Recognition of Statehood or Recognition for Statehood: The Legal Strategy behind Palestine’s Application for UN Full Membership
Author: Bernard Ntahiraja
Originally Published at Peace and Conflict Monitor on 01/12/2012
On the 23rd of September, 2011, Mahmud Abbas, the President of the Executive Committee of the Palestinian Liberation Organization (PLO) sent the United Nations Secretary-General an application for Palestine’s full membership in the United Nations (UN). Indisputably, this was the application for membership that attracted the most significant attention in the history of the United Nations. Interest in the event is justified by the current special international status of Palestine and the legal and political implications that the response to the application might have on that status.
The admission of Palestine as a UN full member would imply recognition, by this organization, that Palestine is a State, as it is clearly stated in articles 3 and 4 of the UN Charter that only States can be granted UN membership. This recognition would be of great interest both from a political and legal perspective because admission to the UN as a full member is now considered ’universal recognition’. Moreover, it has become a pattern for many authors to confuse statehood with UN membership.
This article discusses whether the Palestinian Authority, by introducing the application for UN full membership, genuinely believes that Palestine is already a state. The answer to that question leads to a second one: Why is it still relevant to introduce the application, being aware that the applicant does not strictly fulfill the legal requirements to be admitted?
This paper is legally-oriented and will therefore not discuss the legitimacy of the state of Palestine, as it exists now or to come in the future. The political discourse for/against the right of the Palestinian people to a viable state is therefore not in discussion. The article, instead, focuses on the facts, on the Palestinian discourse surrounding these facts, as well as their legal interpretation in relation to UN full membership.
The Palestinian Authority’s view on the statehood of Palestine
According to article 4 of the United Nations Charter, only states can apply for UN membership. Having applied for membership, does the Palestinian Authority believe Palestine is already a state? To answer to this question, let us first look at the wording of the application letter. Let us also analyze the general political discourse of the Palestinian leadership in regard to statehood.
The wording of the application letter
Throughout the application letter, Mahmud Abbas, representing the Palestinian Authority (PA), is trying to show that Palestine is already a state. He first bases his argument on some of the most important relevant documents:
“….This application for membership is being submitted based on the Palestinian people’s natural, legal and historic rights and based on United Nations General Assembly Resolution 181 (II) of 29 November 1947 as well as the Declaration of Independence of the State of Palestine
15 November 1988 and the acknowledgement by the General Assembly of this Declaration
In Resolution 43/177 of 15 December 1988….”
The UN General Assembly Resolution 181(II) of 29 November 1947 was about the partition of the territory of the “Historical Palestine” (or “Historical Israel”, depending on the historian) in two independent states: Palestine and Israel. Palestine and the Arab World did not accept the partition plan, rejecting the legitimacy of the State of Israel. Finally, Israel was the only state to be created in the aftermath of this Resolution on May 8th, 1948. In the 2011 application for UN full membership, the Palestinian Authority is recalling this Resolution to support its argument that the state of Palestine became an established reality decades ago. For some, this seems strange: How can you base a claim on a legal instrument that you rejected when it was enacted? The discussion about the binding character of international legal instruments requiring or not requiring the consent of the parties is above the purpose of this article. Let us just mention instead that this rejection cannot be further opposed to the Palestinian Authority because the latter has already adhered to the “two-state solution”. Nevertheless, we cannot say that that Resolution “created” the state of Palestine. Nor did it create the State of Israel, which came into existence six months later. Significantly, its legal implication is then limited to the recognition of the principle that a Palestinian state is to be created and determines what are to be its boundaries; nothing more.
Similarly, a declaration of independence was made in Algiers by the Palestinian National Council on November 15th, 1988. The “state” of Palestine was immediately recognized by almost the entire Arab world. More than 100 countries now consider Palestine a State, and the number is continuously growing (NAD/PLO, 1994). A month after its public issue on December 15, 1988, the declaration of independence was “acknowledged” by the UN General Assembly. Does this “acknowledgement” equal recognition of statehood? Of course not, because the General Assembly indicated clearly the practical consequence of its Resolution A/RES/43/177: The replacement of the designation “Palestinian Liberation Organization” by the designation “Palestine” in the UN system (UNGA, 1988). Had it been different, Palestine could not, more than twenty years later, still be considered an entity with an observer status in the General Assembly of the United Nations. Palestine could have been granted full membership a long time ago, and actually by the same Resolution. However, the declaration and its acknowledgement did not therefore create the state of Palestine.
