“Israel”… “Palestine”. The utterance of these two words in the same sentence has been one of the most challenging realities post WW2. A reality of conflict that started with the United Nation General Assembly Resolution 181 on the 29th of November 1947, which recommended the partition of the British Mandate into Jewish and Arab states (UN QoP), and whose most recent development came on the 66th Session of the General Assembly.
On the 23rd of September 2011 the Chairmen of the Executive Committee of the Palestinian Liberation Organization and the President of the State of Palestine, Mr. Mahmoud Abbas, submitted an application to the Secretary-General of the United Nations requesting the membership of the State of Palestine (Palestinian Application, 2011, p.2). What is the meaning of this application? What are its legal implications?
In this essay, by comparing the two theories of statehood under international law, I will analyze the kind of statehood approach that the State of Palestine is aiming at by submitting its membership application.
Statehood: Constitutive vs. Declaratory
What are those attributes that, when attributed to an entity that entity can be recognized, or declare to be, a State?
Along the historical continuum various definitions answering the question have been proposed. However, with respect to the subject of International Law there has been a well described and fairly unchanged formal definition since the Montevideo Convention on the Rights and Duties of States in 1933. The Convention states that: “The state as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) the capacity to enter into relations with other states.” (Montevideo, 1933). The unchanged formal definition of statehood does not however imply the rigid and immutable concept of statehood (Higgins, 1994, p. 39) and as such the interpretation of what the definition means is also subject to the circumstances and the contexts in which the claim of statehood is made.
According to Rosalyn Higgins “there is a dispute on whether the recognition by significant number of states of a state is a requisite for statehood” (Higgins, 1994, p.42) or not. This idea is essential to analyze the Palestinian bid. When the majority of the world has recognized Palestine as a State (The Guardian, 2011), why does Palestine need the United Nations’ recognition? And if the United States of America decide to veto the Palestinian bid, does the non-recognition of one state deny the existence of a State?
Before trying to analyze where the Palestinian claim stands, let us first understand what, in the international law arena, are the two main theories with regard to state recognition: (a) the Constitutive theory, and (b) the Declaratory theory
The constitutive understanding of statehood was developed in the 19th century (Hillier, 1998, p. 201) and according to its adherents, it is only by the recognition of other Sovereign States that a State can become a legal person of international law; and if “recognition is discretionary, the rules granting to an unrecognized community ‘a right to statehood’ are excluded” (Crawford, 2006, p.5). This means that by proclaiming statehood a state does not gain automatic membership to the international community but it is only through recognition of other states that it is granted a legitimized membership – only by recognition of other states does a state exist as an international legal person.
The adherents to the declaratory understanding, on the other hand, claim that statehood is a legal status independent from recognition (Crawford, 2006, p.4) and in that sense it is a matter of fact rather than a matter of law (Hillier, 1998, p.203). The early expressions of the Declaratory understanding are found in Art. 3 (existence of a state without recognition) and Art. 6 (recognition as accepting international personality) of the Montevideo Convention in 1933 and the criteria for the capacity to self-declaration in Art. 1 (criteria for a state to be a person of international law) (Montevideo, 1933).
In other words, the criteria to claim statehood is effectiveness rather than legitimacy (Crawford, 2006, p.4) and if a State has the elements of statehood according to the Montevideo Convention, then it has the capacity to declare itself a State, whether other state recognize this fact of not. The international legality, however, comes from recognition of other states
Oppeneihm briefly and clearly explained this position when stating “the formation of a new state is … a matter of fact and not law. It is through recognition, which is a matter of law, that such a new state becomes subject to international law” (Oppenheim, 1955)
State of Palestine – Where does it stand?
According to J. Crawford there is no “generally accepted and satisfactory contemporary legal definition of state” (Dixon & McCorquodale, 2003, p.134). The declaratory and the constitutive theories provide a foundation to start upon, but then the legal dialogue for statehood is in reality much more elaborated concept; especially in contexts, like Palestine, where there are border disputes and where there are entities which have some, but not all, of characteristics of an undoubted State. What happens then?
