con­sid­er­a­tions
There are also good pol­i­cy rea­sons why Aus­tralia, to date, and its clos­est allies New Zealand, the US, the UK and Cana­da, along with almost every oth­er mature democ­ra­cy in the world, have not recog­nised a Pales­tin­ian State. Noth­ing has changed recent­ly in the real­i­ties of the sit­u­a­tion that would inval­i­date any of these rea­sons.  If any­thing, recent events have rein­forced their valid­i­ty.

1. The inter­nal Pales­tin­ian divide

The inter­nal divide with­in Pales­tin­ian soci­ety between the sec­u­lar nation­al­ist move­ment, rep­re­sent­ed by the Pales­tin­ian Author­i­ty (PA), and the theo­crat­ic move­ment, rep­re­sent­ed by the Islamist organ­i­sa­tions, Hamas and Pales­tin­ian Islam­ic Jihad,[15] is per­haps the most pow­er­ful obsta­cle to the achieve­ment of Pales­tin­ian state­hood at present. The divi­sion is not only ide­o­log­i­cal but also geo­graph­ic. The PA exer­cis­es 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 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 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 that the fatal flaw in the con­tention that “Pales­tine” is a State will be reme­died.

2. The Pales­tin­ian dec­la­ra­tion of state­hood in the absence of peace with Israel vio­lates the Oslo Accords

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.[16] 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. 

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 ipso fac­to 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, is a clear vio­la­tion of Oslo II. Any recog­ni­tion of such a State by par­lia­ments and gov­ern­ments in the inter­na­tion­al com­mu­ni­ty would be com­plic­it in such a breach.[17] 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.[18]

3. Recog­nis­ing a Pales­tin­ian State would be an incen­tive to the PA to per­pet­u­ate, not resolve, the con­flict with Israel

The Pales­tin­ian Author­i­ty has giv­en no indi­ca­tion that the puta­tive State of Pales­tine would be a peace-lov­ing State that respects the rule of law, democ­ra­cy and human rights.  In fact the con­trary is true.  Although much more could be writ­ten about this, the fol­low­ing will suf­fice to illus­trate the point.

• Both before and since the Oslo Accords were signed in the 1990s, Pales­tin­ian lead­ers have made pub­lic state­ments con­firm­ing that Pales­tin­ian state­hood will not bring about the end of the con­flict with Israel, or a com­mit­ment to resolve out­stand­ing claims by peace­ful means, but will instead mark the open­ing of a new and more intense phase of the con­flict, which will con­tin­ue to be pros­e­cut­ed until Israel ceas­es to exist.[19]
• Claims that the Pales­tini­ans have the sole right to the land from the Jor­dan Riv­er to the Mediter­ranean Sea, and that there is no place for a Jew­ish State in any part of the land, are ratio­nalised by ahis­tor­i­cal and racist asser­tions that Jews have no his­to­ry in the land. A noto­ri­ous exam­ple was a speech by PA Pres­i­dent Mah­moud Abbas to the Pales­tine Nation­al Coun­cil on 1 May 2018, which was so odi­ous that even the main Pales­tin­ian lob­by group in Ger­many pub­licly con­demned it as “anti­se­mit­ic”, stat­ing: “To sug­gest that Jews in some way share a respon­si­bil­i­ty for the Holo­caust is a grotesque dis­tor­tion of his­tor­i­cal facts. The claim that the Jew­ish peo­ple have no roots in the Holy Land is equal­ly erro­neous.”[20]
• Abbas repeat­ed these calum­nies in a speech to the UN Com­mit­tee on the Exer­cise of the Inalien­able Rights of the Pales­tin­ian Peo­ple on 15 May 2023.[21]

Recog­ni­tion of Pales­tin­ian state­hood in the present cir­cum­stances would effec­tive­ly reward the Pales­tin­ian Author­i­ty for this pos­ture of hos­til­i­ty towards Israel and rejec­tion of its legit­i­ma­cy, the very oppo­site of what is need­ed to keep alive the prospects of achiev­ing two States for two peo­ples.