At the same time, the application letter does not discuss—and it is understandable as to why—the real situation of Palestine at the time of the declaration of independence. To make its argument legally valid, the Palestinian Authority should have established that Palestine fulfills the four legal requirements of statehood as stipulated by article 1 of the 1933 Montevideo Convention on rights and duties of states: a population, a defined territory, an effective government and the capacity to enter into relations with other states (UN, 1945). The PLO willingly omitted discussing these issues because, looking at the real situation on the ground, the conclusion could have been that Palestine was not yet a state, thus compromising the application.
The general political discourse of the Palestinian Authority regarding statehood
Though the application letter argues that Palestine is already a state, this is not consistent at all with the statements that the Palestinian Authority has made repeatedly since the declaration of independence, and even in the aftermath of the application itself. The PA and PLO leaders have repeatedly stated that Palestine is not currently a state. In March 2002, fourteen years after the declaration of independence, at the Arab Summit in Beirut, the late Yasser Arafat, then Chairman of the PLO, stated (Weston, 2009, p. 188):
“We are all confident in the inevitability of victory, as well as in the inevitability of achieving our national and Pan-Arab goals . . . including the right of return, the right to self-determination and the establishment of the independent state of Palestine, with holy Jerusalem as its capital . . . .
Beloved brothers, I would like to tell you in frank and precise terms that we want our national, firm and inalienable rights, the rights that are supported by international legality, the rights of our refugees, our right to self-determination and to the establishment of our independent state, on the whole territory which was occupied in 1967, with holy Jerusalem as its capital.”
This position has remained the same and has been consistently reaffirmed. On November24, 2008, President Abbas addressed the General Assembly of the United Nations in observance of the International Day of Solidarity with the Palestinian People. In his speech, Abbas clearly confirmed the aspirational nature of the current drive for an independent Palestinian state (Weston, 2009, p.188), declaring:
“We highly appreciate your significant role in supporting our efforts to enable our People to realize their goals. We are certain that your role contributes in a clear and effective way in enhancing international solidarity with our just cause and enlarges the circle of international support for the aspirations of our people for freedom and independence and the establishment of their State…”
Similar statements have been made by the Palestinian leadership, another example being the declaration made by President Abbas during the August 2009 Fatah conference (Weston, 2009, p. 190). The same can be read on the official website of the PLO. Furthermore, in his speech made before the 2011 UN General Assembly, just one day after the application for full membership and whose entire text can be found on the websites of the UN and of the Palestine Permanent Mission to the UN (Mahmud Abbas, 2011), President Abbas referred to Palestine as the futurePresenting Palestine as a future state is not a matter of language. The reality on the ground shows that statehood is still an aspiration.
Palestinian statehood and the real public life of Palestine
The real situation of internal and external sovereignty, as well as the place of Palestine in the international community, suggests that statehood is yet to be achieved.
The sovereignty issue
Apart from the borders issue, internal and external sovereignty of Palestine is an obvious concern. The PA is involved in many agreements with Israel recognizing Israel’s power over the Palestinian state. One of them is the 1995 Interim Agreement explicitly withholding from the PA the authority to engage in foreign relations. It limits the PA’s ability to establish embassies or other types of diplomatic missions abroad or to permit their establishment in the West Bank or Gaza Strip, limiting at the same time the exercise of other diplomatic functions that normally attend statehood (Weston, 2009). This is of great importance because the ability to enter into relations with foreign states is one of the four indispensable criteria for statehood, as specified by the above-mentioned article 1 of the Montevideo convention.
