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Recognition of States In International Law
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Project Report on:
Recognition of
States
Submitted to:Dr. Gulam Yazdani
(Faculty of Public International Law)
Submitted By: Idrish MohammedRoll No: 13 BLW 0025Semester: 4th Year: 2nd Batch: 2013-2018
1
Jamia Millia Islamia, New Delhi
2
Table of Contents
1. Introduction 3
2. Subjects of International law 5
3. Statehood 6
4. The role of recognition 8
5. Legal Consequences of recognition 15
6. Existence of States 19
7. Dilemma of Palestinian Statehood 32
8. Conclusion 44
3
INTRODUCTION
Some definitions of “international law” can be found on the Web as
follows:
“The body of laws governing relations between nations”1, “International
law is the term commonly used for referring to the system of implicit and
explicit agreements that bind together nation-states in adherence to
recognized values and standards, differing from other legal systems in that
it concerns nations rather than private citizens. ...”2,
“A complex network of principles, treaties, judicial decisions, customs,
practices, and writings of experts that are binding on States in their
mutual relations.”3
The common point of the definitions is that, international law deals with
the states and states activities. Addition to the States and the State’s
activities international law has a wide range of interests, as Shaw indicates
1 wordnet.princeton.edu/perl/webwn,2 Wikipedia, “ International Law”, en.wikipedia.org/wiki/International_law3 Political Geography Glossary, www.umsl.edu/~naumannj/geog%202001%20glossaries/political%20geographyh/POLITICALL%20GEOGRAPHY%20GLOSSARY.doc
4
“Public international law covers relations between states... and regulates
the operations of the many international institutions”4
Nevertheless, “the states were the original and remain the primary actors
in the international legal system.”
This project considers an important case of international law,
“recognition”. First it describes the states and the criteria of statehood.
After that, it will focus on the concept of recognition, the difference ways
in which it can occur and the kinds of situations it may apply in. Finally
this project will conclude by outlining the legal results of recognition.
4 M.N. Shaw, International Law, (6th ed., Cambridge University Press, Cambridge 2008)2 5
5
I. Traditional Subjects of International Law
A. States
In addition to controlling territory, States have lawmaking and executive
functions. States have full legal capacity, that is, they have the ability to be
vested with rights and to incur obligations.
B. Insurgents
Insurgents are a destabilizing factor, which makes States reluctant to
accept them, unless they show some of the attributes of sovereignty (e.g.
control of a defined territory). Their existence is temporary; they either
prevail and become a full-fledged state, or fail and disappear.
II. Modern Subjects of International Law
All new modern subjects of international law lack permanent and stable
control over a territory. They have limited legal capacity (do not have a
full spectrum of rights and obligations) and limited legal capacity to act
(i.e. to enforce their rights).
A. International Organizations
B. National Liberation Movements
6
C. Individuals
III. Conditions for Statehood and the Role of
Recognition
Unlike national systems, the international legal order lacks a set of
detailed rules regarding the creation of states. However, such rules can be
inferred from custom.
A. Conditions for Statehood
The Montevideo Convention of 1933 lays the traditional and most widely
accepted criteria of statehood in international law. It states “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) capacity to enter into relations with the other states.
Even today, these conditions continue to be regarded as the fundamental
elements of statehood, but they are neither exhaustive nor immutable.
Other factors might be relevant such as self-determination and
recognition, but one thing is clear – the relevant framework revolves
essentially around territorial effectiveness.
The need for defined territory focuses upon requirement for a particular
territorial base upon which to operate. Therefore, for this reason at least,
7
the “State of Palestine” which was declared in November 1988 in Algiers
cannot be regarded as valid state. The Palestinian organizations did not
control any part of the territory they claim. Note, there is no need for
clearly defined boundaries. E.g. Albania, prior to WWI was recognized by
many countries as an independent state, although its borders were in
dispute.
The existence of a permanent population is naturally required and there
is no specification of a minimum number of inhabitants.
As to whether a state has an effective government, the emphasis has
been on the control the state exercises over the relevant territory, at the
exclusion of all other entities. The degree of control required varies
depending on how a state came to existence. Where the prior sovereign
over the territory has consented to the creation of a new state under a
new government, a low degree of control may be sufficient in satisfying
this requirement. The existence of an effective government is not a
prerequisite for the recognition of a State. E.g. In the case of Croatia and
Bosnia and Herzegovina both states were recognized as independent at a
time when non-governmental forces controlled substantial areas of the
territories in question in civil war conditions.
8
The capacity to enter into relations with other nations: States are not
the only international law subjects who have this capacity, but this
capacity is essential to statehood. Where this element is not present, there
cannot be a state. The essence of such capacity is independence; it is a
formal statement that the state is subject to no other sovereignty.
B. The Role of Recognition
Who gets to decide whether the above conditions are met?
There are two main theories on recognition:
- declaratory theory of recognition: an entity is a state once the
conditions of statehood are met regardless of the attitude of other
states towards the new entity (e.g. Montevideo Convention, art 3
“The political existence of the state is independent of recognition
by the other states. Even before recognition the state has the right
to defend its integrity and independence, to provide for its
conservation and prosperity, and consequently to organize itself as
it sees fit, to legislate upon its interests, administer its services, and
to define the jurisdiction and competence of its courts. The
exercise of these rights has no other limitation than the exercise of
the rights of other states according to international law.”
- constitutive theory of recognition: only when other states decide
that the above conditions are met, and consequently acknowledge
9
the legal capacity of the new state, is the new state actually created.
Criticism of constitutive theory: it contradicts the principle of
effectiveness; it is inconsistent with the principle of sovereign
equality of states; it is logically unsound since it would allow an
entity to be a state with respect to those states that have recognized
it, while lacking legal personality with respect to those that have
withheld recognition.
DE FACTO AND DE JURE RECOGNITION
Akehurst argues that the distinction between de facto and de jure
recognition is one of the most confused circumstances of recognition
and at first hand he objects the expressions de facto and de jure
recognition. According to him, they are technically in correct, since the
words de jure or the de facto describes the government not the act of
recognition. 5Indeed, the subject is about the legal status of the
government. Similarly, Aust gives a definition of the de facto and de jure
recognition by relying on the legal status of the government:
“Recognition de jure means that the entity fully satisfies the applicable
5 P. Malanczuk, M.B. Akehurst, “Akehurst’s Modern Introduction to International Law” ( Routledge, 1997) 88
10
legal criteria; recognition de facto is only of the current position of the
entity, and is therefore usually provisional”.6
De jure recognition is of course stronger, while de facto recognition is
more tentative and more connected with effective control of the
recognised state over its territory, as when the United Kingdom
recognised the Soviet Union de facto in 1921, but de jure only in 1924.7
The assessments or the definitions of the both concepts can be change in
different situations but it is the fact that everything is relevant to the
intention of the government concerned and the general context of fact
and law.8 De facto recognition can be thought as an attitude of wait and
see, since it includes ambiguity. This method gives the recognising state
the opportunity of acting in accordance with the political facts and its
interests.9
PREMATURE RECOGNITON
Since it is a political decision of States, in some circumstances, the
recognition occurs before the criteria of statehood have been fulfilled by
6 A.Aust, “ Handbook of International Law” (Cambridge University Press, 2005) 26
7 Wikipedia,“Recognition of states and governments, http://en.wikipedia.org/wiki/Diplomatic_recognition, accessed on 05 January 2009
8 Brownlie, n 17 above, 91
9 Shaw, n 4 above, 460
11
the new State. In such cases, the problem is to determine the premature
recognition is an intervention in the internal affairs of another state or is
an admissible recognition of a new state that has emerged or is emerging
as a result of secession.10 Recognitions of Bosnia-Herzegovina and
Croatia were the well-known examples of premature recognition in the
near past as both states had not an effective control on their whole parts
of territories at the time being recognised.