4. Both the PA and Hamas lack legit­i­ma­cy in the eyes of a major­i­ty of Pales­tini­ans

Mah­moud Abbas was elect­ed Pres­i­dent of the PA on 9 Jan­u­ary 2005 for a four-year term that end­ed on 9 Jan­u­ary 2009. He is now in the 19^th year of that four-year term. The last elec­tions for the Pales­tin­ian Leg­isla­tive Coun­cil (PLC) were held on 25 Jan­u­ary 2006. There have not been any elec­tions either for pres­i­dent or for the PLC since those two elec­tions, with elec­tions in the PA since those dates hav­ing only been for local offices.   Elec­tions for Pres­i­dent have been sched­uled, most recent­ly in 2021, only to be called off. Polling con­duct­ed by the Pales­tin­ian Cen­tre for Pol­i­cy and Sur­vey Research last Decem­ber con­clud­ed:[22]

• 26% of Pales­tini­ans said Hamas is most deserv­ing of rep­re­sent­ing and lead­ing the Pales­tin­ian peo­ple, while 24% said Fatah under pres­i­dent Abbas is the most deserv­ing; the largest group – 44% – think nei­ther side deserves such a role;
• 52% sup­port­ed dis­solv­ing the PA;
• 82% said there is cor­rup­tion in PA insti­tu­tions and 71% said there is cor­rup­tion in pub­lic insti­tu­tions con­trolled by Hamas in Gaza;
• a major­i­ty of Pales­tini­ans (63%) view the PA as a bur­den on the Pales­tin­ian peo­ple while 33% view it as an asset; and
• 22% are opti­mistic and 75% are pes­simistic about rec­on­cil­i­a­tion between the PA and Hamas.

5. There is no cur­rent­ly-exist­ing enti­ty that is viable as a Pales­tin­ian State

In addi­tion to the fact that the PA does not exer­cise effec­tive con­trol of the West Bank and Gaza, many observers, includ­ing US offi­cials have expressed con­cern that the PA is on the verge of col­lapse.[23]  It would be bizarre and embar­rass­ing for Aus­tralia if it were to extend recog­ni­tion to an enti­ty that becomes a failed State from the out­set.

The most recent reports of the World Bank[24] and the IMF[25] have also shown that a puta­tive Pales­tin­ian State is not eco­nom­i­cal­ly viable.    The World Bank con­clud­ed: “: “Fis­cal sus­tain­abil­i­ty requires a strong macro­eco­nom­ic foun­da­tion, and this can­not be achieved with­out actions by the PA and the GoI as well as sup­port from donors”.

In short, the Pales­tin­ian Author­i­ty is not eco­nom­i­cal­ly self-sus­tain­ing. Its pub­lic spend­ing is in need of fun­da­men­tal reform and it will con­tin­ue to need co-oper­a­tion from Israel and finan­cial sup­port from donor States.   Both could be read­i­ly achieved in the con­text of a peace agree­ment with Israel, but not while the PA main­tains its cur­rent pos­ture of hos­til­i­ty towards it.

6. ‘Pay-for-slay’

A stark illus­tra­tion of the implaca­ble nature of the PA’s is hos­til­i­ty towards Israel, and the rela­tion­ship of this hos­til­i­ty to the dys­func­tion­al­i­ty of the PA’s pub­lic finances, is the fact that PA Pres­i­dent Mah­moud Abbas is direct­ly respon­si­ble for pay­ing month­ly cash stipends to the fam­i­lies of dead ter­ror­ists and to impris­oned ter­ror­ists. In 2010, he approved a salary hike for ter­ror­ist pris­on­ers includ­ing a 300% rise – from NIS 4,000 per month to NIS 12,000 per month – for pris­on­ers who serve more than 30 years in prison for mur­der. In 2007, 2009 and 2013, Abbas approved a hike in the month­ly allowances paid to the fam­i­lies of dead ter­ror­ists, includ­ing sui­cide bombers.[26]

