Hosam Hawamdeh
01-05-2010, 04:34 AM
By Forji Amin George
Postgraduate Research Fellow
Helsinki University
Submitted June, 2004
Notice: The opinions expressed in this article are those of the author, and are not necessarily shared by LAWJO.
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Avant Propos
"...And Isaac prayed to the Lord for his wife, because she was barren, and the Lord granted his prayer, and Rebekah his wife conceived.
The children struggle within her; and she said, if it's thus, why do I live? 'So, she went to inquire of the Lord. And the lord said to her,
'Two Nations are in your womb, and two peoples, born of you, shall be divided;
The one shall be stronger than the other; the elder shall serve the younger."[1]
"No regional crises have great potentials to affect world peace than the Israeli-Palestinian conflict. None has proved intractable, and seemingly impossible to resolve.Yet, at the end of the day, most commentators agree that the only solution to the conflict lies in the creation of a viable Palestinian state under the guidance and norms of international law: Only International Law can provide an autonomous legal system capable of rendering objective judgment on the claims of the competing parties"[2]
Historical Synopsis Of Palestine And Palestinian People
Palestine can be genuinely classed into three broad distinct generations to wit: the ancient Palestine (Philistine or "Biblical Palestine") , the classical/contemporary Palestine (used to include the whole territories of Israel and Palestine, then placed under the protectorate of United Kingdom since 1918-The state of Israel was created in 1948 by UNO in agreement with the unanimous international community (except for Arab countries) , on the part of this territory) , and finally the new Palestine (Palestine as it is or is to-be, today excluding Israel) .
For the purpose of this Research paper, I will be concerned only with the latter Palestine, although I will occasionally make brief allusions to the two others.
The State of Palestine was proclaimed in 1988, but in exile. Land was granted to the state, by Egypt (Gaza Strip) and Jordan (west Bank) , but this was under full Israeli occupation, and parts of these lands were even used to establish Jewish colonies.
Introduction
Is Palestine A State? That is the question-which question many International Law analysts have Christian as "The Palestinian Question". In one sense, Palestine has been seen to share much in common with other states in the international scene. However, and as is the case on the opposite arm of the debate, Palestine does not carry with her all the identity features required by these states to fully form part of the static community.
Language at times too seems to make a further nuance of the question. For instance, The Palestinian entity is variously referred to in the Queen's language as "The Palestinian territory", " The Palestinian Entity". On the other hand, the French (language) commonly refer to the entity as "L'Etat Palestinien", translated as the Palestinian state. Whatever language is used, the fact is that Palestine remains what it is, for language is only an aberration and does not create states. It is just a jargon of its own right.[3]
It seems to be difficult for International lawyers to write in an impartial and balanced way about the Palestinian issue. Most of the literature, some of it by respected figures is violently partisan. It is true that this only reflects much of the political and personal debate about Palestine.[4]
Nevertheless, that the language of the Law is used implies that these claims can be assessed, on the basis of values which extend beyond allegiance to a particular party, country, bloc or religion.
The Intifadah has been a time of terrible tragedy and great suffering for the Palestinian people. And yet, paradoxically, it has also proven to be the time of their greatest glory, an affirmation of their essential dignity as an independent people.[5] But how far has it helped them toward their goal of becoming a state?
I. Palestine Is A Subject Of International Law Sur Generic
By this, I mean to say Palestine is subject of international Law in its own way, in its own very special way and by its own right. Thus, Palestine has a unique legal personality (A) and in many ways can be seen to meet up with additional criterion of statehood. (B) .
A) Palestine Has A Legal Personality - "Statehood" And International Law
1) She Is A Nation
A Nation is a part, or division, of the people of the earth, distinguished from the rest By common descent, language, or institutions; a race; a stock. "All nation, and kindreds, and people, and tongues."[6]
Naturally, the Nation is the Best foundation of a state.[7] In other words, for there to be a state, there must be an existing nation. Hence, the Nation is the first prerequisite of a state.
Palestine is a nation both in fact and in law. factually, allusion can be made to afore-cited Biblical text:
"...And Isaac prayed to the Lord for his wife, because she was barren, and the Lord granted his prayer, and Rebekah his wife conceived.
