Introduction
Representatives of the PLO, and of the Palestinian Interim Self-Government
Authority established pursuant to the Interim Agreement, have repeatedly
threatened to unilaterally declare an independent Palestinian state.1 Indeed,
following the conclusion of the Camp David peace summit, Palestinian leaders
have re-emphasized their purported right to declare statehood unilaterally.
While the Central Council of the PLO decided on September 10, 2000, to
temporarily postpone this declaration, it reasserted its inherent right to do
so without prior coordination or agreement with Israel. In the event of such a
declaration, states will be called upon to consider whether to recognize the
Palestinian entity as a sovereign state which is eligible for membership in the
international community.
The question of recognition of a Palestinian state involves complex legal and
policy issues. Here we will address the questions with which each state will be
confronted in the event of a Palestinian unilateral declaration of statehood
and examine whether the Palestinian entity, as a matter of international law,
may be recognized as a sovereign state. In particular, we will focus on three
fundamental questions:
- Does the Palestinian entity satisfy the traditional criteria for statehood?
- Does the Palestinian entity satisfy the additional contemporary criteria for
statehood?
- What other legal or policy considerations apply?
Clearly, if the Palestinian entity fails to satisfy the traditional legal
criteria for statehood, it cannot be recognized as a sovereign state.
Eligibility for recognition does not depend on whether an entity ought to
satisfy the criteria for statehood,2 but on whether it meets those standards as
a matter of fact and law.3
It is a well established principle that unless an entity can show that, in
practice, it meets the indicia of statehood, recognition must be withheld. As
Kelsen has asserted, "a state violates international law and thus infringes
upon the rights of other states if it recognizes as a state a community which
does not fulfill the requirements of international law."4 Similarly, Lauterpacht
has declared that the recognition of an entity which is not legally a state:
...is a wrong...because it constitutes an abuse of the power of recognition. It
acknowledges as an independent state a community which is not, in law,
independent and which does not therefore fulfill the essential conditions of
statehood. It is, accordingly, a recognition which an international tribunal
would declare not only to constitute a wrong but probably also to be in itself
invalid.5
The criteria for statehood which must be satisfied before recognition can be
considered have been formulated in different ways. But the various formulations
share the common premise that independent and sovereign governmental control
are the sine qua non of statehood. Thus, Crawford describes independence as
"the central criterion of statehood."6 Indeed, it will be readily apparent that
the basic attributes of statehood essentially flow from this requirement.
The fundamental connection between independence and statehood was clearly
enunciated by Judge Huber in the Island of Palmas Case, in which he declared
that "independence in regard to a portion of the globe, is the right to
exercise therein, to the exclusion of any other State, the functions of a
State."7 Higgins has similarly affirmed that "traditional international law has
long demanded that before an entity can be acknowledged as a state, it must
possess independence and sovereignty."8 Clearly, in the absence of independence,
of exclusive and sovereign control, a claim to statehood cannot succeed.
International law has traditionally required that four separate criteria be
satisfied before the recognition of an entity as an independent sovereign state
can be considered:9
- The entity must exercise effective and independent governmental control.
- The entity must possess a defined territory over which it exercises such
control.
- The entity must have the capacity to freely engage in foreign relations.
- There must be effective and independent governmental control over a
permanent population.
Only if the Palestinian entity satisfies the traditional criteria for statehood
by exercising independent and sovereign governmental control (including the
capacity to freely engage in foreign relations) over a permanent population in
a defined territory over which it has possession, can its recognition as a
sovereign state be considered.
Is There an Effective and Independent Government?
Effective governmental authority is a crucial element of statehood and is
closely related to the notions of independence and sovereignty.10 Oppenheim, for
example, has defined the effective government criterion with explicit reference
to sovereignty:
There must...be a sovereign government. Sovereignty is supreme authority, which
on the international plane means...legal authority which is not in law
dependent on any other earthly authority. Sovereignty in the strict and
narrowest sense of the term implies, therefore, independence all round, within
and without the borders of the country.11
Similarly, the Encyclopedia of Public International Law stipulates that "the
government, in exercising its power, must be capable of acting independently of
foreign governments,"12 while von Glahn writes that "even nominal subordination
to an outside governmental authority must be absent" for an entity to claim to
be a state.13 In the language of the Permanent Court of International Justice in
the Austro-German Customs Union Case, a separate state has to possess "the sole
right of decision in all matters economic, political, financial or other."14
The lack of effective and independent governmental control has served as a
basis for the non-recognition of an entity as a sovereign state in a
significant number of cases. Thus, recognition was withheld from Manchukuo,15
Katanga16 and Biafra,17 in part due to a lack of effective and independent
governmental authority. Recognition was also opposed or delayed with respect to
Mongolia,18 Ceylon (Sri Lanka),19 and the German Democratic Republic20 on the basis,
inter alia, that independent governmental control had not yet been established.
For the Palestinian entity to meet this criterion it would therefore be
necessary to show that it possesses exclusive governmental powers over a
defined territory, independent of external involvement. It should be noted that
this test is strictly applied when considering the creation of a new state, as
opposed to the more flexible approach adopted when evaluating the subsistence
of an existing state.21 Accordingly, the question of whether the Palestinian
entity exercises the requisite degree of governmental control must be rigidly
tested.
The Palestinian leadership has asserted that the governmental institutions
created under the agreements between Israel and the PLO satisfy this criterion
of statehood.22 But the terms of these agreements and the manner of their
application clearly indicate that the Palestinian entity does not meet the
exacting demands of independent and effective governmental control required by
international law.
Under the Declaration of Principles on Interim Self-Government Arrangements,
signed between Israel and the PLO on September 13, 1993 (D.O.P.),23 the framework
for reaching a just and lasting settlement to the Israeli-Palestinian conflict
was agreed upon between the two sides. In accordance with the D.O.P., a
Palestinian Interim Self-Government Authority was to be established for an
interim period, pending the outcome of permanent status negotiations.24 The
Palestinian Interim Self-Government Authority was to be transferred a limited
sphere of powers from the Israeli Military Government which has been
responsible for administering the West Bank and the Gaza Strip since 1967.25
In the D.O.P., the parties agreed that the Palestinian Authority would only
have limited competence. Under Section B of the Agreed Minutes to the D.O.P.,
it was stipulated that the Palestinian Authority's jurisdiction, as set out in
Article IV, would cover only "the agreed powers, responsibilities, spheres and
authorities transferred to it." Moreover, the Agreed Minutes expressly provided
that Israel would continue to exercise those powers and responsibilities not
transferred to the Council.26
The blueprint for limited Palestinian autonomy set out in the D.O.P. was
implemented by the parties in the Israeli-Palestinian Interim Agreement on the
West Bank and Gaza Strip signed on September 28, 1995. This document regulates
the relations between the two sides and the administration of the West Bank and
Gaza Strip pending the outcome of permanent status negotiations, and it
carefully outlines the scope and content of the Palestinian Authority's
jurisdiction.
Several features of the Interim Agreement illustrate that the parties have
established a Palestinian self-government authority which does not possess the
independent, effective and sovereign governmental control that is required to
satisfy the definition of statehood:
The Palestinian Autonomy is Subject to Overriding Residual Israeli Authority
In the first place, under the D.O.P. and the Interim Agreement, pending a
permanent status settlement, Israel remains the source of authority and retains
residuary jurisdiction in all spheres not specifically transferred to the
Palestinian Authority. Far from being sovereign or independent, the Palestinian
entity is in fact subject to the overarching residual authority of the Israeli
military government.
Article 1(1) of the Interim Agreement mirrors the provisions of the D.O.P.
regarding the limited competence of the Palestinian Authority and the
continuing jurisdiction of the Israeli military government:
Israel shall transfer powers and responsibilities as specified in this
Agreement from the Israeli military government and its Civil Administration to
the Council in accordance with this Agreement. Israel shall continue to
exercise powers and responsibilities not so transferred [emphasis added].
Similar provisions in Article 1(5),27 Article XVII(1)(b),28 Article XVII(4),29 and
Article XXXI(8)30 make it clear that the parties did not establish an independent
and sovereign governmental entity, but a limited self-governing body.
This, of course, is not surprising. The intention of Israel and the
Palestinians in drafting the Interim Agreement was to create a Palestinian
self-governing authority with limited autonomy and responsibility in those
spheres that were considered less controversial by the parties. The possibility
of transferring powers to the Palestinian entity more extensively, and on a
permanent basis, is an issue which has been specifically reserved for the
permanent status negotiations and is not one which is addressed by the Interim
Agreement.31
Moreover, in accordance with Article XXXI(6) of the Interim Agreement, the
powers transferred to the Palestinian Authority are not to prejudice the final
nature of the Palestinian entity and do not amount to a waiver of either side's
existing rights or positions.32 Consequently, these powers are of a temporary
character only and cannot be relied upon to substantiate a claim that the legal
status of West Bank and Gaza Strip territory has been altered.