In order to analyze the the Palestinian bid let us first look at the history of Palestine after 1947 in the context of its relation with the UN, the UN methodology for membership and finally the speech delivered by the Palestinian head of state during the 66th General Assembly meet this year.
History of Palestine and the UN Resolutions
Palestine was among the several former Ottoman Arab territories which were under the administration of Great Britain, in accordance to the mandate of the League of Nations in 1922. All of these territories are today independent states; the exception being the State of Palestine (UN QoP).
In 1947 the UN, in Resolution 181 (II), proposed the partitioning of Palestine into two independent States with Jerusalem internationalized. Israel proclaimed its independence in the 1948 and after the 1948 war with neighbouring Arab States it expanded its territory to occupy 77 per cent of the territory of Palestine. In the 1967 war, Israel occupied the remaining territory of Palestine (the West Bank and Gaza Strip) including East Jerusalem. Hostilities followed again in 1973. (UN QoP)
The continuous hostilities and the Palestinian refugee situation led to the Security Council resolution 242 in 1967 – principles for a just and lasting peace, including the Israeli withdrawal from territories it had occupied – and Resolution 338 in 1974 – inalienable rights of the Palestinian people to self-determination, national independence, sovereignty, and to return. (UN QoP)
In 1974 the General Assembly, under Resolution 3210 and 3236, recognized the Palestinian Liberation Organization (PLO) as the “representative of the Palestinian people” and in Resolution 3237 it gave them an observer status at the United Nations (UN GA, 1974)
In 1987 the first intifada began in the Occupied Palestinian Territory protesting the Israeli occupation. The Israeli forces responded with methods that led to mass injuries and huge numbers of civilian deaths among the Palestinians population. This led to the 1988 proclamation of the establishment of the State of Palestine during the Palestine National Council meeting in Algiers. That same year, 1988, in Resolution 43/177 the General Assembly acknowledged the proclamation of the State of Palestine by the Palestine National Council on 15 November 1988 and replaced the designation “Palestine Liberation Organization” in the United Nations system with “Palestine” (UN QoP).
In 1991 a peace conference was convened in Madrid, which culminated (in Oslo) with PLO’s acceptance of the Security Council’s Resolutions 242 (1967) and 338 (1973) (the “land for peace” formula) and the subsequent recognition by the Government of Israel and the PLO of each other. (UN QoP).
In mid 1998 the General Assembly adopted a resolution which allowed Palestine additional rights and privileges of participation that had previously been exclusive to Member States: right to participate in the general debate, the right to cosponsor resolutions and the right to raise points of order on Palestinian and Middle East issues. In fact, later in the year, Mr. Yassir Arafat addressed the 53 rd General Assembly (UN QoP).
Between 1991 and 2011 there have been various failed attempts to find a solution to the Israel-Palestine conflict. The unsuccessful results and the 2010 failure of the new round of Israeli-Palestinian negotiations, led the Palestinian State’s decision to submit an application for membership to the UN on the 23rd of September 2011 (UN QoP).
UN Membership: Process and Forms
The eligibility and the process to become a member state of the United Nation is explained in the Charter and the Rules of Procedure. Article 4 (1) of the Charter states that membership is open to all “peace-loving states, which accept the obligations contained in the present Charter” (UN Carter).
The applicant entity must at first submit the application to the Secretary-General stating that it accepts the obligations contained in the Charter (UN SC, 1983) and then the factual admission to the UN “will be effected by a decision of the General Assembly upon the recommendation of the Security Council.” (UN Charter, Article 4 (2)). T
The above state process entails: (i) the favourable decision by the Security Council for the admission of the new state, which means no “vetoes”, and (ii) the positive vote of two-third majority of the General Assembly members present at the time of voting (UN Charter, Art. 18 (2)).
Mahmoud Abbas: We are ready!
