The question of Palestinian statehood remains a contentious issue in international law and politics. It is entangled in legal criteria, geopolitical interests, and historical disputes.
Palestine meets the requirements for statehood, as outlined in the 1933 treaty, the Montevideo Convention. Yet, Palestine’s bid for full statehood and UN membership faces significant obstacles, which are driven primarily by the strategic interests of powerful states.
However, recent developments indicate a shift, with several western nations signalling support for recognising a Palestinian state, challenging the traditional western stance.
The Montevideo Convention establishes four criteria for statehood: a permanent population, a defined territory, an effective government and the capacity to enter international relations. Palestine arguably fulfils these requirements, yet its statehood bid remains stalled.
Palestine has a well-identified population in the West Bank and Gaza, with a long-standing socio-political order. The International Court of Justice (ICJ) has affirmed that even nomadic populations with a territorial link can constitute a permanent population for statehood purposes. This precedent clearly applies to the Palestinian people.
While the borders between Palestine and Israel remain contested, international law does not require fully delineated boundaries for statehood. Many recognised states, such as India and Pakistan, emerged with unresolved border disputes, such as Kashmir.
The West Bank and Gaza are sufficiently defined as Palestinian territories, despite Israel’s belligerent occupation since 1967, which have consistently been deemed illegal by the UN General Assembly, Security Council and the ICJ. Belligerent occupation does not impair territorial title, and no state, including Israel, claims sovereignty over these territories.
The Palestinian Authority, established through the 1993 Oslo Accords, exercises significant civil and security responsibilities in the West Bank and parts of Gaza. Despite Israel’s 2005 withdrawal from Gaza and the subsequent Hamas-led administration following the 2007 elections, the PA continues to manage critical services, including electricity, health and population registries.
The 2012 Fatah-Hamas reconciliation agreement further bolstered the PA’s governance legitimacy. Internal divisions and Israeli occupation impose limitations, but these are extraneous to the legal requirements of statehood, as seen in micro states such as Liechtenstein and Monaco, which function despite external dependencies.
Palestine actively participates in international relations, recognised by 147 states, as of last month. It maintains diplomatic missions, issues globally accepted passports, and has concluded treaties, including a free-trade agreement with the EU. Palestine holds observer status at the UN and World Trade Organisation, full membership in Unesco (since 2011) and participates in regional organisations such as the Arab League.
In a ruling in a 2004 case, the ICJ reaffirmed Palestine’s right to self-determination, which further supported Palestine’s capacity to engage internationally.
The Palestinian people’s right to self-determination is enshrined in the UN Charter and recognised as an inalienable principle of international law. The ICJ’s East Timor Case of 1995 and the Palestinian Wall Case of 2004 underscore that this right entitles Palestinians to determine their political destiny - up to and including statehood.
Historical precedents, such as Namibia’s recognition as a state by the International Labour Organisation despite South African occupation, reinforce that illegal occupation cannot negate legitimate statehood claims. UN General Assembly resolutions have repeatedly called for Israel’s withdrawal from Palestinian territories occupied since 1967, affirming Palestine’s sovereignty.
Despite meeting the Montevideo criteria, Palestine’s statehood bid is hindered by geopolitical interests. Recognition of statehood, while a political act, is not a legal prerequisite under the declaratory theory, which posits that a state exists once it meets objective criteria. However, the constitutive theory, which emphasises recognition by other states, has been implicitly imposed on Palestine, with Israeli and US acquiescence treated as a de facto requirement.
Palestine’s 1988 Unilateral Declaration of Independence garnered widespread support in the UN General Assembly, opposed only by Israel and the US. The Oslo Accords (1993) outlined a roadmap for a two-state solution, but progress stalled after the assassination of former Israeli Prime Minister Yitzhak Rabin in 1995 and subsequent setbacks, including the failed Camp David Summit in 2000 and Israel’s settlement expansion. By 2012, 132 states had recognised Palestine, and the UN General Assembly granted it “Non-member Observer State” status, a significant step towards international legitimacy.