Sovereign Powers are Exercised by Israel, Not the Palestinian Authority
That Israel and the Palestinians agreed to create an entity without independent
governmental control is also evident from another feature of the Israel-PLO
agreements. In accordance with express provisions of the D.O.P. and the Interim
Agreement, certain powers and responsibilities which are elementary attributes
of a sovereign government either remain under Israel's sole jurisdiction or are
expressly excluded from Palestinian jurisdiction. As a matter of practice, the
Palestinian Authority has no jurisdiction over significant areas of
responsibility which are essential to an effective and independent government.33
Perhaps the most fundamental prerogative of the state is to protect its borders
from external threats. But this is precisely an area of responsibility which
the parties agreed would not be transferred to the Palestinian Authority, but
rather would continue to be exercised exclusively by Israel. Article VIII of
the D.O.P. provides that "Israel will continue to carry the responsibility for
defending against external threats."34 Similarly, Article XII of the Interim
Agreement provides that:
Israel shall continue to carry the responsibility for defense against external
threats, including the responsibility for protecting the Egyptian and Jordanian
borders, and for defense against external threats from the sea and from the
air...and will have all the powers to take the steps necessary to meet this
responsibility.35
In this context, it should be noted that a study prepared for the U.S.
Department of State on the theory and practice of autonomy identified the
absence of authority over external security as a classic characteristic of an
autonomous non-sovereign entity.36 The Palestinian Authority's lack of
jurisdiction in relation to external security thus confirms that the parties
created an autonomous body rather than an independent governmental authority.
Another indicia of sovereign control is the capacity of the government to
exercise jurisdiction over all persons present in its territory. Yet, here
again, the Palestinian Authority's powers are limited and exclusive
jurisdiction over Israelis continues to be vested in Israel. Thus, for example,
the agreements repeatedly emphasize that Israel alone is responsible for the
security of Israelis in Palestinian Authority areas.37 The restrictions placed on
the Palestinian Authority in this regard are not limited to security. The
agreements specify that the territorial and functional jurisdiction of the
Palestinian Council does not include Israelis.38 Indeed, the issue of the status
of Israelis in the West Bank and Gaza Strip is expressly reserved for permanent
status negotiations.39
Independent control over airspace is yet another attribute of sovereign
governmental authority. Article 1 of the Chicago Convention on International
Aviation,40 which is regarded as reflective of customary law, specifically
provides that "every state has complete and exclusive sovereignty over the
airspace above its territory."41 However, the territorial jurisdiction of the
Palestinian Authority, both in the agreements and in practice, does not include
airspace.42 Thus, Article XIII(4) of the Security Annex to the Interim Agreement
provides that control over the airspace is not transferred to the Palestinian
Authority but continues to be exercised by Israel:
All aviation activity or use of the airspace by any aerial vehicle in the West
Bank and Gaza Strip shall require prior approval of Israel. It shall be subject
to Israeli air traffic control including, inter alia, monitoring and regulation
of air routes....
Significant Palestinian Authority Powers are Exercised Only with Israeli
Cooperation or Approval
The existence of a Palestinian self-governing entity which lacks the
governmental control of a sovereign state is not only evident from the fact
that sovereign powers are exclusively exercised by Israel. It is also clear
from the agreement between the parties that the implementation of many of the
powers and responsibilities exercised by the Palestinian Authority require some
degree of approval or coordination with Israel. The Palestinian Authority can
hardly be regarded as an independent government if the administration of even
certain key spheres of responsibility transferred to Palestinian jurisdiction
require continuing cooperation and often prior authorization by Israeli
authorities.
Thus, for example, the parties have agreed that Israel will continue to hold a
degree of decision-making power with respect to the grant of admission into
Palestinian areas and the conferral of permanent residency status. In this
sphere of responsibility, intimately associated with the sovereign prerogative
of states,43 Israel retains significant authority. Not only is the Palestinian
Authority's jurisdiction with regard to the grant of permanent residency
limited to specific categories of people,44 but, in accordance with Article
28(11) of Appendix 1 to the Civil Affairs Annex, such status cannot be granted
without "the prior approval of Israel." Moreover, the Israeli and Palestinian
sides agreed that visitors wishing to enter the portions of the West Bank and
Gaza Strip under Palestinian control must obtain clearance from Israeli
authorities,45 and that Israel has the right to deny entry to any person who is
not a registered resident of the West Bank or Gaza Strip.46
Within the areas in which the Palestinian Authority exercises its jurisdiction,
significant responsibilities with respect to internal security are either
shared or held exclusively by Israel. In addition to its exclusive jurisdiction
over external security and Israelis,47 Israel continues to be responsible, inter
alia, for safety and security in the sea off the Gaza Coast (and may sail
through the three maritime zones without restriction);48 for security at border
crossings and terminals;49 for security at Rachel's Tomb;50 for internal security
in Area B51 and the Mawasi Area in the Gaza Strip;52 while Israel also retains
overriding powers for security in the "Yellow Area" of the Gaza Strip.53 In
addition, joint Israeli-Palestinian patrols and mobile units operate throughout
West Bank and Gaza Strip territory under Palestinian control.54
The fact that the parties agreed to transfer only limited powers to the
Palestinian Authority is evident from countless articles of the Israel-PLO
agreements. All forty spheres of civil jurisdiction transferred to the
Palestinian Authority are specifically defined and limited, with some degree of
Israeli cooperation or approval often required.55 In many spheres of activity,
the parties established joint Israeli-Palestinian committees which are
responsible for coordination and cooperation in areas transferred to the
Palestinian side.56 Further limitations are placed by the agreements on the size,
operations, and ammunition of the Palestinian Police,57 on Palestinian economic
policy,58 and on the movement of vessels in the sea off the Gaza Coast.59
Importantly also, the legislative powers of the Palestinian Council are
strictly limited. Article XVIII of the Interim Agreement confirms the lack of
Palestinian sovereign governmental control by providing that:
Legislation which exceeds the jurisdiction of the Council or which is otherwise
inconsistent with the provisions of the DOP, this Agreement, or of any
agreement that may be reached between the two sides during the interim period,
shall have no effect and shall be void ab initio.
The Palestinian Entity is a Non-Sovereign Autonomy in Practice
The fact that the parties agreed to transfer only limited authority to the
Palestinian entity is not only evident on paper. As a matter of practice, and
in the daily exercise of its functions, the interim Palestinian Authority has
only restricted governmental capacities in accordance with the provisions of
the Israel-PLO agreements. The absence of independent and sovereign
governmental control is thus not merely a reflection of the formal agreements
signed between the parties, but represents an accurate description of the
actual powers of the Palestinian Authority.
This continues to be the case, even following May 4, 1999 -- the target date
originally set for the conclusion of a permanents status agreement -- and the
parties continue to rely on the interim arrangements established in the Interim
Agreement as the basis for their conduct in practice. Indeed, agreements signed
following May 1999, such as the Sharm el-Sheikh Memorandum signed on September
4, 1999 and the Protocol Concerning Safe Passage between the West Bank and the
Gaza Strip, signed on October 5, 1999, demonstrate that the parties continue to
view themselves as regulated by the Interim Agreement (see below).
A Palestinian Claim to Statehood Over Areas Not Under Effective Palestinian
Control
As indicated above, statehood can only be recognized under international law
with respect to territory in which the criteria for statehood have been
satisfied. It follows that a Palestinian claim to statehood can only be valid
with respect to those areas over which it exercises effective and independent
control.
It has been shown that such Palestinian control is lacking in all West Bank and
Gaza Strip territory. Even in Area A and in the Gaza Strip, where more
extensive powers and responsibilities have been transferred, the Palestinian
Authority does not exercise the powers of a sovereign government. The absence
of the requisite degree of control is all the more evident in Areas B and C,
where the Palestinian Authority's jurisdiction is of a more limited nature and
Israel continues to exercise significant authority. Similarly, a Palestinian
declaration of statehood which purported to include parts of Jerusalem within
the territory of a Palestinian "state" would be legally meaningless in light of
the absence of any Palestinian authority over Jerusalem, and the actual
exercise of Israeli sovereignty and jurisdiction in all parts of the city.
Indeed, as the Israel-PLO agreements make clear, the issue of Jerusalem is
reserved as a subject for permanent status negotiations, and no powers or
responsibilities have been transferred to the Palestinian Authority in
Jerusalem during the interim period.
The Palestinian claim to statehood lacks legitimacy, in this regard, because it
cannot point to any body of territory over which it exercises effective and
independent control. Palestinian efforts to acquire statehood are in fact
weakened by advancing a claim before the requisite degree of control is
established, and by the attempt to extend this claim to areas which clearly
lack any semblance of Palestinian sovereign authority.
In sum, the Israeli-Palestinian agreements have transferred only limited powers
to the Palestinian entity. Practically, the Palestinian Authority lacks the
capacity to function independently in a wide variety of governmental spheres.
In light of these facts, it must be concluded that a claim for the existence of
an independent and sovereign Palestinian government over any West Bank and Gaza
Strip territory is untenable at this stage. This criterion of statehood
requires the exercise of independent sovereign governmental control to the
exclusion of all other states. The Palestinian Authority clearly fails to meet
this threshold.