The speech that Abbas delivered at the 66th General Assembly debate had one aim: convince other member-states to vote positively towards the application and lobby for their membership. In his speech, Abbas spoke about the failed peace processes and negotiation, the continuous suffering of “his people” and, most importantly for our analysis, the infrastructural and governmental developments of Palestine (Abbas, 2011).
In the speech Abbas stated “during the last two years our national authority has implemented a program to build our State institutions”; programs that “enhance and advance the judiciary and the apparatus for maintenance of order and security, to develop the administrative, financial, and oversight systems, to upgrade the performance of institutions, and to enhance self-reliance (Abbas, 2011).” A statement which aimed at convincing the member States that Palestine is not just an entity capable of declaring Statehood but now, also an entity that had constructed those institutions that allow it to function like a State.
The Palestinian Application: Declaratory and Constitutive Elements
On the 23rd of September Mahmoud Abbas submitted the State of Palestine’s application to the UN. It is “the Palestinian people’s natural, legal and historic rights and based on United Nations General Assembly resolution 181 (II) of 29 November 1947 as well as the Declaration of Independence of the State of Palestine of 15 November 1988 and the acknowledgement by the General Assembly of this Declaration in resolution 43/177 of 15 December 1988.” (Abbas Application, 2011) to become a member of the United Nations.
What kind of Statehood approach does this application aim at? And, what does it mean for the Palestinian State?
According to Brownlie, “the better view is that the granting of recognition to a new state is not a ‘constitutive’ but a ‘declaratory act” since “it does not bring into existence a legal state that did not exist before” (Dixon & McCorquodale, 2003, p.155). With such a view, let us first examine the pre-bid Declaratory elements of Palastine and then the Constitutive ones.
In 1988, the Palestine National Council declared the Statehood of Palestine (UN QoP) in exercise with the Palestinian people’s inalienable right to self-determination. This declaration was recognized by the United Nations Resolution 43/177 of 15 December 1988 and many resolutions were passed by the General Assembly and also the Security Council, all of whom accepted a two state solution (Abbas Application, 2011). With such facts, it looks very strange to assert that the Palestinian State was looking for a Declarative statehood. However, before making such a straight-forward conclusion let us examine if the State of Palestine fulfills the four parameters set by the Montevideo Convention of 1933.
The first element is Population. Under international law there is no minimum requirement of the number of inhabitants for an entity to qualify as a State apart of their need to be permanent (Dixon & McCorquodale, 2003, p.136). International practice suggests that the concept of permanence does not imply a static number but a temporal continuity of inhabitants. Palestine today, according to me, full fills this criteria.
A defined territory is the second element. The Palestinian and Israeli conflict has its roots in border issues and since 1947 Israel has been, mostly, increasing its share of territory with the expense of the Palestinian one. However, the fact that boundaries are contested or are subject to change is not a barrier for statehood. The important element to define a territory is that there must be a ‘coherent territory effectively governed’ (Dixon & McCorquodale, 2003, p.136). In the case of Palestine, with some doubts over the effectiveness but with surety over the existence of a governing entity, we can conclude that the State of Palestine has a defined territory.
The third element is the government. In the international legal doctrines little concern is given on the form of the government; what must exist is an organized and effective government (Dixon & McCorquodale, 2003, p.136). This point, i believe, is a little more complicated to answer. The PLO is considered to be the sole representative of the Palestinian People by the UN (Abbas Application, 2011) but at the same time the PLO is not the entity that governs all the Palestinian territory, since Hamas governs Gaza (BBC, 2007). In addition, the PLO does not represent, in the required degree, the Hamas party, which in the 2006 election won 74 out of the 134 seats (BBC, 2006). However, the West Bank governmental institutions are managed by the PLO. Does the State of Palestine have a Government? At one level I would say “no”, if we consider that there must be one sole entity governing the whole Palestinian territory effectively; but at an other level “yes”, if we consider that two entities are governing, to a great extent, two territories and their respective populations.