IMPLIED RECOGNITION
Recognition is about intention and may be expressed or implied.11 To
understand how a State may recognise another State by implication it is
necessary to look into the some certain circumstances. Lauterpacht states
that, the establishing of diplomatic relations and maybe, to grant the
exequatur or signing a bilateral treaty includes extensive relations between
the two states justify the implication. A congratulation message to a new
State for obtaining sovereignty will bear recognition of that State, but
unofficial contacts do not have the same result, just like the informal
relations established between United States and Communist China in the
1960s and early 1970s.12
10 11 Brownlie, n 17 above, 91
12 Shaw, n 4 above, 463
12
It does not mean recognition when two states both signed a multilateral
treaty such as United Nations Charter. Israel and many Arab countries are
UN members at the present but it does not change Arab non-recognition
of the Israel State. On the other hand when a State affirms the
membership in the UN of an entity, needless to say that recognition
occurs. As an example, United Kingdom recognised the Former Yugoslav
Republic of Macedonia by supporting its membership in the UN.
In practice the implied recognition is not preferred since the states want
to have their control of recognition and in general they use a formal way
for it.
CONDITIONAL RECOGNITION
Conditional recognition means that to recognise an entity as a State only
when it fulfills some conditions. It was first seen in the Berlin Congress
of 1878, Great Britain, France, Italy and Germany marked the
recognition of Bulgaria, Serbia, Romania and Montenegro with the
condition that these countries would not impose any religious disabilities
on any of their subjects.
It may cause some political problems but the non-observance of the
condition would not invalidate the recognition. Since the law does not
attach value to any condition unless it depend upon agreements made by
the particular parties.
13
COLLECTIVE RECOGNITION
In 1971 the International Law Commission stated that collective
recognition “means that States act collectively during the process of
receiving information of the situation, evaluating that information and
reaching a decision, and communicating that decision”.13
This may be seen as a result of increased corporation between the States.
The idea of act collectively has been a subject of a debate since the
foundation of the League of Nations and the establishment of the
United Nations.14 However, the States preferred to keep the control of
recognition in their authorised bodies. As Shaw stated “The most that
could be said is that membership of the United Nations constitutes
powerful evidence of statehood”.
WITHDRAWAL OF RECOGNITION
Sometimes it is possible to withdrawn a granted recognition. Especially, it
is easier for the de facto recognition since the position is different with
the de facto recognition which includes an ambiguity for the future of the
entity. If the government of the entity loses the effective control on its
territory there will be no ground for recognition and it may be taken back.
On the other hand de jure recognition is more difficult to withdraw
13 Extract from the Yearbook of the International Law Commission:-1971, vol. II(2), p.18
14 Shaw, n 4 above, 466
14
because as mentioned above it is stronger than de facto recognition. De
jure recognition may be the case only if the State is annexed or conquered
by another State.
NON-RECOGNITION
The doctrine of non-recognition, also known as the stemson doctrine of
non recognition means to not grant recognition to the new entities or the
some factual positions which are the result of any illegal actions such as
using force.15 It supported the principle that legal rights cannot obtain
from an illegal situation. ( ex injuria jus non oritur).16
The doctrine was brought forward by the United States Secretary of
State, Mr. Stimson in 1932, relevant to the Japanese occupation of
Manchuria. It was accepted by a resolution of the Assembly of the
League of Nations. In the resolution it is stated that;
“Considering that the principles governing international relations and the
peaceful settlement of disputes between members of the League above
referred to are in full harmony with the Pact of Paris, which is one of the
corner-stones of the peace organization of the world, and under Art. 2
15 S. K. Verma, “An Introduction to Public International Law”, (PHI Learning, 2004) 11016 Shaw, n 1 above,468
15
of which the High Contracting Parties agree that the settlement or
solution of all disputes or conflicts, of whatever nature and whatever
origin they may be, which may arise among them, shall never be sought
except by pacific means; . . . proclaims the binding nature of the
principles and provisions referred to above and declares that it is
incumbent upon the members of the League of Nations not to recognize
any situation, treaty, or agreement, which may be brought about by means
contrary to the Covenant of the League of Nations or to the Pact of
Paris. . . .”17
However this intention did not reflect to the practice until the Second
World War; “the Italian occupation of the Empire of Ethiopia and the
German takeover of Czechoslovakia were recognised de facto over the
years by Western Powers.” After 1945 it was again discussed and took
place in some international instruments such as UN Charter (Article 2(4)),
the draft Declaration on the Rights and Duties of States and Security
Council resolution 242 (1967) on the solution to the Middle East conflict.
Especially draft Declaration on the Rights and Duties of States indicated
that, every State has the duty to refrain from recognizing any territorial
acquisition by another State where achieved by means of the threat or use
of force or in any other manner inconsistent with international law and
order. In this context, “in 1990, the Security Council adopted resolution
17 “Events 1932”, http://www.ibiblio.org/pha/events/1932.html, accessed on 06 January 2009
16
662, which characterised the Iraqi annexation of Kuwait “null and void”
and called on all states and institutions not to recognise the annexation.”
C. Effects of Recognition
Recognition testifies to the will of recognizing states to undertake
international dealings with the new state, it shows that the recognizing
states consider the conditions of statehood met (Tinoco Concessions v.
Costa Rica. The recognition or non-recognition by one state is not
binding on other states, but has a certain amount of weight.
Recognition is also legally relevant because it creates estoppel, which
prevents the recognizing party from later contesting or denying the
legal personality of the new state.
Note that premature recognition (when the conditions for statehood
are not met) has legal relevance in that it may amount to unlawful
interference with the internal affairs of a state (e.g. Croatia – Opinion
No. 5 (Croatia) of the Arbitration Commission. The Arbitration
Commission on Yugoslavia in 1992 found that Croatia met the
necessary conditions for statehood, but some commentators have
17
considered the recognition by Austria premature since Croatia
exercised effective control over only 1/3 of its territory).
LEGAL CONSEQUENCES OF RECOGNITION
“Recognition is a unilateral act of a State and one that has international
legal consequences”, for instance where State grant recognition to an
entity, it accepts that they will have relations subject to international law
on basis of State/State.18 In practice, like claimed by declaratory theory,
the political existence of a State is not bound to the recognition of other
States, therefore an unrecognised State has to act comply with the
international law rules.19 It means that, when the States sign an
international agreement which is signed by a State they have not
recognised, they will have the right to ask from that state to fulfill the
responsibilities grow out of the agreement.