Does the Palestinian Entity Possess a Defined Territory?
The second criterion of statehood requires that a state possess at least some
defined corpus of territory. Traditionally, it has been necessary for an entity
to show, firstly, that it has sovereign title over the territory in question
and, secondly, that the territory is adequately defined.
Palestinian Authority representatives have regularly asserted that the
Palestinian entity satisfies both aspects of this criterion of statehood.60 But
despite these assertions, an examination of the legal and factual situation
with respect to West Bank and Gaza Strip territory not only illustrates that
the Palestinian claim to vested sovereign title cannot be sustained, but that
the territory also lacks the requisite degree of definition.
The Requirement of Sovereign Title
With respect to the first aspect of this criterion, sovereign title, Menon
declares that states must "have a territorial basis and thus...enjoy the
territorial sovereignty."61 Similarly, Crawford writes that the proposition that
statehood "necessarily involves territorial sovereignty is generally accepted,"62
while Blix has referred to "sovereignty over territory, the airspace above it
and the territorial water that may be adjacent to it," as an essential
attribute of statehood.63 Indeed, the lack of legitimate title over territory has
in the past been the basis for withholding recognition from such entities as
Manchukuo64 and the Turkish Republic of Northern Cyprus.65
The Palestinian claim to vested sovereign title over the West Bank and Gaza
Strip lacks a firm legal basis. The arguments traditionally made by
Palestinians are, at best, the basis for a possible future claim to limited
title, to be raised in the context of permanent status negotiations. They do
not provide support for the contention that sovereign title is currently vested
in Palestinian hands.
The Palestinian argument for vested sovereignty is based variously on the
alleged illegality of the Palestine Mandate,66 which provided for the
establishment of a Jewish national home in Palestine,67 and on General Assembly
Resolution 181 of 1947 (the Partition Resolution),68 which recommended the
partition of Mandatory Palestine into an Arab and a Jewish state.69
Neither of these positions, however, find support in international law. With
respect to the Palestine Mandate, international bodies called upon to consider
its terms repeatedly rejected the Arab contention that sovereignty was vested
in Palestinian Arab hands. By accepting the Mandate as legally valid and
consistent with the provisions of the League Covenant, bodies such as the
Council of the League,70 and the Permanent Court of International Justice71
confirmed that the duty of the mandatory power to "secure the establishment of
the Jewish national home" was not subject to legal challenge. Indeed, the
United Nations Special Commission on Palestine subsequently concluded that the
Palestinians "have not been in possession of it [Palestine Mandate territory]
as a sovereign nation,"72 and that there were "no grounds for questioning the
validity of the Mandate for the reason advanced by the Arab states."73
The Palestinian case for vested sovereignty is also not supported by General
Assembly Resolution 181. Indeed, it is somewhat surprising that the
Palestinians have sought to justify their claim for vested territorial title by
reference to this resolution. For decades the Arab states and the Palestinians
themselves repeatedly declared that the Partition Resolution was legally
invalid.74 Thus, Article 19 of the Palestinian National Charter proclaimed that
"the partition of Palestine in 1947 and the establishment of Israel are
entirely illegal."75 Similarly, in arguing the Palestinian case, jurist Henry
Cattan states that "at no time was the partition resolution accepted by the
Palestinians or by the Arab states,"76 while the Seminar of Arab Jurists on
Palestine referred to the resolution as "absolutely null and void."77
Resolution 181 cannot serve as a basis for Palestinian sovereignty because it
never had binding force. As a General Assembly resolution it could only have
the status of a recommendation. And while Israel was prepared to uphold the
resolution,78 it was the Arab rejection of the Assembly's proposal that prevented
its adoption. In what former UN Secretary General Trygvie Lie termed the "first
armed aggression which the world has seen since the end of the [Second World]
War,"79 the surrounding Arab countries attacked the fledgling Israeli state
demonstrating, by force of arms, that Resolution 181 was, in their eyes, a
legal nullity.
Indeed, in order to respond to the new realities that emerged in the years and
decades following the Partition Resolution, the United Nations itself abandoned
the proposal contained in Resolution 181. In its place, the Security Council
adopted Resolutions 24280 and 33881 which provided a radically different formula
for the settlement of the conflict. This is the only formula which has been
accepted by both sides as the basis for permanent status negotiations82 and it
reflects a mutual recognition that Resolution 181 has been overtaken by the
events and does not provide an appropriate proposal for the resolution of the
conflict.
Nor can the Palestinians maintain that the transfer of powers over portions of
West Bank and Gaza Strip territory in accordance with the Israel-PLO agreements
has involved the acquisition of sovereign title. In the first place, the
absence of sovereign Palestinian governmental control over any of the West Bank
or Gaza Strip is in itself evidence that the Palestinians lack territorial
sovereignty. As Judge Huber stated in the Island of Palmas Case, "territorial
sovereignty...involves the exclusive right to display the activities of a
state."83 The limited competence of the Palestinian entity is thus inconsistent
with the view that the Palestinians are vested with sovereignty over the
territory in question.
Indeed, the Palestinians, as party to the D.O.P. and the Interim Agreement,
have in effect acknowledged that at present they are not in sovereign
possession of any territory. By affirming that the legal status of the West
Bank and Gaza Strip is to be resolved in permanent status negotiations, these
agreements reveal that both Israel and the Palestinians recognized that the
issue of sovereignty over this territory is yet to be settled.84
Furthermore, as is evident from Article XXXI(8) of the Interim Agreement, the
transfer of limited authority to the Palestinian entity does not involve any
change to the legal status of West Bank and Gaza Strip territory.85 Accordingly,
while the Palestinian Authority has been transferred several powers over
portions of this territory, the territory itself has not been transferred and
its final status remains an issue for negotiation.
The fact that the Israel-PLO agreements did not involve a transfer of title to
the Palestinian Authority is clear, inter alia, from the absence of Palestinian
jurisdiction over the airspace. As Brownlie explains, "airspace superjacent to
land territory...is in law part of state territory, and as a consequence other
states may only use such airspace for navigation or other purposes with the
agreement of the territorial sovereign."86 However, as Article XVII87 of the
Interim Agreement and Article XIII(4)88 of the Security Annex affirm, the
airspace superjacent to the West Bank and the Gaza Strip is not subject to
Palestinian territorial jurisdiction but remains under Israeli control. It
follows that title over West Bank and Gaza Strip territory cannot be regarded
as being presently vested in Palestinian hands. In fact, as Brownlie has
affirmed, lack of control over the airspace is a clear indication that the
entity in question is not the territorial sovereign.89
In sum, the Palestinian argument for vested sovereignty is not supported by
international law or by the provisions of the Israel-PLO agreements. The
failure to show that title is currently vested in Palestinian hands means that
the Palestinian entity cannot satisfy this criterion of statehood.
The "Defined Territory" Requirement
The Palestinian claim to statehood is also difficult to sustain in light of the
requirement that the territory over which a putative state exercises control be
adequately defined. It is generally accepted that the boundaries of a nascent
state need not be accurately delimited in their entirety for an entity to
satisfy this criterion of statehood.90 But the issue is a relative one. The
greater the lack of definition, the more the statehood of the entity is in
question. As Lauterpacht has asserted, "when the doubts as to the future
frontiers [are] of a serious nature, statehood becomes in doubt."91 Similarly,
the German-Polish Mixed Arbitral Tribunal held that while an entity need not
have precisely defined borders, its territory must have a "sufficient
consistency" and there must be "independent public authority over that
territory."92
There thus comes a point where the territory of an entity seeking recognition
as a sovereign state is so indeterminate that its claim to a "defined
territory," required by the criteria of statehood, must be questioned.
Lauterpacht, for example, cites the non-recognition of Lithuania in 1919 as
such an instance. In that year, while the Allied powers recognized Estonia and
Latvia as sovereign states, recognition was withheld from Lithuania on the
express ground that lingering frontier disputes meant that Lithuania's
territory was not yet sufficiently defined.93
Similarly, states have withheld recognition on the basis that an entity's
territory is so fragmented that it does not satisfy the "defined territory"
criterion. For instance, this position was taken by the United Kingdom in its
decision not to recognize Bophuthatswana as an independent state in 1986.
According to the United Kingdom, the fact that Bophuthatswana constituted at
least six separate regions meant that its territory was too fragmented to be
regarded as "defined" within the meaning of the criteria for statehood.94
The non-contiguity and fragmentation of areas under Palestinian control suggest
that the Palestinian entity similarly fails to satisfy the requirement for
defined territory. Even if the Palestinians were to hold sovereign title over
some portion of territory and exercise independent control over it, the scope
of this territory cannot be adequately defined. At this stage, the Palestinian
Authority's powers are scattered throughout non-contiguous portions of West
Bank and Gaza Strip territory to the extent that the territory lacks the
consistency required for statehood. Indeed, it may be questioned whether the
Palestinian entity, in its fragmented state, could ever function effectively as
a sovereign body.
