In this piece published ABC Religion and Ethics, ECAJ co-CEO Peter Wertheim sets out the legal, political and moral imped­i­ments to recog­nising a Palestini­an State, and explains why recog­ni­tion cannot “wish” such a State into existence. The article also explains that issues such as set­tle­ments and borders are, as a matter of law, wholly distinct from the question of recog­ni­tion of a Palestini­an state, and there is no prin­cipled basis for linking them.

In an earlier piece, I argued that the imped­i­ments to Australia recog­nising a Palestini­an state are not only legal but also practical and moral. The legal and practical reasons come down to a simple fact which no serious com­ment­at­or has denied: that there is at present no Palestini­an entity which exercises effective control over the West Bank and Gaza Strip, and therefore there is no entity which is capable of ful­filling inter­na­tion­al agree­ments in respect of that territory as a whole.

Nor is any such entity likely to emerge in the fore­see­able future.

There is an unbridge­able chasm between the Palestini­an Authority, which admin­is­ters parts of the West Bank, and Hamas, which admin­is­ters Gaza. The former rep­res­ents secular nation­al­ists seeking a con­ven­tion­al sovereign state. The latter rep­res­ents supra-national theocrats who see a future Palestine as sub­or­din­ate to a wider ummah (community of Muslim believers).

A permanent peace agreement with Israel is at least the­or­et­ic­ally possible for the former, but not for the latter.

Eval­u­at­ing theories of state recog­ni­tion

In his recent article, Victor Kattan argues that a Palestini­an state does not have to exist before it is recog­nised, and that a putative new state can be ushered into existence by the act of recog­ni­tion itself. As Kattan points out, this idea is known in inter­na­tion­al law as the “con­stitutive theory” of state recog­ni­tion. It maintains that it is the act of recog­ni­tion by other states that can create a new state and endows it with legal per­son­al­ity.

The altern­at­ive, more widely accepted view is known as the “declar­at­ory theory”, which maintains that recog­ni­tion is merely an acknow­ledge­ment by other states of an already-existing reality. 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”. A necessary condition for recog­ni­tion of a State is that it has effective control of its territory.

In practice, and in their public state­ments, the nations of the world have generally followed the declar­at­ory theory rather than the con­stitutive theory. As Malcolm Shaw writes: “Practice over the last century or so is not unam­bigu­ous but does point to the declar­at­ory approach as the better of the two theories.” Article 3 of the Mon­tevid­eo Con­ven­tion on the Rights and Duties of States (1933), moreover, expli­citly states: “The political existence of the state is inde­pend­ent of recog­ni­tion by the other states.” This principle was cited and applied by the Arbit­ra­tion Com­mis­sion, E.C. Con­fer­ence on Yugoslavia, in its opinion on 20 November 1991.

In accord­ance with the declar­at­ory theory, Australia has regarded the exercise of effective control of territory as an essential require­ment for recog­nising a putative new state. For example, this was part of the rationale for the Whitlam government’s decision to recognise the People’s Republic of China on 22 December 1972.

The example of the State of Israel

The declar­at­ory theory was also the basis for Australia’s recog­ni­tion of the State of Israel. On 29 November 1947, the UN General Assembly voted to recommend the partition of the British Mandate of Palestine into a Jewish State and an Arab State, giving inter­na­tion­al endorse­ment to the principle of “two States for two peoples”. Australia’s support for this res­ol­u­tion has sometimes been referred to as an example of Australia acting under the con­stitutive theory of recog­ni­tion. However, the UN vote on partition was a recom­mend­a­tion about the future of the then British Mandate territory of Palestine. It was not, and did not purport to be, an act of recog­ni­tion.

Israel declared its inde­pend­ence on 14 May 1948, and even then Australia did not recognise it. Israel’s viability was initially in doubt, as it imme­di­ately faced a military invasion from five neigh­bour­ing Arab states. It was not until Israel had suc­cess­fully repelled the invasion and demon­strated that it was in fact operating as a state, that Australia finally recog­nised it on 29 January 1949. This is what the Aus­trali­an rep­res­ent­at­ive to the UN had to say about the matter on 19 November 1948:

By every practical test, whether in respect of its capacity for self-defence, its gov­ern­ment­al organ­isa­tion, its control of all forms of admin­is­tra­tion within specified areas … the fact that the Gov­ern­ment of Israel is a reality must now be clearly recog­nised by everybody.

It would be difficult to conceive of a clearer affirm­a­tion of the declar­at­ory theory. A putative state of Palestine, by reason of the present divisions which are entirely internal to Palestini­an society, fails every one of the criteria listed by the Aus­trali­an rep­res­ent­at­ive.

Recon­sid­er­ing recog­ni­tion

Although recog­ni­tion of a putative state is a political decision at the dis­cre­tion of each of the world’s existing states, the putative state’s effective control of its territory is a necessary condition that must be satisfied before the dis­cre­tion can be applied. It would be futile and poten­tially embar­rass­ing to recognise a state if it is incapable of ruling over its own territory. For the Palestini­ans, further internal bloodshed would also be encour­aged as the stakes were raised and the Palestini­an Authority and Hamas competed for dominance.