During my viva voce, the late and deeply lamented Professor Karen Knop of the University of Toronto remarked:
Palestine is always thought of as being in its own category of self-determination. There is always some category that only has Palestine in it, no matter what you call it. But the question is whether it is actually not its own category; it is function of the fact that it is a Middle East case.
In this regard, the International Law Commission discussed the principle of self-determination as a ‘possible’ case of jus cogens. However, its historical relationship with other principles challenges this categorisation, particularly through the principles of uti possidetis juris and territorial integrity. While jus cogens norms may inevitably lead to erga omnes obligations, this does not necessarily imply a reverse relationship. In the cases of East Timor (1995) and the Chagos Archipelago (2019), the International Court of Justice (ICJ) referred to self-determination as an ‘irreproachable’ and ‘essential’ principle of contemporary international law. In the advisory opinion of the Wall Case (2004), the ICJ approached the scope of self-determination as an erga omnes norm and even contemplated ‘a further level’, indicating it may be jus cogens, albeit with weaker normative strength compared to the principle of territorial integrity.
In the landscape of international relations, Professor Knop’s observation about Palestine’s categorisation within the Middle East context sheds light on the intricacies of its path to statehood, much like other modern cases. Her insight prompts reflection on the role of regional dynamics in shaping Palestine’s journey. Traversing this multifaceted terrain, it becomes evident that the recognition of Palestinian statehood is not solely governed by legal principles but is also intricately tied to political dynamics. It is in navigating this delicate balance that the path to Palestinian statehood unfolds, echoing Professor Knop’s words and highlighting the nuanced interplay between law and politics in shaping the destiny of peoples.
The recognition of entities claiming statehood has long sparked debate among legal scholars and politicians. The classical doctrines of statehood are underpinned by two distinct theories: the declaratory theory, which emphasises effectiveness of State functions, and the constitutive theory, which focuses on the act of recognition by other States.
The declaratory (de facto) doctrine is primarily grounded in the factual attributes or effectiveness factors of an entity claiming statehood, as outlined in Article 1 of the Montevideo Convention of 1933: a defined territory, a permanent population, a government, and the capacity to enter into international relations. Hence, under the declaratory theory, if an entity successfully meets this effectiveness criteria, statehood is automatically attained along with subsequent rights, duties, and legal relations. Recognition under the declaratory theory is deemed unnecessary and is regarded as a political act or merely a symbolic gesture, with no bearing on the legal aspects of statehood. Consequently, the rejection by existing States does not impact the legal standing or claim to statehood of the entity.
On the flip side, the constitutive (de jure) doctrine of statehood is somewhat arbitrary in its doctrinal foundations. This perspective holds that recognition is a constitutive aspect of statehood, despite not being a legal doctrine per se. Under this framework, entities asserting statehood are not considered States in the eyes of non-recognising States, however, they are defined as States in relation to recognising States.
A third approach to statehood acknowledges recognition as occupying an intermediary position. It views recognition as a political (declaratory) act rather than an inherent characteristic of statehood. According to this perspective, States are obligated to extend recognition and confer the legal status of statehood upon an emerging entity if it satisfies the criteria of effectiveness. However, this view is not universally supported by State practice, as recognition has typically been seen as a discretionary act.
Another approach to establishing statehood is the effectiveness-or-recognition perspective, wherein some entities may attain statehood through effectiveness, while others achieve it through recognition. However, no entity can acquire statehood through both methods simultaneously. In cases where entities acquire statehood through this approach, recognition can compensate for any deficiencies in meeting the effectiveness criteria.
Palestine serves as a notable example of this principle.
Against this background, Resolution ES-10/23 passed by the UN General Assembly on 10 May 2024 upgraded Palestine’s status within the UN to that of an Observer State, refraining from granting full membership or voting rights. Nonetheless, it recommended the UN Security Council to ‘reconsider’ Palestine’s full membership ‘favorably’, a move obstructed by the recent United State veto in the Council. It is evident that, for the time being, the United States government will persist in vetoing full Palestinian statehood. This development once again places the recognition of Palestine as a fully sovereign State in the spotlight. If there is widespread commitment to a two-state solution from many States, the establishment of a Palestinian State becomes a prerequisite. However, does international law possess the capacity to confer full sovereignty upon Palestine?