In prac­tice, the ‘pay for slay’ pol­i­cy results in mon­ey being paid to an arch-ter­ror­ist like Raed Al-Houtari.  In 2001, Al-Houtari despatched a sui­cide bomber to blow up the Dol­phi­nar­i­um dis­cotheque on the beach­front in Tel Aviv, instant­ly killing 20 Israelis, 16 of whom were teenagers, most of them girls. More than 90 peo­ple were wound­ed.[27]  Al-Houtari was arrest­ed in 2003, tried and sen­tenced to 22 con­sec­u­tive life sen­tences. Al-Houtari has so far received well over $US 200,000 in pay­ments from the PA and he will con­tin­ue to receive a month­ly salary from the PA for the rest of his life,[28] in effect as a reward for being a mass mur­der­er of Israelis with­in the heart­land of Israel.

7. The PA con­tin­ues to edu­cate Pales­tin­ian chil­dren to hate Jews and nev­er make peace with Israel

Anoth­er exam­ple of this hos­til­i­ty is the PA school cur­ricu­lum which has con­sis­tent­ly prop­a­gat­ed overt anti­se­mit­ic canards and con­spir­a­cies, rejec­tion of peace­mak­ing, and the glo­ri­fi­ca­tion of vio­lence and ter­ror­ists.  A 2021 study showed that PA text­books and study cards include anti­se­mit­ic descrip­tions of Jews as devi­ous, treach­er­ous and hos­tile; myths about Jew­ish con­trol of glob­al events, encour­age­ment of stu­dents to engage in to vio­lence and com­mit jihad against Israelis so as to die as mar­tyrs, denial of Jew­ish peo­ple­hood and right of self-deter­mi­na­tion, and the era­sure of Israel from maps.[29]  The find­ings of this study were sim­i­lar to those of a study con­duct­ed by the Georg Eck­ert Insti­tute for Inter­na­tion­al Text­book Research on behalf of the Euro­pean Com­mis­sion.[30]

In April 2018, the Euro­pean par­lia­ment passed leg­is­la­tion seek­ing to pre­vent aid to the Pales­tin­ian Author­i­ty from their main donors in the EU from being used to incul­cate extrem­ism, hatred and vio­lence in Pales­tin­ian school chil­dren.[31]  In May 2021, the Euro­pean Par­lia­ment adopt­ed a res­o­lu­tion insist­ing that “EU fund­ing for salaries paid to teach­ers and pub­lic ser­vants in the edu­ca­tion sec­tor must be made con­di­tion­al” on pro­duc­ing edu­ca­tion­al mate­r­i­al pro­mot­ing peace and tol­er­ance.[32]  The Euro­pean Par­lia­ment adopt­ed a fur­ther res­o­lu­tion in Sep­tem­ber 2022 in which it deplored the fact that inap­pro­pri­ate and hate­ful mate­r­i­al in Pales­tin­ian school text­books had not been removed for the third year in a row and expressed con­cern about the con­tin­ued fail­ure to act effec­tive­ly against hate speech and vio­lence.[33]  On 10 May 2023, for the fourth con­sec­u­tive year, the Euro­pean Par­lia­ment passed a res­o­lu­tion con­demn­ing the PA over the “hate­ful” con­tent of its text­books, and con­di­tion­ing future fund­ing for edu­ca­tion on the removal of anti­se­mit­ic mate­r­i­al.[34] As recent­ly as 12 July 2023, the Euro­pean Union passed two res­o­lu­tions (A9-0226/48 and 51)[35] call­ing for a tem­po­rary sus­pen­sion of the $US 220 mil­lion of aid it awards the Pales­tin­ian Author­i­ty, cit­ing its con­tin­ued inclu­sion of anti­se­mit­ic and vio­lent themes in school cur­ric­u­la.

