News / Middle East

    Palestine a State Already, Some Scholars Argue

    Experts agree that UN recognition not essential, but differ on definition of statehood.

    Palestinian students hold flags as they arrive to deliver letters to UN Secretary General Ban Ki-moon through the head of the UN office in the West Bank city of Ramallah September 20, 2011, ahead of President Mahmoud Abbas' bid for statehood recognition a
    Palestinian students hold flags as they arrive to deliver letters to UN Secretary General Ban Ki-moon through the head of the UN office in the West Bank city of Ramallah September 20, 2011, ahead of President Mahmoud Abbas' bid for statehood recognition a
    Davin HutchinsCecily Hilleary

    Barring any diplomatic surprises, Palestinian President Mahmoud Abbas intends to make the case for membership before the United Nations this week. However, some analysts say he need not bother – that, in fact, Palestine already is a state, whether a U.N. member or not.

    John Quigley, professor of international law at Moritz College of Law, Ohio State University, and author of The Statehood of Palestine: International Law in the Middle East Conflict, argues that Palestine has, in effect, been sovereign since the end of the British Mandate in 1948. Further, he says, Palestine officially declared itself a state in 1988, and when the U.N. responded to that declaration, it was in effect recognizing Palestine.

    John Quigley
    John Quigley

    He cites the Montevideo Convention on the Rights and Duties of States of 1933, which stipulates that “statehood” is not dependent on recognition by other states.  To be considered an official state, an entity must possess a permanent population, defined territory, a government and the capacity to enter into relations with the other states.

    Quigley argues that Palestinians meet all of these criteria, therefore it is not even necessary for them to go the U.N. “That is, I think Palestine is a state presently, and that what would be done at the U.N. would simply be a confirmation of that.”

    If that’s the case, why is Abbas proceeding with his U.N. bid? “The International Criminal Court,” says Quigley, “would be likely to go ahead with investigating the alleged war crimes…that may have been committed in Palestine’s territory.”

    Quigley also argues that there is legal precedent for the General Assembly to override a veto by any member of the Security Council. “There’s a long history on this issue,” he said.  “It came up in the 1940s, when the Soviet Union was vetoing. At that time, the United States made a unilateral commitment in the General Assembly that it would never veto an application for admission.”

    Guy S. Goodwin-Gill
    Guy S. Goodwin-Gill

    However, other analysts disagree, saying that in the case of Palestine, things are not so cut and dry. Guy S. Goodwin-Gill, Senior Research Fellow at All Souls College, Oxford, says that the Montevideo Convention, while it offers the classic definition of a state, is problematic.

    Palestinian Statehood Bid Breakdown

      The Process

    • Palestinians say they are seeking U.N. recognition after years of negotiations with Israel failed to deliver an independent state.
    • It is not clear if Palestinian President Mahmoud Abbas will seek U.N. Security Council approval of U.N. member status for an independent Palestine, or instead seek "non-member status" within the world body.
    • The mechanism for recognizing statehood at the United Nations is specific.
    • First, a resolution declaring a State of Palestine as a full U.N. member is introduced. Then the resolution is sent to the Security Council, which studies it and takes a vote on sending the measure to the full General Assembly. It takes two thirds of the U.N.'s membership to approve voting-state status.
    • Achieving non-member status requires only a simple majority vote in the 193-member General Assembly. Palestinians currently hold observer status at the world body.
    • Non-voting U.N. membership would provide Palestinians with a status upgrade that would allow them to petition U.N. committees and entities such as the International Court of Justice.

      Why the Palestinian bid?

    • President Abbas backed out of U.S.-led peace talks last year in protest against Israel's decision to end a freeze in settlement building on land the Palestinians want for a future state. Palestinians say because the peace process has failed, they will unilaterally seek to establish a state. Abbas said the Palestinians are the only people in the world who remain under occupation.

      Why the Israelis oppose the move?

    • Israeli Prime Minister Benjamin Netanyahu says the Palestinians' plan to seek statehood recognition at the United Nations is "futile," and that only direct negotiations can lead to a peace agreement.
    • Netanyahu has accused the Palestinians of "consistently evading" negotiations. He called on the Palestinian Authority "to abandon unilateral steps" and said it would then "find Israel to be a genuine partner" for peace.
    • Israel leaders say that by bypassing talks and going to the U.N., the Palestinians are violating previous agreements, and that could result in Israeli sanctions.

      Why the U.S. promises to veto?

    • The Obama administration opposes the Palestinian move and says it will not help to bring Palestinians and Israelis back to the negotiating table. President Obama has called the proposal a "distraction" to attaining Mideast peace that he says can only be addressed through negotiations.
    • The U.S., one of five veto-wielding members of the U.N. Security Council, says it will veto a Palestinian membership bid in the Council if it comes to a vote.

    “That is a mixture of matters of fact, which perhaps were to be determined objectively, and also some matters of appreciational discretion which is where, if you like,  the interesting dimension comes in,” he said.

    In simpler terms, Goodwin-Gill suggests that the Convention is sufficiently vague that it can be interpreted according to the political objectives of other states.  

    He also points to the fact that Palestine is under occupation. “That is a qualification of what we look for in every state, which is independence,” he said.

    Goodwin-Gill argues that because the borders of Palestinian territory are vague and disputed and the Palestinian Authority does not exercise full sovereignty over its territory, Palestine cannot be considered a state and it will not, until it comes to a final settlement through negotiations with Israel.  

    He does concede that the conventions are not hard and fast rules.  “There are certainly anomalies or entities around the world which do not, on any objective criterion, meet all the requirements of statehood, but which nonetheless are accepted,” Goodwin-Gill said.   Such as Monaco, which is a sovereign and independent state, but still linked to France in some matters, such as defense.

    Like Quigley, Goodwin-Gill says recognition by the United Nations isn’t necessary in order to be considered a state. He cites the example of Switzerland, which did not become a member of the United Nations “family” until 2002.

    He disagrees with his colleague, however, on the matter of whether the General Assembly can override a Security Council veto, saying that the U.N. Charter is quite clear that a state cannot be recognized without a Security Council recommendation.  However, that is not to say the General Assembly could not find other political means of enhancing Palestine’s standing, if enough states ask it to do so.

    In the end, Goodwin-Gill says, statehood is very much dependent on how you are treated by other countries.

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    بعض الباحثين القانونيين يقولون ان الاراضي الفلسطينية هي دولة مسبقا الرئيس الفلسطيني محمود عباس لصنع الحال بالنسبة للعضوية في الأمم المتحدة هذا الأسبوع. لكن بعض المحللين يقولون ان القانون الفلسطيني، في الواقع، هو بالفعل دولة وفقا لبعض الاتفاقيات الدولية.

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