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About the Author


Tal Becker, B.A. LL.B (Hons.), LL.M, is an international lawyer and a member of the Israel Bar Association, working as an assistant legal adviser at the Ministry of Foreign Affairs. He is also a freelance lecturer on international law and the Middle East peace process, and has published several articles relating to the peace process including "Self-Determination in Perspective: Palestinian Claims to Statehood and the Relativity of the Right to Self-Determination," 32 Israel Law Review 301 (1998).


Notes

* The author would like to thank Daniel Taub for his assistance and guidance in the preparation of this paper.

  1. Interim Agreement on the West Bank and Gaza Strip, September 28, 1995, Isr.-PLO, 34 I.L.M. 455. See, e.g., the recent speech by Palestinian Authority Chairman Yasser Arafat at the United Nations Millennium Summit, September 6, 2000, referring to Palestinian statehood.
  2. It should be noted that in 1988, when the governing body of the PLO declared in Algiers that "Palestine" was an independent state, a large number of states refused to recognize that this declaration had any legal effect in light of the failure of the PLO to meet the accepted criteria for statehood, see 27 I.L.M. 1668 (1988); see also generally James L. Prince, "The International Legal Implications of the November 1988 Palestinian Declaration of Statehood," 25 Stan. J. Int'l L. 681 (1989). See also letters by state representatives of Australia, Canada, Spain (on behalf of the European Community), Norway, and the United States to the Director General of the WHO, declaring that the so-called Palestinian state did not conform with the criteria for statehood and was, therefore, not to be recognized, WHO Doc. A/42/INF.Doc/3, May 1989. Note also the decision of the U.S. Federal Court in 1991 where the PLO claim of sovereign immunity from suit on the basis of its declaration was rejected. The court found that the PLO satisfied none of the criteria for statehood, see Klinghoffer v. Achille Lauro, 937 F.2D 44, 47 (2nd Cir. 1991).
  3. Palestinian attempts to be accepted as a state in international organizations in violation of the Israel-PLO agreements have been repeatedly rejected. The refusal to accept applications for membership in such organizations as the International Telecommunications Union and the Inter-Parliamentary Union have been based, inter alia, on the fact that the Palestinian entity is ineligible for membership as a sovereign state.
  4. Hans Kelsen, Principles of International Law 270 (1976); see also P.K. Menon, The Law of Recognition in International Law: Basic Principles 28 (1994) who states that "most authorities agree that before recognition can be granted, the community must possess certain essential characteristics of a state"; J.G. Starke, Introduction to International Law 127 (1984).
  5. H. Lauterpacht, Recognition in International Law 9 (1947); see also id. at 6 where Lauterpacht states that "to recognize a political community as a State is to declare that it fulfills the conditions of statehood as required by international law."
  6. James Crawford, The Creation of States in International Law 48 (1979); see also Gerhard von Glahn, Law Among Nations 62 (4th ed., 1981), who states that: "unless a group of people possessing territory and governmental institutions also possess independence that is, the ability to regulate its internal affairs without outside interference or control that group cannot claim to be a state. This necessary ingredient, independence, must be as absolute as the modern legal order of the world permits it to be."
  7. Island of Palmas Case (Netherlands v. U.S.) 2 R.I.A.A. 829, 838 (1928). Similarly, Judge Anzilotti, in the Austro-German Customs Union Case, characterized independence as "the normal condition of States according to international law; it may also be described as sovereignty, by which it is meant that the State has over it no other authority than that of international law," Austro-German Customs Union Case, P.C.I.J. Series A/B No. 41, at 57-58 (1931).
  8. Rosalyn Higgins, The Development of International Law Through the Political Organs of the United Nations 25 (1963). She goes on to say that "independence is an indispensable element in the notion of statehood under international law."
  9. These criteria are listed in the Montevideo Convention on the Rights and Duties of States, December 26, 1933, 165 L.N.T.S. 19, which is generally regarded as reflective of customary international law; see Crawford, supra note 6, at 36; see also Menon, supra note 4, at 28.
  10. Crawford, supra note 6, at 42.
  11. 1 Oppenheim's International Law 120 (R. Jennings and A. Watts, eds., 9th ed., 1992).
