lOMoARcPSD|39243746

PIL Project on status of Palestine in international law

PUBLIC INTERNATIONAL LAW (Amity University)

Scan to open on Studocu

Studocu is not sponsored or endorsed by any college or university

Downloaded by Niharika (tinytinynikki8@gmail.com)
 lOMoARcPSD|39243746

CRITERIA FOR STATEHOOD

There are two schools of thought regarding the criteria of statehood – the declarative and the
constitutive. There has been a great debate between the two schools of thought. 1 The
declaratory theory prescribes that recognition of a State by existing States is nothing more
than expressing the willingness to enter into relations with that State: in other words,
accepting the existing conditions of statehood.2 The Montevideo Convention on the Rights
and Duties of States3 (“Montevideo Convention”) reflects the declaratory school of thought.
According to Article 14 of the above-mentioned Convention, in order for an entity to be
considered a state, it must possess the following qualifications:

a) A defined territory - The reason for the rule that one of the necessary attributes of a State is
that it shall possess territory is that one cannot contemplate a State as a kind of disembodied
spirit.5 There must be some portion of the earth’s surface which its people inhabit and over
which its Government exercises authority.6

b) A permanent population; States are not only territorial entities, but they also consist of
groups of individuals. Therefore, a permanent population is another necessary requirement
for statehood. There are no criteria relating to the size or the nationality of the population.7

c) Government - The existence of a permanent population on a given territory is in itself

insufficient for statehood. So, the third requirement for statehood, is the existence of a
government capable of exercising independent and effective authority over the population
and the territory. The importance that is attached to the criteria of independence and
effectiveness is understandable considering the predominantly decentralized nature of
international law. Since international law lacks a central executive body, with the power to
enforce compliance with international obligations, compliance with international obligations
must often be guaranteed by the States themselves.8A State must therefore be able to the
effectively and independently exercise its authority within its borders

1 S. Talmon, „The Constitutive versus the Declaratory Theory of Recognition: Tertium Non Datur?‟, British
Yearbook of International Law, (Vol. 75) 2004, p. 101
2 Ali Zounuzy Zadeh, “International Law and The Criteria For Statehood - The Sustainability of the Declaratory
and Constitutive Theories as the Method for Assessing the Creation and Continued Existence of States”,
s288571
3 The 1933 Montevideo Inter-America Convention on the Rights and Duties of a State, 26 December, 1933.
4 Montevideo Convention, Article 1
5 Security Council, Official Records, 383rd Meeting, 2 December 1948, p. 41
6 Ibid.
7 Ali Zadeh, p. 22
8 N. Hobach, R. Lefeber & Ribbelink, Handboek Internationaal Recht, Den Haag: Asser Press 2007, p. 176

Downloaded by Niharika (tinytinynikki8@gmail.com)

 lOMoARcPSD|39243746

d) The capacity to enter into relations with the other states - The capacity to enter into
relations with States‟ is not the exclusive entitlement of States: autonomous national
authorities, liberation movements and insurgents are all capable of maintaining relations with
States and other subjects of international law. 9 While States do possess that capacity, it is not
a requirement, but a consequence of statehood. A consequence which is moreover irregular
and dependent on the status and situation of a particular State. It can be said that the capacity
to enter into full range of international relations can be a valuable measure, but capacity or
competence in this sense depends in part on the power of the government, without which as
State cannot carry out its international obligations. The ability of the government to
independently carry out its obligations and accept responsibility for them in turn greatly
depends on the previously discussed requirements of effective government and
independence.10

Art. 3 of the Montevideo Convention declares that statehood is independent of recognition by

other states.11

In contrast, according to the “constitutive‟ theory, a State only becomes a State by virtue of
recognition by the other States. Once the factual criteria of the declaratory theory have been
met, this “factuality‟ must then be confirmed by the existing States. This doctrine has proved
untenable in practice, as there is no international body with the authority to acknowledge the
existence of States on behalf of the entire community of States. Therefore, each State may
individually decide whether a new State has come into being.