Giv­en this indoc­tri­na­tion from an ear­ly age, it is lit­tle won­der that a sur­vey pub­lished by the Pales­tin­ian Cen­tre for Pol­i­cy and Sur­vey Research in March 2023 found that 68% of Pales­tini­ans (71% in the Gaza Strip and 66% in the West Bank) said they are in favour of form­ing armed ter­ror­ist groups such as the “Lions’ Den,” which do not take orders from the PA and are not part of the PA secu­ri­ty ser­vices; only 25% were opposed.[36]

8. Pales­tin­ian lead­ers can­not meet even the most basic pre­con­di­tions for recog­ni­tion of state­hood

In the ear­ly 1990s new States were born out of the break-up of the for­mer Sovi­et Union and the for­mer Yugoslavia. These new States were fre­quent­ly in armed and polit­i­cal con­flict with one oth­er over his­tor­i­cal dis­putes con­cern­ing ter­ri­to­ry and nation­al, eth­nic and reli­gious iden­ti­ty. Accord­ing­ly, on 16 Decem­ber 1991, the Euro­pean Coun­cil 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 recog­nis­ing those new States:

• 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, [The Com­mis­sion on Secu­ri­ty and Coop­er­a­tion in Europe]
• 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.[37] 

The Euro­pean Coun­cil addi­tion­al­ly required each of the new Republics, “to com­mit itself, pri­or to recog­ni­tion, to adopt con­sti­tu­tion­al and polit­i­cal guar­an­tees ensur­ing that it has no ter­ri­to­r­i­al claims towards a neigh­bor­ing… State and that it will con­duct no hos­tile pro­pa­gan­da activ­i­ties ver­sus a neigh­bor­ing … State.”[38]

It is evi­dent that a puta­tive State of Pales­tine, as a pre­con­di­tion of recog­ni­tion, would not be able or will­ing to meet equiv­a­lent oblig­a­tions with respect to its Jew­ish State neigh­bour.  In par­tic­u­lar, it would lack the capac­i­ty to hon­our any com­mit­ments to respect the invi­o­la­bil­i­ty of even the pre-1967 cease­fire lines with Israel, to repu­di­ate all fur­ther ter­ri­to­r­i­al claims beyond those lines, to cease all incite­ment and hos­tile pro­pa­gan­da against Israel and to set­tle all out­stand­ing ter­ri­to­r­i­al and oth­er dis­putes with Israel by peace­ful means, assum­ing it was pre­pared to give such com­mit­ments. Thus, from the out­set, it would not be a peace-lov­ing State with regard to Israel, able and will­ing to meet the oblig­a­tions of a State under the UN Char­ter. In those cir­cum­stances, recog­ni­tion of a Pales­tin­ian State could only serve as an encour­age­ment to fur­ther hos­til­i­ties and vio­lence, there­by under­min­ing region­al and inter­na­tion­al peace and secu­ri­ty, and putting a nego­ti­at­ed peace set­tle­ment, and an actu­al Pales­tin­ian state, even fur­ther out of reach. 

[1] James Mas­so­la, ‘Vic­to­ri­an Labor gives Albanese dead­line to recog­nise Pales­tine’, Syd­ney Morn­ing Her­ald, 18 June 2023.

[2] Ibid.

