International Human Rights | The Palestinian Right of Having a State | Ahmed Al Attrash |

Al Attrash
10/24/2013
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The Palestinian Right of Having a State

The Israeli–Palestinian conflict is the ongoing conflict between Israelis and Palestinians. The conflict is wide-ranging, and the term is also used in reference to the earlier phases of the same conflict, between the Zionist yishuv and the Arab population living in Palestine under Ottoman and then British rule. It forms part of the wider Arab–Israeli conflict. The remaining key issues are: mutual recognition, borders, security, water rights, control of Jerusalem, Israeli settlements, Palestinian freedom of movement and legalities concerning refugees. The violence resulting from the conflict has prompted international actions, as well as other security and human rights concerns, both within and between both sides, and internationally. In addition, the violence has curbed expansion of tourism in the region, which is full of historic and religious sites that are of interest to many people around the world.
The Palestinian Authority has announced its intentions to ask the United Nations to recognize the establishment of a sovereign Palestinian state. What is the significance of such recognition? Can the United Nations establish a Palestinian state?
In order to address this question appropriately, it is first necessary to correct the common misconception that the United Nations established the State of Israel. On November 29, 1947, the U.N. General Assembly only approved the partition plan that would replace the British Mandate over the land of Israel. The decision of the U.N. General Assembly was binding in that case because of the special status of Palestine as a territory under British Mandate, a system which was intended to prepare nations for independence. This regime no longer applies to Palestine. Similarly, it is important to emphasize that the U.N. General Assembly did not “establish” the State of Israel in 1947. The General Assembly actually approved Israel’s full membership in the United Nations only in May 1949, almost a year after the Israeli Declaration of Independence. As a rule, the General Assembly of the UN cannot establish a state; rather, it can express its support for the establishment of a state and accept the state into its ranks (if the U.N. Security Council agrees), or it can call upon its member states to recognize the new state and to support its admission to the ranks of other international organizations.
When, then, is a political entity recognized as a state under international law? The classic definition of the existence of a state is found in the Montevideo Convention on the Rights and Duties of States of 1933. Article 1 of this Convention defines a “state” as a political entity that has the following four qualifications: a permanent population, a defined territory, government, and the capacity to enter into relations with other states. The Convention also stipulated that the existence of a state is not dependent on the recognition of the state by other states. It thus appears that in this Convention, which reflects international custom, the opinion that the existence of a state is dependent upon its recognition by other states was rejected; recognition by other states is merely a statement of an established fact.
According to the 1933 definition, U.N. recognition of the Palestinian state has no legal significance whatsoever; rather, the question of a State’s existence depends upon its meeting a series of conditions in reality. This is certainly the case with respect to the first three conditions set forth in the Convention: population, territory, and government. Regarding the last condition—the ability to conduct foreign relations—the accepted interpretation of this condition is that it was intended to prevent a situation in which units that are operating within the framework of a federal regime or that are subject to any kind of agreement that prevents them from conducting foreign relations, would be recognized as independent states. In other words, in this case as well, the question is one of fact. As Yoram Dinstein defines it so aptly in his book International Law and the State (Hebrew, 1971), the real question is: Is the political entity independent in its domestic policy, in making decisions regarding foreign affairs, and in its ability to function in the international arena?
The question of whether a Palestinian state exists, as a question of fact, is the subject of disagreement. On one hand, in the Gaza Strip, there is at least a regime that theoretically meets the conditions of the Montevideo Convention and appears to be essentially independent. As stated, the question of the lack of recognition of the regime's legitimacy by other states, is not relevant according to the Montevideo Convention. It is likely that the Palestinian Authority, at least in Area A (the areas in which the Palestinian Authority has full responsibility for internal security, public order, and civil affairs), also meets the aforementioned conditions of independence. Obviously, however, these two political entities—Hamas in Gaza and the Palestinian Authority in Area A—are not declaring independence separately, mainly because the Palestinians are interested in international recognition of a “theoretical” third state that may not meet the criteria of the Montevideo Convention: a united and independent Palestinian state in all of the areas of Mandatory Palestine that Israel conquered in the Six Day War (i.e., the areas outside the 1967 borders), including East Jerusalem and the areas in which there are Jewish settlements. The existence of such a theoretical state is highly doubtful according to the definitions of the Montevideo Convention. The government in the area in question is divided between three political bodies that each claim the right to control it—Israel, Hamas, and the Palestinian Authority. Moreover, the body that is actually seeking recognition—the Palestinian Authority—is subject to the Oslo Accords, which explicitly stipulated that this body is not independent and that its actual control of the area and ability to enter into relations with other states are not absolute, but rather subject to various limitations. Furthermore, the issues of the location of the borders and the size of the population of the Palestinian state are at the center of a controversy that has been the subject of negotiations that have been conducted between Israel and the Palestinians for years. It is likely that if the Palestinians leave the definition of the borders unclear (as did the State of Israel at the time of its establishment), or if they reduce the area of their state to a minimum, their chances of meeting the definition would improve. However, the Palestinians are not interested in fragmented pieces of territory, with separate states on each piece, apparently because they fear that Israel will present those borders as final and fixed.
This classic analysis, however, does not fully deal with the complexity of the subject of recognition of a state as it has developed in recent years: In the years since the signing of the Montevideo Convention, especially at the end of the colonial era, and even more so in recent years, the question of recognition has returned to the forefront of international discourse. On one hand, political entities that did not receive international recognition did not receive the status of states, even if they fulfilled the conditions of the Montevideo Convention. Examples of this are northern Cyprus, which is considered to be territory occupied by Turkey and is not recognized as an independent state, and Taiwan, which is still considered to be part of China. On the other hand, political entities that never met the conditions of the Montevideo Convention were recognized by the states of the world, and are considered to be states. This is the case, for example, with the Democratic Republic of Congo, which did not have an effective government at the end of Belgian colonial rule, or Bosnia, which was engaged in a civil war at the time of its establishment.
What, then, is the role of international recognition and how does it figure into the case of the Palestinian state?
It seems that in recent years it is slowly becoming apparent that international recognition is especially important when there is doubt as to whether a political entity meets the conditions of the Montevideo Convention. In such a case, recognition by other states can resolve the doubt and attest to a state’s existence. A clear example of this process is the states that were established in the wake of the dissolution of the former Yugoslavia. Croatia, for example, was not completely independent of Serbian rule at the time that it claimed independence. Recognition of Croatia by the states of the European Union, which was accompanied by a great number of conditions, contributed in actual fact to the consolidation of international recognition of an independent Croatia, resolving doubt or controversy regarding the existence of this state. Kosovo exists as an independent state due to the protection provided by a multinational force on its territory, a fact that casts doubt on whether Kosovo meets the criterion that requires effective control of the territory. Nonetheless, broad international recognition of Kosovo’s independence continues to grow.
Historically, Palestinian state is a legalized state for a nation that owes the right to live on their own land, just like the Israeli state with equal rights and equal natural sources in order to solve the Palestinian-Israeli conflict, and to justify the Palestinian sides rights which has been discriminated over the past years.

References:
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Khalele, M. (2010). Palestine under tension. Al Quds newspaper.11(1), 1-1
Barghoty, M (2004, December) American aid in wrong directions. Retrieved in October 31,2010, from http://www.palestinemonitor.org/?p=2876