ANALYSIS OF THE SITUATION OF PALESTINE

1. A defined territory - The International Court of Justice has affirmed that the State of
Palestine has a permanent population. In its 2004 Advisory Opinion on the Legal
Consequences of the Construction of a Wall in the Occupied Palestinian Territory
(Wall Advisory Opinion) affirmed the existence of “Palestinian people”. 12 Such
existence has moreover been recognized by Israel in the exchange of letters of 9
September 1993 between Mr. Yasser Arafat, President of the Palestine Liberation
Organization (PLO) and Mr. Yitzhak Rabin, Israeli Prime Minister. In that

9 J. Crawford, „The Criteria for Statehood in International Law‟, British Yearbook of

International Law, (Vol. 48) 1977, p. 119
10 J. Crawford, „The Criteria for Statehood in International Law‟, British Yearbook of
International Law, (Vol. 48) 1977, p. 119
11 Montevideo Convention, Article 3
12 International Court of Justice, Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory, Advisory Opinion, 9 July 2004 (Wall Advisory Opinion), ¶ 118

Downloaded by Niharika (tinytinynikki8@gmail.com)

 lOMoARcPSD|39243746

correspondence, the President of the PLO recognized “the right of the State of Israel
to exist in peace and security” and made various other commitments.13 In reply, the
Israeli Prime Minister informed him that, in the light of those commitments, “the
Government of Israel has decided to recognize the PLO as the representative of the
Palestinian people.”14
2. Defined Territory – For a state to meet this criterion, it needs to show that first, it has
sovereign title over the land and secondly, that the land is adequately defined. This
criterion is met with some controversy as Palestine does not have sovereign title over
the West Bank or the Gaza Strip. The area was granted to Israel as early as 1917 by
the British in the Balfour Declaration.15 In the Balfour Declaration, Britain recognized
the need for a Jewish state and granted the Palestinian land for this purpose. In the
Palestine National Charter, Article 19 it states that “The Partition of Palestine, which
took place in 1947, and the establishment of Israel, are fundamentally invalid…” 16 For
decades Palestinians have declared the partition void, therefore rejecting sovereign
title to the area. Also, by signing the Declaration of Principles (DOP) in 1993,
Palestine acknowledges that sovereign title of the West Bank and Gaza Strip had not
yet been resolved. Article V of the DOP states that future permanent status
negotiations shall cover the issue of borders in the future, but as of right now,
Palestine does not have sovereignty over the land. 17 International Court of Justice in
the Wall Advisory Opinion as well as by the UN General Assembly, 18 the Security
Council,19 the Human Rights Council20 and human rights treaty bodies21 have
confirmed that the territory of the State of Palestine, comprises the West bank, East
Jerusalem and Gaza.

13 Pre-Trial Chamber I, Situation in the State of Palestine, ICC-01/18-117 18-03-2020 1/32 NM PT, p. 5
14 International Court of Justice, Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory, Advisory Opinion, 9 July 2004 (Wall Advisory Opinion), para. 118
15 Balfour Declaration. 2 November, 1917.
16 The Palestine National Charter. 17 July 1968. Article 19
17 Declaration of Principles on Interim Self-Government Arrangements. 13 September 1993. Article V(3).
18 UN General Assembly Resolution 67/19, UN Doc. A/RES/67/19, 29 November 2012, paras. 1, 4; UN
General Assembly Resolution 74/11, UN Doc. A/RES/74/11, 9 December 2019, ¶ 8, 12
19 UN Security Council Resolution 2334, UN Doc. S/RES/2334, 23 December 2016, ¶ 3, 5
20 UN Human Rights Council Resolution 40/23, UN Doc. A/HRC/RES/40/23, 22 March 2019, ¶ 15
21 Committee on the Elimination of Discrimination against Women, Concluding Observations: State of
Palestine, UN Doc. CEDAW/C/PSE/CO/1, 25 July 2018, ¶ 9; Committee on the Elimination of Racial
Discrimination, Concluding Observations: State of Palestine, UN Doc. CERD/C/PSE/CO/1-2, 20 September
2019, ¶ 3; Committee on the Rights of the Child, Concluding Observations: State of Palestine, UN Doc.
CRC/C/PSE/CO/1, 13 February 2020, ¶ 4; UN Human Rights Committee, Concluding Observations: Israel, UN
Doc. CCPR/C/ISR/CO/4, 30 October 2014, ¶ 5, 18