The loose territorial make-up of the Palestinian entity serves as further
evidence that the parties agreed to establish an autonomous body with limited
territorial powers rather than an entity with clearly defined sovereign
territory. Moreover, the fact that the powers transferred to the Palestinian
Authority under the Interim Agreement are neither contiguous with the portions
of territory under Palestinian control95 nor uniform throughout the Palestinian
areas96 indicates that the Palestinian entity's powers are not defined in
relation to a fixed territory.
In fact, the parties agreed that the territorial scope of the Palestinian
Authority's powers would not be permanently fixed until a permanent status
agreement was reached. The principle of phased further redeployments, provided
for in Article XIII of the D.O.P. and Article XI of the Interim Agreement,
shows that the territory under Palestinian control is not strictly defined, but
rather is subject to change in accordance with the extent of future
redeployments. This fluctuation in the territorial jurisdiction of the
Palestinian Authority under the Interim Agreement is confirmed by the mutual
agreement to consider the final borders of the Palestinian entity only in the
context of permanent status negotiations.97
The Palestinian entity cannot claim vested sovereign title over a defined
territory. Additionally, the extreme fragmentation of the territory under
Palestinian control and the variable nature of the Palestinian Authority's
territorial jurisdiction casts doubt over the claim to a defined or fixed
territory, as required by the definition of statehood. Indeed, the Palestinians
themselves have agreed that the legal status of the territory will be resolved
by negotiation.
Does the Palestinian Entity have the Capacity to Freely Engage in Foreign
Relations?
An entity which is incapable of freely engaging in foreign relations cannot be
defined as a state. As Crawford explains, the capacity to enter into relations
with other states is an essential prerequisite of independence.98 As a result,
the lack of competence in foreign relations is regarded as a classic indication
that a given entity is not an independent state but an autonomous non-sovereign
body.99
The provisions of the Israel-PLO agreements provide unequivocal evidence as to
the Palestinian Authority's lack of capacity to conduct foreign relations. In
setting out the powers and responsibilities of the Palestinian Council, Article
IX(5) of the Interim Agreement clearly stipulates as follows:
In accordance with the DOP, the Council will not have powers and
responsibilities in the sphere of foreign relations, which sphere includes the
establishment abroad of embassies, consulates or other types of foreign
missions and posts or permitting their establishment in the West Bank or the
Gaza Strip, the appointment of or admission of diplomatic and consular staff,
and the exercise of diplomatic functions.
Notwithstanding the provisions of this paragraph, the PLO may conduct
negotiations and sign agreements with states or international organizations for
the benefit of the Council in the following cases only:
- economic agreements, as specifically provided in Annex V of this Agreement.;
- agreements with donor countries for the purpose of implementing
arrangements for the provision of assistance to the Council;
- agreements for the purpose of implementing the regional development plans
detailed in Annex IV of the DOP or in agreements entered into in the framework
of multilateral negotiations; and
- cultural, scientific and educational agreements.
Dealings between the Council and representatives of foreign states and
international organizations as well as the establishment in the West Bank and
the Gaza Strip of representative offices other than those described in
paragraph 5.a above, for the purpose of implementing the agreements referred to
in subparagraph 5.b. above, shall not be considered foreign relations.
Several features of this provision warrant special attention. First, it will be
noted that the Palestinian self-governing entity is specifically and absolutely
denied any authority in the sphere of foreign relations. Secondly, the right to
enter agreements with states and international organizations is restricted to
those areas where responsibility for limited foreign contacts is occasionally
transferred to autonomous non-sovereign entities.100 Thirdly, while Israel agreed
that in order to enable international aid and assistance to the Palestinian
autonomy limited foreign contacts could be made, the Israel-PLO agreements
specify that it is the PLO and not the Palestinian Authority which may engage
in such activity.101 Finally, this provision expressly stipulates that any
Palestinian Authority activity aimed at implementing agreements signed by the
PLO in accordance with Article V is not to be regarded as foreign relations.
Other provisions of the Israel-PLO agreements confirm that the Palestinian
Authority lacks any powers in the foreign relations sphere. Thus, Article 3 of
Annex II of the D.O.P. provided in relation to the Gaza Strip and Jericho
Agreement that the powers and responsibilities of the Palestinian Authority do
not include foreign relations. Similarly, Article XVII of the Interim Agreement
provides that foreign relations are not within the jurisdiction of the Council
but are a subject for permanent status negotiations.
The Palestinian Authority's lack of capacity to freely conduct relations with
other states is also evident in practice. Even in those instances where the
Palestinians have sought to exceed the terms of Israel-PLO agreements relating
to foreign relations power, it has invariably been the PLO and not the
Palestinian Authority that has been responsible for this activity. Indeed, it
is doubtful whether the Palestinian Authority can rely on the foreign relations
activity of the PLO, conducted in violation of the Israel-PLO agreements, in
order to demonstrate a capacity to engage in foreign relations. The
governmental institutions of the Palestinian Authority remain both unauthorized
and unable to freely conduct foreign relations in an independent and
unrestricted manner.
In sum, the Palestinian Authority does not have the capacity to freely conduct
foreign relations. The agreements which it has signed explicitly deny it
competence in this area. Moreover, as a matter of practice, the Palestinian
entity is unable to engage in foreign relations in an unrestricted way.
Is There Effective and Independent Control Over a Permanent Population?
The final criterion of statehood requires that a state be able to exercise
governmental control over a permanent population resident in its territory. In
one respect, this criterion would seem to be satisfied. The Palestinian
Authority can identify a group of people that are permanently resident in West
Bank and Gaza Strip territory.
But even with respect to this criterion, the Palestinian claim to statehood can
be questioned. According to this criterion, it is not sufficient that a
permanent population exist; a state is also required to exercise effective and
independent governmental control over that population. As the Third U.S.
Restatement of the Law notes, the population must be "under the control of its
own government."102 But, as highlighted above, while the Palestinian Authority
does exercise significant powers over Palestinian residents, its jurisdiction
cannot be regarded as independent or comprehensive. Moreover, as the U.S. Court
of Appeals has held, where there are doubts as to the territorial scope of a
putative state, its claim to a permanent population is necessarily also in
doubt.103 The Palestinian claim to statehood over an indeterminate territory thus
makes it difficult to clearly identify a population which meets the
requirements of this criterion of statehood.
Unilateral Palestinian Attempts to Acquire the Attributes of Statehood
Finally, it should be noted that the Palestinian Authority's failure to satisfy
the criteria for statehood could not be overcome by unilateral measures which
are inconsistent with express Palestinian undertakings. As will be discussed
below, an entity claiming to be a state on the basis of unlawful conduct must,
under international law, be denied recognition. Accordingly, any Palestinian
attempt to unilaterally acquire the attributes of statehood in violation of
Israeli-Palestinian agreements would have no legal effect.
Conclusion
The Palestinian entity does not appear to satisfy the traditional criteria for
statehood. As a matter of law, the Palestinian entity does not have the
capacity to function as an independent and sovereign state, nor does it
actually exercise such powers in practice. It does not possess independent and
effective governmental control; it does not hold sovereign title over a clearly
defined portion of territory; and it lacks the competence to freely engage in
foreign relations. Moreover, any Palestinian attempt to unilaterally acquire
the attributes of statehood in violation of express Palestinian undertakings
would constitute unlawful conduct and as such could not serve as a basis for
satisfying the prerequisites for recognition.
Additional Contemporary Criteria for Statehood
The Additional Criteria for Statehood
In more recent international practice, several additional criteria have been
identified as prerequisites for statehood. The recognition policy of many
states and the positions taken by contemporary jurists indicate that the
traditional criteria for statehood are being extended to include additional
elements. Thus, for example, the recognition policy of the European Community
(now the European Union) with respect to the former republics of Yugoslavia and
the Soviet Union conditioned recognition not only on the satisfaction of the
traditional criteria for statehood, but on the fulfillment of a long list of
other requirements.104 Indeed, it has become accepted to investigate several other
features of a putative state before considering its eligibility for recognition.
The additional contemporary criteria for statehood require that an entity
seeking recognition demonstrate that it has not been established as the result
of illegality, that it is willing and able to abide by international law, that
it constitutes a viable entity, and that its claim to statehood is compatible
with the right to self-determination. It is therefore necessary to consider
whether the Palestinian entity satisfies these additional elements of statehood
so that its recognition as a sovereign state can be contemplated by other
states.
Would the Unilateral Establishment of a Palestinian "State" be the Result of
Illegality?
