Palestinian representatives have repeatedly threatened to unilaterally declare an independent Palestinian state. Indeed, following the conclusion of the Camp David peace summit, Palestinian leaders have reemphasized their purported right to declare statehood unilaterally. In the event of such a declaration, states will need to consider whether the Palestinian entity is, in fact, eligible for recognition as a sovereign state.
Palestinians waving a PA flag.
Photo: AP
The Palestinian entity does not become a state under international law merely by a unilateral declaration to that effect. To be eligible for recognition, it must satisfy specific legal criteria. Indeed, under international law, the recognition of an entity that clearly fails to meet these criteria constitutes an unlawful and invalid act.
Effective and independent governmental control
An entity claiming to be a state must possess an effective and independent government. It must exercise all the powers of a state independently of any outside governmental authority.
The Palestinian Authority does not function as an independent government. In accordance with the Israel-PLO agreements that established it, the PA constitutes an autonomous body to which only temporary and limited powers have been transferred, many of which are exercised with the cooperation or approval of Israel. Indeed, pending the outcome of permanent status negotiations, it is Israel that, under the Israeli-Palestinian agreements, retains overriding residual authority in West Bank and Gaza Strip territory. It is, therefore, not surprising that elementary attributes of sovereign government - such as responsibility for external security, control over the airspace, and security responsibility at all border crossings and terminals - are not transferred to the Palestinian entity, but remain under Israel's sole jurisdiction.
A Palestinian claim to statehood can only be valid with respect to those areas over which it exercises effective and independent control. Such control is lacking even in Area A and the Gaza Strip, where more extensive powers and responsibilities have been transferred to the PA. The absence of the requisite degree of control is all the more evident in Areas B and C, where Palestinian jurisdiction is of a more limited nature, and over which Israel continues to exercise significant authority. Similarly, a Palestinian declaration of statehood that purported to include parts of Jerusalem within the territory of a Palestinian "state" would be legally meaningless in light of the absence of any Palestinian authority over Jerusalem, and the actual exercise of Israeli sovereignty and jurisdiction in all parts of the city. Indeed, as the Israel-PLO agreements make clear, the issue of Jerusalem is reserved as a subject for permanent status negotiations, and no powers or responsibilities have been transferred to the PA in Jerusalem during the interim period.
The possession of defined territory
International law requires that a state be able to show that it has sovereign title over the territory in question and that the territory is adequately defined.
As far as the requirement for sovereign title is concerned, the Palestinians have relied variously on the alleged illegality of the Palestine Mandate and on UN General Assembly Resolution 181 of 1947 (the Partition Resolution). But neither of these positions finds support in international law.
The legality of the mandate, which provided for the establishment in Palestine of a Jewish national home, was repeatedly affirmed by international bodies such as the Council of the League of Nations and the Permanent Court of International Justice. Indeed, the United Nations Special Commission on Palestine concluded that the Palestinians "have not been in possession of [Palestine Mandate territory] as a sovereign nation" and that there were "no grounds for questioning the validity of the mandate for the reason advanced by the Arab states."
The Palestinian dependence on Resolution 181 is equally untenable. For decades the Arab states and the Palestinians themselves declared this resolution legally invalid and ensured the irrelevance of its recommendations by mounting an armed attack on the fledgling State of Israel. In order to respond to the new realities created by this and subsequent attempts to destroy Israel, the UN itself abandoned the proposal contained in Resolution 181, replacing it with Security Council Resolutions 242 and 338, which have become the accepted basis for the peace process.
The Palestinian entity would not be able to show that sovereignty is vested in its hands. It would also be unable to demonstrate that the territory in question is adequately defined. While international law does not require that the boundaries of a nascent state be accurately delimited in their entirety, the territory must have a sufficient consistency that is conducive to independent governmental control. At present, the areas under Palestinian control are highly fragmented and noncontiguous. Indeed, the PA's powers do not correspond to these portions of territory; it has certain responsibilities in areas not under its territorial control and lacks many in areas that are.
The capacity to freely engage in foreign relations
Unless an entity can engage in foreign relations in an unrestricted and independent manner, it cannot claim to be a state.
Under the Israeli-Palestinian agreements, the issue of foreign relations has been expressly reserved for permanent status negotiations. Accordingly, these agreements specifically provide that, until the conclusion of these negotiations, the PA "will not have powers and responsibilities in the sphere of foreign relations." This is not just the situation on paper. As a matter of practice, the PA is incapable of freely engaging in foreign relations with other states. It should be noted that in order to enable international aid and assistance to the Palestinian autonomy, Israel agreed that arrangements could, in certain cases, be made by the PLO. However, these arrangements are restricted to specified fields where it is not unusual for non-sovereign autonomous entities to have some degree of foreign contacts. Additionally, all such arrangements are made not by the Palestinian Authority, but by the PLO.