Israel also retains control over the external defense of the West Bank and Gaza Strip. Israel’s retention of these responsibilities is also significant in that it indicates that the PA was not–at least at the time of the Agreement—able to freely govern any territory in the West Bank or Gaza Strip without the express warrant of Israel. Moreover, even when the PA began to exercise a modicum of governmental authority, that authority did not include external security, control of airspace, or control of Israeli civilians and Settlements. This fact is crucial because the ability to govern one’s territory is also an indispensable requirement to establish statehood (Weston, 2009).
Palestine and the international community
Though recognized as a state by more than 100 countries, Palestine is still far from having the same status before some of the most meaningful international organizations or legal bodies. It is of little relevance to discuss here the status of Palestine in the United Nations (‘Entity with observer status’). It is more useful to look at legal opinions expressed by international bodies, as well as at the place reserved for Palestine by some states.
The International Court of Justice (ICJ) has explicitly stated that there is currently no Palestinian state. In its advisory opinion on the legal consequences of the construction of a wall in the occupied territory, the Court held that Israel could not justify the building of its security barrier by invoking the right to self-defense under Article 51 of the UN Charter. The Israeli argument of self-defense was rejected because the attacks it was pretending to defend itself against were not imputable to a foreign State”. The Court opined that because Article 51 only recognizes “the existence of an inherent right of self-defense in the case of an armed attack by one State against another State”, article 51 relating to right of self-defense could not apply to attacks launched at Israel from the Palestinian territory, given that Palestine is not yet a state. In his separate opinion, Judge Elaraby elaborated further. Looking at the history, and especially at the processes of state-building in Israel and Palestine, he concluded that “The independence of the Palestinian Arab State has not yet materialized” (ICJ, 2004). The Swiss government and the International Criminal Court reserved the same considerations regarding Palestine.
Notably, the Palestinian Authority has been refused accession to the Geneva Conventions. The Swiss Government justified its decision arguing that Palestinian statehood was not a settled issue in the international community (Weston, 2009).
Up to now, the International Criminal Court has consistently considered Palestine as an entity, and not a state. It is worth mentioning that even in the negotiations for the ICC statutes, the PLO representatives were treated as delegates of “other organizations” or “entities, intergovernmental organizations and other bodies having received a standing invitation to participate as observers in the sessions and the work of the General Assembly” (Weston, 2009, p.196). Much more interesting will be the Court’s reply to the PA request to investigate crimes allegedly committed by Israeli soldiers in Gaza. The court’s opinion will be of great importance, as the ICC statute clearly stipulates that only states qualify for such requests.
The Palestinian Authority was surely aware of the legal weaknesses of its application, but it submitted the application despite those limitations. This was not at all legally stupid, nor obviously desperate. Even if a study of United Nations practice in relation to the claim of membership reveals a close adherence to the traditional legal criteria of statehood, there are cases in which deviations have been observed. This has, for instance, been the situation with both India and the Philippines, admitted as original members of the United Nations in 1945 before total independence was achieved; Israel in 1948; and the Congo in 1960 (Cohen, 1961).Therefore, it is not legally impossible for Palestine to be admitted as a UN full member. But what would change?
Recognition and statehood: The real meaning of the application and strategy of the PA
The admission of Palestine as a full member of the United Nations would allow her to join international organizations and UN agencies of which she is not a member today due to the uncertainty of statehood. Palestine could also be enabled to become a member of the International Court of Justice and collaborate with the International Criminal Court. This is very important in the legal dimension of the Israel-Palestine Conflict. But more importantly, it would imply, as mentioned above, recognition by the United Nations that Palestine is a state.
The role of recognition in the international legal system has traditionally aroused much debate. This debate includes two opposing understandings on the concept of recognition. On one hand, scholars argue that recognition is a mere political act recognizing an existing state of affairs (declaratory theory); on the other hand, there are those who believe that recognition is a necessary act before the recognized entity can enjoy international personality (constitutive theory) (Martin & Robert, 2003).
