Analysis: Dilemmas posed by a unilaterally declared Palestinian state

States would need to consider whether the Palestinian entity is eligible for recognition as a sovereign state.

palestinian flag 224.88 (photo credit: AP)
palestinian flag 224.88
(photo credit: AP)
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. 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. Effective control over a permanent population Under international law, this criterion of statehood requires that the permanent population of the territory be under the effective and independent control of its own government. As noted, while the PA does exercise significant powers over Palestinian West Bank and Gaza Strip residents, its jurisdiction cannot be regarded as independent or comprehensive. Moreover, it has been held that where, as in this case, there are doubts as to the territorial scope of an entity, its claim to a permanent population is necessarily also in doubt. In more recent international practice, several additional criteria have come to be viewed as prerequisites for statehood. Under these contemporary criteria, in addition to satisfying the traditional elements of statehood outlined above, an entity claiming to be eligible for recognition must also show that it has not been established as the result of illegality, that it is willing and able to abide by international law, that it constitutes a viable entity and that its claim to statehood is compatible with the right to self-determination. If an entity claiming to be a state has emerged as the result of illegality, it is not eligible for recognition. In fact, under international law, states are under a specific legal duty not to grant recognition to such an entity. In order to justify their unilateral claim to statehood, Palestinian representatives argue that the obligation to refrain from unilateral acts will have expired by September 13, 2000, the new target date set for a permanent status agreement under the Sharm e-Sheikh Memorandum. The argument that this obligation is limited in time is indefensible. The undertaking not to attempt to alter the legal status of the territory by unilateral acts, but to resolve all issues by negotiation, constitutes an independent and ongoing Israeli-Palestinian commitment on which the entire peace process is founded. Indeed, this undertaking was made in separate letters sent to Israeli leaders by former PLO chairman Yasser Arafat, which are independent of the Interim Agreement and not subject to any timetable. Significantly, this obligation was restated as recently as July 25, 2000. In the Trilateral Statement issued at the conclusion of the Camp David peace summit, then-prime minister Ehud Barak and Arafat reaffirmed "the importance of avoiding unilateral actions that prejudge the outcome of the negotiations and that their differences will be resolved only by good faith negotiations." Moreover, there is no specific indication in the agreements signed that the interim arrangements expire on a specific date. On the contrary, the interim arrangements continue to apply until permanent status negotiations are concluded. This is why the prohibition against unilateral acts is linked not to a specific date, but to "the outcome of permanent status negotiations." It is also why the Interim Agreement provides a date for its entry into force, but does not stipulate a date for its conclusion. Any alternative interpretation would leave the parties without a framework to regulate their relations, and effectively signal the end of the Israeli-Palestinian peace process. Indeed, as a matter of practice, the parties have continued to view the interim arrangements as being in force even after May 4, 1999, the original date on which the permanent status agreement was to have been concluded, and have signed subsequent agreements that imply that these arrangements are to continue in place until a final agreement is reached. A unilateral declaration would not be the only illegality associated with the Palestinian claim to statehood. Indeed, any Palestinian attempts to satisfy the criteria for statehood on the basis of conduct that violates their legal undertakings should prevent their recognition as a sovereign state. Following the Camp David peace summit, it seems clear that Palestinian intransigence is now delaying the conclusion of a permanent status agreement. While Israel expressed its willingness to make painful compromises, a reciprocal Palestinian commitment to flexibility and compromise was lacking with respect to key issues. In these circumstances, it would be inequitable to allow the Palestinian side to rely on the absence of a permanent status agreement so as to justify a unilateral declaration of statehood. Both as a matter of law and as a matter of policy, the Palestinians should be prevented from using the fact that the Camp David summit ended without an agreement as a pretext to justify unilateral actions that violate existing Palestinian commitments. Recognition of a unilaterally declared Palestinian state sends a clear message to all ethnic communities with claims for independence that they can accomplish their goals by unilateral measures without the need for genuine negotiations. It suggests that any ethnic group is entitled to disregard the concerns of other states and nations and unilaterally assert its claim to independence. There is clear evidence that the Palestinian entity fails to satisfy either the traditional or the additional criteria for statehood, and as such should be denied recognition. Moreover, a Palestinian unilateral declaration of statehood would undermine the very foundations of the peace process. Such an act not only jeopardizes the prospects of reaching a just and comprehensive peace, but it also risks plunging the region into instability and conflict. The international community should refuse to recognize a unilaterally declared Palestinian state, because such an entity poses a significant threat to the stability and security of the region. In so doing, the international community would be fulfilling its fundamental obligation of maintaining international peace and security. Concerns regarding regional peace and security motivated the international community to withhold recognition from the former republics of Yugoslavia and the Soviet Union until there were guarantees of stability. These same concerns should lead to a refusal to recognize a unilaterally declared Palestinian state and to demand that the future status of the Palestinian entity be resolved by negotiation. Tal Becker, B.A. LL.B (Hons.), LL.M, is an international lawyer and a member of the Israel Bar Association, working as an assistant legal adviser at the Foreign Ministry. He is also a freelance lecturer on international law and the Middle East peace process. This paper is based on background research for the Office of the Legal Adviser, Foreign Ministry, and does not necessarily reflect the views of the government of Israel. It was originally published in 1999, under different circumstances, and does not necessarily reflect Dr. Becker's views today.