  12. Karl Doehring, "State," in 10 Encyclopedia of Public International Law 423, 424 (R. Bernhardt, ed., 1981).
  13. Von Glahn, supra note 6, at 62. See also Nii Lante Wallace-Bruce, Claims to Statehood in International Law 54 (1994), who states that what is required is "a coherent system of authority regulating all aspects of life within the territory under that government's control." Similarly, in 1936, the Institut de Droit International adopted a resolution which affirmed that, in order to be recognized, a new state must be "independent of any other existing state," see Institut de Droit International, Resolution Concerning the Recognition of New States and Governments, Article 1, reprinted in 30 Am. J. Int'l L. Supp. 185 (1936) [hereinafter Resolution of the Institut de Droit International].
  14. Austro-German Customs Union Case, supra note 7, at 45. The court was considering the continued independence of Austria, required by Article 88 of the Treaty of St.-Germain (1919), which had been endangered by a proposed customs union agreement between Germany and Austria.
  15. Following Japan's conquest of Manchuria in 1931, it proclaimed Manchukuo an independent state in that territory. However, Manchukuo was denied recognition as a sovereign state by the international community, inter alia, on the basis that it was, in effect, subject to Japanese military occupation and domination and thus lacked independent governmental control, see Report of the Commission of Enquiry, League of Nations Publications no. VII.A.12 (1932); see also Lauterpacht, supra note 5, at 47; Higgins, supra note 8, at 27.
  16. In July 1960, Katanga declared itself to be a sovereign state independent of the Republic of Congo. Katanga was not recognized by any state and in Security Council Resolution S/5002 (1961) the Security Council completely rejected "the claim that Katanga is a sovereign and independent nation." See also John Dugard, Recognition and the United Nations 86-90 (1987).
  17. Biafra's status as a separate state independent of Nigeria, which was proclaimed in 1967, was not recognized by the overwhelming majority of states, in part, because at no time during the conflict had Biafra successfully and permanently established an effective sovereign government; see generally, David A. Iljaye, "Was 'Biafra' At Any Time a State in International Law," 65 Am. J. Int'l L. 551 (1971).
  18. Mongolia's application for admission into the UN was significantly delayed because a majority of members of the UN Committee on Admissions were of the view that its status as an independent state could not be established; see Higgins, supra note 8, at 28-29; see also United Nations Yearbook 200-201 (1960).
  19. Doubts were expressed regarding the independent governmental control of Ceylon in light of its mutual defense arrangements with Britain, the former colonial power; see Repertoire of Practice of the Security Council, 272-273 (1946-1951).
  20. Thus, for example, Britain declared in 1958 that: "Her Majesty's government does not consider that the so-called German Democratic Republic has the characteristics of an independent state. It has been created and artificially maintained by the Soviet Government," 588 H.C. Debates (5th Ser.) col. 876 (May 19, 1958). See generally, M. Whiteman, 2 Digest of International Law 379-390 (1963).
  21. Crawford, supra note 6, at 48-49.
  22. Thus, for example, Abu Ala, Speaker of the Palestinian Legislative Council, alleged that the Palestinian Authority's institutions constitute the skeletal governmental structure of a sovereign Palestinian state; see Abu Ala, "The Fourth of May 1999 and the Political and Legal Dimensions of the Palestinian Declaration of Statehood," Alhiat Aljadeeda (December, 28, 1998) (Arabic).
  23. Declaration of Principles on Interim Self-Government Arrangements, September 13, 1993, Isr.-PLO, 32 I.L.M. 1525 [hereinafter D.O.P.].
  24. Id., Article 1.
  25. In accordance with the Hague Regulations Respecting the Laws and Customs of War on Land (1907), Israel established a separate military government to administer the territories which came under its control during the 1967 Six-Day War.
  26. Section B of the Agreed Minutes, referring to Article VII(5) of the D.O.P., explained that "the withdrawal of the military government will not prevent Israel from exercising the powers and responsibilities not transferred to the Council."
  27. "The withdrawal of the military government shall not prevent it from exercising the powers and responsibilities not transferred to the Council."
  28. "[T]he jurisdiction of the Council will cover West Bank and Gaza Strip territory as a single territorial unit, except for:...powers and responsibilities not transferred to the Council."
  29. "Israel, through its military government, has the authority over areas that are not under the territorial jurisdiction of the Council, powers and responsibilities not transferred to the Council and Israelis. To this end, the Israeli military government shall retain the necessary legislative, judicial and executive powers and responsibilities, in accordance with international law."
  30. "The two parties view the West Bank and the Gaza Strip as a single territorial unit, the integrity and status of which will be preserved during the interim period." This article affirms that the legal status of these territories as subject to Israeli military administration is not altered by the transfer of limited powers to the Palestinian Authority.
