It is needless to go into the story of the Palestine-Israeli conflict but it is important to note that Palestinians in the West Bank and Gaza Strip are living under oppression; their right to autonomy, to citizenship, to be a nation-state is taken away from them since 1967.
We cannot deny that Israel is the only functioning democracy with economic, commercial and military progress in a sea of autocracy but when the citizens demand accountability for the actions taken against the Palestinians victims, no answers are provided (David Aaronovitch, the British journalist and broadcaster. Doha Debate. The Pro-Israel Lobby. May 2007)). In March 2015, Benjamin Netanyahu promised his people that no Palestinian state would be established as long as he serves in office. How could this conflict possibly end? One of the proposed propositions to end the conflict is the recognition of Palestine as an independent state and to have two states on the ground.
According to international law, states remain the most important legal personalities hence becoming a state is very important for Palestine. Two theories are referred to when it comes to the legal recognition of states. Firstly, the declaratory theory takes into consideration the realities on the ground and focuses on the factual situation. The Montevideo Convention of Rights and Duties of States (1933) clarifies the conditions of a state: permanent population, defined territory, effective government and capacity enter into relations with other states.
Arguably, Palestine only passes the first criteria because it has a permanent population. However, Palestinian borders are not defined and there is an ongoing dispute on the territory itself. Furthermore, Palestine suffers a lack of effective government. On the international scene, there is not a single representation for Palestine who has effective control of the territory. Gaza is under Hamas’s control and the West Bank is under the administration of Fatah, while it remains occupied by Israel. Nevertheless, some scholars believe that the criterion of effectiveness is not as important as the actual control over the territory; the degree of control varies depending on how a state came into being hence a low degree of control could be sufficient. Cases like Croatia and Bosnia and Herzegovina portray this phenomenon where both states were recognized despite their lack of effective government. Although, the Montevideo Convention specifies that “the political existence of the state is independent of recognition by the other states”, Palestine has the formal recognition of 138 countries hence it will be able to enter into relationship with other states, which completes the fourth criterion of the declaratory of the theory.
On the other hand, Palestine declared its independence in 1988 under the PLO. Internationally, Palestine has diplomatic missions in several countries and the access to international organizations is remarkable. Palestine’s status in the UN has been and still is very special. It first became a ‘non-member observant entity’ in 1974 at the UN along with the Arab League and OPEC but now the General Assembly upgraded Palestine’s status to ‘non-member state’ in 2012. This step is very important for the political and legal battle of the Palestinian cause: since the failure of the Oslo Accords between the PLO and Israel, Palestinian diplomats have been seeking individual recognition of countries. Although some scholars argue that Palestine fails to constitute a state under the declaratory theory, the State of Palestine gained the recognition of more than 2/3 of the world’s states. This is evidence that many states in the international community believe that Palestine fulfills the criteria of statehood.
Under the constitutive theory, an entity becomes a state when it gains recognition of other states. Although state practice does not support this theory, it sometimes applies in borderline cases where the criteria of statehood are not fully met. However, this theory does not address problems arising when states do not get the recognition of all states of the international community (Hans Köchler, “The Palestine Problem in the Framework of International Law,” I.P.O. Research Papers). There is no such thing as a partial state. All the same, in actual practice, both theories apply and result in a middle position: “the act of recognition by one state of another indicates that the former regards the latter as having conformed to the basic requirements of international law as to the creation of a state.”
The United Nations General Assembly Resolution A/RES/67/19 is very relevant in this case since it upgraded the status of Palestine from a permanent observer to a non-member observer state with 138 votes in favor, 41 abstentions and 9 against. Based on this wide recognition, Palestine can assert its statehood and subtly recognizes Palestine sovereignty. The possible legal effects of this resolution are highly contested. One view believes that, according the United Nations Charter, General Assembly resolutions are not legally binding on member states hence this resolution does not create binding international law. Nevertheless, GA resolutions are not merely symbolic since they may represent both state practice and opinio juris and can lead to the creation of customary international law, a source of international law based on article 38 (1) (b) of the ICJ statute. Moreover, this GA resolution has important implications at the institutional level: the change in status has allowed Palestine to participate in General Assembly debates, join UN bodies and the International Criminal Court to investigate war crimes and crimes against humanity.
Internationally, Palestine needs to be a state that offers a more inclusive representation framework for all its different parties. The inconsistency in the representation of Palestinians did a lot of damage to their cause. The Palestinian Liberation Organization (PLO) did not govern well along with the deplorable state of humans living there: power and water shortages, no proper public services, no dignity, military occupation and extremism from the settlers. The balance of power tipped to “violence pays off” and the resistance movements such as Jihad and Hamas became more popular. An official representation under a structured state is necessary to diminish the asymmetry between the occupied and occupying power.
International law experts believe that Palestine, with the wide diplomatic recognition and the UN recognition, will be able to bring cases against Israel. The ICC will be an opportunity for the Palestinians that would put pressure on Israel after the failure of peace talks. By acceding to the Rome Statue, the founding treaty of the ICC, Israeli nationals could be prosecuted for alleged crimes committed on Palestinian territory, including war crimes committed during the 50-day conflict in Gaza, in which 2,100 Palestinians were killed (most of whom were civilians according to the UN), as well as the unlawful deportation of protected persons living under military occupation in West Bank and East Jerusalem (which is illegal under article 8 of the Rome Statute). On the other hand, the Israeli government can use third party NGOs to file complaint against Palestinians in the ICC for the rockets and mortars fired at Israeli towns and cities by Hamas. (“Will ICC Membership Help or Hinder the Palestinians’ Cause?” BBC News, 1 Apr. 2015.)
Can they aspire to be more than that? In order to be admitted as a member state in the UN, the UN Security Council must approve their admission however with the US as a superpower and Israel as their very close ally, any resolution would likely be vetoed. No matter what International Law offers in terms of theories and ways to achieve statehood, Palestine’s options will remain limited with little real change on the ground.