[3] This is the ‘declara­to­ry the­o­ry’ of State recog­ni­tion in inter­na­tion­al law. It main­tains that recog­ni­tion is mere­ly an acknowl­edg­ment 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 con­trary view is the ‘con­sti­tu­tive the­o­ry’, which main­tains that it is the act of recog­ni­tion by oth­er States that cre­ates a new State and endows it with legal per­son­al­i­ty.  States gen­er­al­ly do not fol­low the con­sti­tu­tive the­o­ry.  “Prac­tice over the last cen­tu­ry or so is not unam­bigu­ous but does point to the declara­to­ry approach as the bet­ter of the two the­o­ries”: Mal­colm N. Shaw, Inter­na­tion­al Law, (Sev­enth edi­tion), (Cam­bridge: Cam­bridge Uni­ver­si­ty Press, 2014), p. 323.  Arti­cle 3 of the Mon­te­v­ideo Con­ven­tion on the Rights and Duties of States 1933 ((1934) 165 League of Nations Treaty Series 19: https://avalon.law.yale.edu/20th_century/intam03.asp) explic­it­ly states that “The polit­i­cal exis­tence of the state is inde­pen­dent of recog­ni­tion by the oth­er states.”  See also Arbi­tra­tion Com­mis­sion, E.C. Con­fer­ence on Yugoslavia, Opin­ion No. 1, 20 Novem­ber 1991, paras 1(a) and (b), repro­duced at Vol 92 Inter­na­tion­al Law Reports (1993) p. 162 and 164–165.

[4] On 18 Octo­ber 2022, For­eign Min­is­ter Pen­ny Wong crit­i­cised the for­mer government’s deci­sion in 2018 to recog­nise West Jerusalem as the cap­i­tal of Israel, con­tend­ing that the 2018 deci­sion had been a break from “Australia’s pre­vi­ous and long­stand­ing posi­tion that Jerusalem is a final sta­tus issue that should be resolved as part of any peace nego­ti­a­tions between Israel and the Pales­tin­ian peo­ple.” (Empha­sis added). https://www.foreignminister.gov.au/minister/penny-wong/media-release/reversal-recognition-west-jerusalem

[5] State­ment by For­eign Min­is­ter Pen­ny Wong in answer to a ques­tion from Sen­a­tor David Faw­cett, For­eign Affairs, Defence And Trade Leg­is­la­tion Com­mit­tee, Sen­ate Esti­mates Hear­ing, 16.2.2023, p.42

[6] For exam­ple, Pro­fes­sor Guy Good­win-Gill, an emi­nent inter­na­tion­al lawyer who rep­re­sent­ed the Pales­tini­ans before the Inter­na­tion­al Court of Jus­tice in the 2004 “Wall” case, has con­clud­ed:

“Until such a time as a final set­tle­ment is agreed, the puta­tive SFtate 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.…”: ‘The Pales­tine Lib­er­a­tion Orga­ni­za­tion, the future State of Pales­tine, and the ques­tion of pop­u­lar rep­re­sen­ta­tion’, Legal Opin­ion dat­ed 10 August 2011, para. 9.

[7] (1934) 165 League of Nations Treaty Series 19: https://avalon.law.yale.edu/20th_century/intam03.asp

[8] D. J. Har­ris, Cas­es and Mate­ri­als on Inter­na­tion­al Law (5^th ed), (Lon­don: Sweet & Maxwell, 1998), p.102.

[9] See Opin­ion of Pro­fes­sor Good­win-Gill, Note 6.

[10][10] See, for exam­ple, 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.

[11] Dr Shaul Bar­tal, ‘Are we wit­ness­ing the end of the Pales­tin­ian Author­i­ty?’, BESA Cen­tre, Per­spec­tives Paper No. 2,198, May 23, 2023

[12] Arbi­tra­tion Com­mis­sion, E.C. Con­fer­ence on Yugoslavia, Opin­ion No. 10, 4 July 1992, para 4.

[13] Gen­er­al Assem­bly of res­o­lu­tion 67/19, 29 Novem­ber 2012.

[14]   Arti­cle 10, UN Char­ter. See dis­cus­sion on UN web­site: https://www.un.org/en/model-united-nations/how-decisions-are-made-un#:~:text=The%20only%20resolutions%20that%20have,adopted%20by%20the%20Security%20Council.&text=This%20explains%20why%20Member%20States,widest%20possible%20agreement%20among%20them.