  31. The Interim Agreement specifically provides that the jurisdiction of the Council will not cover "issues that will be negotiated in the permanent status negotiations: Jerusalem, settlements, specified military locations, Palestinian refugees, borders, foreign relations and Israelis"; Interim Agreement, Article XVII(1)(a).
  32. "Nothing in this Agreement shall prejudice or preempt the outcome of the negotiations on the permanent status to be conducted pursuant to the D.O.P. Neither Party shall be deemed, by virtue of having entered into this Agreement, to have renounced or waived any of its existing rights, claims or positions."
  33. Such powers and responsibilities include the capacity to engage in foreign relations which is specifically not transferred by the agreements to the Palestinian Authority. As this sphere of authority is considered a separate criterion of statehood it is discussed separately below.
  34. See also Annex II of the Agreed Minutes to the D.O.P. stating that "It is understood that , subsequent to the Israeli withdrawal, Israel will continue to be responsible for external security."
  35. See also Article VIII of the Security Annex.
  36. See Hurst Hannum and Richard Lillich, "The Concept of Autonomy in International Law," 74 Am. J. Int'l L. 858, at 872 (1980): "There is an overwhelming consensus that responsibility for and authority over national defense matters rest with the central or sovereign government and that, in general, the autonomous non-sovereign entity exercises no power in the national defense area."
  37. See D.O.P., Article VIII: "Israel will continue to carry...the responsibility for overall security of Israelis"; see also Interim Agreement, Article X(4), Article XII, Article XIII(2)(a). Accordingly, the Security Annex to the Interim Agreement provides, inter alia, that "Israelis shall under no circumstances be apprehended or placed in custody or prison by Palestinian authorities"; "vehicles bearing Israeli license plates shall not be stopped except for identification, which shall be conducted by a joint patrol"; "...Israeli military forces, and vehicles of the Israeli military forces, shall not be stopped by the Palestinian Police in any circumstances, and shall not be subject to any identification requirements"; see generally, Article XI(4) of the Security Annex.
  38. Interim Agreement, Article XVII(2)(c). Note that, pursuant to Article I of the Legal Annex to the Interim Agreement, the Palestinian Council's criminal jurisdiction is limited with respect to tourists in transit to or from Israel through West Bank or Gaza Strip territory. In addition, Israel has criminal jurisdiction over non-Israelis who are suspected of having committed an offense in Palestinian-controlled territory against Israel or an Israeli. It should also be noted that the Palestinian courts and judicial authorities are given limited civil jurisdiction when an Israeli is a party to an action in relation to specific disputes only. Moreover, where an Israeli is a defendant in an action, the Palestinian court will have no jurisdiction unless the Israeli has consented to it in writing. See Interim Agreement, Legal Annex, Article III(2).
  39. Interim Agreement, Article XVII(1)(a).
  40. Chicago Convention on International Civil Aviation 15 U.N.T.S. 295 (1944).
  41. This principle was recognized by the International Court of Justice as reflecting customary international law; see Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. U.S.) 1986 I.C.J. 14, at 111 (June 27).
  42. Interim Agreement, Article XVII(2)(a) specifies that the territorial jurisdiction of the Palestinian Council includes only land, subsoil, and territorial waters.
  43. See, e.g., J. Brierly, The Law of Nations 276 (6th ed. 1963); Hans Kelsen, Principles of International Law 372-373 (2nd ed. 1966); J. Starke, An Introduction to International Law 345 (1972). See also the U.S. Supreme Court decision in Nishimura Ekiu v. United States, 142 U.S. 651, 659 (1892) where the Court stated that: "It is an accepted maxim of international law, that every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe." See also Kleindeist v. Mandel, 408 U.S. 753 (1972).
  44. Pursuant to Article 28(11) of Appendix 1 to the Civil Annex of the Interim Agreement, permanent residency can only be granted to investors, the spouse and children of Palestinian residents and other persons for the purpose of promoting family unification. The Palestinian Authority has no general powers to confer permanent residency status.
  45. Interim Agreement, Civil Affairs Annex, Appendix 1, Article 28(13).
  46. Interim Agreement, Security Annex, Article VIII(3)(f): "In the Palestinian wing each side will have the authority to deny the entry of persons who are not residents of the West Bank and the Gaza Strip."
