Is Palestine a “State”?

By MARK DeSANTO — The United Nations General Assembly, comprised of 193 total members, voted to grant non-member observer status to Palestine on November 29, 2012. 138 member states voted to approve the change in member status, while only nine states, Canada, Czech Republic, Israel, Marshall Islands, Micronesia, Nauru, Panama, Palau, and the United States, voted against the change in accordance with international law regarding statehood.

Although Palestine has only been upgraded to a non-member observer state, the vote may be a sign of things to come regarding Palestine’s full member status. Nine current members of the Security Council voted for the change in status (the United States being the only country to cast an opposing vote). Furthermore, “there is no reason to believe that the Palestinian Authority will slow down its push for member state status or be open to even the slightest compromises with Israel.

Now that Palestine has been upgraded to non-member observer status, it will be able to apply to join specialized U.N. agencies and international organizations, the most significant of which is the International Criminal Court (“ICC”). Palestine is now able to bring suit with the ICC for alleged Israeli war crimes and any other viable claims against Israel as well as any other state.

Notwithstanding Palestine’s change in status, however, the fact remains that Palestine is still not a “state” as defined by international law. Recognition of a state within international law is based on the 1933 Montevideo Convention on the Rights and Duties of States.[1] Article 1 of the Montevideo convention provides that in order to qualify as a state, a country must have (1) a permanent population; (2) a defined territory; (3) a government; and (4) the capacity to enter into relations with other states.[2]For international law purposes, the Montevideo Convention contains the “best-known formulation of the basic criteria for statehood,” to wit.”

Based on the Montevideo Convention, it is apparent that Palestine is wholly incapable of satisfying the four requirements set forth therein. “At no time in history has there been an Arab Palestinian state or similar Arab Palestinian political entity exercising any form of national sovereignty over either parcel of land.” As such, Palestine lacks the permanent population and defined territory required by the Montevideo Convention.[3]

Additionally, the United Nations Charter requires that in order to qualify as a state, the country must be (1) a State; (2) peace-loving; (3) accepting of the obligations of the Charter; (4) able to carry out these obligations; and (5) must be willing to do so.[4]

When the United Nations Security Council (which bears the ultimate authority to grant full-member status) considered the Palestinian application for full membership in 2011, “objections were raised over the “peace loving” provision, and the lack of effective governmental control over the Gaza Strip by the Palestinian Authority.” Consequently, the Security Council did not recommend full membership for Palestine.

Regardless of the United Nations Security Council’s decision, however, the United Nations lacks the authority to define an entity as a “state” for international law purposes. The United Nations  provides that:

[t]he recognition of a new State or Government is an act that only other States and Governments may grant or withhold . . . The United Nations is neither a State nor a Government, and therefore does not possess any authority to recognize either a State or a Government. As an organization of independent States, it may admit a new State to its membership or accept the credentials of the representatives of a new Government.

As such, even if the United Nations grants Palestine full member status, the Montevideo Convention is the ultimate authority for declaring statehood under international law. Therefore, Palestine’s failure to meet the requirements of the Montevideo Convention bars it is from becoming a “state” for international law purposes.

[1] Montevideo Convention on the Rights and Duties of States, 165 LNTS 19, 49 Stat 3097 (Dec. 26, 1933).

[2] Id.

[3] Palestine’s utter failure to successfully delineate a defined territory with Israel is undeniable proof that it lacks a “defined territory” as required by the Montevideo Convention, thus preventing any determination that Palestine is a “state” for international law purposes. Furthermore, the relentless competition of the Palestinian Authority in the West Bank with the Hamas in the Gaza Strip buttresses the conclusion that Palestine cannot meet the requirement of government under the Montevideo Convention.

[4] U.N. Charter art. 4, ¶ 1.

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