The children struggle within her; and she said, if it's thus, why do I live?[8] 'So, she went to inquire of the Lord. And the lord said to her,
'Two Nations are in your womb[9] , and two peoples, born of you, shall be divided[10] ;
The one shall be stronger than the other; the elder shall serve the younger."
So, in fact right from conception, God granted Palestine (Esau) nationhood, which can neither be questioned nor altered. But does this imply that she is a state as well? That's the question.
Legally, Palestine fulfils the basic criterion of nationhood. She has a common history, population and territory. The Palestinians have always felt a sense of belonging and solidarity for their beloved nation. In fact, countless acts of suicide bombings as a sign of retaliation against the Israelis can be justified on patriotic sentiments, which is nothing else but a feeling of one belonging
.
2) Elements Of Statehood And Palestine
Does the Palestinian nation as it currently Sands meet up with static requirements? Under authoritative international law, for a state to exist, certain basic elements must first be met. The Montevideo convention[11] provides the following qualifications: a) a permanent population) a defined territory) a government, and d) the capacity to enter into relations with other states.
a. Territory
The control of territory is the essence of a state.[12] This is the basis of the central notion of "territorial sovereignty", establishing the exclusive competence to take legal and factual measures within that territory and prohibiting foreign governments from exercising authority in the same area without consent. So is the case with Palestinian territory. It's main territorial land mask includes the west bank:2, 263 sq.mi (5, 860sq km) and Gaza Strip:139sq mi (360 sq km) [13] Her large cities includes Gaza;1, 331, 600 (metro area) , 407, 600 (city proper) , Hebron137, 000 and Nablaus 115, 400.Other important cities include Ramallah and Bethlehem
The territory of a state does not have to be fixed and determinate. for example, Israel does not have fixed and permanent borders (except most recently with respect to Egypt ) and yet it is generally considered to be a state.
Infact International law does not require that the boundaries of a nascent state be accurately delimited in their entirety.[14] Thus, the state of Palestine doe not have to have declared borders either[15] Rather, borders will be negotiated between the government of Israel and the government of Palestine. This is the same way peace negotiations will be carried out between any other two states/governments in dispute over the existence of their respective borders.
To be sure, it is quite clear from reading the Palestinian Declaration of Independence and the attached political communiqué that the PLO contemplates that the new state of Palestine will consist essentially of what has been called the west bank and Gaza Strips with it's capital being East Jerusalem.[16]
b. Population
The criterion of a "permanent population" is connected with that of territory and constitutes the physical basis for the existence of a state. who belongs to a permanent population is determined by the internal law on nationality, which international law leaves to the discretion of states.[17] This criterion is in many respects satisfied by Palestine. The Palestinian authority can identify a group of people that are permanently resident in the West bank and Gaza strip territory.[18]
In occupied Palestine, there lives the population of the Palestinian people; they have lived there forever, since time immemorial. They are the original inhabitants of this territory. They are fixed and determinate, and so they definitely constitute a distinguishable population.[19] They have always been in possession of their land and therefore are entitled to create a state therein.
In fact per the data collected in 2003[20] , the population of the West Bank stood at 2, 237, 194;Gaza Strip 1, 274, 868 (growth rate: West Bank3.0%, GazaStrip:3.7%...density per sq.mi:West bank:989, Gaza strip:9, 172...
Palestine has the following ethnicity/race: West Bank: Palestinian Arab and others 83%, Jewish : 17 %.Gaza Strip: Palestinian Arab and others 99.4%, Jewish0.6%[21]
c. Government
Effective governmental authority is a crucial element of statehood. There are two aspects following from this control by a government, one internal and the other external.Internally, the existence of a government implies the capacity to establish and maintain a legal order in the sense of constitutional autonomy.Externally, it means the ability to act autonomously on the international level without being legally dependent on other states within the international legal order.[22] Palestine is seen to satisfy both requirements, atleast from the face value. The Palestinian Authority (PA) with Yasser Arafat as it's elected leader, took control of the non-occupied areas, assuming governmental duties in 1994.