  47. See supra notes 37-39, and accompanying text.
  48. See generally, Interim Agreement, Security Annex, Article XIV. In accordance with this provision, Israel is responsible for safety and security on the sea coast off Gaza. The coastal sea is divided into three Maritime Activity Zones, K, L, and M. In zones K and M, navigation is restricted to the Israeli Navy; see Article XIV(1)(a)(1). Zone L, is open for restricted fishing, recreation, and economic activities. Israel's responsibilities include the right to "take any measures necessary against vessels suspected of being used for terrorist activities or for smuggling arms, ammunition, drugs, goods, or for any other illegal activity"; see Article XIV(1)(b)(4).
  49. See, e.g., Interim Agreement, Security Annex, Article VIII(2)(b)(1), "Israel will have the responsibility for security throughout the passage, including for the terminal." Moreover, an Israeli director-general is responsible for the management and security of the border terminals; see id., Article VIII(2)(b)(2); see also Interim Agreement, Security Annex, Appendix 5, Section C(1).
  50. Interim Agreement, Security Annex, Article V(7).
  51. Interim Agreement, Article XIII(2)(a); see also Interim Agreement, Security Annex, Article V(3).
  52. Interim Agreement, Security Annex, Article VI(4)(c).
  53. Interim Agreement, Security Annex, Article VI(4)(a).
  54. See Interim Agreement, Security Annex, Article III(4) and (5) regarding the general function of joint patrols and joint mobile units; see Articles V(4) and (5) regarding their mandate in the West Bank, and Articles VI(7), (8) and (9) regarding their mandate in the Gaza Strip.
  55. Thus, for example, Israeli-Palestinian cooperation is required, inter alia, in the following fields in accordance with Appendix 1 of the Civil Affairs Annex: Agriculture (Article 1(4)), Archaeology (Article 2(4)), Banking and Monetary Issues (Article 4(4)), Electricity (Article 10), Employment (Article 11(5)), Environmental Protection (Article 12(B)), Forests (Article 14), Gas, Fuel and Petroleum (Article 15(6)), Health (Article 17), Insurance (Article 19(4)), Natural Reserves (Article 25(4)), Population Registry and Documentation (Article 28), Postal Services (Article 29), Public Works and Housing (Article 30), Quarries and Mines (Article 31(3)), Social Welfare (Article 33(3)), Statistics (Article 34(3)), Telecommunications (Article 36), Tourism (Article 37(4)), Transportation (Article 38), and Water and Sewage (Article 40).
  56. Over 30 joint Israeli-Palestinian committees have been established to coordinate administration in areas such as security, telecommunications, water, electricity, incitement, agriculture, and economic affairs.
  57. See generally, Interim Agreement, Security Annex, Article IV; see also Note for the Record, attached to the Protocol Concerning the Redeployment in Hebron, Isr.-PLO, January 15, 1997; Wye River Memorandum, Article II(c)(1), Isr.-PLO, October 23, 1998.
  58. The legal framework for Palestinian economic policy is detailed in Annex V of the Interim Agreement, and includes: powers over import and customs policy with regard to a restricted list of goods only (Article III(2) and (10)), the presence of Israeli customs officials at customs points (Article III(14)), the acceptance of the New Israeli Sheqel as a circulating official currency (Article IV(10)), and various restrictions with respect to the transport of livestock (Article VIII) and in the insurance field (Article XI).
  59. Interim Agreement, Security Annex, Article XIV.
  60. See, e.g., Abu Ala, supra note 22. See also Nabil Sha'ath, Lecture to the Hungarian Institute of Foreign Relations, February 2, 1999, stating that "no one other than the Palestinians can claim sovereignty to the West Bank and Gaza Strip."
  61. Menon, supra note 4, at 33.
  62. Crawford, supra note 6, at 396. The need for title is also implied in Article 1 of the Montevideo Convention where a state is required to possess a defined territory. See also Lauterpacht, supra note 5, at 30, who stipulates that the possession of territory is "a regular requirement of statehood"; see also Doehring, supra note 12, at 426, declaring that the state must possess "sovereignty inside its territory."
  63. H. Blix, "Contemporary Aspects of Recognition," 130 Recueil Des Cours 589, at 633 (1970).
  64. States refused to recognize Manchukuo as a sovereign state, in part, on the basis that it lacked legitimate title since possession of the territory was the result of an illegal invasion by Japan; see Crawford, supra note 6, at 59.
  65. The Turkish Republic of Northern Cyprus has been denied recognition by all states other than Turkey, inter alia, since its territory is considered a part of the sovereign territory of the Republic of Cyprus; see infra note 113.
  66. See, e.g., Henry Cattan, Palestine and International Law 112-121 (1973). See also generally, Seminar of Arab Jurists on Palestine, Algiers, July 22-27 (1967).