The Duty Not to Recognize an Unlawful Claim to Statehood
It is now well established that in order to qualify for recognition a state
must not emerge as the result of illegality. This principle was enunciated in
broad terms by Lauterpacht when he declared that facts, however undisputed,
resulting from conduct which violates international law cannot be a source of
legal rights or obligations.105 Contemporary jurists have subsequently affirmed
that unlawful acts associated with the establishment of a nascent state prevent
its recognition by the international community.106 Thus, for example,
Wallace-Bruce has formulated the doctrine in the following way:
[A]n entity, in satisfying the traditional criteria must do so in accordance
with international law...when an entity claims to be a state, it has to satisfy
the international community that it is not the product of international
illegality. Put another way, the process by which the entity emerges should not
have breached any international rule.107
Indeed, it is widely accepted that there exists a legal duty not to recognize
as a state an entity which claims statehood on the basis of acts which are
illegal. The Restatement of the Foreign Relations Law of the United States, for
example, provides that a state is required not to recognize or treat as a state
any entity which has "attained the qualifications of statehood in violation of
international law."108 Similarly, as Lauterpacht affirms, "non-recognition is the
minimum of resistance which an insufficiently organized but law-abiding
community offers to illegality; it is a continuous challenge to a legal wrong."109
The principle that an entity claiming statehood on the basis of unlawful acts
must, as a matter of law, be denied recognition has been supported in state
practice. The non-recognition of Manchukuo by the international community, for
example, was justified on the basis that its creation involved a violation by
Japan of its treaty obligations under the League Covenant and the Pact of
Paris.110 Similarly, there was collective international non-recognition of the
unilateral declarations of statehood by the Turkish Republic of Northern Cyprus111
and by Rhodesia112 on the grounds that the establishment of these entities was the
result of illegality.
In accordance with state practice and international legal principle, states
would be subject to a legal duty not to recognize the Palestinian entity as a
sovereign state if its claim to statehood is based on acts which are unlawful.
It has been shown that the Palestinian entity fails to satisfy the traditional
criteria for statehood and that as a result it cannot be recognized as an
independent state. But even if the Palestinian entity were to meet those
criteria, the illegality associated with its current unilateral claim to
statehood demands that recognition be withheld.
The Obligation to Resolve All Outstanding Issues by Negotiation
In an effort to overcome the legal problems which undermine their claim,
Palestinian representatives have argued that a unilateral declaration of
statehood is not an unlawful act despite the existence of repeated undertakings
not to alter the legal status of the West Bank and Gaza Strip pending the
outcome of permanent status negotiations. In support of this argument,
Palestinians maintain that the obligation to refrain from a unilateral
declaration of statehood is limited in time and will have expired by September
13, 2000 -- the new target date set for a permanent status agreement under the
Sharm el-Sheikh Memorandum. This follows attempts made by Palestinian
representatives to argue that the Interim Agreement was to expire on May 4,
1999 -- the original target date for the permanent status agreement.113 In
practice, of course, the parties have continued to view the Interim Agreement
as binding after May 1999, and have signed agreements (such as the Sharm
el-Sheikh Memorandum) to that effect.
The argument that a unilateral declaration of statehood would no longer
constitute an unlawful act after September 13, 2000, is central to the
Palestinian claim to statehood. If the Palestinians have committed themselves
to refrain from unilateral measures and resolve outstanding issues with Israel
only by way of negotiation, then a unilateral declaration prior to the
conclusion of those negotiations would constitute an unlawful act and would be
fatal to any Palestinian attempts to gain recognition in accordance with
international law. But this is precisely the nature of the Palestinian
obligation. It is not time-sensitive. It is an independent and continuing legal
duty undertaken by both sides not to engage in unilateral measures and to
resolve the conflict by good faith negotiations.
The claim that the prohibition against unilateral acts expires on September 13,
2000, cannot be sustained. The entire peace process is founded on the principle
that a comprehensive and lasting peace between Israel and the Palestinians can
only be achieved by a negotiated settlement. Unilateral measures which attempt
to alter the legal status of the West Bank and Gaza Strip undermine any real
prospect for peaceful resolution, and their prohibition has therefore been
recognized as an essential foundation of the Israeli-Palestinian peace process.
The duty to resolve issues by negotiation is included in every major document
associated with the Middle East peace process. It is a central feature of
Security Council Resolutions 242 and 338 which the parties have accepted as the
basis for a peace settlement.114 As Nicholas Rostow, former legal adviser to the
U.S. National Security Council, has observed:
International law, specifically Resolution 242, requires both sides to pursue
and achieve a negotiated settlement -- which is why a Palestinian unilateral
declaration of independence (UDI) would be incompatible with the law.115
This duty was also the cornerstone of the Madrid peace initiative of 1991, and
serves as the basis upon which the Israel-PLO agreements are founded.116
Accordingly, the prohibition against unilateral acts and the obligation to
negotiate constitute a fundamental element of every document signed within the
D.O.P. framework.
Indeed, PLO Chairman Yasser Arafat has repeatedly affirmed in written
undertakings to the Government of Israel that the prohibition against
unilateral acts is not limited in time but constitutes an independent and
continuing obligation which lies at the very heart of the peace process. Thus,
for example, in the initial exchange of letters of mutual recognition on
September 9, 1993, Chairman Arafat made an express and unconditional commitment
to resolve the Israeli-Palestinian conflict only by negotiation:
The PLO commits itself to the Middle East peace process, and to a peaceful
resolution of the conflict between the two sides and declares that all
outstanding issues relating to permanent status will be resolved through
negotiations.
This undertaking, made prior to the signing of any agreement regarding the
interim period, was repeated in a letter sent by Chairman Arafat to Prime
Minister Rabin on May 4, 1994. In that letter the PLO confirmed that "neither
side shall initiate any step that will change the status of the Gaza Strip and
the Jericho Area pending the outcome of the permanent status negotiations."117
It is clear that these undertakings do not expire in September 2000. They are
neither expressly or implicitly limited in time. Rather, they express legal
obligations which both sides have accepted as fundamental prerequisites to a
peaceful settlement. As a result, they render any attempt to unilaterally
declare a sovereign Palestinian state on all or part of West Bank and Gaza
Strip territory a clearly unlawful act.
In light of the importance of these principles, it is not surprising that the
prohibition against unilateral acts and the duty to resolve all issues by
negotiation constitute a fundamental part of the agreements signed between the
parties. Thus, for example, Articles IV and V of the D.O.P. stipulate that all
remaining issues are to be settled by negotiation. Similarly, Article XXXI(7)
of the Interim Agreement formulates this obligation in unequivocal terms:
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.
Indeed, the prohibition was repeated both in Article V of the Wye River
Memorandum signed in October 1998, and in Article 10 of the Sharm el-Shiekh
Memorandum.
Most recently, the parties have restated this undertaking in the Trilateral
Statement issued on July 25, 2000, at the conclusion of the Camp David Peace
Summit. In the statement, Prime Minister Barak and Chairman Arafat reaffirmed:
...the importance of avoiding unilateral actions that prejudge the outcome of
negotiations and that their differences will be resolved only by good faith
negotiations.
As on the previous occasions where this commitment has been made, the duty to
refrain from unilateral acts and resolve all issues only through negotiations
is not limited in time. In light of this most recent undertaking, and the
previous commitments referred to above, a unilateral Palestinian declaration of
statehood would clearly constitute an unlawful act regardless of whether it is
made on September 13, 2000, or on any date thereafter.
The Continuing Force of the Interim Agreement
The Palestinians have argued that the Interim Agreement, which in their view
was extended for a limited period by the Sharm el-Sheikh Memorandum, will
expire on Sepetmber 13, 2000 -- the date established in the memorandum for the
conclusion of a comprehensive permanent status agreement. According to this
argument, since the Interim Agreement expires on this date, so, too, will the
prohibition. But this approach overlooks some elementary features of Israeli
and Palestinian undertakings. In the first place, as stated above, the
fundamental agreement to resolve issues by negotiation rather than unilateral
actions is enshrined in documents which are independent of the Interim
Agreement, and forms the basis of the entire peace process. These commitments
represent permanent legal obligations which are not subject to any timetable.
Moreover, there is little in the existing agreements to support the claim that
the Interim Agreement itself will expire on September 13. Quite to the
contrary, all the evidence points to the fact that the interim arrangements,
including the prohibition against unilateral acts contained therein, are
intended to continue until the conclusion of permanent status negotiations and
the achievement of a comprehensive peace settlement.
The force of the Interim Agreement is linked not to an artificial date, but to
the conclusion of permanent status negotiations. While the parties expressed
their intention to conclude those talks by May 4, 1999 -- and then agreed to
extend this target date to September 13, 2000 -- the letter and spirit of the
Israel-PLO agreements suggest that in the absence of a permanent status
settlement on that date, the interim period obligations continue to apply. This
is why the prohibition against unilateral acts in Article XXXI(7) of the
Interim Agreement is limited not to a specific date but to the "outcome of
permanent status negotiations." It is also why the Interim Agreement provides a
date for its entry into force, but does not stipulate a date for its
conclusion. Indeed, the flexibility of the dates established by the parties is
clear from the fact that the sides did not view the May 4 deadline as binding,
and agreed to extend it in the Sharm el-Sheikh Memorandum.
Acceptance of the Palestinian argument regarding the expiration of the Interim
Agreement would amount to a repudiation of the entire peace process framework.
If the interim arrangements were allowed to conclude before a permanent status
agreement was reached, the parties would be deprived of an agreed framework for
a negotiated settlement and the current Israeli-Palestinian peace process would
effectively come to an end.
This could not have been the intention of the parties. The Israeli-Palestinian
peace process is not limited in time. No date is set for its conclusion.
