Palestinian representatives have repeatedly threatened to unilaterally declare an independent Palestinian state. Indeed, following the conclusion of the Camp David Peace Summit, Palestinian leaders have re-emphasized their purported right to declare statehood unilaterally. In the event of such a declaration, states will need to consider whether the Palestinian entity is, in fact, eligible for recognition as a sovereign state. In particular, each state will be required to address three fundamental questions:
1. Does the Palestinian entity satisfy the traditional criteria for statehood?
2. Does it satisfy additional contemporary criteria for statehood?
3. What other legal or policy considerations apply?
1. The traditional criteria for statehood
The Palestinian entity does not become a state under international law merely by a unilateral declaration to that effect. To be eligible for recognition it must satisfy specific legal criteria. Indeed, under international law, the recognition of an entity which clearly fails to meet these criteria constitutes an unlawful and invalid act.
Traditionally, international law has demanded that an entity seeking recognition as an independent and sovereign state fulfill four separate criteria. Currently, the Palestinian entity cannot, in fact, be said to adequately or definitively satisfy any of them. Moreover, any unilateral Palestinian attempts to acquire the attributes of statehood outside of the negotiating process would violate existing Israel-PLO agreements, as well as commitments recently made in the Trilateral Statement issued at the conclusion of the Camp David Summit. As such, this unlawful conduct could not serve as the basis for a claim to statehood.
a. Effective and independent governmental control
An entity claiming to be a state must possess an effective and independent government. It must exercise all the powers of a state independently of any outside governmental authority.
The Palestinian Authority does not function as an independent government. In accordance with the Israel-PLO agreements which established it, the Palestinian Authority constitutes an autonomous body to which only temporary and limited powers have been transferred, many of which are exercised with the cooperation or approval of Israel. Indeed, pending the outcome of permanent status negotiations, it is Israel which, under the Israeli-Palestinian agreements, retains overriding residual authority in West Bank and Gaza Strip territory. It is, therefore, not surprising that elementary attributes of sovereign government, such as responsibility for external security, control over the airspace and security responsibility at all border crossings and terminals are not transferred to the Palestinian entity but remain under Israels sole jurisdiction.
b. The possession of defined territory
International law requires that a state be able to show that it has sovereign title over the territory in question and that the territory is adequately defined.
As far as the requirement for sovereign title is concerned, the Palestinians have relied variously on the alleged illegality of the Palestine Mandate and on U.N. General Assembly Resolution 181 of 1947 (the Partition Resolution). But neither of these positions finds support in international law. The legality of the mandate, which provided for the establishment in Palestine of a Jewish national home, was repeatedly affirmed by international bodies such as the Council of the League of Nations and the Permanent Court of International Justice. Indeed, the United Nations Special Commission of Palestine concluded that the Palestinians "have not been in possession of [Palestine Mandate territory] as a sovereign nation" and that there were "no grounds for questioning the validity of the Mandate for the reason advanced by the Arab states".
The Palestinian dependence on Resolution 181 is equally untenable. For decades the Arab states and the Palestinians themselves declared this Resolution legally invalid and ensured the irrelevance of its recommendations by mounting an armed attack on the fledgling State of Israel. In order to respond to the new realities created by this and subsequent attempts to destroy the State of Israel, the U.N. itself abandoned the proposal contained in Resolution 181, replacing it with Security Council Resolutions 242 and 338, which have become the accepted basis for the peace process.
The Palestinian entity would not be able to show that sovereignty is vested in its hands. It would also be unable to demonstrate that the territory in question is adequately defined. While international law does not require that the boundaries of a nascent state be accurately delimited in their entirety, the territory must have a sufficient consistency which is conducive to independent governmental control. At present, the areas under Palestinian control are highly fragmented and non-contiguous. Indeed, the Palestinian Authority’s powers do not correspond to these portions of territory; it has certain responsibilities in areas not under its territorial control and lacks many in areas which are. In fact, in accordance with the Israeli-Palestinian agreements the territorial scope of the Palestinian entity is indeterminate rather than permanently fixed. Its borders are subject to change through the process of further redeployment and are to be settled only in the context of permanent status negotiations.
c. The capacity to freely engage in foreign relations
Unless an entity can engage in foreign relations in an unrestricted and independent manner it cannot claim to be a state.