After recognition, the recognising States would respect to the rights of
the new State which indicated in the International Law Commission Draft
Declaration on Rights and Duties of States, 1949, such as “right to
independence and hence to exercise freely, right to exercise jurisdiction
over its territory and over all persons, right to equality in law with every
18 Warbrick, n 8 above 25019 Shaw, n 4 above 471
18
other State, right of individual or collective self-defense against armed
attack”20
The participation in the international process is not the only result of
recognition, at the same time the recognised State will be able to enjoy
usual legal consequences of recognition such as privileges and immunities
within the domestic legal order. As an example, Plessis lists some
privileges and immunities within the municipal law of United
Kingdom as follows:
“ ● Only a recognized state or government has locus standi in the UK
courts
● Only a recognized state or government (or its agents), may plead
immunity from suit. It cannot be sued without its consent.
● Only the legislative, executive or judicial acts of a recognized state or
government will be given legal effect within the United Kingdom”21
20 Text adopted by the International Law Commission at its first session, in 1949,
21 M.D. Plessis, “Recognition Of States & Government”, University Of Kwazulu-Natal Faculty Of Law International Law 2007(1), http://www.library.und.ac.za/Recognition_states_governments.doc ,accessed on 07 January 2009
19
Shaw adds one more “it will be entitled to possession in the recognising
state of property belonging to its predecessor.”22
D. Modern Trends in the Recognition of States
The dissolution of the USSR is an example of recognition practice and an
illustration of modern trends.
While almost all other states recognized the independence of the former
soviet republics, the European Community has made the recognition
contingent on additional requirements relating to more modern notions
of human rights and democracy. The EC adopted a Declaration on the
Guidelines on the Recognition of New States in Eastern Europe and in the Soviet
Union,” which sets down general conditions, requiring a new state:
- respect UN Charter, the Helsinki Final Act, the Charter of Paris,
especially with regard to the rule of law, democracy and human
rights
- guarantee the rights of ethnic and national groups and minorities
- respect existing borders
- accept relevant arms control commitments; and
- to commit to settle through negotiation and by agreement all
questions regarding state succession and regional disputes
22 Shaw, n 4 above 472
20
The Declaration stated that the Community and its members will
withhold recognition in cases of aggression.
There are situations where all the requirements for statehood a met, but a
“state” is not recognized as such by the majority of states. This happens
when there is a conflict between the traditional principle of effectiveness
and the modern international law trend of withholding legitimacy when a
situation, albeit effective, contravenes general values of the world
community.
IV. Continuity and Termination of the Existence of States and
Recognition of Governments
A. Continuity and Termination of the Existence of States
Changes in government do not have an effect on the identity of States.
States are bound by international acts of prior governments. See Tinoco v.
Costa Rica.
However, changes in the territory of a State, may affect its legal
personality. Changes in the territory result from the following
occurrences:
- dissolution of a state (e.g. USSR, FSRY, Czechoslovakia)
- merger of one State with anther (e.g. in 1990 North and South
Yemen merged to form the Republic of Yemen)
21
- incorporation by one state of another (e.g. the incorporation of the
Federal Republic of Germany of the German Democratic
Republic)
Problem: Are the rights and obligations of the former state binding on
the new state entity?
The matter is resolved by customary rules.
- Rules regarding the succession to treaties (Vienna Convention
o1978).
Customary rules distinguish between localized and non-localized treaties.
Localized treaties attach to the new entity.
Non-localized treaties are dealt with differently depending on whether they
concern newly independent states or other states.
For newly independent states, the clean slate principle applies
For other states, the principle of continuity applies.
- Rules regarding property (Vienna Convention 1983)
Public assets and state archives – belong to the state on which territory
they are located (Art. 8 of the Convention)
Public debts – unless otherwise agreed, the State debt of the predecessor
State passes to the successor States “in equitable proportion.” (Art. 40 of
the Convention).
Membership to international organizations – no admission to the UN is
required for the merging state if the State it merged into is a member of
22
the UN. In the case of dissolution, all resulting states must apply, unless a
state can claim to be a continuation of the old state (e.g. the Russia
successfully claimed to be a successor state to the USSR and needed not
apply anew for admission to the UN).
B. Recognition of Governments
Where a new government is established through normal, constitutional
processes, there is no question regarding the recognition of that
government. The new government is entitled to all the rights and
obligations under international law.
By contrast, when an entity comes to power through non-constitutional
means, it is not automatically accorded such rights and obligations. The
key issue for a State when deciding whether to recognize a new
government is whether that government is in de facto control of its state.
Sometimes this test is insufficient and States have taken other factors into
account (e.g. whether the new government is ready to honor the
international obligations of the predecessor, whether it is democratic,
whether it has come to power through aggression, and its political
nature).
International recognition of a unilaterally declaredPalestinian State: Legal & Policy dilemmas
23
Introduction
Representatives of the PLO, and of the Palestinian Interim Self-
Government Authority established pursuant to the Interim Agreement,
have repeatedly threatened to unilaterally declare an independent
Palestinian state.1 Indeed, following the conclusion of the Camp David
peace summit, Palestinian leaders have re-emphasized their purported
right to declare statehood unilaterally. While the Central Council of the
PLO decided on September 10, 2000, to temporarily postpone this
declaration, it reasserted its inherent right to do so without prior
coordination or agreement with Israel. In the event of such a declaration,
states will be called upon to consider whether to recognize the Palestinian
entity as a sovereign state which is eligible for membership in the
international community.
The question of recognition of a Palestinian state involves complex legal
and policy issues. Here we will address the questions with which each
state will be confronted in the event of a Palestinian unilateral declaration
of statehood and examine whether the Palestinian entity, as a matter of
international law, may be recognized as a sovereign state. In particular, we
will focus on three fundamental questions:
1. Does the Palestinian entity satisfy the traditional criteria forstatehood?
24
2. Does the Palestinian entity satisfy the additional contemporarycriteria for statehood?
3. What other legal or policy considerations apply?
The Traditional Criteria for Statehood and recognition
Clearly, if the Palestinian entity fails to satisfy the traditional legal criteria
for statehood, it cannot be recognized as a sovereign state. Eligibility for
recognition does not depend on whether an entity ought to satisfy the
criteria for statehood,2 but on whether it meets those standards as a
matter of fact and law.3
It is a well established principle that unless an entity can show that, in
practice, it meets the indicia of statehood, recognition must be withheld.
As Kelsen has asserted, "a state violates international law and thus
infringes upon the rights of other states if it recognizes as a state a
community which does not fulfill the requirements of international
law."4 Similarly, Lauterpacht has declared that the recognition of an entity
which is not legally a state:
...is a wrong...because it constitutes an abuse of the power of recognition.
It acknowledges as an independent state a community which is not, in law,
independent and which does not therefore fulfill the essential conditions
of statehood. It is, accordingly, a recognition which an international
25
tribunal would declare not only to constitute a wrong but probably also to
be in itself invalid.5
The criteria for statehood which must be satisfied before recognition can
be considered have been formulated in different ways. But the various
formulations share the common premise that independent and sovereign
governmental control are the sine qua non of statehood. Thus, Crawford
describes independence as "the central criterion of statehood."6 Indeed, it
will be readily apparent that the basic attributes of statehood essentially
flow from this requirement.
The fundamental connection between independence and statehood was
clearly enunciated by Judge Huber in the Island of Palmas Case, in which
he declared that "independence in regard to a portion of the globe, is the
right to exercise therein, to the exclusion of any other State, the functions
of a State."7 Higgins has similarly affirmed that "traditional international
law has long demanded that before an entity can be acknowledged as a
state, it must possess independence and sovereignty."8 Clearly, in the
absence of independence, of exclusive and sovereign control, a claim to
statehood cannot succeed.