Indeed, as the parties themselves have expressly affirmed in the Interim
Agreement: "the peace process and the new era that it has created, as well as
the new relationship established between the two parties, are irreversible."118
The current peace process thus represents a fundamental and permanent change in
the relationship between the two sides and an ongoing commitment to resolve the
Israeli-Palestinian conflict by the establishment of interim autonomy
arrangements leading to a permanent negotiated settlement.119 It follows that the
Interim Agreement, which enables the implementation of one part of the D.O.P.
framework, does not expire until it is superseded by a subsequent agreement
between the parties. Indeed, the parties have acknowledged that the Interim
Agreement is not an independent document concluding on a specific date but an
"integral part of the whole peace process."120
Former U.S. State Department legal adviser Herbert Hansell took a similar
position when considering the alleged termination of the Israel-PLO agreements
by May 1999. His comments, which are of equal relevance to the new target date
established by the Sharm el-Sheikh Memorandum, read as follows:
...[it is] difficult to believe that the parties could have intended... that
the entire legal structure they so laboriously established would self-destruct
on May 4....The interpretation that the Oslo agreements terminate...seems so at
odds with the language of the accords and the other Oslo agreements, and with
the spirit of the extended legal regime the parties have constructed, that no
interruption in the performance of the Oslo agreements or interference with
adherence to the legal regime they have created could reasonably be based on
that interpretation.121
Indeed, Hansell has correctly suggested that the duty to negotiate will
continue to be a fundamental legal obligation binding both sides:
One overriding principle will govern the legal survival of the Oslo regime: the
obligation to resolve final status issues by negotiation....Unilateral
repudiation of that obligation...would expose the repudiator not only to
potential retaliatory steps by the other party but also to the opprobrium in
the eyes of the international community for having destroyed the Oslo regime.122
It should be noted that if, as the Palestinians argue, unilateral acts are no
longer prohibited after September 13, 2000, the result must logically be a
return to Israeli military government. As a theoretical legal matter, if the
current Israeli-Palestinian peace process were to conclude in September 2000
without a permanent status agreement, all the powers and responsibilities
transferred to the interim Palestinian Authority would automatically revert
back to the Israeli military government since it holds residual jurisdiction
and is the source of authority during the interim period.123
The Israel-PLO agreements, however, do not end on September 13, 2000. Such an
interpretation would be inconsistent not only with the letter and the spirit of
the agreements but also with practice of the parties to date. Rostow, for
example, has made the following observation with respect to the deadlines set
out in these agreements:
As for deadlines, they must be understood in context: the world will not end,
either legally or politically, if they are not met. One could argue that
throughout the process there have been explicit and implicit understandings
from both sides that deadlines are not the "end-all, be-all."124
Indeed, throughout the implementation of the Israel-PLO accords the parties
have agreed to continue existing arrangements in cases where they have been
unable to reach agreement by the specified deadline. Thus, for example, the
parties did not consider the delay in the withdrawal of Israeli military forces
from the Gaza Strip and Jericho area as a license for adopting unilateral
measures. Rather, both sides accepted that pending the signing and
implementation of the Gaza-Jericho Agreement, the Israeli military government
would continue to exercise all of its powers.125 Similarly, both parties accepted
that the existing situation in Hebron should be continued in view of the delay
in reaching an agreement on the modalities for redeployment in that city.126
Likewise, in the Wye River Memorandum, the Palestinians agreed that May 4,
1999, is the preferred date for the conclusion of the permanent status talks
rather than the final deadline of the peace process. In Article IV of the
memorandum, the parties affirmed that they would resume permanent status
negotiations and "make a determined effort to achieve the mutual goal of
reaching an agreement by May 4, 1999."127 In light of this express provision, it
cannot be seriously maintained that the parties intended the obligations of the
Israel-PLO agreements to end on this date if no permanent status agreement was
reached. Indeed, in the very next provision the parties once again established
the prohibition against unilateral actions and, in this way, reconfirmed that
unilateral measures were considered unlawful even after May 1999.128
In light of this established practice, the existing commitments between the
parties, and the need to maintain a framework for negotiation pending the
conclusion of a permanent status settlement, the new date referred to in the
Sharm el-Sheikh Memorandum cannot be read as a fixed deadline which, when
reached, signals the automatic end of the interim arrangements and the
prohibition against unilateral acts. Rather, it should be understood as a
target date agreed by the parties in order to express their commitment to
engage in good faith negotiations with a view to reaching a comprehensive
permanent status agreement as soon as possible. Indeed, this interpretation was
recently confirmed in the Trilateral Statement issued on July 25, 2000, at the
conclusion of the Camp David Summit. In paragraph 2 of the statement, the
parties chose not to repeat the reference to September 13, 2000, mentioned in
the Sharm el-Sheikh Memorandum, but rather to emphasize the general commitment
"to continue their efforts to conclude an agreement on all permanent status
issues as soon as possible" (emphasis added).
Palestinian Intransigence in the Permanent Status Negotiations
The Palestinians cannot justify a unilateral act of statehood on the grounds
that no permanent status agreement has been reached. This is so not only
because the prohibition against unilateral acts is an independent and ongoing
commitment, but also because it is Palestinian intransigence that has prevented
the possible conclusion of a permanent status agreement thus far. In the
D.O.P., the parties agreed that in order to tackle the complex issues involved
in permanent status negotiations, a period of up to three years would be
required.129 But beyond a ceremonial opening of these talks in May 1996, the
Palestinians refused until relatively recently to accede to Israeli invitations
to conduct meaningful permanent status negotiations.
Since the permanent status negotiations resumed, following the conclusion of
the Sharm el-Sheikh Memorandum, the Palestinian side has been reluctant to
demonstrate its willingness to make the compromises necessary for the
conclusion of a permanent status agreement, despite continued Israeli proposals
and concessions.
Palestinian unwillingness to negotiate several core issues in good faith, and
the tendency to avoid or delay detailed discussion of sensitive matters, was
strikingly evident in the course of the recent Camp David Peace Summit. While
Israel showed its commitment to reach an agreement, and was willing to make
painful compromises towards that end, the Palestinian side did not reciprocate
and failed to demonstrate flexibility on issues such as Jerusalem and refugees.
In these circumstances, both as a matter of law and as a matter of policy, the
Palestinians should be prevented from using the fact that the Camp David Summit
ended without an agreement as a pretext to justify unilateral actions which
violate existing Palestinian commitments.
Other Unlawful Activity Associated with the Palestinian Claim to Statehood
A unilateral declaration would not be the only illegality associated with the
Palestinian claim to statehood. If the Palestinians claim to satisfy an
attribute of statehood on the basis of conduct which violates their
undertakings, that unlawful conduct must prevent their recognition as a
sovereign state. Thus, for example, Palestinian activity in the foreign
relations sphere in breach of the provisions of the Israel-PLO agreements
cannot be relied upon to claim that the Palestinian entity has the capacity to
enter into relations with other states. Similarly, failure to coordinate with
Israel in the manner required by the agreements cannot serve as evidence of the
fact that the Palestinian Authority exercises independent and effective
governmental control.
In conclusion, a unilateral Palestinian declaration of statehood, which is not
coordinated with Israel, constitutes a fundamental violation of repeated and
legally binding undertakings to resolve outstanding issues by negotiation and
to refrain from unilateral acts. These legal obligations do not expire on
September 13, 2000, and continue to apply until a negotiated permanent
settlement is achieved.
By seeking recognition as a sovereign state on the basis of a unilateral
declaration (or on the basis of other acts which violate the Israel-PLO
agreements), the Palestinians would be asking the international community to
recognize unlawful conduct as both legitimate and as a source of legal rights.
In accordance with international law, states would be under a legal duty not to
recognize the validity of such illegal actions and to withhold recognition from
the Palestinian entity.
Would the Palestinian Entity be Willing and Able to Abide by International Law?
The requirement that a state be both willing and able to abide by international
law has become a regular feature of the recognition policy of states and
international organizations.130 Thus, for example, the E.C. recognition policy
with respect to the former republics of Yugoslavia and the Soviet Union
demanded guarantees of compliance with international legal obligations before
recognition could be granted.131 Similarly, the U.S. Department of State has
declared that before recognizing an entity as a sovereign state it will
determine whether that entity has the capacity to fulfill international
obligations.132 Indeed, as one commentator explains, "existing states have always
regarded the ability and willingness of a new state to act in accordance with
international law as a precondition of its being recognized."133
The Palestinian Authority's present capacity to abide by international law and
function as a responsible member of the international community must be
questioned. In the first place, the fact that its claim to statehood would be
based on an unlawful unilateral act clearly suggests that the Palestinian
entity would be unwilling to comply with express legal obligations. In this
context, it is instructive to consider that according to the E.C. recognition
policy, the former republics of Yugoslavia and the U.S.S.R. were to be denied
recognition unless they "committed themselves in good faith to a peaceful
process and to negotiations."134 By resorting to a unilateral declaration of
statehood, the Palestinian Authority's would effectively be rejecting the
agreed negotiating process and relying instead on unilateral acts to achieve
its objectives. This would be a clear indication that it was unwilling to
observe this essential legal duty.135
More fundamentally though, it might be argued that the Palestinian entity will
not be able to guarantee compliance with international obligations until it
succeeds in developing firm governmental institutions founded on respect for
the rule of law.136 The failure of the Palestinian Authority to fulfill express
legal undertakings it has made, specifically with respect to the fight against
terrorism, must raise serious doubts in this regard. Moreover, human rights
abuses, an ineffective judiciary, and widespread corruption suggest that the
Palestinian entity is not yet in a position to guarantee compliance with
international law.137 Premature recognition of the Palestinian entity as a
sovereign state before it has developed independent and effective institutions
of government will only jeopardize the Palestinian's capacity to create a
society and a governmental structure that is both willing and able to abide by
international law.