The last element is the international capacity, which is made of two components: the competence to act in the international arena and the exclusive jurisdiction in internal matters (Dixon & McCorquodale, 2003, p.137). It is difficult to deny that the Palestinian State has not entered into the international arena as the entity representing the Palestinian people and we can see this by the various treaties it has signed and its diplomatic missions and relations with various other States (Palestinian Embassies, 2011). However, the question of the exclusivity of jurisdiction over internal matter is a complex question. The Palestinian territory is occupied by both, the Israeli settlements and the Israeli army (Abbas, 2011); however Netanyahu, in his speech, insisted that Palestine could still become a State even if there was an Israeli military presence and gave the example of Japan after World War 2 (Netanyahu, 2011).
The other theory is the Constitutive one, which according to Bronwlie, is the “political act of recognition on the part of other States” as “a prerequisite of the existence of legal rights” (Dixon & McCorquodale, 2003, p.155). According to this statement, the very fact that a State declares itself a State on the sole basis of the Montevideo convention does not imply that it is a legal entity in the international arena. The State of Palestine has diplomatic relations and more than 120 States have recognized the Palestinian state (The Guardian, 2011). In a context where more than 60% of the world has recognized the Palestinian state, would the UN membership application have any significance for the constitutive recognition of Palestine?
The Palestinian Application: Declaratory or Constitutive?
The statehood-ness of the Palestinian State, according to me, has gaps in both the Declaratory and Constitutive theories – it does not perfectly fit in either one of them – and the aim of the application is to close these gaps by elaborating further both aspects.
The Palestinian bid does not fall exactly into one of the statehood theory but reinforces both the theories. The very fact that the bid was accepted by the United Nations meant that, according to the UN, the State of Palestine has, or most probably has, the elements for being a member state. The question now is, will the actors in the process of membership accept the membership or not and this debate is shifting more towards the political aspect of it, rather than the legal aspect.
What does this mean? According to me it means that the question of “Government” that arose from the analysis made above is becoming more blur and the element of effective and organized governance is becoming stronger, something that Abbas also emphasised in his General Assembly speech. It also means that the element of the international capacity is becoming more evident: a greater voice in the international arena and with it a greater push for juridical sovereignty on internal matters. At the same time, the application is also looking for greater recognition by other member states. The public debate which the application aroused may lead to greater support, or even recognition, even if informal, of States which previously did not recognize the State of Palestine.
In the understanding a statehood-ness of a State, the Declarative and Constitutive dichotomy, according to me, is a very dangerous one; for it consider statehood an “either-or” and not a “either-and”.
I do agree with the greater importance of the Declarative theory, as Browlie states, but i would not see it hierarchically but on a horizontal temporal basis. The process of statehood is not a fight between the two theories but a reciprocal support that each theory give in the recognition of the other – statehood comes from the conjunction of the two theories. If possible, however, the self-declaration of a state should occur before the recognition of other states. Why this? As Brownlie stated, the constitutive theory brings the entity into a legal existence (Dixon & McCorquodale, 2003, p.155) and how can this be done if the entity itself does not consider itself a State?
Goodwin-Gill believes that we have moved beyond the Declaratory theory, particularly where representation in the UN is concerned. (Al Jazeera, 2011) I agree, but i would also keep in account the possibility of the existence of sovereign state which are not a member of the UN, like Switzerland was for many years, or being a UN Member State without being a fully independent state, as India was prior to achieving complete independence from the United Kingdom (John Ceron, 2011). This very different and opposing thought, according to me, shows the very dual nature of the UN membership: it is both a process to recognize the elements of statehood and a method to re-affirm the elements of statehood, even if it is not the mechanism itself that declares statehood.
What are then the legal implication that this application? If the membership is accepted, which is quite improbable, the State of Palestine will be not only entitled to a vote in the United Nations but also will become a recognized subject of international law by the highest international tribunal, the International Court of Justice. On the other hand, the rejection of the membership will leave the legality of the Palestinian State as a subject of international law at the same blurry level. But the negative outcome of the application will not come without a large public opinion and debate against the decision, and as such it will give greater international voice to the State of Palestine, a faster resurface of peace negotiations and re-emphasize the necessity of stronger political structure within the Palestinian State.
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