During the course of his various public pronouncements in Europe during 1998, Yasser Arafat, Chairman of the Executive committee of the Palestian Liberation Organisation (PLO) , stated that the PLO is currently serving as the provisional government of the state of Palestine. Acting in conjunction with the unified leadership of intifadah, this provisional government already controls substantial sections of occupied PAlestine as well as the entire populace occupied Palestine, providing administrative functions and social services also to Palestinian people living in occupied Palestine and abroad.[23]
Moreso, since March 2003, there has been the post of Prime Minister, having significant powers both in internal and external affairs, with Mahmoud Abbas as Pioneer. Upon resignation, Arafat in September appointed a new PM Ahmed Qurei.
d. The Capacity To Enter Into International Relations / Constitutive Theory of Statehood
As Crawford explains, [24] the capacity to enter into relations with other states is an essential prerequisite of independence (statehood) .Over 114 states have already recognised the newly proclaim state of of Palestine, which is more than the 93 that maintain some form of diplomatic relations with Israel.[25] More importantly, Palestine is recognised by all it's neighbour countries, except Israel .[26]
Furthermore, on December 1988 the UN General Assembly adopted Resolution 43/177 essentially recognising the new state of Palestine and according it observer-state status throughout the UNO[27]
B. Additional Criterion of "Statehood"
1. Additional Criterion Proper
In a more recent international practice, several additional criteria have been identified as prerequisites for statehood. Hence, the overwhelming positions taken by contemporary jurists as well as the increasing recognition policy of of many states indicate that the traditional criteria for statehood are being extended to include additional elements.
Indeed, it has become accepted to investigate several other features of a putative state before considering it's eligibility for recognition.[28]
Briefly put, the additional contemporary criteria for statehood require that an entity seeking recognition demonstrate that it has not been established as a result of illegaility.Secondly, that it is willing and able to abide by international law. A third criterion is that it constitute a viable entity, and finally that it's claim to statehood is compactable with the right to self-determination. In many ways, Palestine is seen to meet up with these criterion, as will be summarily illustrated.
a. Lawful Claim to Statehood
It is now well established that in order to qualify for recognition, a state must not emerge as a result of illegality. Palestine has a lawful claim to statehood.Indeed, as far back as 1919, the Palestinian people were provisionally recognised as a member nation by the League of Nations.[29] This provisional recognition continues into effect today because of the conservatory clause found in Article 80 (1) of the UN charter.
Furthermore, on 15 December 1988, the UN General Assembly adopted Resolution 43/177, essentially recognising the new state of Palestine and according it observer-state status throughout the UNO.The resolution was adopted by a vote of 104 in favour. The US and Israel opposed, and 44 states abstaining. Be it as it may be, Boyle has forcefully demonstrated and argued out that "the General Assembly recognition of of the new state of Palestine is constitutive, definitive, and universally determinative".
b. Being Willing and Able to Abide to International Law
The requirement that a state be both willing and able to abide by International law has become a regular feature of the recognition policy of states and International organisations. What is the PA's present capacity to abide by international law and function as a member of the international community?The following statement by it's Chairman is instructive:
"The PLO commits itself to the Middle East peace process, and to a peaceful resolution of the conflict between the two sides and declares that all outstanding issues relating to permanent status will be resolved through negotiations."[30]
This undertaking was repeated in a letter sent by Chairman Arafat to Prime minister Rabin on May 4th 1994.In that letter, the PLO confirmed that "neither side shall initiate any step that will change the status of the Gaza Strip and the Jericho area pending the outcome of the permanent status negotiations."[31]
c. Is Palestine a Viable Entity?
In order to ensure that after it's recognition, a state will continue to satisfy the criterion for statehood, evidence of it's viability is generally sought. Since the peace process was started in 1993, many of the most central state institutions have been established for PAlestine.The PA (as it's officially called) controls part of the West Bank and the Gaza Strip, there's an elected president, a government, police, a juridical system and from 1995 even a Palestinian passport (only recognised by 29 countries) .[32]
d. Is Palestinian Statehood Compatible With The Right to Self-Determination?