Is an Independent, Unilaterally Declared Palestinian State a Viable Entity?
In order to ensure that, after its recognition, a state will continue to
satisfy the criteria for statehood, evidence of its viability is generally
sought. Britain, for example, has declared that before recognizing an entity as
a state it will determine not only whether it satisfies the criteria for
statehood, but also whether it is likely to continue to satisfy those
requirements.138 Similarly, Blix writes that stability is a prerequisite for
statehood since "but for the existence of a measure of stability, the entity
will not be viable and able, in fact, to live up to obligations assumed."139
This criterion of statehood guarantees that a newly recognized entity will not
be a burden to the international community, but will contribute to it as an
independent and sovereign member. In addition, a nascent state's viability
ensures that it "will be able to discharge its international obligations
effectively."140 The viability of an entity is not only evidence of the fact that
it possesses the attributes of statehood, it is also a guarantee that it has
the capacity to continue to function as a sovereign state.
It has been shown that the Palestinian entity lacks the fundamental criteria of
a state and is unable to function as such effectively. It follows that if the
Palestinian entity is improperly recognized, it would not constitute a viable
or sustainable state. For one thing, the existence of independent governmental
institutions, essential to an entity's viability, are clearly lacking in the
Palestinian case. Palestinian management of civil affairs, for example, would
not be possible at this stage without intense cooperation with Israeli
authorities.141 Indeed, joint Israeli-Palestinian committees established under the
Interim Agreement operate in a vast array of areas on an almost daily basis to
provide effective management of the spheres of responsibility under Palestinian
Authority control. In the economic sphere, a significant degree of dependence
on Israel has continued despite attempts to develop an independent economic
infrastructure and enhance employment opportunities within Palestinian areas.
Indeed, there is little evidence that the Palestinian entity is capable, at
present, of independent economic existence.
A unilaterally declared Palestinian state would not constitute a viable entity.
The Palestinian Authority lacks both the necessary governmental system and the
economic infrastructure that are required to ensure a sustained and independent
existence. As such, the Palestinian entity will most likely be unable to
function effectively, at this stage, as a sovereign state or guarantee basic
economic, social, and human rights to its residents.
Is a Unilateral Declaration Compatible with the Right to Self-Determination?
Palestinian representatives regularly claim that a unilateral declaration of
statehood would be consistent with the right to self-determination.142 But even if
the Palestinians are entitled to self-determination under international law,
this does not amount to a right to unilaterally declare a sovereign Palestinian
state.
The right to self-determination is not a general right to statehood. While the
International Court of Justice has recognized self-determination as a right to
independence in classic cases of colonial rule,143 the right to self-determination
has been strictly interpreted beyond the colonial context.
Jurists who support the application of self-determination outside of colonial
situations have consistently regarded it as a right of peoples to
representative government or to intra-state minority protection rather than an
absolute entitlement to sovereign statehood. Thus, for example, Shaw has stated
that beyond the colonial context, "self-determination is transmuted into a
principle relating to the internal governance of independent states."144
The international community has given a similarly limited interpretation to the
right to self-determination. The Yugoslavia Arbitration Commission, set up by
the E.C. to deal with questions arising from the dissolution of Yugoslavia,
determined that the self-determination right of Serbians in Bosnia and Croatia
amounted to a right to minority protection rather than independence.145 Similarly,
the unilateral declaration of statehood by the Turkish minority of Northern
Cyprus has been rejected by the international community in part on the basis
that it exceeds the rights afforded to this community by the self-determination
principle.146 Indeed, despite the human rights atrocities committed against ethnic
Albanians during the conflict in Kosovo, the international community has
continued to deny the Kosovar claims for independence and insisted instead on
the granting of autonomy to the province.147
Under international law, the principle of self-determination cannot be applied
in an absolute or one-sided way. Like every right, the exercise of
self-determination must take other rights into account. Accordingly, a given
claim to self-determination must be carefully weighed against the equally
legitimate rights of others. In the Israeli-Palestinian context, the Israel-PLO
accords have established an agreed mechanism by which an accommodation of
conflicting rights can be reached in a manner that is consistent with the right
to self-determination. By recognizing the legitimate rights of both
Palestinians and Israelis and by the commitment to reach a "historic
reconciliation through the agreed political process,"148 the Israel-PLO agreements
have created a framework in which the legitimate aspirations of both sides can
be realized by a negotiated settlement.
On the basis of this agreed framework, the Palestinians have already acquired a
significant degree of self-determination. As a result of bilateral
negotiations, dramatic changes have taken place in the situation of
Palestinians in the West Bank and Gaza Strip. Indeed, over 97 percent of these
Palestinians now find themselves under the authority of the Palestinian
Council, which they themselves have elected.
The D.O.P. framework also addresses Israel's legitimate rights by allowing it
to ensure that the realization of Palestinian aspirations takes a form which is
compatible with Israel's fundamental interests. Through the agreed process of
negotiation, Israel is able to guarantee that its sovereign rights to secure
and recognized boundaries, to territorial integrity, and to security from the
threat and use of force are protected.
Israel's right to live in peace and security is, of course, a fundamental right
granted by international law to every sovereign state. But it is also a right
which is specifically guaranteed in the Israel-PLO agreements. Under those
agreements, the Palestinians recognized Israel's right "to exist in peace and
security"149 and accepted, as the basis for permanent settlement, the principles
of Security Council Resolutions 242 and 338 which provide for the right of
every existing state in the region to secure and recognized boundaries.150 In
accordance with these commitments and with the principles of self-determination
outlined above, the Palestinian right to self-determination can only be
realized by negotiation and can only take a form which would not endanger
Israel's basic rights as a sovereign state.
The peace process is concerned with the legitimate rights of both sides rather
than the unilateral demands of one. Accordingly, the right to statehood is not
mentioned anywhere in the Israel-PLO agreements. Similarly, Security Council
Resolutions 242 and 338, upon which a permanent settlement is to be based, make
no mention of the Palestinian claim to statehood.151
The peace process is not only about the rights of the Palestinians. It is about
balancing the conflicting rights of both Israelis and Palestinians. Neither
side is entitled, either under the agreements or in the name of
self-determination, to pursue these rights unilaterally outside of the agreed
negotiating framework.
Israel-PLO agreements leave all permanent status options open. Indeed, in the
context of the Camp David negotiations the establishment of a recognized and
viable Palestinian state was directly addressed. However, the final status of
the Palestinian entity can only be resolved by negotiation, and by an agreement
mutually acceptable to both sides. Any Palestinian attempt to circumvent the
negotiating process and disregard Israel's legitimate rights would not only
undermine any chance for a lasting peace settlement, it would also be
inconsistent with the principle of self-determination.
Conclusion
The Palestinian entity does not satisfy the additional criteria for statehood.
Its current claim to statehood would be based on an unlawful unilateral act,
giving rise to a legal duty of non-recognition. Moreover, its willingness and
capacity to comply with international law and its viability as an independent
state are subject to doubt. Only a Palestinian entity which is created by a
process of negotiation, and which takes into account the legitimate rights and
interests of all parties, accords with international legal principles and could
be recognized by the international community.
Other Legal and Policy Considerations
Non-Recognition on Other Grounds
While recognition cannot be granted unless the criteria for statehood are met,
states will regularly withhold it for reasons of policy or law unrelated to
those criteria. This is because international law regards the legal
requirements for statehood as necessary prerequisites for recognition, but does
not view their fulfillment as giving rise to a duty to recognize.
Jurists such as Blix,152 De Visscher,153 Hackworth,154 Kunz,155 and Schwarzenberger156 have
thus affirmed that, in this respect, recognition is a discretionary act which
is subject to the policy considerations of each state.157 The United States has
taken a similar view by proclaiming that "international law does not require a
state to recognize another entity as a state; it is a matter for the judgment
of each state whether an entity merits recognition as a state."158 Moreover,
states, in exercising this discretion, may decide to make the grant of
recognition conditional or may confer a recognition which is limited either
functionally, territorially, or in some other way.
Accordingly, even if the Palestinian entity were to satisfy the classical and
the additional legal criteria for statehood, this would not give rise to a
right to be recognized as a sovereign state. For even if the legal requirements
were met, the decision whether to grant or withhold recognition would remain at
the discretion of each state.