  67. 1 Hudson Int'l Legn. 109 (1922). The Palestine Mandate incorporated the Balfour Declaration of 1917 and recognized the right of the Jewish people to "reconstitute their national home" in Palestine. Under Article 2 of the Mandate, the Mandatory power was made responsible for ensuring the "establishment of the Jewish national home."
  68. G.A. Res. 181(II) (1947).
  69. The Algiers Declaration of 1988, for example, refers to Resolution 181 as ensuring "the right of Palestinian Arab people to sovereignty"; see supra note 2. See also Abu Ala, supra note 22, who refers to Resolution 181 as the legal basis for the claim that the territory in question is Palestinian.
  70. The Council of the League of Nations approved the validity of the Mandate on July 24, 1922; see U.N.S.C.O.P., Report to the General Assembly, 1 UN G.A.O.R., 2nd Sess., Supp. no. 11, at para. 180.
  71. See generally, the Mavrommatis Palestine Concessions Case, (Greece v. U.K.) 1924 P.C.I.J. (ser. A) no. 2. See also N. Feinberg, Studies in International Law 456 (1970), discussing the affirmation of the Mandate's validity by the Permanent Mandates Commission and U.N.C.I.O.
  72. U.N.S.C.O.P., supra note 70, at para. 163.
  73. Id. at para. 179.
  74. See Statements of Arab League Representatives, 2 U.N. G.A.O.R. 1425-1427 (1947).
  75. "The Palestinian National Charter," 1968, reprinted in, The Israel-Arab Reader 218 (W. Laquer and B. Rubin eds., 5th ed., 1995).
  76. Henry Cattan, Palestine, the Arabs and Israel 265 (1969).
  77. Seminar of Arab Jurists on Palestine, Algiers, July 22-27, at 311 (1967).
  78. Indeed, in its 1948 Declaration of Independence, Israel expressed its willingness to cooperate in the implementation of the resolution.
  79. Trygvie Lie, In the Cause of Peace: Seven Years with the United Nations 174 (1954).
  80. S.C. Res. 242 (1967).
  81. S.C. Res. 338 (1973).
  82. Both the letters of invitation to the Madrid Peace Conference of 1991 and the Israel-PLO agreements expressly refer to Resolutions 242 and 338 as the basis for a permanent settlement. Thus, for example, Article 1 of the D.O.P. provides that the transitional period will lead to a "permanent settlement based on Security Council Resolutions 242 and 338." By contrast, Resolution 181 has never been part of the agreed foundation for the Israeli-Palestinian peace process.
  83. Island of Palmas Case, supra note 7, at 839.
  84. Article XXXI(7) of the Interim Agreement provides that: "Neither side shall initiate or take any step that will change the status of the West Bank and Gaza Strip pending the outcome of the permanent status negotiations."
  85. This provision stipulates that the status of the West Bank and Gaza Strip "will be preserved during the interim period." Note also Article XXXI(6) which provides that the Interim Agreement does not prejudice the outcome of permanent status negotiations, clearly suggesting that the parties recognized that the status of these territories is not yet resolved.
  86. Ian Brownlie, Principles of Public International Law 119 (1990); see also Blix, supra note 63, at 632.
  87. This provision defines the territorial jurisdiction of the Palestinian Authority without reference to airspace which is an integral part of a state's sovereign territory.
  88. This article specifically provides that control over the airspace is retained by Israel; see supra notes 41-42 and accompanying text.
  89. Brownlie, supra note 86, at 119.
  90. See, e.g., Crawford, supra note 6, at 36; Lauterpacht, supra note 5, at 30; see also North Sea Continental Shelf Cases, 1969 I.C.J. 3, 32.
  91. Lauterpacht, supra note 5, at 30.
  92. Deutsche Continental Gas Gesellschaft v. Polish State (1929) A.D. No. 5, 14-15.
  93. Lauterpacht, supra note 5, at 30.
  94. Hansard, H.C., Vol. 105, col. 100. November 12, 1986.
  95. For example, pursuant to Article IV of the Civil Affairs Annex, civil powers not related to territory were transferred to the Palestinian Authority even though Area C is clearly not under general Palestinian jurisdiction and control.
  96. Thus, powers transferred to the Palestinian authority vary in Area A, Area B, and the Gaza Strip. See, e.g., the differences in security powers in each area as provided for in the Security Annex (Article V(2) for Area A, Article V(3) for Area B, and Article VI for Gaza).