Downloaded by Niharika (tinytinynikki8@gmail.com)

 lOMoARcPSD|39243746

The second part of territory is definition. Palestine may not have a sufficiently defined
territory. However, the existence of border disputes is not an obstacle to attaining
statehood in international law. There is no rule stating that the boundaries of a State
should be undisputed or unambiguously established. 22 Israel for example, was
admitted to the United Nations on 11 May 1949, despite its ongoing territorial
disputes with the (predominantly) Arab States.23
3. Government - It has been argued that there are two aspects following from
government control and exercise of State authority: “one internal, the other external.
Internally, the existence of a government implies the capacity to establish and
maintain a legal order in the sense of constitutional autonomy. Externally, it means the
ability to act autonomously on the international level without being legally dependent
on other states within the international legal order.”24
(i) Palestinian authorities exercise legislative, judicial and executive, including
administrative functions
The Declaration of Principles (DOP), which was signed by both sides, gave
limited powers to the Palestinian National Authority. Article I, Section 1 of the
DOP states that: “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.”25
This clearly indicates that all of Palestine’s powers are granted by Israel, plainly
showing Palestine’s lack of independent authority over the area.
However, it was argued by the International Court of Justice (ICJ) before the
International Criminal Court (ICC) (“Pre-Trial Chamber”) that Palestine can be
said to exercise legislative, judicial and executive authorities for the following
reasons:
In 2002, the State of Palestine adopted a Basic Law, which serves as a temporary
Constitution.26 Palestinian authorities have engaged in conduct evidencing an
actual, continued exercise of State authority over parts of Palestinian territory.

22 N. Hobach, R. Lefeber & Ribbelink, Handboek Internationaal Recht, Den Haag: Asser Press 2007, p. 168
23 Ibid.
24 Peter Malanczuk, Akehurst’s Modern Introduction to International Law, Routledge 1997, p. 77
25 Supra Declaration of Principles on Interim Self-Government Arrangements. 13 September 1993. Article V(3)
Article I
26 European Commission for Democracy Through Law (Venice Commission), Basic Law of The Palestinian
National Authority, Opinion No. 504/2008, 4 March 2009

Downloaded by Niharika (tinytinynikki8@gmail.com)

 lOMoARcPSD|39243746

Such activities are diverse in character and comprise legislative, judicial and
executive, including administrative, acts, among others, carried out over a
considerable period of time. Legislative and judicial functions, and administrative
functions, as those pertaining to taxes and pensions, are core State functions that
only States can exercise. Israel, in spite of its continued occupation and effective
control over the Palestinian territory, has not typically or forcefully expressed
disagreement with or protested against the exercise of such functions. 27 In fact, the
exercise of many such functions was provided for by the Oslo Accords. The State
of Palestine has exercised judicial functions over Palestinian territory through a
comprehensive justice system consisting of a High Judicial Council, a Supreme
Court and 34 other courts, including arbitration courts, tribunals of first instance,
courts of appeal, an anti-corruption court and taxation courts in Gaza and the West
Bank.28 These courts have jurisdiction to try both criminal and civil cases and in
so doing, courts apply Palestinian laws in the legal cases before them.
Palestinian authorities have carried out executive functions, including diplomatic
administrative acts demonstrating the exercise of State functions. These acts are
diverse and concern issues pertaining to, among others, levying taxes and running
a public pension system.29 The exercise of these State functions over a significant
period of time, coupled with the general acceptance by Palestinians of State
authority, are evidence of a genuine, effective display of territorial sovereignty in
Palestinian territory.
(ii) The State of Palestine effectively exercises government functions even in the
absence of full control
A compelling argument has been raised that DOP does not grant complete
sovereignty to Palestine and the control still rests with Israel. However, in the Pre-
Trial Chambers, it was argued that even though there is certain degree of control
of Israel on Palestine, the State of Palestine effectively exercises government
functions. In the past, Bosnia-Herzegovina was recognized by the international
community as a State and was authorized to join the UN despite the fact that large

27 Supra note Pre-Trial Chamber I, Situation in the State of Palestine, ICC-01/18-117 18-03-2020 1/32 NM PT,
p. 8
28 Nathan J. Brown, Palestine (Palestinian National Authority), in Arab Judicial Structures: A Study Presented
to The United Nations Development Program.
29 Supra note Pre-Trial Chamber I, Situation in the State of Palestine, ICC-01/18-117 18-03-2020 1/32 NM PT,
p. 9