[15] Both of which, in their entire­ty, are list­ed as ter­ror­ist organ­i­sa­tions by Aus­tralia, among oth­er coun­tries.

[16] Acces­si­ble via: https://peacemaker.un.org/sites/peacemaker.un.org/files/IL%20PS_950928_InterimAgreementWestBankGazaStrip%28OsloII%29.pdf

[17] ‘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.

[18] 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’.

[19] Some of the more noto­ri­ous of these state­ments, includ­ing by PA Pres­i­dent Mah­moud Abbas, are repro­duced in ‘PLO Tells Its Peo­ple to Resist Until Israel Is Destroyed by ‘Return’’, Alge­mein­er, 4 May 2018.

[20] ‘Ger­man Pales­tin­ian group slams Abbas Holo­caust speech’, Times of Israel, 2 May 2018.

[21] Tovah Lazaroff, ‘Abbas dis­avows Jew­ish ties to Tem­ple Mount, com­pares Israel to Nazis’, Jerusalem Post, 16 May 2023.

[22] Pales­tin­ian Cen­tre for Pol­i­cy and Sur­vey Research, ‘Press Release: Pub­lic Opin­ion Poll No. 87’, 23 March 2023.

[23] Jacob Magid, ‘Shin Bet chief in Wash­ing­ton for talks with US offi­cials fear­ful of PA col­lapse’, Times of Israel, 2 June 2023

[24] ‘World Bank Mon­i­tor­ing report to the Ad Hoc Com­mit­tee’, April 2023, para 13, p.12.

[25] IMF, ‘West Bank and Gaza Report to the Ad Hoc Liai­son Com­mit­tee’, 14 April 2023.

[26] Mau­rice Hirsch, ‘The Abyss that divides the Israeli lead­er­ship from the PA lead­er­ship’, Jerusalem Post, 1 June 2020.

[27] David Rudge, ‘Bomb hor­ror hits Tel Aviv dis­co’, Jerusalem Post, 4 June 2001.

[28] Mau­rice Hirsch, ‘The Abyss that divides the Israeli lead­er­ship from the PA lead­er­ship’, Jerusalem Post, 1 June 2020.

[29] A sum­ma­ry of find­ings is set out in ‘Pales­tin­ian Author­i­ty Min­istry of Edu­ca­tion Study Cards 2021–22, Grades 1–11’, Insti­tute for Mon­i­tor­ing Peace and Cul­tur­al Tol­er­ance in School Edu­ca­tion, Jan­u­ary 2022, p.10.

[30] ‘EU study finds incite­ment in Pales­tin­ian text­books, kept from pub­lic’, Jerusalem Post, 9 June 2021.

[31] Euro­pean Par­lia­ment, 2014–2019, Texts Adopt­ed, P8_TA(2018)0121, para­graph 272, p.54.

[32] Euro­pean Par­lia­ment, 2019–2024, Texts Adopt­ed, P9_TA(2021)0164, para­graph 444, p.97.

[33] Euro­pean Par­lia­ment, 2019–2024, Texts Adopt­ed, P9_TA(2022)0144, para­graph 175, p.57.

[34] ‘EU Par­lia­ment slams ‘hate­ful’ Pales­tin­ian text­books, threat­ens fund­ing freeze’, Times of Israel, 11 May 2023.

[35] ‘Euro­pean Par­lia­ment Calls Again for Freez­ing Pales­tin­ian Aid Over Anti­se­mit­ic Con­tent in Text­books’,Alge­mein­er, 12 July 2023.

[36] Pales­tin­ian Cen­tre for Pol­i­cy and Sur­vey Research, ‘Press Release: Pub­lic Opin­ion Poll No. 87’, 23 March 2023.

[37] Repro­duced in (1991) 62 British Year­book of Inter­na­tion­al Law 559 et seq.

[38] Repro­duced in (1991) 62 British Year­book of Inter­na­tion­al Law 559 et seq.