Under the Israeli-Palestinian agreements the issue of foreign relations has been expressly reserved for permanent status negotiations. Accordingly, these agreements specifically provide that, until the conclusion of these negotiations, the Palestinian Authority "will not have powers and responsibilities in the sphere of foreign relations". This is not just the situation on paper. As a matter of practice the Palestinian Authority is incapable of freely engaging in foreign relations with other states. It should be noted that in order to enable international aid and assistance to the Palestinian autonomy, Israel agreed that arrangements could, in certain cases, be made by the PLO. However, these arrangements are restricted to specified fields where it is not unusual for non-sovereign autonomous entities to have some degree of foreign contacts. Additionally, all such arrangements are made not by the Palestinian Authority but by the PLO.
d. Effective control over a permanent population
Under international law this criterion of statehood requires that the permanent populations of the territory be under the effective and independent control of its own government.
As noted above, while the Palestinian Authority does exercise significant powers over Palestinian West Bank and Gaza Strip residents, its jurisdiction cannot be regarded as independent or comprehensive. Moreover, it has been held that where, as in this case, there are doubts as to the territorial scope of an entity, its claim to a permanent population is necessarily also in doubt.
2. Additional contemporary criteria for statehood
In more recent international practice, several additional criteria have come to be viewed as prerequisites for statehood. Under these contemporary criteria, in addition to satisfying the traditional elements of statehood outlined above, an entity claiming to be eligible for recognition must also show that it has not been established as the result of illegality, that it is willing and able to abide by international law, that it constitutes a viable entity, and that its claim to statehood is compatible with the right to self-determination.
a. Is the establishment of the alleged Palestinian state the result of illegality
If an entity claiming to be a state has emerged as the result of illegality it is not eligible for recognition. In fact, under international law, states are under a specific legal duty not to grant recognition tsuch an entity.
In order to justify their unilateral claim to statehood, Palestinian representatives argue that the obligation to refrain from unilateral acts will have expired by September 13, 2000, the new target date set for a permanent status agreement under the Sharm el-Sheikh Memorandum. The argument that this obligation is limited in time is indefensible. The undertaking not to attempt to alter the legal status of the territory by unilateral acts but to resolve all issues by negotiation constitutes an independent and ongoing Israeli-Palestinian commitment on which the entire peace process is founded. Indeed, this undertaking was made in separate letters sent to Israeli leaders by Chairman Arafat, which are independent of the Interim Agreement and not subject to any timetable. Significantly, this obligation was restated as recently as July 25, 2000. In the Trilateral Statement issued at the conclusion of the Camp David Peace Summit, Prime Minister Barak and Chairman Arafat reaffirmed "the importance of avoiding unilateral actions that prejudge the outcome of the negotiations and that their differences will be resolved only by good faith negotiations".
Moreover, there is no specific indication in the agreements signed that the interim arrangements expire on a specific date. On the contrary. The interim arrangements continue to apply until permanent status negotiations are concluded – this is why the prohibition against unilateral acts is not linked to a specific date but to ‘the outcome of permanent status negotiations’, it is also why the Interim Agreement provides a date for its entry into force, but does not stipulate a date for its conclusion. Any alternative interpretation would leave the parties without a framework to regulate their relations and effectively signal the end of the Israeli-Palestinian peace process. Indeed, as a matter of practice, the parties have continued to view the interim arrangements as being in force even after May 4, 1999, the original date when the permanent status agreement was to have been concluded, and have signed subsequent agreements which imply that these arrangements are to continue in place until a final agreement is reached.
A unilateral declaration would not be the only illegality associated with the Palestinian claim to statehood. Indeed, any Palestinian attempts to satisfy the criteria for statehood on the basis of conduct which violates their legal undertakings, should prevent their recognition as a sovereign state.
Following the Camp David Peace Summit, it seems clear that Palestinian intransigence is now delaying the conclusion of a permanent status agreement. While Israel expressed its willingness to make painful compromises, a reciprocal Palestinian commitment to flexibility and compromise was lacking with respect to key issues. In these circumstances, it would be inequitable to allow the Palestinian side to rely on the absence of a permanent status agreement so as to justify a unilateral declaration of statehood. Both as a matter of law and as a matter of policy, the Palestinians should be estopped from using the fact that the Camp David Summit ended without an agreement as a pretext to justify unilateral actions which violate existing Palestinian commitments.
b. Would the Palestinian entity be willing and able to abide by international law?
The fact that its claim to statehood is based on an unlawful act must raise serious doubts as to the willingness of the Palestinian entity to comply with its legal obligations. Moreover, an examination of existing Palestinian institutions and their practices, and in particular, human rights abuses, widespread corruption, an ineffective judiciary and an unwillingness to meet certain express legal undertakings, all suggest that the Palestinian entity is not yet in a position to guarantee compliance with international law.
c. Is a unilaterally declared Palestinian state a viable entity?