Downloaded by Niharika (tinytinynikki8@gmail.com)

 lOMoARcPSD|39243746

parts of its territory were not under the effective control of the government.
Croatia was also accepted on this basis.30
4. The capacity to enter into relations with the other states - The State of Palestine has
entered into effective relations with other sovereign States and acceded to and
implemented numerous treaties.31 Palestine is a member State of the League of Arab
States, the Organization of Islamic Cooperation, and the UN Educational, Scientific
and Cultural Organization,32 among other bodies. On 29 November 2012, the UN
General Assembly adopted resolution 67/19 according Palestine “non-member
observer State status in the United Nations.”33 In addition to the Rome Statute, the
State of Palestine has acceded to at least 11 human rights34 and international
humanitarian law treaties. The Committees constituting the supervisory authorities for
the International Convention on the Elimination of all Forms of Racial
Discrimination, the Convention on the Elimination of all Forms of Discrimination
against Women and the Convention on the Rights of the Child have all recognized
Palestine as a State party to their respective treaties, and have received periodic
reports for the State of Palestine pursuant to obligations under those treaties. 35
Palestine has also entered into conventions and bilateral agreements with other States,
including on issues pertaining to commerce and international cooperation.36

Thus, we can see that the State of Palestine fulfils the criteria of Statehood according to
the declarative theory.

RECOGNITION

30 Malcolm N. Shaw, International Law, Cambridge University Press 2017, pp. 159-160
31 Committee on the Rights of the Child, Concluding Observations: State of Palestine, UN Doc.
CRC/C/PSE/CO/1, 13 February 2020, ¶ 8
32 UNESCO General Conference, 36th Session, 25 October - 10 November 2011, p. 79
33 General Assembly Resolution 67/19, UN Doc. A/RES/67/19, 29 November 2012, ¶ 2
34 UN OHCHR, UN Treaty Body Database: State of Palestine; Committee on the Elimination of Racial
Discrimination, Concluding Observations: State of Palestine, UN Doc. CERD/C/PSE/CO/1-2, 20 September
2019, ¶ 4.
35 Committee on the Elimination of Discrimination against Women, Concluding Observations: State of
Palestine, UN Doc. CEDAW/C/PSE/CO/1, 25 July 2018, para. 9; Committee on the Elimination of Racial
Discrimination, Concluding Observations: State of Palestine, UN Doc. CERD/C/PSE/CO/1-2, 20 September
2019, ¶ 3; Committee on the Rights of the Child, Concluding Observations: State of Palestine, UN Doc.
CRC/C/PSE/CO/1, 13 February 2020, ¶ 4.
36 For example, UN Convention on Transnational Organized Crime and its Protocol to Prevent, Suppress and
Punish Trafficking in Persons, Especially Women and Children; the UN Convention Against Corruption; the UN
Single Convention on Narcotic Drugs; the UN Convention against Illicit Traffic in Narcotic Drugs and
Psychotropic Substances; the Arab Convention against Transnational Organized Crime; the Arab Convention on
Judicial Cooperation; and the Arab Convention on Combatting Terrorism.

Downloaded by Niharika (tinytinynikki8@gmail.com)

 lOMoARcPSD|39243746

According to the constitutive theory, besides the abovementioned criteria, a State only
becomes a State by virtue of recognition by the other States. In the present case, the
abovementioned treatises and agreements37 indicate sustained recognition by sovereign
States, international organizations and other international community stakeholders of
Palestinian statehood.

SELF DETERMINATION

Self-determination denotes the legal right of people to decide their own destiny in the
international order. Self-determination is a core principle of international law, arising
from customary international law, but also recognized as a general principle of law, and
enshrined in a number of international treaties. For instance, self-determination is
protected in the United Nations Charter and the International Covenant on Civil and
Political Rights as a right of “all peoples”. In cases where the right to self-determination
is recognized, entities claiming statehood have been recognized as such despite not
having effective control over their territories.38 . For example, when Guinea-Bissau was
admitted to the UN on 17 September 1974, the requirement of effective authority was not
strictly enforced. Guinea-Bissau was recognized as a State by a large portion of the
international community, even though the new government lacked control over the
majority of the population and the most important cities.39

Belligerent occupation does not prevent the exercise the right of self-determination.
Belligerent occupation effectively prevents a State’s full, effective control over the
territory and population by suspending, on a temporary basis and to varying degrees, the
control that local authorities normally exercise. Belligerent occupation does not, however,
grant the occupying power sovereignty over the occupied territory.39 Sovereignty
continues to lie with the indigenous population entitled to exercise the right to self-
determination over such territory.40 As affirmed by the Israeli High Court of Justice, “the
military commander is not the sovereign in the occupied territory.”41 Thus, despite the
fact that Palestine is not

37 Supra note 31,32,33,34 and 35

38 Pre-Trial
39 Nathalie Hobach, René Lefeber and Olivier Ribbelink, Handboek Internationaal Recht, Den Haag: Asser
Press 2007, p. 171

Downloaded by Niharika (tinytinynikki8@gmail.com)