In deciding whether to afford recognition in such a scenario, each state would
need to consider not only whether the Palestinian entity fulfilled the criteria
for statehood, but also whether, in the circumstances of the case, recognition
would be compatible with considerations of national and international policy.
Some of the issues which need to be addressed in reaching this decision are
discussed below.
Does Recognition of the Palestinian Entity Represent a Dangerous Precedent?
What message would the international community be sending by recognizing a
unilaterally declared Palestinian state? Would recognition of a Palestinian
state benefit or harm regional and international stability? Would it enhance or
endanger the prospects of peace?
These are questions which each state will have to consider when deciding
whether or not to grant legitimacy to a unilateral Palestinian declaration of
statehood. In this context, it is worth considering what kind of precedent
recognition would serve. Several factors should be taken into account in this
regard.
First, recognition of a unilaterally declared Palestinian state sends a clear
message to all ethnic communities with claims for independence that they can
accomplish their goals by unilateral measures without the need for genuine
negotiations. It suggests that any ethnic group is entitled to disregard the
concerns of other states and nations and unilaterally assert its claim to
independence.
Second, such recognition will encourage other states to avoid granting minority
or autonomy rights to ethnic groups resident in their midst for fear that these
rights will be used as a basis for a unilateral claim for independent
statehood. States involved in ethnic conflict will thus be inclined to avoid
negotiations with ethnic groups and deny them even limited rights so as to
prevent international approval of subsequent claims for independence made
outside of the negotiating process.
Third, by granting recognition to the Palestinian entity, the international
community would indicate that it is willing to recognize as a sovereign state
an entity which clearly lacks the traditional criteria for statehood, which was
established as the result of an unlawful act, and which has rejected
negotiation as a means of conflict resolution.
Recognition of the unilateral Palestinian declaration would reward the
Palestinian Authority for violating the Israel-PLO agreements, a framework
which they committed themselves to in order to resolve the Israeli-Palestinian
conflict. In an era where ethnic conflicts are prevalent throughout the globe,
it sends exactly the wrong message -- rejecting negotiations and legitimizing
unilateral actions.
Would Recognition Cause Serious Harm to the Peace Process?
With the establishment of the current peace process, Israelis and Palestinians
were able to agree for the first time on a formula for the resolution of the
conflict. The documents signed under the D.O.P. framework affirm that this
formula consists of two essential elements. The first is the need to
accommodate the legitimate rights of both sides. The second is a recognition
that this accommodation can only be achieved in the context of good faith
bilateral negotiations and not by unilateral actions.
A Palestinian unilateral declaration of statehood would fundamentally undermine
both of these principles. By seeking to establish a Palestinian state outside
of the negotiating process, the Palestinians would be attempting to establish
facts on the ground in a way that damages the very foundations of the peace
framework.
This damage could be minimized if the international community were to make
clear that it would refrain from recognizing a unilaterally declared
Palestinian "state" and demand instead that the Palestinians resolve
outstanding issues through negotiation. The alternative would cause irreparable
harm to the peace process. By affording legitimacy to a unilateral Palestinian
declaration, the international community would signal the end of the current
peace process, creating a volatile environment in which neither side would rely
on negotiations in order to ensure that its legitimate concerns and interests
were guaranteed.
Particularly at this sensitive and fragile stage of the peace process, the
international community must take a stand against unilateral actions which seek
to alter the legal status of the West Bank and Gaza Strip. Support for a
unilateral Palestinian declaration of statehood would endanger the negotiating
framework established by the Israel-PLO agreements and jeopardize the prospects
for reaching a just and lasting settlement.
Would Recognition have a Detrimental Effect on the Stability of the Region?
The Israel-PLO agreements stipulate that a permanent settlement of the
Israeli-Palestinian conflict should be based on Security Council Resolutions
242 and 338.159 These resolutions affirm that a comprehensive peace can only be
achieved if the existing states of the region are guaranteed secure and
recognized boundaries.160 Indeed, without assurances of lasting stability in which
each existing state's right to territorial integrity and political independence
is protected, there is no hope of a meaningful peace settlement.
But improper recognition of the Palestinian entity as a sovereign state would
result in exactly the kind of instability that the Security Council resolutions
and the Israel-PLO agreements were designed to prevent. By recognizing the
emergence of a second sovereign state between the Mediterranean Sea and the
Jordan River without a negotiated agreement which ensures that its borders are
not threatening and that its regime is stable, the international community is
sowing the seeds of future conflict in the region.
Israel's right to secure and recognized boundaries, to the safety of its
civilians, and to its territorial integrity are a natural function of its
existence as a sovereign state. But, in addition, these are rights which have
been explicitly recognized in Security Resolutions 242 and 338, which form the
cornerstone of the Israel-PLO accords. They are rights which Palestinians have
repeatedly recognized and committed themselves to. In the exchange of letters,
in the D.O.P., and in countless provisions of the Interim Agreement, the
Palestinian side recognized Israel's right "to exist in peace and security"161 and
took upon itself obligations which were intended to ensure that Israel's
security would not be endangered by enhanced Palestinian autonomy. Indeed,
recognition of a unilaterally declared Palestinian state could constitute a
grave threat not only to Israel but to neighboring states as well. Such
recognition, in the absence of comprehensive settlement of all the issues which
lie at the core of the Palestinian-Israeli conflict, would, in all likelihood,
result in uncertainty and instability in the region.
Moreover, support for a unilateral declaration would be tantamount to an
endorsement of a measure which represents a rejection of the peace process.
Such a declaration, particularly if accompanied by unilateral steps to forcibly
assert Palestinian sovereignty, would severely undermine, and possibly derail,
the complex network of existing bilateral understandings and agreements which
regulate affairs in virtually every sphere of daily life. The ensuing confusion
and uncertainty would jeopardize basic economic, civilian, and security
relations to the extent that violence and bloodshed would become a genuine risk.
The international community should refuse to recognize a unilaterally declared
Palestinian state because such an entity poses a significant threat to the
stability and security of the region. In so doing, the international community
would be fulfilling its fundamental obligation of maintaining international
peace and security. Concerns regarding regional peace and security motivated
the international community to withhold recognition from the former republics
of Yugoslavia and the Soviet Union until there were guarantees of stability.
These same concerns should lead to a refusal to recognize a unilaterally
declared Palestinian state and to demand that the future status of the
Palestinian entity be resolved by negotiation.
Conclusion
Even if the traditional and additional criteria for statehood were satisfied by
the Palestinian entity, states would still have discretion as to whether or not
to recognize that entity as a sovereign state. In the exercise of that
discretion, states would need to consider the policy implications of
recognizing a unilaterally declared Palestinian state.
In weighing such considerations, states must not ignore the fact that
recognition of a Palestinian state in the present conditions and in the absence
of a negotiated permanent status agreement would have grave consequences. It
would constitute a dangerous precedent for the resolution of other ethnic
conflicts throughout the globe. It would cause severe and possibly irreparable
harm to the Israeli-Palestinian peace process. Finally, such recognition would
present a serious threat to the stability of the entire region.
Conclusion: Should the Palestinian Entity
be Recognized as a Sovereign State?
The Palestinian entity does not become a sovereign state under international
law by a unilateral declaration to that effect.162 For it to be eligible for
recognition, the Palestinian entity must satisfy a specific set of legal
criteria. There is, however, clear evidence that the Palestinian entity lacks
the necessary attributes of statehood. As a result, its claim to independence
as a sovereign state cannot be accepted by the international community.
The fact that the Palestinian entity does not qualify as a state is hardly
surprising. Under the Israel-PLO agreements, the parties agreed to create a
temporary Palestinian self-governing authority which functions as an autonomous
non-sovereign entity rather than as a sovereign state. The possibility of the
eventual emergence of a Palestinian state is not excluded, but it is
specifically reserved as an issue which can only be resolved in bilateral
permanent status negotiations.
As a purely legal matter, a Palestinian attempt to circumvent the agreed
negotiating process and unilaterally declare statehood would be an unlawful act
which would deprive their claim to statehood of validity. Indeed, this
declaration would give rise to a legal duty not to recognize the Palestinian
entity as a sovereign state even if it fulfilled the other criteria for
statehood.
But there is another dimension to the Palestinian threat to unilaterally
declare statehood. Such an act undermines the very foundations of the peace
process which are based on the principle that only by the process of
negotiation can the legitimate interests of both parties be addressed in an
equitable and lasting way. In so doing, a unilateral declaration of statehood
not only jeopardizes the prospects of reaching a just and comprehensive peace,
it also risks plunging the region into yet another era of instability and
conflict. No one, least of all the Palestinians, can benefit from this
development.
In responding to a unilateral Palestinian declaration of statehood, the duty of
the international community is clear. It must refuse to recognize the
Palestinian entity as a sovereign state and call on the Palestinian leadership
to return to the negotiating table and comply with its obligations under the
continuing interim arrangements. This is not only the response that is mandated
by international law, it is also the only way to ensure that a genuine peace
can be achieved in the Middle East. Unilateral measures which disregard the
legitimate interests of others have never brought peace and stability. They
will not bring peace and stability now, not for Israel and not for the
Palestinians.