"All peoples have a right to self determination. By virtue of that right, they freely determine their political status and freely pursue their economic, social and cultural development."[33]
The vocabulary of self-determination has been contested by the international community in the context of the Palestinian people, but the Palestinians themselves, and many states that recognise Palestinian statehood, accept this as a major aspiration.
Pursuant to the basic right of self-determination of peoples as recognised by the UN charter Article 1 (2) and by the international court of Justice in it's Namibia and Western Sahara Advisory opinions, the Palestinian people have proceeded to proclaim their own independent state in the land they have continuously occupied for thousands of years.[34]
2.
The Special Status of Palestine
As aforesaid, the UN general Assembly on the 15th of December 1988 adopted Resolution 43/177, essentially recognising the new state of Palestine and according it observer-state status throughout the UNO in what Boyle has conceived to be constitutive, definitive and universally determinative.Infact, in the case of Israel, it's acceptance of the Partition Resolution was a "condition for it's admission" to the United Nations.[35]
although not a full state yet, the international community has for a very long time accorded Palestine a very special and unique status.Infact, as early as 1974, PLO led by Yasser Arafat addressed the UN General assembly, the first stateless government to do so.
Moreso, under authoritative international law, Palestinians are regarded to have Palestinian nationality and governed by Palestinian law (unlike the case of Taiwan for example which still depends on China for the said attributes) .Since 1995, there's even a Palestinian passport (only recognised by 29 countries)
II. The Controversy About Palestinian Statehood - "A State To-Be"
Palestine involves the converse problem, that of an entity which is not sufficiently effective to be regarded as independent in fact, but which is thought entitled to be a state, [36] if not in the nearest future. The fact remains that a real state of Palestine is by no means yet assured. Not only does she lack the dynamic requirements under international law (B) but in many ways is seen to fall short of the basic traditional criteria of statehood (A) .
A. Palestine In Many Ways Falls Short of the Traditional Criterion of Statehood
1. Not a Nation-State
This must not be confused with my earlier assertion in Part One that Palestine is a Nation. As i did mention, the nation is the best foundation of the state. Palestine satisfies this condition. To amount to a nation-state, the component must be fully viable, constitutive and in fact fully sovereign. Hence the state is as big as the Nation and bigger.[37]
The Palestinian autonomy is subject to the overriding residual Israeli autonomy.Infact, the provisions of article 1 (5) , ArticleXVII (4) , and ArticleXXXI (8) of the Declaration Of Principles (DOP) of the Israel-PLO talks, makes it clear that the parties did not establish an independent and sovereign governmental entity, but a limited self-governing body. So, it's not surprising that most sovereign powers are in effect exercised by Israel , not the Palestinian authority. For instance, The PA's lack of jurisdiction in relation to external security. This confirms that the parties created an autonomous body rather than an independent governmental authority.
2. The Basic Traditional Criteria of Statehood and Palestine
Eligibility for recognition (as a state) does not depend on whether an entity ought to satisfy the criteria for statehood, but on whether it meets the standards as a matter of fact and law.[38] Higgins has affirmed that "Traditional International Law has long demanded that before an entity can be acknowledged as a state, it must possess independence and sovereignty.[39]
a. Is There an Effective and Independent Government?
The lack of effective and independent governmental control has served as a basis for the non-recognition of an entity as a sovereign state in a significant number of cases. Thus recognition was withheld from Manchukkuo, Katanga and Biafra, in part due to a lack of effective and independent governmental authority.
For the Palestinian entity to meet up with this criterion, it will therefore be necessary to show that it possesses exclusive governmental powers, and is independent of external involvement. It should be noted that this test is strictly applied when considering the creation of a new state, as opposed to the more flexible approach adopted when evaluating the the substance of an existing state.Accordingly, the question of whether the Palestinian entity exercises the requisite degree of governmental control must be rigidly tested.