International law has traditionally required that four separate criteria be
satisfied before the recognition of an entity as an independent sovereign
state can be considered:9
26
1. The entity must exercise effective and independent governmental control.
2. The entity must possess a defined territory over which it exercisessuch control.
3. The entity must have the capacity to freely engage in foreign relations.
4. There must be effective and independent governmental control
over a permanent population.
Only if the Palestinian entity satisfies the traditional criteria for
statehood by exercising independent and sovereign governmental
control (including the capacity to freely engage in foreign relations)
over a permanent population in a defined territory over which it has
possession, can its recognition as a sovereign state be considered.
Is There an Effective and Independent Government?
Effective governmental authority is a crucial element of statehood and is
closely related to the notions of independence and
sovereignty.10 Oppenheim, for example, has defined the effective
government criterion with explicit reference to sovereignty:
There must...be a sovereign government. Sovereignty is supreme
authority, which on the international plane means...legal authority which is
27
not in law dependent on any other earthly authority. Sovereignty in the
strict and narrowest sense of the term implies, therefore, independence
all round, within and without the borders of the country.11
Similarly, the Encyclopedia of Public International Law stipulates that "the
government, in exercising its power, must be capable of acting
independently of foreign governments,"12 while von Glahn writes that
"even nominal subordination to an outside governmental authority must
be absent" for an entity to claim to be a state.13 In the language of the
Permanent Court of International Justice in the Austro-German Customs
Union Case, a separate state has to possess "the sole right of decision in
all matters economic, political, financial or other."14
The lack of effective and independent governmental control has served
as a basis for the non-recognition of an entity as a sovereign state in a
significant number of cases. Thus, recognition was withheld from
Manchukuo,15 Katanga16 and Biafra,17 in part due to a lack of effective and
independent governmental authority. Recognition was also opposed or
delayed with respect to Mongolia,18 Ceylon (Sri Lanka),19 and the German
Democratic Republic20 on the basis, inter alia, that independent
governmental control had not yet been established.
For the Palestinian entity to meet this criterion it would therefore be
necessary to show that it possesses exclusive governmental powers over a
28
defined territory, independent of external involvement. It should be
noted that this test is strictly applied when considering the creation of a
new state, as opposed to the more flexible approach adopted when
evaluating the subsistence of an existing state.21 Accordingly, the question
of whether the Palestinian entity exercises the requisite degree of
governmental control must be rigidly tested.
The Palestinian leadership has asserted that the governmental institutions
created under the agreements between Israel and the PLO satisfy this
criterion of statehood.22 But the terms of these agreements and the
manner of their application clearly indicate that the Palestinian entity does
not meet the exacting demands of independent and effective
governmental control required by international law.
Under the Declaration of Principles on Interim Self-Government
Arrangements, signed between Israel and the PLO on September 13,
1993 (D.O.P.),23 the framework for reaching a just and lasting settlement
to the Israeli-Palestinian conflict was agreed upon between the two sides.
In accordance with the D.O.P., a Palestinian Interim Self-Government
Authority was to be established for an interim period, pending the
outcome of permanent status negotiations.24 The Palestinian Interim Self-
Government Authority was to be transferred a limited sphere of powers
from the Israeli Military Government which has been responsible for
administering the West Bank and the Gaza Strip since 1967.25
29
In the D.O.P., the parties agreed that the Palestinian Authority would only
have limited competence. Under Section B of the Agreed Minutes to the
D.O.P., it was stipulated that the Palestinian Authority's jurisdiction, as set
out in Article IV, would cover only "the agreed powers, responsibilities,
spheres and authorities transferred to it." Moreover, the Agreed Minutes
expressly provided that Israel would continue to exercise those powers
and responsibilities not transferred to the Council.26
The blueprint for limited Palestinian autonomy set out in the D.O.P. was
implemented by the parties in the Israeli-Palestinian Interim Agreement
on the West Bank and Gaza Strip signed on September 28, 1995. This
document regulates the relations between the two sides and the
administration of the West Bank and Gaza Strip pending the outcome of
permanent status negotiations, and it carefully outlines the scope and
content of the Palestinian Authority's jurisdiction.
Several features of the Interim Agreement illustrate that the parties have
established a Palestinian self-government authority which does not
possess the independent, effective and sovereign governmental control
that is required to satisfy the definition of statehood:
The Palestinian Autonomy is Subject to Overriding Residual Israeli
Authority
30
In the first place, under the D.O.P. and the Interim Agreement, pending a
permanent status settlement, Israel remains the source of authority and
retains residuary jurisdiction in all spheres not specifically transferred to
the Palestinian Authority. Far from being sovereign or independent, the
Palestinian entity is in fact subject to the overarching residual authority of
the Israeli military government.
Article 1(1) of the Interim Agreement mirrors the provisions of the
D.O.P. regarding the limited competence of the Palestinian Authority and
the continuing jurisdiction of the Israeli military government:
Israel shall transfer powers and responsibilities as specified in this
Agreement from the Israeli military government and its Civil
Administration to the Council in accordance with this Agreement. Israel
shall continue to exercise powers and responsibilities not so transferred [emphasis
added].
Similar provisions in Article 1(5),27 Article XVII(1)(b),28 Article
XVII(4),29 and Article XXXI(8)30 make it clear that the parties did not
establish an independent and sovereign governmental entity, but a limited
self-governing body.
This, of course, is not surprising. The intention of Israel and the
Palestinians in drafting the Interim Agreement was to create a Palestinian
self-governing authority with limited autonomy and responsibility in those
31
spheres that were considered less controversial by the parties. The
possibility of transferring powers to the Palestinian entity more
extensively, and on a permanent basis, is an issue which has been
specifically reserved for the permanent status negotiations and is not one
which is addressed by the Interim Agreement.31
Moreover, in accordance with Article XXXI(6) of the Interim
Agreement, the powers transferred to the Palestinian Authority are not to
prejudice the final nature of the Palestinian entity and do not amount to a
waiver of either side's existing rights or positions.32Consequently, these
powers are of a temporary character only and cannot be relied upon to
substantiate a claim that the legal status of West Bank and Gaza Strip
territory has been altered.
Sovereign Powers are Exercised by Israel, Not the Palestinian
Authority
That Israel and the Palestinians agreed to create an entity without
independent governmental control is also evident from another feature of
the Israel-PLO agreements. In accordance with express provisions of the
D.O.P. and the Interim Agreement, certain powers and responsibilities
which are elementary attributes of a sovereign government either remain
under Israel's sole jurisdiction or are expressly excluded from Palestinian
32
jurisdiction. As a matter of practice, the Palestinian Authority has no
jurisdiction over significant areas of responsibility which are essential to
an effective and independent government.33
Perhaps the most fundamental prerogative of the state is to protect its
borders from external threats. But this is precisely an area of
responsibility which the parties agreed would not be transferred to the
Palestinian Authority, but rather would continue to be exercised
exclusively by Israel. Article VIII of the D.O.P. provides that "Israel will
continue to carry the responsibility for defending against external
threats."34 Similarly, Article XII of the Interim Agreement provides that:
Israel shall continue to carry the responsibility for defense against external
threats, including the responsibility for protecting the Egyptian and
Jordanian borders, and for defense against external threats from the sea
and from the air...and will have all the powers to take the steps necessary
to meet this responsibility.35
In this context, it should be noted that a study prepared for the U.S.