In contemporary international law, new elements have been introduced to the classic checklist of recognition outlined in the 1933 Montevideo Convention. The most recent addition is the 1991 Declaration on the Guidelines on the Recognition of New States in Eastern Europe and the Soviet Union, which conditioned the attribution of statehood on the fulfilment of certain characteristics, including democratic principles, acceptance of international obligations, and good-faith negotiations for a peaceful process. Some of these criteria, it can be argued, are also applicable to Palestine. One of these requirements is ‘respect for the inviolability of all frontiers, which can only be changed by peaceful means and by common agreement’.
The international community’s response in each instance may vary from its reactions in prior instances. Indeed, international law of statehood has been inconsistently, selectively, and contradictorily applied by States and international organisations.
Given that Palestine has already garnered recognition from certain States, it fulfils the fourth criterion of capacity to enter into relations with other States. With the Palestinian Authority exercising its authority over its people, the population requirement is also satisfied. Effective government and defined territory stand as the most significant conventional features of statehood. However, the absence of effectiveness criteria may not necessarily preclude the acquisition and validation of statehood. Nevertheless, governmental effectiveness remains paramount, as its deficiency could lead to the non-existence of the entity.
In cases where there is a serious lack of effective jurisdiction over the majority of the population or a failure to exercise authority over territory, this shortfall can be offset by the categorical right to external self-determination, recognised as jus cogens within the context of decolonisation. In certain circumstances, such as in the case of Palestine, where the right to self-determination has been affirmed by numerous UN resolutions and the ICJ advisory opinion of 2004, effective government may be overlooked, notwithstanding the complexities in Gaza and the absence of control by Palestinian authorities over the region. This proposition, nonetheless, is not substantiated by existing law, nor can it be deemed a matter of progressive legal development.
However, its territorial aspect might not be as readily resolved, despite Spain, Norway, Ireland having recognised Palestine as a fully sovereign State. Fragmented territory does not inherently impede the claim to statehood, even in cases where boundaries have yet to be precisely delineated. However, the State must demonstrate the ability to exercise independent public authority over that territory. The question arises: What delineates the boundaries of a potential fully recognised Palestinian State? While fully delimited and defined boundaries are ideal, they might not be an absolute necessity as long as any ambiguities are not of a serious nature. The seriousness of the boundaries of Palestine is a matter that cannot be easily overlooked or compensated for. If achieving Palestinian statehood is deemed paramount, negotiations with Egypt, Israel, and Jordan become indispensable to solidify this legal reality on the ground. Thus, negotiations play a pivotal role in delineating the essential attributes of the State, necessitating meticulous consideration and thoughtful deliberation. The support of the international community for a multi-year three-phase approach to the conflict in Gaza, as outlined in Resolution 2735 of the UN Security Council on 10th June 2024, reaffirms the significance of political negotiations between all parties involved regarding the future borders.
If the effectiveness criteria fails, the recognition norm may still come into play, albeit prematurely. This could result in a ‘state-in-context’, where some States recognise or treat the entity as a State, while others do not, or recognise it for specific purposes but not all aspects of statehood. Palestine might then follow a trajectory similar to Kosovo. Although it has not secured admission to the UN General Assembly, Kosovo’s potential membership in the European Union is contingent upon Serbia’s consent, and its recognition at the UN requires the consent of Russia, particularly at the Security Council.
Another illustrative example is Bangladesh. Prior to Pakistani consent in 1974, Bangladesh lacked universal recognition, with only twenty-eight States granting prior de jure recognition. Legally suspended between 1971 and 1974, Bangladesh’s creation was a political process, and its legal status (statehood) was a consequence of a political process (universal recognition). A comparable scenario might unfold for Palestine. Successful cases of statehood often arise from negotiations with either the central government or administering State.
While legal precedent guides States, it is the dynamic forces of politics that ultimately influence the course of history. Even after achieving independence, there are instances where entities may meet all the initial requirements for statehood, but subsequently struggle to fulfil the criteria for statehood, particularly the new attribute of permanence, the ability to maintain compliance with international law and establish a functioning legal order. This evolving situation continues to unfold.
Dr Loqman Radpey is a researcher, based in Scotland. Over the past decade, he has written extensively about the legal status of the Kurdistan question and the international legal aspects of the right to self-determination of peoples and nations. He is the author of Towards an Independent Kurdistan: Self-Determination in International Law, published by Routledge.