  97. See, e.g., Article V(3) of the D.O.P. where the issue of borders is specifically reserved for final status talks.
  98. Crawford, supra note 6, at 47. See also Menon, supra note 4, at 37; see also D. J. Harris, Cases and Materials in International Law 107 (4th ed., 1991).
  99. The study on autonomies conducted on behalf of the U.S. Department of State, referred to above, revealed that a regular characteristic of an autonomy is either the lack of jurisdiction or a very limited capacity in the foreign relations sphere; see Hannum and Lillich, supra note 36, at 872.
  100. Autonomies are regularly granted a degree of foreign relations power that is limited to economic, cultural, and social matters. Under the Danish statute granting autonomy to Greenland, for instance, Greenland may, with Denmark's permission, participate in negotiations relating to international agreements with "special importance for Greenland's commercial life"; see Section 16, The Greenland Home Rule Act, Act No. 577, November 29, 1978. Similarly, in the Charter for the Kingdom of the Netherlands, the consent of the Netherland Antilles is required before the central Dutch government can enter into or denounce an economic or financial agreement that would bind the autonomous entity; see Charter for the Kingdom of the Netherlands, Articles 24(1), 26 and 27 (1958). See generally, Hannum and Lillich, supra note 36.
  101. Indeed, the fact that the PLO, the signatory to the various agreements with Israel, exercises its authority for the benefit of the Palestinian Council rather than on its behalf, further illustrates that what is at issue is not a power of the Palestinian Authority which is exercised by the PLO as its agent, but the PLO acting in its own capacity for the Palestinian Authority's benefit.
  102. American Law Institute, 1 Third Restatement of the Foreign Relation Law of the United States 201 (1986).
  103. Klinghoffer v. S.N.C. Achille Lauro, supra note 2, at 48.
  104. See generally, European Community: Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union, December 16, 1991, 31 I.L.M. 1486.
  105. Lauterpacht, supra note 5, at 409-410; he goes on to say that "a state cannot come into existence contrary to a treaty," id. at 420.
  106. Crawford, supra note 6, at 83-84; Dugard, supra note 16; Wallace-Bruce, supra note 13, at 66.
  107. Wallace-Bruce, supra note 13, at 66; he goes on to say that: "if an entity emerges onto the international scene through acts which are illegal under international law, no matter how effective it might be, its claim to statehood could not be maintained. It is an illegitimate child which cannot be clothed with legitimacy by the international community. The effect is that the claimant fails this new test of international legality and so its claim should be denied."
  108. American Law Institute, 1 Second Restatement of the Foreign Relation Law of the United States 202 (1981); see also Dugard, supra note 16, at 127-162 on the development of the principle of non-recognition; Lauterpacht, supra note 5, at 409-435.
  109. Lauterpacht, supra note 5, at 431.
  110. By a note of February 16, 1932, to Japan, the Council of the League of Nations stated that it would refuse to recognize as valid any situation brought about in violation of the League Covenant; see League of Nations, Official Journal 393 (1932). This was followed by a Resolution of the League Assembly on March 11, 1932, declaring that "it is incumbent upon the members of the League of Nations not to recognize any situation, treaty or agreement which may be brought about by means contrary to the Covenant of the League of Nations or the Pact of Paris"; see League of Nations Official Journal, Special Suppl. No. 101, at 8.
  111. The refusal to recognize the Turkish Republic of Northern Cyprus by the international community has been based primarily on three grounds: First, that it was established as a consequence of an illegal use of force by Turkey. Second, that the creation of the Republic is a violation of the 1960 Treaty of Guarantee which prohibits partition of the island. Third, because whatever the self-determination rights of the Turkish Cypriot community, they do not amount to a right to independent statehood. See generally, Dugard, supra note 16, at 108-111; see also Security Council Resolution 541 (1983).
  112. See, e.g., Security Council Resolution 277 (1970) by which the Security Council, acting under Chapter VII of the Charter, called on all states not to recognize the "illegal regime." See generally, Wallace-Bruce, supra note 13, at 79-87. It is important to note that the duty not to recognize Rhodesia was complied with by all states, even though it was widely accepted that Rhodesia satisfied the traditional criteria for statehood; see Dugard, supra note 16, at 91; L. Henkin, O. Schachter and H. Smit, International Law: Cases and Materials 239-240 (2nd ed., 1987).