Department of State on the theory and practice of autonomy identified
the absence of authority over external security as a classic characteristic
of an autonomous non-sovereign entity.36 The Palestinian Authority's lack
of jurisdiction in relation to external security thus confirms that the
33
parties created an autonomous body rather than an independent
governmental authority.
Another indicia of sovereign control is the capacity of the government to
exercise jurisdiction over all persons present in its territory. Yet, here
again, the Palestinian Authority's powers are limited and exclusive
jurisdiction over Israelis continues to be vested in Israel. Thus, for
example, the agreements repeatedly emphasize that Israel alone is
responsible for the security of Israelis in Palestinian Authority areas.37 The
restrictions placed on the Palestinian Authority in this regard are not
limited to security. The agreements specify that the territorial and
functional jurisdiction of the Palestinian Council does not include
Israelis.38 Indeed, the issue of the status of Israelis in the West Bank and
Gaza Strip is expressly reserved for permanent status negotiations.39
Independent control over airspace is yet another attribute of sovereign
governmental authority. Article 1 of the Chicago Convention on
International Aviation,40 which is regarded as reflective of customary law,
specifically provides that "every state has complete and exclusive
sovereignty over the airspace above its territory."41 However, the territorial
jurisdiction of the Palestinian Authority, both in the agreements and in
practice, does not include airspace.42 Thus, Article XIII(4) of the Security
Annex to the Interim Agreement provides that control over the airspace
34
is not transferred to the Palestinian Authority but continues to be
exercised by Israel:
All aviation activity or use of the airspace by any aerial vehicle in the West
Bank and Gaza Strip shall require prior approval of Israel. It shall be
subject to Israeli air traffic control including, inter alia, monitoring and
regulation of air routes....
Significant Palestinian Authority Powers are Exercised Only with
Israeli Cooperation or Approval
The existence of a Palestinian self-governing entity which lacks the
governmental control of a sovereign state is not only evident from the
fact that sovereign powers are exclusively exercised by Israel. It is also
clear from the agreement between the parties that the implementation of
many of the powers and responsibilities exercised by the Palestinian
Authority require some degree of approval or coordination with Israel.
The Palestinian Authority can hardly be regarded as an independent
government if the administration of even certain key spheres of
responsibility transferred to Palestinian jurisdiction require continuing
cooperation and often prior authorization by Israeli authorities.
35
Thus, for example, the parties have agreed that Israel will continue to
hold a degree of decision-making power with respect to the grant of
admission into Palestinian areas and the conferral of permanent residency
status. In this sphere of responsibility, intimately associated with the
sovereign prerogative of states,43 Israel retains significant authority. Not
only is the Palestinian Authority's jurisdiction with regard to the grant of
permanent residency limited to specific categories of people,44 but, in
accordance with Article 28(11) of Appendix 1 to the Civil Affairs Annex,
such status cannot be granted without "the prior approval of Israel."
Moreover, the Israeli and Palestinian sides agreed that visitors wishing to
enter the portions of the West Bank and Gaza Strip under Palestinian
control must obtain clearance from Israeli authorities,45 and that Israel has
the right to deny entry to any person who is not a registered resident of
the West Bank or Gaza Strip.46
Within the areas in which the Palestinian Authority exercises its
jurisdiction, significant responsibilities with respect to internal security are
either shared or held exclusively by Israel. In addition to its exclusive
jurisdiction over external security and Israelis,47Israel continues to be
responsible, inter alia, for safety and security in the sea off the Gaza Coast
(and may sail through the three maritime zones without restriction);48 for
security at border crossings and terminals;49 for security at Rachel's
Tomb;50 for internal security in Area B51 and the Mawasi Area in the Gaza
36
Strip;52 while Israel also retains overriding powers for security in the
"Yellow Area" of the Gaza Strip.53 In addition, joint Israeli-Palestinian
patrols and mobile units operate throughout West Bank and Gaza Strip
territory under Palestinian control.54
The fact that the parties agreed to transfer only limited powers to the
Palestinian Authority is evident from countless articles of the Israel-PLO
agreements. All forty spheres of civil jurisdiction transferred to the
Palestinian Authority are specifically defined and limited, with some
degree of Israeli cooperation or approval often required.55 In many
spheres of activity, the parties established joint Israeli-Palestinian
committees which are responsible for coordination and cooperation in
areas transferred to the Palestinian side.56Further limitations are placed by
the agreements on the size, operations, and ammunition of the Palestinian
Police,57 on Palestinian economic policy,58 and on the movement of
vessels in the sea off the Gaza Coast.59
Importantly also, the legislative powers of the Palestinian Council are
strictly limited. Article XVIII of the Interim Agreement confirms the lack
of Palestinian sovereign governmental control by providing that:
Legislation which exceeds the jurisdiction of the Council or which is
otherwise inconsistent with the provisions of the DOP, this Agreement,
37
or of any agreement that may be reached between the two sides during
the interim period, shall have no effect and shall be void ab initio.
The Palestinian Entity is a Non-Sovereign Autonomy in Practice
The fact that the parties agreed to transfer only limited authority to the
Palestinian entity is not only evident on paper. As a matter of practice,
and in the daily exercise of its functions, the interim Palestinian Authority
has only restricted governmental capacities in accordance with the
provisions of the Israel-PLO agreements. The absence of independent
and sovereign governmental control is thus not merely a reflection of the
formal agreements signed between the parties, but represents an accurate
description of the actual powers of the Palestinian Authority.
This continues to be the case, even following May 4, 1999 -- the target
date originally set for the conclusion of a permanents status agreement --
and the parties continue to rely on the interim arrangements established
in the Interim Agreement as the basis for their conduct in practice.
Indeed, agreements signed following May 1999, such as the Sharm el-
Sheikh Memorandum signed on September 4, 1999 and the Protocol
Concerning Safe Passage between the West Bank and the Gaza Strip,
signed on October 5, 1999, demonstrate that the parties continue to view
themselves as regulated by the Interim Agreement (see below).
38
A Palestinian Claim to Statehood Over Areas Not Under Effective
Palestinian Control
As indicated above, statehood can only be recognized under international
law with respect to territory in which the criteria for statehood have been
satisfied. It follows that a Palestinian claim to statehood can only be valid
with respect to those areas over which it exercises effective and
independent control.
It has been shown that such Palestinian control is lacking in all West Bank
and Gaza Strip territory. Even in Area A and in the Gaza Strip, where
more extensive powers and responsibilities have been transferred, the
Palestinian Authority does not exercise the powers of a sovereign
government. The absence of the requisite degree of control is all the
more evident in Areas B and C, where the Palestinian Authority's
jurisdiction is of a more limited nature and Israel continues to exercise
significant authority. Similarly, a Palestinian declaration of statehood
which 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
39
responsibilities have been transferred to the Palestinian Authority in
Jerusalem during the interim period.
The Palestinian claim to statehood lacks legitimacy, in this regard, because
it cannot point to any body of territory over which it exercises effective
and independent control. Palestinian efforts to acquire statehood are in
fact weakened by advancing a claim before the requisite degree of control
is established, and by the attempt to extend this claim to areas which
clearly lack any semblance of Palestinian sovereign authority.