In order to ensure that a state will continue to satisfy the criteria for statehood, the international community has regularly required evidence of a proposed state’s viability as a condition of recognition. Clearly, if the Palestinian entity lacks the fundamental attributes of statehood at the very outset, it will not constitute a viable or sustainable state. In practice, Palestinian management of day to day affairs would not be possible without intense cooperation and assistance from Israeli authorities. Additionally, a significant degree of economic dependence on Israel has continued despite joint Israeli-Palestinian attempts to develop an independent Palestinian economic infrastructure. As a result, the Palestinian entity is incapable of independent existence at this stage.
d. Is a Palestinian unilateral declaration compatible with the right to self-determination?
The right to self-determination is not a general right to statehood. Under international law, this right cannot be applied in an absolute or one-sided way. Like every right, the exercise of self-determination must be balanced against other rights, including the rights of others to territorial integrity and self-determination.
In the Israeli-Palestinian context, the right to self-determination can only be realized within the agreed peace process framework since only in this way can an accommodation of conflicting rights be reached in a manner that is consistent with the self-determination principle. Indeed, on the basis of this framework, bilateral negotiations have already resulted in a significant degree of self-determination for the Palestinian people, with over 97% of Palestinians in the West Bank and Gaza Strip living under the authority of a Palestinian Council which they themselves have elected.
Palestinian attempts to circumvent the peace process and unilaterally declare a state in disregard of Israel’s legitimate rights would not only undermine any chance for a lasting peace settlement it would also be inconsistent with the principle of self-determination.
3. Other legal or policy considerations
Once the criteria for statehood are met, an entity is eligible for recognition as sovereign state, but such recognition is still frequently withheld for reasons of national and international policy. This is because under international law recognition of an entity which satisfies the requirements of statehood remains within the discretion of each state. Accordingly, even if the Palestinian entity were to qualify as a state, states would still need to consider whether the grant of recognition in the circumstances of the case was warranted as a matter of policy. Some of the considerations to be taken into account in this regard are considered below.
a. Would recognition represent a dangerous precedent?
Recognition of a unilaterally declared Palestinian ‘state’ would broadcast a clear message to all ethnic groups with claims for independence that they can accomplish their goals by unilateral measures without the need for genuine negotiations. At the same time, it would encourage states to avoid granting minority or autonomy rights to ethnic minorities for fear that these rights will be used as the basis for a unilateral claim to statehood. Moreover, it would signal a willingness on the part of the international community to recognize as a state an entity which failed to satisfy the criteria for statehood and to countenance a declaration of statehood which was both unlawful and a rejection of a negotiated settlement.
b. Would recognition cause serious harm to the peace process?
A unilateral Palestinian declaration of statehood would undermine two fundamental principles of the peace process: the need to accommodate the legitimate rights of both sides and the recognition that this accommodation can only be achieved through negotiation. If the international community were to recognize such a declaration, rather than encourage the Palestinians to resolve all outstanding issues by negotiation, it would effectively signal the end of the current Israeli-Palestinian peace process and jeopardize the prospects for reaching a just and lasting settlement.
c. Would recognition have a deeffect on the stability of the region?
Israel-PLO agreements and U.N. Security Council Resolutions 242 and 338, on which a permanent settlement is to be based, recognize that a comprehensive peace can only be achieved if every existing state in the region is guaranteed secure and recognized boundaries. Recognition of a unilaterally declared Palestinian state outside of this agreed framework would result in exactly the kind of instability that the Security Council Resolutions and the Israel-PLO accords were designed to prevent. It would severely undermine the right of Israel and of neighboring states to territorial integrity, and to guarantees regarding the safety of their civilians and security from the threat or use of force.
There is clear evidence that the Palestinian entity fails to satisfy either the traditional or the additional criteria for statehood, and as such should be denied recognition. Moreover, a Palestinian unilateral declaration of statehood would undermines the very foundations of the peace process. Such an act not only jeopardizes the prospects of reaching a just and comprehensive peace, but it also risks plunging the region into instability and conflict.
In responding to a unilateral Palestinian declaration of statehood, the duty of the international community is clear. It should refuse to recognize the Palestinian entity as a sovereign state and call on the Palestinian leadership to return to the negotiating table, and seek to realise their aspirations in a spirit of good faith in accordance with their legal commitments. 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.