  113. For example, the Palestinian Observer to the United Nations stated recently that: "If any actions were taken after the end of the transitional period, then they could not be not inconsistent with those [Israel-PLO agreement] provisions"; see UN Press Release GA/Pal/797, April 8, 1999, [hereinafter Palestinian Observer Statement].
  114. See also infra note 82.
  115. Peace Watch, Special Policy Forum Report, The Legal Implications of May 4, 1999, Address by Nicholas Rostow, April 9, 1999.
  116. The invitation to the Madrid Peace Conference issued on October 18, 1991, affirmed that the possibility of a just and lasting peace settlement between Israel and the Palestinians was dependent on "direct negotiations." Moreover, in the Letter of Assurances sent to Israel by the United States, America stipulated its view that "the final settlement can only emerge from genuine and meaningful negotiations."
  117. The commitment relates to Gaza and Jericho only since, at the time, these were the only two areas where powers and responsibilities had been transferred to the Palestinian Authority.
  118. Interim Agreement, Preamble.
  119. D.O.P., Article 1.
  120. Thus, for example, in the preamble to the Interim Agreement the parties reaffirmed "their understanding that the interim self-government arrangements contained in this Agreement are an integral part of the whole peace process."
  121. Washington Institute for Near East Policy, Legal Implications of May 4, 1999, at 7 (1999).
  122. Id. at 9.
  123. See id. at 6 where Hansell states that: "Termination of the Oslo accords in their entirety presumably would also erase the multitude of rights acquired and duties incurred by the parties vis-a-vis each other under those agreements."
  124. Peace Watch, Address by Nicholas Rostow, supra note 115. See also Washington Institute for Near East Policy, supra note 121, at 16, where Rostow states that "many Oslo deadlines have been missed while the parties continued to negotiate and the peace process continued."
  125. Pursuant to Annex II of the D.O.P., the Agreement on the Gaza Strip and the Jericho Area was to be signed by December 13, 1993 (i.e., two months after the entry into force of the D.O.P.) and to be implemented by April 13, 1994 (i.e., four months after its signing). In practice, the agreement was signed on May 4, 1994 and implemented within a month of its signing.
  126. See Interim Agreement, Security Annex, Article VII(1)(b), which provides that redeployment from Hebron was to take place "not later than six months after the signing of this Agreement" (i.e., by March 28, 1996). In practice, the Hebron Protocol was signed in January 1997.
  127. Emphasis added. Indeed, when the Palestinian attitude to this date is compared with the flexible attitude adopted with respect to other dates in the agreements, which are not "goals" but fixed deadlines, the argument that September 13 signals the end of the Interim Agreement becomes somewhat ludicrous.
  128. As Nicholas Rostow, National Security Council legal adviser during the Reagan and Bush administrations, asserted, the Wye River Memorandum affirms the parties' intention "not to circumvent the process of negotiation, as a unilateral declaration of statehood would seem to do"; see Washington Institute for Near East Policy, supra note 121, at 18.
  129. D.O.P., Article V(2); see also Interim Agreement, Preamble.
  130. See generally, Whiteman, supra note 20, at 72-83; see also Hackworth, 1 Digest of International Law 176-179 (1940). For example, Liechtenstein was denied admission to the League of Nations in 1920 on the basis that it did "not appear to be in a position to carry out all the international obligations imposed by the Covenant," League of Nations, Official Journal, 1st Ass., 667 (1920). Note also Article 4(1) of the UN Charter which provides that in order to be eligible for membership states must show that they "accept the obligations contained in the present Charter and, in the judgment of the Organisation, are able and willing to carry out these obligations." The General Assembly, in Resolution 506A(VI) (1952), suggested, inter alia, as indicators of the satisfaction of this provision: maintenance of friendly relations, fulfillment of international obligations, and a willingness to utilize peaceful dispute settlement.
  131. Thus, the E.C. sought confirmation that the former republics would respect, inter alia, the UN Charter, the Helsinki Final Act, the inviolability of all frontiers, and the duty to settle disputes only by peaceful means; see European Community: Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union, supra note 106.
  132. 72 Am. J. Int'l L. 337 (1978).
  133. Christian Hillgruber, "The Admission of New States to the International Community," 9 Eur. J. Int'l L. 491, at 506. See also Resolution of the Institut de Droit International, supra note 13, which declared that in order to be recognized a state must be "capable of observing the obligations of international law."
  134. European Community: Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union, supra note 106.
  135. Note also UN Charter, Article 33 which formulates the general international legal duty imposed on the parties to a dispute to seek a solution by negotiation or by other agreed peaceful means.