In sum, the Israeli-Palestinian agreements have transferred only
limited powers to the Palestinian entity. Practically, the Palestinian
Authority lacks the capacity to function independently in a wide
variety of governmental spheres. In light of these facts, it must be
concluded that a claim for the existence of an independent and
sovereign Palestinian government over any West Bank and Gaza
Strip territory is untenable at this stage. This criterion of statehood
requires the exercise of independent sovereign governmental
control to the exclusion of all other states. The Palestinian
Authority clearly fails to meet this threshold.
Does the Palestinian Entity Possess a Defined Territory?
40
The second criterion of statehood requires that a state possess at least
some defined corpus of territory. Traditionally, it has been necessary for
an entity to show, firstly, that it has sovereign title over the territory in
question and, secondly, that the territory is adequately defined.
Palestinian Authority representatives have regularly asserted that the
Palestinian entity satisfies both aspects of this criterion of
statehood.60 But despite these assertions, an examination of the legal and
factual situation with respect to West Bank and Gaza Strip territory not
only illustrates that the Palestinian claim to vested sovereign title cannot
be sustained, but that the territory also lacks the requisite degree of
definition.
The Requirement of Sovereign Title
With respect to the first aspect of this criterion, sovereign title, Menon
declares that states must "have a territorial basis and thus...enjoy the
territorial sovereignty."61 Similarly, Crawford writes that the proposition
that statehood "necessarily involves territorial sovereignty is generally
accepted,"62 while Blix has referred to "sovereignty over territory, the
airspace above it and the territorial water that may be adjacent to it," as an
essential attribute of statehood.63 Indeed, the lack of legitimate title over
territory has in the past been the basis for withholding recognition from
41
such entities as Manchukuo64 and the Turkish Republic of Northern
Cyprus.65
The Palestinian claim to vested sovereign title over the West Bank and
Gaza Strip lacks a firm legal basis. The arguments traditionally made by
Palestinians are, at best, the basis for a possible future claim to limited
title, to be raised in the context of permanent status negotiations. They
do not provide support for the contention that sovereign title is currently
vested in Palestinian hands.
The Palestinian argument for vested sovereignty is based variously on the
alleged illegality of the Palestine Mandate,66 which provided for the
establishment of a Jewish national home in Palestine,67 and on General
Assembly Resolution 181 of 1947 (the Partition Resolution),68 which
recommended the partition of Mandatory Palestine into an Arab and a
Jewish state.69
Neither of these positions, however, find support in international law.
With respect to the Palestine Mandate, international bodies called upon to
consider its terms repeatedly rejected the Arab contention that
sovereignty was vested in Palestinian Arab hands. By accepting the
Mandate as legally valid and consistent with the provisions of the League
Covenant, bodies such as the Council of the League,70 and the Permanent
Court of International Justice71 confirmed that the duty of the mandatory
42
power to "secure the establishment of the Jewish national home" was not
subject to legal challenge. Indeed, the United Nations Special
Commission on Palestine subsequently concluded that the Palestinians
"have not been in possession of it [Palestine Mandate territory] as a
sovereign nation,"72 and that there were "no grounds for questioning the
validity of the Mandate for the reason advanced by the Arab states."73
The Palestinian case for vested sovereignty is also not supported by
General Assembly Resolution 181. Indeed, it is somewhat surprising that
the Palestinians have sought to justify their claim for vested territorial title
by reference to this resolution. For decades the Arab states and the
Palestinians themselves repeatedly declared that the Partition Resolution
was legally invalid.74 Thus, Article 19 of the Palestinian National Charter
proclaimed that "the partition of Palestine in 1947 and the establishment
of Israel are entirely illegal."75 Similarly, in arguing the Palestinian case,
jurist Henry Cattan states that "at no time was the partition resolution
accepted by the Palestinians or by the Arab states,"76 while the Seminar of
Arab Jurists on Palestine referred to the resolution as "absolutely null and
void."77
Resolution 181 cannot serve as a basis for Palestinian sovereignty because
it never had binding force. As a General Assembly resolution it could only
have the status of a recommendation. And while Israel was prepared to
uphold the resolution,78 it was the Arab rejection of the Assembly's
43
proposal that prevented its adoption. In what former UN Secretary
General Trygvie Lie termed the "first armed aggression which the world
has seen since the end of the [Second World] War,"79 the surrounding
Arab countries attacked the fledgling Israeli state demonstrating, by force
of arms, that Resolution 181 was, in their eyes, a legal nullity.
Indeed, in order to respond to the new realities that emerged in the years
and decades following the Partition Resolution, the United Nations itself
abandoned the proposal contained in Resolution 181. In its place, the
Security Council adopted Resolutions 24280 and 33881 which provided a
radically different formula for the settlement of the conflict. This is the
only formula which has been accepted by both sides as the basis for
permanent status negotiations82 and it reflects a mutual recognition that
Resolution 181 has been overtaken by the events and does not provide an
appropriate proposal for the resolution of the conflict.
Nor can the Palestinians maintain that the transfer of powers over
portions of West Bank and Gaza Strip territory in accordance with the
Israel-PLO agreements has involved the acquisition of sovereign title. In
the first place, the absence of sovereign Palestinian governmental control
over any of the West Bank or Gaza Strip is in itself evidence that the
Palestinians lack territorial sovereignty. As Judge Huber stated in the
Island of Palmas Case, "territorial sovereignty...involves the exclusive right
to display the activities of a state."83 The limited competence of the
44
Palestinian entity is thus inconsistent with the view that the Palestinians
are vested with sovereignty over the territory in question.
Indeed, the Palestinians, as party to the D.O.P. and the Interim
Agreement, have in effect acknowledged that at present they are not in
sovereign possession of any territory. By affirming that the legal status of
the West Bank and Gaza Strip is to be resolved in permanent status
negotiations, these agreements reveal that both Israel and the Palestinians
recognized that the issue of sovereignty over this territory is yet to be
settled.84
Furthermore, as is evident from Article XXXI(8) of the Interim
Agreement, the transfer of limited authority to the Palestinian entity does
not involve any change to the legal status of West Bank and Gaza Strip
territory.85 Accordingly, while the Palestinian Authority has been
transferred several powers over portions of this territory, the territory
itself has not been transferred and its final status remains an issue for
negotiation.
The fact that the Israel-PLO agreements did not involve a transfer of title
to the Palestinian Authority is clear, inter alia, from the absence of
Palestinian jurisdiction over the airspace. As Brownlie explains, "airspace
superjacent to land territory...is in law part of state territory, and as a
consequence other states may only use such airspace for navigation or
45
other purposes with the agreement of the territorial
sovereign."86 However, as Article XVII87 of the Interim Agreement and
Article XIII(4)88 of the Security Annex affirm, the airspace superjacent to
the West Bank and the Gaza Strip is not subject to Palestinian territorial
jurisdiction but remains under Israeli control. It follows that title over
West Bank and Gaza Strip territory cannot be regarded as being presently
vested in Palestinian hands. In fact, as Brownlie has affirmed, lack of
control over the airspace is a clear indication that the entity in question is
not the territorial sovereign.89
In sum, the Palestinian argument for vested sovereignty is not supported
by international law or by the provisions of the Israel-PLO agreements.
The failure to show that title is currently vested in Palestinian hands
means that the Palestinian entity cannot satisfy this criterion of statehood.
