Palestinian Statehood under International Law
An Analysis and Discussion by John M. B. Balouziyeh, Esq.
General Assembly Resolution A/67/L.28 on the Status of Palestine at the United Nations was adopted on November 29, 2012 by a vote of 138 in favor to nine against and forty one abstentions. The Resolution, which has upgraded the status of the Palestinian Authority from a United Nations permanent observer entity to that of a non-member observer State, raises several questions under international law. For example, what place does the Resolution have in the creation of binding international law? Has Palestine been officially conferred statehood as a result of the Resolution? What rights does Resolution A/67/L.28 grant Palestine that Palestine did not previously hold? In response to these questions, this article will discuss the Resolution and its place in customary international law and general principles of law.
Resolutions issued by the General Assembly are not per se legally binding. The General Assembly, unlike the Security Council, only issues binding resolutions in the area of budgetary matters regarding the allotment and collection of dues. Therefore, the Resolution A/67/L.28 will have a largely symbolic effect without any real, immediate impact on the on-the-ground situation in Palestine.
However, while General Assembly resolutions are not legally binding on United Nations member States, they can contribute to the creation of binding international law. Resolutions of the General Assembly are a means through which States express their opinions about the status of international questions. A resolution that receives widespread support may therefore shape the content of customary international law, a source of international law. When a legal principle becomes customary international law, it becomes binding on States to the extent that they do not repeatedly and publicly announce opposition to the principle.
Moreover, the resolutions and declarations of international organizations, including the United Nations, may constitute opinio juris, one of the five sources of international law. While opinio juris is not itself a source of law, it serves as a “subsidiary means for the determination of rules of law” under article 38 of the Statute of the International Court of Justice.
Therefore, while Resolution a/67/l.28 is not itself binding, it may contribute to and shape the content of binding international law.
An overwhelming majority of 138 States (seventy three percent of those present) voted in favor of Resolution a/67/l.28, with nine against and forty one abstentions. The vote thus upgraded the Palestinian Authority’s status at the United Nations from a “permanent observer entity” to a “non-member observer State.” However, this upgrade in Palestine’s status at the United Nations does not necessarily equate full-fledged membership in the international community. The recognition of statehood is a rather complex area of international law subject to competing tests and theories.
There are two theories that provide guidance as to the legal recognition of an entity’s sovereignty in the international community: (i) the declarative theory; and (ii) the constitutive theory.
The declarative theory is the prevailing theory for the recognition of State sovereignty. It holds that an entity is recognized as a State when it satisfies the following objective criteria for Statehood, which were laid down in article 1 of the Montevideo Convention of on the Rights and Duties of States (1933): (i) permanent population; (ii) defined territory; (iii) effective government; and (iv) capacity to enter into relations with other States.
Palestine’s status as a “State” suffers several defects under the declarative theory test. First, Palestine’s territory is subject to much dispute, with some proponents of a Palestinian state arguing that Palestine encompasses the territory of the West Bank and Gaza Strip, and other advocates arguing that Palestine encompasses all of modern day Israel, which they contend is not a legitimate State. The question of a “defined territory” is thus subject to much dispute. Moreover, the Palestinian Authority does not have exclusive authority over any of the aforementioned territory: much of the West Bank is co-administered with Israel and the Gaza Strip is administered by Hamas.
The second issue that Palestine faces under the declarative theory is that of an effective government. In order to qualify as a State, an entity must have a government with effective control over the territory in question. There is currently no single entity that is in effective control of the whole territory of Palestine. The ruptures in the relationship between Hamas in the Gaza Strip and Fatah in the West Bank is the main reason many critics including the United States argue that there is no Palestinian government with consolidated control over all of Palestine’s territory.
If Palestine were unable to meet the elements of the declarative theory test, it may be able to turn to the constitutive theory of state recognition, which holds that an entity is a State when recognized as such by the international community. “Recognition” refers to the formal acknowledgement by other States that an entity is a State.
Under this theory, the General Assembly Resolution is highly relevant to the question of Palestinian statehood. The vote of 138 nations affirming Palestinian statehood reflects the voluntary and independent political decision of States that is critical to the constitutive theory test. Since the majority of the international community recognizes it as a State, Palestine may invoke the legal construct of the constitutive theory in its bid for statehood.
