U.N. Recognition of a Palestinian State: A Legal Analysis
Updated November 29, 2012
What is the significance of the UN decision to grant the Palestinian Authority the status of a non-member observer state? IDI Research Fellow Dr. Amichai Cohen explores this question in this legal analysis, which is an updated version of an article originally written for the IDI website in September 2011.
On November 29, 2012, the United Nations General Assembly upgraded the Palestinian Authority's status to that of a non-member observer state. What is the significance of this decision?
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 confer 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. Granting the status of non-member observer state to the Palestinian representation is the immediate maximal result of the General Assembly's action. Nonetheless, the General Assembly's vote has two legal implications:
First, the vote in the General Assembly can attest to the recognition of the Palestinian state by the nations 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 the version of this article that was published on this website a year ago, I warned that if the freeze of the peace process continued, it would bring about a situation in which almost all of the countries of the world would vote for the recognition of a Palestinian state. This warning has come true. In my opinion, the fact that the UN decision was accepted with overwhelming support of the countries of the world that was not based solely on the "automatic majority" of the Palestinians in the General Assembly is an indication that the recognition of the Palestinians is widespread.
In such a case, it is possible to say that international recognition is, in fact, significant, and that it is bringing the Palestinians extremely close to being able to demand that international forums accept "Palestine" as a body that is entitled to rights as a state. This is indeed the second significant implication of the recognition of Palestine as a non-member observer state. On April 3, 2012 the prosecutor of the International Criminal Court (ICC) in The Hague rejected Palestine's declaration accepting the jurisdiction of the ICC over Palestine (implicitly a request that the court investigate suspected war crimes allegedly committed by Israel within Palestinian territory), on the grounds that Palestine is not a state. The prosecutor provided the following explanation for her decision:
"The current status granted to Palestine by the United Nations General Assembly is that of "observer," not as a "Non‐member State" ...The Office could in the future consider allegations of crimes committed in Palestine, should competent organs of the United Nations.... resolve the legal issue relevant to an assessment of article 12."
In other words, the prosecutor indicated that her position that Palestine is not a state was based, to a great extend, on the position of the United Nations General Assembly. And that she would be willing to reconsider her stand on this matter were the General Assembly to change its position.
Such a change has indeed occurred.
Investigations of suspected war crimes by the International Criminal Court can put the State of Israel in a very problematic position. It is true that the International Court has authority to investigate only if the country in question is not exercising its judicial authority or investigating the case itself (the so called principle of complimentarity). In theory, this condition should serve as a barrier to investigations of soldiers of the Israel Defense Forces, since Israeli soldiers are subject to Israeli military investigations and are prosecuted when they violate the laws of armed conflict. In reality, however, it is not guaranteed that this barrier will be effective. For example: There is an emerging legal world view (outside Israel), that the borders of Palestine are the "1967 borders." As a result, according to a certain interpretation of the constitution of the International Criminal Court, the building of settlements by Israel constitutes a war crime, and it is clear that Israel is not investigating this alleged crime in any way.
The recognition of the Palestinian State is not final. It is still at a stage in which rational Israeli policy, and especially negotiations with the Palestinians, can result in a resolution that is in the consensus, especially with regard to the question of borders. But continuing to ignore the Palestinians will result in a continued strengthening of the international recognition of the existence of a Palestinian state, to the point that Israel will potentially lose control of the process, and find itself in several years confronting a state whose existence and whose borders were both imposed upon Israel by the international community.
Dr. Amichai Cohen is a Research Fellow at the Israel Democracy Institute, where he works on the National Security and Democracy project.