The "Defined Territory" Requirement
The Palestinian claim to statehood is also difficult to sustain in light of
the requirement that the territory over which a putative state exercises
control be adequately defined. It is generally accepted that the boundaries
of a nascent state need not be accurately delimited in their entirety for an
entity to satisfy this criterion of statehood.90 But the issue is a relative one.
The greater the lack of definition, the more the statehood of the entity is
46
in question. As Lauterpacht has asserted, "when the doubts as to the
future frontiers [are] of a serious nature, statehood becomes in
doubt."91 Similarly, the German-Polish Mixed Arbitral Tribunal held that
while an entity need not have precisely defined borders, its territory must
have a "sufficient consistency" and there must be "independent public
authority over that territory."92
There thus comes a point where the territory of an entity seeking
recognition as a sovereign state is so indeterminate that its claim to a
"defined territory," required by the criteria of statehood, must be
questioned. Lauterpacht, for example, cites the non-recognition of
Lithuania in 1919 as such an instance. In that year, while the Allied
powers recognized Estonia and Latvia as sovereign states, recognition was
withheld from Lithuania on the express ground that lingering frontier
disputes meant that Lithuania's territory was not yet sufficiently defined.93
Similarly, states have withheld recognition on the basis that an entity's
territory is so fragmented that it does not satisfy the "defined territory"
criterion. For instance, this position was taken by the United Kingdom in
its decision not to recognize Bophuthatswana as an independent state in
1986. According to the United Kingdom, the fact that Bophuthatswana
constituted at least six separate regions meant that its territory was too
fragmented to be regarded as "defined" within the meaning of the criteria
for statehood.94
47
The non-contiguity and fragmentation of areas under Palestinian control
suggest that the Palestinian entity similarly fails to satisfy the requirement
for defined territory. Even if the Palestinians were to hold sovereign title
over some portion of territory and exercise independent control over it,
the scope of this territory cannot be adequately defined. At this stage, the
Palestinian Authority's powers are scattered throughout non-contiguous
portions of West Bank and Gaza Strip territory to the extent that the
territory lacks the consistency required for statehood. Indeed, it may be
questioned whether the Palestinian entity, in its fragmented state, could
ever function effectively as a sovereign body.
The loose territorial make-up of the Palestinian entity serves as further
evidence that the parties agreed to establish an autonomous body with
limited territorial powers rather than an entity with clearly defined
sovereign territory. Moreover, the fact that the powers transferred to the
Palestinian Authority under the Interim Agreement are neither contiguous
with the portions of territory under Palestinian control95 nor uniform
throughout the Palestinian areas96 indicates that the Palestinian entity's
powers are not defined in relation to a fixed territory.
In fact, the parties agreed that the territorial scope of the Palestinian
Authority's powers would not be permanently fixed until a permanent
status agreement was reached. The principle of phased further
redeployments, provided for in Article XIII of the D.O.P. and Article XI
48
of the Interim Agreement, shows that the territory under Palestinian
control is not strictly defined, but rather is subject to change in
accordance with the extent of future redeployments. This fluctuation in
the territorial jurisdiction of the Palestinian Authority under the Interim
Agreement is confirmed by the mutual agreement to consider the final
borders of the Palestinian entity only in the context of permanent status
negotiations.97
The Palestinian entity cannot claim vested sovereign title over a
defined territory. Additionally, the extreme fragmentation of the
territory under Palestinian control and the variable nature of the
Palestinian Authority's territorial jurisdiction casts doubt over the
claim to a defined or fixed territory, as required by the definition of
statehood. Indeed, the Palestinians themselves have agreed that the
legal status of the territory will be resolved by negotiation.
Does the Palestinian Entity have the Capacity to Freely Engage in
Foreign Relations?
An entity which is incapable of freely engaging in foreign relations cannot
be defined as a state. As Crawford explains, the capacity to enter into
relations with other states is an essential prerequisite of
independence.98 As a result, the lack of competence in foreign relations is
49
regarded as a classic indication that a given entity is not an independent
state but an autonomous non-sovereign body.99
The provisions of the Israel-PLO agreements provide unequivocal
evidence as to the Palestinian Authority's lack of capacity to conduct
foreign relations. In setting out the powers and responsibilities of the
Palestinian Council, Article IX(5) of the Interim Agreement clearly
stipulates as follows:
a. In accordance with the DOP, the Council will not have powers and
responsibilities in the sphere of foreign relations, which sphere
includes the establishment abroad of embassies, consulates or other
types of foreign missions and posts or permitting their
establishment in the West Bank or the Gaza Strip, the appointment
of or admission of diplomatic and consular staff, and the exercise
of diplomatic functions.
b. Notwithstanding the provisions of this paragraph, the PLO may
conduct negotiations and sign agreements with states or
international organizations for the benefit of the Council in the
following cases only:
1. economic agreements, as specifically provided in Annex V of
this Agreement.;
50
2. agreements with donor countries for the purpose of
implementing arrangements for the provision of assistance
to the Council;
3. agreements for the purpose of implementing the regional
development plans detailed in Annex IV of the DOP or in
agreements entered into in the framework of multilateral
negotiations; and
4. cultural, scientific and educational agreements.
c. Dealings between the Council and representatives of foreign states
and international organizations as well as the establishment in the
West Bank and the Gaza Strip of representative offices other than
those described in paragraph 5.a above, for the purpose of
implementing the agreements referred to in subparagraph 5.b.
above, shall not be considered foreign relations.
Several features of this provision warrant special attention. First, it will be
noted that the Palestinian self-governing entity is specifically and
absolutely denied any authority in the sphere of foreign relations.
Secondly, the right to enter agreements with states and international
organizations is restricted to those areas where responsibility for limited
foreign contacts is occasionally transferred to autonomous non-sovereign
entities.100 Thirdly, while Israel agreed that in order to enable international
51
aid and assistance to the Palestinian autonomy limited foreign contacts
could be made, the Israel-PLO agreements specify that it is the PLO and
not the Palestinian Authority which may engage in such activity.101 Finally,
this provision expressly stipulates that any Palestinian Authority activity
aimed at implementing agreements signed by the PLO in accordance with
Article V is not to be regarded as foreign relations.
Other provisions of the Israel-PLO agreements confirm that the
Palestinian Authority lacks any powers in the foreign relations sphere.
Thus, Article 3 of Annex II of the D.O.P. provided in relation to the
Gaza Strip and Jericho Agreement that the powers and responsibilities of
the Palestinian Authority do not include foreign relations. Similarly,
Article XVII of the Interim Agreement provides that foreign relations are
not within the jurisdiction of the Council but are a subject for permanent
status negotiations.
The Palestinian Authority's lack of capacity to freely conduct relations
with other states is also evident in practice. Even in those instances where
the Palestinians have sought to exceed the terms of Israel-PLO
agreements relating to foreign relations power, it has invariably been the
PLO and not the Palestinian Authority that has been responsible for this
activity. Indeed, it is doubtful whether the Palestinian Authority can rely
on the foreign relations activity of the PLO, conducted in violation of the
Israel-PLO agreements, in order to demonstrate a capacity to engage in
52
foreign relations. The governmental institutions of the Palestinian
Authority remain both unauthorized and unable to freely conduct foreign
relations in an independent and unrestricted manner.
In sum, the Palestinian Authority does not have the capacity to
freely conduct foreign relations. The agreements which it has
signed explicitly deny it competence in this area. Moreover, as a
matter of practice, the Palestinian entity is unable to engage in
foreign relations in an unrestricted way.