However, the constitutive theory is problematic in many respects. First, the theory is weakened by the problem that may arise when some but not all States recognize an entity as a State. What is to come of the nine nations that voted against Palestinian statehood and the forty one abstentions, constituting a total of twenty seven percent of General Assembly members that were present during the vote?
“Partial” statehood does not exist in the international legal order, and the constitutive theory does not provide an answer to the anomaly of partial State recognition. The Institut de Droit International, recognizing this and other weaknesses of the constitutive theory, has declared in its 1936 Resolutions concerning the Recognition of New States and New Governments that the existence of new States with all connected legal effects “is not affected by the refusal of one or more States to recognize.” This Resolution essentially restricts the impact that recognition has when clothing an entity with statehood.
Although the Resolution does not constitute binding international law, it does bring Palestine one step further towards statehood under both the constitutive and declarative theories. The vote shows that Palestine has significant recognition by the international community as a State, thus fulfilling the criterion of the constitutive theory, which while being flawed is still adhered to by some contemporary theorists. Moreover, with Palestine’s formal recognition by 138 countries, it will be able to effectively enter into relationship with other States, which is one of the four elements of the declarative theory test. Thus, while the General Assembly Resolution is not dispositive of Palestine’s statehood, it is evidence of a growing recognition of Palestine as a State.
Many commentators have rightfully pointed out that even with Resolution a/67/l.28, the on-the-ground situation will remain largely unchanged. For example, Israel continues to withhold recognition of Palestinian statehood, retains its occupation of the West Bank and on December 20, 2012, announced the construction of new settlements in East Jerusalem. The fifty nations that voted against or abstained from the Resolution will continue to refuse recognition of Palestinian statehood and future Palestinian diplomatic missions and consulates.
However, there is one important consequence that the recognition of Palestinian Statehood will have: it will grant Palestine access to United Nations agencies and international organizations, including the International Criminal Court. This will enable Palestine to initiate claims against Israel at the International Criminal Court. Unlike in the past, where countries could only pursue Israel at the International Criminal Court with Israel’s consent to the Court’s jurisdiction, if Palestine becomes a member of the International Criminal Court, the Court would have jurisdiction against Israel as to conduct that occurred on Palestinian territory, even without Israel’s consent. Under article 12.2 of the Statute of the International Criminal Court, the Court has jurisdiction whenever a State on whose territory crimes occurred (Palestine) is a member, even if the defendant State (Israel) is a non-member. Therefore, if Palestine claims that Israel committed crimes against humanity or war crimes on Palestinian territory, the Court would have jurisdiction over the matter.
This right was perceived as so significant that some nations, including Great Britain, sought a commitment from Palestinian leadership that they would not file a claim against Israel before the International Criminal Court as a precondition to voting for the Resolution. However, the right is not as vigorous as it is perceived. Even if Palestine were to join the International Criminal Court and file a claim against Israel, Israel would immediately retaliate with a counterclaim. Palestine would quickly find its membership with the Court to be a double-edged sword: Palestine would not only enjoy the right to bring actions before the Court but would also be vulnerable to actions brought against it. Of the claims over which the Court holds jurisdiction, one could make the argument that Palestine, through its Gaza Strip arm ruled by Hamas, is far more vulnerable to claims brought against it than is Israel.
For example, it would be difficult to characterize the blockade of the Gaza Strip or Israel’s disproportionate counterattacks as crimes falling under the Court’s jurisdiction, such as murder or extermination “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack” (art. 7.1 of the Statutes of the Court). Israel would argue that the blockade and attacks were never aimed at civilians, but rather at Hamas militants who have repeatedly fired rockets into civilian areas of Israel. Other supposed crimes such as collective punishment of Palestinians and the settlements are, in the words of Kevin Jon Heller’s November 29 Opinio Juris commentary, “fraught with ambiguity and difficult to prove.” Palestine, in contrast, would encounter great difficulty defending against an Israeli claim that Hamas rockets fired indiscriminately into Tel Aviv and Jerusalem constituted crimes against humanity directed at civilians.
The major obstacles to the recognition of Palestinian Statehood in my mind are those of Palestine's "defined territory" (Palestine's claims to the West Bank and Jerusalem as Palestine's capital are disputed by Israel) and "effective government" (the relationship between Fatah and Hamas is characterized by hostile antagonism more than by cooperation). But even if Palestine were a state, who would determine what qualifies as Palestinian "territory" for the purpose of bringing crimes against Israeli officials before the ICC?