U.N. Recognition of a Palestinian State: A Legal Analysis
What is the significance of U.N. recognition? Can the U.N. establish a state? In the following legal analysis, which was written in advance of an IDI Roundtable on International Recognition of the Palestinian State and its effect on Political and Legal Discourse in Israel, Dr. Amichai Cohen explores the issues raised by the Palestinian Authority's assertion that is will ask the United Nations to recognize the establishment of a sovereign Palestinian state.
An updated version of this article, written when the UN granted the Palestinian Authority the status of a non-member observer state in November 2012, can be found here.
The Palestinian Authority has announced its intentions to ask the United Nations to recognize the establishment of a sovereign Palestinian state. What is the significance of such recognition? Can the United Nations establish a Palestinian state?
In order to address this question appropriately, it is first necessary to correct the common misconception that the United Nations established the State of Israel. On November 29, 1947, the U.N. General Assembly only approved the partition plan that would replace the British Mandate over the land of Israel. The decision of the U.N. General Assembly was binding in that case because of the special status of Palestine as a territory under British Mandate, a system which was intended to prepare nations for independence. This regime no longer applies to Palestine. Similarly, it is important to emphasize that the U.N. General Assembly did not "establish" the State of Israel in 1947. The General Assembly actually approved Israel's full membership in the United Nations only in May 1949, almost a year after the Israeli Declaration of Independence. As a rule, the General Assembly of the UN cannot establish a state; rather, it can express its support for the establishment of a state and accept the state into its ranks (if the U.N. Security Council agrees), or it can call upon its member states to recognize the new state and to support its admission to the ranks of other international organizations.
When, then, is a political entity recognized as a state under international law? The classic definition of the existence of a state is found in the Montevideo Convention on the Rights and Duties of States of 1933. Article 1 of this Convention defines a "state" as a political entity that has the following four qualifications: a permanent population, a defined territory, government, and the capacity to enter into relations with other states. The Convention also stipulated that the existence of a state is not dependent on the recognition of the state by other states. It thus appears that in this Convention, which reflects international custom, the opinion that the existence of a state is dependent upon its recognition by other states was rejected; recognition by other states is merely a statement of an established fact.
According to the 1933 definition, U.N. recognition of the Palestinian state has no legal significance whatsoever; rather, the question of a State's existence depends upon its meeting a series of conditions in reality. This is certainly the case with respect to the first three conditions set forth in the Convention: population, territory, and government. Regarding the last condition—the ability to conduct foreign relations—the accepted interpretation of this condition is that it was intended to prevent a situation in which units that are operating within the framework of a federal regime or that are subject to any kind of agreement that prevents them from conducting foreign relations, would be recognized as independent states. In other words, in this case as well, the question is one of fact. As Yoram Dinstein defines it so aptly in his book International Law and the State (Hebrew, 1971), the real question is: Is the political entity independent in its domestic policy, in making decisions regarding foreign affairs, and in its ability to function in the international arena?
The question of whether a Palestinian state exists, as a question of fact, is the subject of disagreement. On one hand, in the Gaza Strip, there is at least a regime that theoretically meets the conditions of the Montevideo Convention and appears to be essentially independent. As stated, the question of the lack of recognition of the regime's legitimacy by other states, is not relevant according to the Montevideo Convention. It is likely that the Palestinian Authority, at least in Area A (the areas in which the Palestinian Authority has full responsibility for internal security, public order, and civil affairs), also meets the aforementioned conditions of independence. Obviously, however, these two political entities—Hamas in Gaza and the Palestinian Authority in Area A—are not declaring independence separately, mainly because the Palestinians are interested in international recognition of a "theoretical" third state that may not meet the criteria of the Montevideo Convention: a united and independent Palestinian state in all of the areas of Mandatory Palestine that Israel conquered in the Six Day War (i.e., the areas outside the 1967 borders), including East Jerusalem and the areas in which there are Jewish settlements. The existence of such a theoretical state is highly doubtful according to the definitions of the Montevideo Convention. The government in the area in question is divided between three political bodies that each claim the right to control it—Israel, Hamas, and the Palestinian Authority. Moreover, the body that is actually seeking recognition—the Palestinian Authority—is subject to the Oslo Accords, which explicitly stipulated that this body is not independent and that its actual control of the area and ability to enter into relations with other states are not absolute, but rather subject to various limitations. Furthermore, the issues of the location of the borders and the size of the population of the Palestinian state are at the center of a controversy that has been the subject of negotiations that have been conducted between Israel and the Palestinians for years. It is likely that if the Palestinians leave the definition of the borders unclear (as did the State of Israel at the time of its establishment), or if they reduce the area of their state to a minimum, their chances of meeting the definition would improve. However, the Palestinians are not interested in fragmented pieces of territory, with separate states on each piece, apparently because they fear that Israel will present those borders as final and fixed.