The recognition of Palestine by 147 UN member states reflects growing global support and these recent developments indicate a significant shift in the traditional western position. In August, France, the UK, Canada, Australia, and Malta announced plans to recognise a Palestinian state at the UN General Assembly in September, joining the 147 countries that already do so.
These moves, driven by frustration with Israel’s actions in Gaza and the West Bank, including settlement expansion and the humanitarian crisis, aim to revitalise the two-state solution.
Britain’s announcement, for instance, stipulates recognition unless Israel agrees to a Gaza ceasefire and commits to a peace process, reflecting mounting international pressure. Australia’s recognition is conditional on commitments from the Palestinian Authority to demilitarise, hold elections, and exclude Hamas from governance.
This shift challenges the long-standing US and Israeli opposition to unilateral Palestinian statehood. The US, while reaffirming support for a two-state solution based on pre-1967 borders, has maintained that recognition should stem from direct negotiations, a stance criticised for enabling Israel’s settlement expansion, deemed illegal under international law.
The Biden administration had explored the possibility of recognising a Palestinian state after the Gaza conflict, signalling a potential policy shift, though it faced and still faces domestic resistance. Germany, however, remains cautious, insisting recognition should conclude, not precede, a two-state solution process, which it supports.
The recent resignation of the Netherlands’ foreign minister, amid criticism of the country’s stance on Israel and Palestine, further underscores the shifting dynamics in international politics regarding this issue. The minister’s departure reflects growing discontent within Europe regarding the handling of the Palestinian-Israeli conflict, suggesting that public and political pressure may be influencing governmental positions.
Additionally, the refusal of the US administration to grant a visa to a Palestinian representative to participate in the UN General Assembly meeting has raised eyebrows and sparked discussions about the US’s commitment to a fair resolution of the conflict.
This incident highlights the continuing complexities and challenges faced by Palestinian representatives on the international stage, as well as the broader implications of US foreign policy in the region.
The ongoing Israeli occupation, settlement expansion (with over 700,000 settlers in the West Bank and East Jerusalem as of November 2023), and Gaza blockade, deemed illegal by the UN and ICJ, obstruct Palestine’s aspirations for statehood.
The peace process, rooted in bilateral negotiations, has failed to reconcile Palestinian demands for a settlement freeze with Israel’s security concerns. The 2007 election of Hamas in Gaza, driven by frustration with the stalled peace process, underscores the risks of prolonged inaction.
Given the deadlock in bilateral talks and US opposition in the Security Council, Palestine has pursued alternative routes, such as its 2009 complaint to the International Criminal Court (ICC), regarding Israeli actions in Gaza.
The ICC declined to investigate, citing Palestine’s undetermined statehood status, highlighting the political barriers within international institutions. Palestine’s Unesco membership and observer status at the UN, however, provide platforms to strengthen its international standing.
A viable path forward is a UN General Assembly resolution for collective recognition, which, while not conferring full statehood, could bolster Palestine’s case for UN membership.
Such a resolution would align with the declaratory theory and reinforce Palestine’s legal claim, countering the political weight of the constitutive theory. The growing western support for recognition, as seen in recent announcements, could further this momentum, pressuring Israel to re-engage in meaningful negotiations.
Palestine’s fulfilment of the Montevideo criteria and its inalienable right to self-determination establish a strong legal basis for statehood. The recent announcements by France, the UK, Canada, Australia, and others to recognise a Palestinian state signal a crack in the traditional western position, driven by outrage over Israel’s actions in Gaza and the West Bank.
However, US and Israeli opposition continue to impose a constitutive standard, subordinating legal criteria to political interests. As the peace process falters, Palestine’s pursuit of statehood through international law, bolstered by growing global recognition, remains a critical endeavour. It challenges the international community to uphold the principles of justice and self-determination over strategic expediency.
The evolving landscape of international support for Palestinian statehood, coupled with the recent political developments in Europe and the US, suggests a potential shift in the dynamics of the Palestinian-Israeli conflict.
As the world grapples with the complexities of this issue, it is imperative to prioritise dialogue, justice and the rights of the Palestinian people in the pursuit of a lasting and equitable resolution.