  136. See Hillgruber, supra note 135, at 501 who argues that an entity without an entrenched constitutional structure and a developed and independent governmental system will not be able to guarantee compliance with international law.
  137. See, e.g., Amnesty International Report 2000 (www.amnesty.org) regarding human rights violations committed by the Palestinian Authority.
  138. Hansard, H.C., Vol. 105, W.A., col. 973, October 23, 1986.
  139. Blix, supra note 63, at 635.
  140. Menon, supra note 4, at 39; see also Hillgruber, supra note 135, at 502.
  141. Close cooperation exists in all 40 spheres of civilian control transferred to the Palestinian Authority; see supra note 55, and accompanying text.
  142. See, e.g., Palestinian Observer Statement, supra note 113.
  143. In its advisory opinions in the Namibia and Western Sahara cases, the international court affirmed only that self-determination applied to non-self-governing territories "under the aegis of the United Nations." See Advisory Opinion on Western Sahara (Morroco v. Spain), 1975 I.C.J. 12, at 54 (October 16); see also Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), 1971 I.C.J. 16 (Advisory Opinion of June 21).
  144. Malcolm N. Shaw, "The Heritage of States: The Principle of Uti Possidetis Juris Today," 67 Brit. Y. B. Int'l L. 75, 124 (1996). See also Rosalyn Higgins, Problems and Process: International Law and How We Use It 123 (1994); Hurst Hannum, Autonomy Sovereignty and Self-Determination 49 (1990); Thomas D. Musgrave, Self-Determination and National Minorities 104 (1997).
  145. Yugoslavia Arbitration Commission, Opinions on Questions Arising from the Dissolution of Yugoslavia, Opinion No. 2, January 11, 1992, 31 I.L.M. 1497.
  146. See supra note 113.
  147. See, e.g., S.C. Res. 1244 (1999), calling for "a substantial degree of autonomy, and meaningful self-administration" [emphasis added]. Note also Robert Caplan, "International Diplomacy and the Crisis in Kosovo," 74 Int'l Aff. 745, at 751 (1998), stating that "the international community has always made it very clear that it would not support an independent Kosovo."
  148. D.O.P., Preamble.
  149. Letter of Chairman Arafat to Prime Minister Rabin, September 9, 1993.
  150. See infra note 160, and accompanying text.
  151. This attitude is also reflected in the letter of assurances sent to Israel by the United States prior to the 1991 Madrid Peace Conference, in which the United States declared that it did "not support the establishment of an independent Palestinian state" as part of a permanent settlement to the conflict. Letter of Assurances, October 18, 1991.
  152. Blix, supra note 63, at 637, stating that "in the practice of States a large variety of other criteria are advanced, the fulfilment of which have been required for the according of recognition."
  153. De Visscher, Theory and Reality in Public International Law 228 (1957): "the recognition of a state has two aspects: objectively it takes note of the State's existence as a subject of international law; subjectively, it implies that the conditions under which the State established itself are not contrary to the rights or interests of the recognizing State. It is in this second aspect that recognition has political significance and is subject to the unfettered discretion of the government granting it."
  154. Hackworth, supra note 132, at 161, remarks that "whether and when recognition will be accorded is a matter within the discretion of the recognizing government."
  155. J. Kunz, "Critical Remarks in Lauterpacht's Recognition in International Law," 44 Am. J. Int'l L. 713 (1950): "there is no right to recognition by new states...nor is there a legal duty to recognize them."
  156. G. Schwarzenberger, A Manual of International Law 59 (1976): "international law does not...know of any duty to grant recognition to an entity."
  157. See also Resolution of the Institut de Droit International, supra note 13, which describes recognition as a "free act."
  158. See 72 Am. J. Int'l L. 337 (1978).
  159. See, e.g., D.O.P., Article 1; Interim Agreement, Preamble, where it is stated that the Israeli-Palestinian negotiations are to lead to "a permanent settlement based on Security Council Resolutions 242 and 338."
  160. Resolution 242 provides that the "establishment of a just and lasting peace in the Middle East" must include "respect for and acknowledgment of the sovereignty, territorial integrity and political independence of every state in the area and their right to live in peace within secure and recognized boundaries free from threats or acts of force."
  161. Letter from Chairman Arafat to Prime Minister Rabin, September 9, 1993.
  162. Oppenheim, for example, has affirmed that the practice of states "does not accept that the mere claim of a community to be an independent state automatically gives it a right to be so regarded"; see 1 Oppenheim's International, supra note 11, at 130.

Full Report

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