This classic analysis, however, does not fully deal with the complexity of the subject of recognition of a state as it has developed in recent years: In the years since the signing of the Montevideo Convention, especially at the end of the colonial era, and even more so in recent years, the question of recognition has returned to the forefront of international discourse. On one hand, political entities that did not receive international recognition did not receive the status of states, even if they fulfilled the conditions of the Montevideo Convention. Examples of this are northern Cyprus, which is considered to be territory occupied by Turkey and is not recognized as an independent state, and Taiwan, which is still considered to be part of China. On the other hand, political entities that never met the conditions of the Montevideo Convention were recognized by the states of the world, and are considered to be states. This is the case, for example, with the Democratic Republic of Congo, which did not have an effective government at the end of Belgian colonial rule, or Bosnia, which was engaged in a civil war at the time of its establishment.
What, then, is the role of international recognition and how does it figure into the case of the Palestinian state?
It seems that in recent years it is slowly becoming apparent that international recognition is especially important when there is doubt as to whether a political entity meets the conditions of the Montevideo Convention. In such a case, recognition by other states can resolve the doubt and attest to a state's existence. A clear example of this process is the states that were established in the wake of the dissolution of the former Yugoslavia. Croatia, for example, was not completely independent of Serbian rule at the time that it claimed independence. Recognition of Croatia by the states of the European Union, which was accompanied by a great number of conditions, contributed in actual fact to the consolidation of international recognition of an independent Croatia, resolving doubt or controversy regarding the existence of this state. Kosovo exists as an independent state due to the protection provided by a multinational force on its territory, a fact that casts doubt on whether Kosovo meets the criterion that requires effective control of the territory. Nonetheless, broad international recognition of Kosovo's independence continues to grow.
From this discussion, it is apparent that in modern international law, when there is controversy regarding whether a political entity meets the factual conditions of statehood, international recognition of the state is significant. Such recognition cannot create a state ex nihilo, but it can tip the scales when facts are disputed. What is international recognition based upon? Certainly such recognition is based upon political considerations, but it also rests on the right of a nation to self-determination and the degree of the future state's commitment to the principles of the international community. The length of time the political entity has existed is also important for the recognition of a state when there is controversy regarding its existence. Since the long term existence of a non-state political entity does not contribute to the stability of international rule, states tend to recognize entities that have been operating independently over time as states.
Can an affirmative vote in the U.N. General Assembly reflect international recognition to the Palestinian state? As stated, a General Assembly vote does not, in and of itself, constitute a legal act of the U.N. which is binding upon member states, and the U.N. General Assembly does not have the authority to admit a state to the U.N. unless the U.N. Security Council (in which the United States has a veto) has recommended accepting the state. At most, the General Assembly can upgrade the status of the Palestinian representation to the level of an observer state, similar to the status of the Vatican, or can call upon other international organizations to accept the Palestinian state.
Nonetheless, the vote of the U.N. General Assembly has a certain degree of legal significance: It can attest to the recognition of the Palestinian state by states of the world. As stated, in a case in which the existence of the state, as a matter of fact, is partial, and there is no consensus regarding it, such recognition may be significant. In my opinion, the necessary condition for such recognition to be significant is that it is general recognition; in other words, that there is an overwhelming majority in favor of recognition, which goes beyond "the automatic majority," and that there is so much recognition that is it possible to argue that (almost) all the countries in the world recognize the Palestinian entity as a state. Only in such a case can it be said that international recognition can move the discourse in international law from normative questions (e.g., should a Palestinian state be established and what should its territory be?) to positive questions (e.g., what are the rights of the existing Palestinian state and what should Israel do in response to the establishment of such a state?).
Israel's current policy, which is intended to garner opposition to the establishment of a Palestinian state or at least lack of support for the establishment of such a state, seeks to achieve precisely this objective: The prevention of general international recognition of the present positive existence of the Palestinian state, and especially to prevent recognition of the 1967 borders as the permanent borders of the state. General international recognition of these borders is likely to put Israel in a very complex situation, since it would seemingly be controlling territories of that potential Palestinian state.
From a strictly legal point of view, it is likely that the State of Israel will prevail in the current round: It is possible that general international recognition of a Palestinian state within the 1967 borders will not receive the necessary majority, or that the U.N. decision will be vague enough to enable the State of Israel to regard it merely as a declaratory decision. But without real and significant negotiations, it is reasonable to assume that in the future, an international majority will be attained that will express general international recognition of the Palestinian position, even with respect to the issue of permanent borders—a situation that it is preferable for Israel to avoid.
Dr. Amichai Cohen is a Senior Researcher at IDI, where he is conducting research as part of the National Security and Democracy Project.