The declaratory theory argues that recognition does not bring into existence a state that did not exist before. In the words of Brownlie (as cited in Martin et al., 2003, p.154), a state may exist without being recognized by other states and has the right to be treated by them as a state, whether recognized or not. The primary function of recognition is therefore to acknowledge as a fact something that has hitherto been uncertain, namely the independence of the body claiming to be a state, and to declare the recognizing state’s readiness to accept the normal consequences of that fact.
From a declaratory perspective, therefore, it is enough for an entity to be a state to simply meet the four requirements of the previously mentioned article 1 of the 1933 Montevideo Convention on the Rights and Duties of States (Martin et al., 2003). Applying this theory to the Palestinian case, one should conclude that even if Palestine were to be granted UN full membership, this should not be enough for her to be a state, as she still does not fulfill the four objective requirements for statehood.
In opposition to the declaratory theory, the constitutive theory says that recognition by other states is a precondition for the legal existence of a state. In other words, the international personality of a state depends on the political decisions of other states (Martin et al., 2003). Applied to the Palestinian case, this theory should bring us to the conclusion that Palestine would become a state just for being recognized as a UN full member, despite the real situation on the ground; i.e the fact that Palestine does not fulfill the legal requirements to be a state.
Which theory inspired Palestine in its application? Obviously the Palestinian Authority used the constitutive theory. As demonstrated above, Palestinian leaders were aware that Palestine was not objectively a state. Despite that reality, they introduced their application and it was not legally impossible to be admitted, as we saw. The admission would create a global recognition of Palestine as a state, and therefore accelerate the process of the creation of true statehood.
This paper has shown that the Palestinian application for full membership to the United Nations Organization is intended to be seen as if the applicant believes Palestine is already a state. However, this is not the case, but rather the application was done for a purpose. The applicant is in fact aware that, to be admitted as a full member, she has to prove that Palestine is already a state, as required by the UN Charter. However, in everyday political discourse, Palestinian leadership has always stated that Palestinian statehood is still an aspiration. This was even reiterated by Mahmud Abbas in his address to the 2011 UN General Assembly after the application for UN full membership. How do we make sense of these contradictions within a discourse intended to serve the same purpose? Some have seen inconsistency in that discourse, but the inconsistency is only apparent; it is not real. The application for statehood is a legal document, whose function is to prove and back the request it is making. Thus, it is quite normal, knowing that UN full membership is only open to states, that the application presents Palestine as a state. It is pretty normal, too, that Abbas’ speech to the General Assembly presents a Palestinian State as an aspiration, because the aim of this political language was to present again the “injustice’’ and “plight” that the Palestine people are undergoing, precisely because they still do not have their state; the ultimate goal being to sensitize this UN body to vote for a resolution which would accelerate state establishment: admission to the UN as a full member.
See for example Rosalyn Cohen (1961) discussing the legal requirements for admission to UN in her book: The Concept of Statehood in the United Nations Practice. See also Franklin Otorofani (2011): Palestine: International Law and Politics of State Recognition.
 A group of Arab States led by Syria, along with Great Britain, had opposed the admission of Israel on the ground of undefined territory.
 The issue in Congo was, at that time, to define which was the effective government of the country given its division consecutive to the civil war.
Trindade A.A. C. International Law for Humankind: Towards A New Jus Gentium. General Course on Public International Law, Hague Academy of International Law Collected Courses Volume 316, 2005.
Cohen R. The Concept of statehood in the United Nations practice, University of Pennsylvannia Law Review, 1961.
Crawford J. The Creation of the State of Palestine: Too much, Too soon, European Journal of International Law, 1990.
Dixon M. & McCorquodale R. Cases and Materials on International Law. Oxford University Press, 4th edition, 2003.
Quigley J. The Palestine Declaration to the International Criminal Court: The Statehood Issue
Higgins R. Problems and Process. International Law and How We Use it. Oxford University Press, 1994.
Weston R. A. Is Palestine a state? A response to Professor John Quigley’s article: ”The Palestine declaration to the International Criminal Court: The statehood issue”, Rutgers Law Records, Volume 39, 2009.
Bio: Bernard Ntahiraja is a graduate student of the Masters Programme in International Law and the Settlement of Disputes at the University for Peace of Costa Rica. email@example.com