Is There Effective and Independent Control Over a Permanent
Population?
The final criterion of statehood requires that a state be able to exercise
governmental control over a permanent population resident in its
territory. In one respect, this criterion would seem to be satisfied. The
Palestinian Authority can identify a group of people that are permanently
resident in West Bank and Gaza Strip territory.
But even with respect to this criterion, the Palestinian claim to statehood
can be questioned. According to this criterion, it is not sufficient that a
permanent population exist; a state is also required to exercise effective
and independent governmental control over that population. As the Third
53
U.S. Restatement of the Law notes, the population must be "under the
control of its own government."102But, as highlighted above, while the
Palestinian Authority does exercise significant powers over Palestinian
residents, its jurisdiction cannot be regarded as independent or
comprehensive. Moreover, as the U.S. Court of Appeals has held, where
there are doubts as to the territorial scope of a putative state, its claim to
a permanent population is necessarily also in doubt.103 The Palestinian
claim to statehood over an indeterminate territory thus makes it difficult
to clearly identify a population which meets the requirements of this
criterion of statehood.
Unilateral Palestinian Attempts to Acquire the Attributes of
Statehood
Finally, it should be noted that the Palestinian Authority's failure to satisfy
the criteria for statehood could not be overcome by unilateral measures
which are inconsistent with express Palestinian undertakings. As will be
discussed below, an entity claiming to be a state on the basis of unlawful
conduct must, under international law, be denied recognition.
Accordingly, any Palestinian attempt to unilaterally acquire the attributes
of statehood in violation of Israeli-Palestinian agreements would have no
legal effect.
54
Conclusion
The Palestinian entity does not appear to satisfy the traditional
criteria for statehood. As a matter of law, the Palestinian entity does
not have the capacity to function as an independent and sovereign
state, nor does it actually exercise such powers in practice. It does
not possess independent and effective governmental control; it does
not hold sovereign title over a clearly defined portion of territory;
and it lacks the competence to freely engage in foreign relations.
Moreover, any Palestinian attempt to unilaterally acquire the
attributes of statehood in violation of express Palestinian
undertakings would constitute unlawful conduct and as such could
not serve as a basis for satisfying the prerequisites for recognition.
The Additional Criteria for Statehood
In more recent international practice, several additional criteria have been
identified as prerequisites for statehood. The recognition policy of many
states and the positions taken by contemporary jurists indicate that the
traditional criteria for statehood are being extended to include additional
elements. Thus, for example, the recognition policy of the European
55
Community (now the European Union) with respect to the former
republics of Yugoslavia and the Soviet Union conditioned recognition
not only on the satisfaction of the traditional criteria for statehood, but
on the fulfillment of a long list of other requirements.104 Indeed, it has
become accepted to investigate several other features of a putative state
before considering its eligibility for recognition.
The additional contemporary criteria for statehood require that an entity
seeking recognition demonstrate 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. It is therefore necessary
to consider whether the Palestinian entity satisfies these additional
elements of statehood so that its recognition as a sovereign state can be
contemplated by other states.
Conclusion
Even if the traditional and additional criteria for statehood were
satisfied by the Palestinian entity, states would still have discretion
as to whether or not to recognize that entity as a sovereign state. In
the exercise of that discretion, states would need to consider the
policy implications of recognizing a unilaterally declared
Palestinian state.
56
In weighing such considerations, states must not ignore the fact
that recognition of a Palestinian state in the present conditions and
in the absence of a negotiated permanent status agreement would
have grave consequences. It would constitute a dangerous
precedent for the resolution of other ethnic conflicts throughout
the globe. It would cause severe and possibly irreparable harm to
the Israeli-Palestinian peace process. Finally, such recognition
would present a serious threat to the stability of the entire region.
57
Conclusion: Should the Palestinian Entity be Recognized as a
Sovereign State?
The Palestinian entity does not become a sovereign state under
international law by a unilateral declaration to that effect.162 For it to be
eligible for recognition, the Palestinian entity must satisfy a specific set of
legal criteria. There is, however, clear evidence that the Palestinian entity
lacks the necessary attributes of statehood. As a result, its claim to
independence as a sovereign state cannot be accepted by the international
community.
The fact that the Palestinian entity does not qualify as a state is hardly
surprising. Under the Israel-PLO agreements, the parties agreed to create
a temporary Palestinian self-governing authority which functions as an
autonomous non-sovereign entity rather than as a sovereign state. The
possibility of the eventual emergence of a Palestinian state is not
excluded, but it is specifically reserved as an issue which can only be
resolved in bilateral permanent status negotiations.
As a purely legal matter, a Palestinian attempt to circumvent the agreed
negotiating process and unilaterally declare statehood would be an
unlawful act which would deprive their claim to statehood of validity.
Indeed, this declaration would give rise to a legal duty not to recognize
58
the Palestinian entity as a sovereign state even if it fulfilled the other
criteria for statehood.
But there is another dimension to the Palestinian threat to unilaterally
declare statehood. Such an act undermines the very foundations of the
peace process which are based on the principle that only by the process
of negotiation can the legitimate interests of both parties be addressed in
an equitable and lasting way. In so doing, a unilateral declaration of
statehood not only jeopardizes the prospects of reaching a just and
comprehensive peace, it also risks plunging the region into yet another era
of instability and conflict. No one, least of all the Palestinians, can benefit
from this development.
In responding to a unilateral Palestinian declaration of statehood,
the duty of the international community is clear. It must refuse to
recognize the Palestinian entity as a sovereign state and call on the
Palestinian leadership to return to the negotiating table and comply
with its obligations under the continuing interim arrangements.
This is not only the response that is mandated by international law,
it is also the only way to ensure that a genuine peace can be
achieved in the Middle East. Unilateral measures which disregard
the legitimate interests of others have never brought peace and
stability. They will not bring peace and stability now, not for Israel
and not for the Palestinians.
59
CONCLUSION
Recognition is one of the most difficult and complicated topics in
international law. It is complicated because it involves important political
results and legal effects both in international and municipal law. Political
assessments always effect the recognition decision. Where the States give
a decision about recognition, of course they will weigh the advantages
against the disadvantages of this decision. If it is looked into the some
cases relevant to recognition in international law, I think it can be
understood clearly, to grant recognition completely depends on political
considerations. In my point of view, recognition for a State means merely
to decide that, whether it is suitable for her needs or not.
There are basically two theories to explicate recognition; the constitutive
and the declaratory theory. The constitutive theory asserts that States and
governments do not legally exist until recognized by the international
community and the declaratory theory adopts that States and
governments gain in the international personality when they come
into existence. I think the declaratory theory is more conformable to
reason and parallel to the practice of international law and it is supported
by the Montevideo Convention on Rights and Duties of States. However,
I think it is very difficult to lay down a regulation on state activities, since
they are not stable. They may change time to time. Rules concerning
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recognition have the same character. Every case should be assessed in
itself.
International law is made by States and again breached by States. There is
always an exception of rules in international law. The important thing is
to find a legal cover and nowadays it does not seem to be so difficult. I
think in the past States were more honest, it was easy to understand what
they really intend to do but today the situation is different, an explanation
or a behavior can be understood only after seeing the results. And it is
called policy which the decision of recognition rely on.
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