As aforesaid, the Palestinian autonomy is still subject to the overriding residual Israeli authority. Summarily put, the PA does not function as an independent government. In accordance with the Israel-PLO agreements which established it, The PA constitutes an autonomous body to which only temporal 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 airspace, and security responsibility at all border crossings and terminals are not transferred to the Palestinian entity but remain under Israeli's sole jurisdiction. The parties have agreed that the implementation of many of the powers and responsibilities exercised by the PA require some degree of approval or coordination with Israel . Thus, for example, The parties have agreed that Israel will continue to hold a degree of decision-making power with respect to the grant of admission into Palestinian areas and the conferral of permanent residency status.[40]
As if that was not enough, the Israeli and Palestinian sides agreed that visitors wishing to enter the portions of the West bank and Gaza strip under Palestinian control must obtain clearance from Israeli authourities, and that Israel has the right to to deny entry to any person who is not a registered resident of West bank or Gaza Strip.
b. Possession of a Defined Territory?
The Palestinian claim to statehood is also difficult to sustain in light of the requirement that the territory over which a putative state exercises control be adequately defined.Infact, the greater the lack of definition, the moe the statehood of the entity is in question. As Lauterpacht has asserted, "when the doubts as to the frontier [are] of a serious nature, statehood becomes in doubt".[41] And the doubts are of a serious nature indeed. For instance, it's purported to-be capital, East Jerusalem has never at any one single moment in time been subjected to overriding Palestinian control.Moreso, the Palestinians are not at all unique nor consistent with their territorial claims. They have never been really settled about what territories to lay their claims. Funnily enough, the Palestinian expectation includes amassing the entire state of Israel as part of it's territory.Indeed, as the pro-Palestinian writer neatly puts it,
"Over time, Palestine will likely enlarge to include what Palestinians still refer to as the 'occupied Palestine', that is, the entire state of Israel . This has always been the undisguised PLO/PA objective-..."
At this stage, the PA's powers are scattered throughout non-contiguous portions of West bank and Gaza Strip territories to the extend that the entity the consistency required for statehood.
It's often stated that the absence of clearly delimited boundaries is not a prerequisite to statehood is axiomatic. Boundaries are the consequence of territory. But territory in the context of statehood , is not "something owned". Although the PLO directly and indirectly exercises considerable influence within the occupied territories, and commands te allegiance of a significant part of the population of those territories; this still falls far short of what is required for the existence of an organised self-governing community.[42]
In a like manner, a Palestinian declaration of statehood which is purported to include parts of Jerusalem within the territory of a Palestinian "state" will be legally meaningless in light of the absence of any Palestinian authority over Jerusalem, and he actual exercise of Israeli sovereignty and jurisdiction in all parts of the city.finally, this provision expressly stipulates that any Palestinian authority activity aimed at implementing agreements signed by the PLO in accordance with article V is not to be regarded as foreign relations.
c. Effective and Independent Control Over a Permanent Population?
In many respects, this criterion seems to be satisfied.Atlest the Palestinian Authority can identify a group of people that are permanently resident in West Bank and Gaza Strip territories.
Nevertheless, whilst the PA does exercise significant powers over Palestinian residents, it's jurisdiction cannot be regarded as independent or comprehensive. The Palestinian claim to statehood over an indeterminate territory thus makes it difficult to clearly identify a population which meets the requirements of this criterion of statehood.
d. Other Considerations
Indeed, it has become accepted to investigate several other features of a putative state before considering it's eligibility for recognition. Firstly, there is the constitutive theory of statehood. according to this view, an entity is a state only if it is recognised as such by other states. There is no rule that majority recognition is binding on third states in International law. At present, Palestine has been recognised as state by over 100 states, but it does not yet command anything like the level of quasi-unanimous support as such. Since the crucial actors here are the United States and Israel , which vehemently do not recognise Palestine as a state, the theory leads no where.[43]
Moreover, the continuous reservations held about the status of Palestine are reflected, both in the practice of International Organisations and in the actions of individual states. For example, the World health organisation (WHO) deferred consideration of the application of Palestine for admission as a member of the WHO. The preamble of the relevant resolution[44] states, in part:
"recognising in this context that the legal and other basis related to the application of Palestine for membership of the WHO require further consideration..."
Similarly, the executive board of UNESCO deferred consideration of a Palestinian application for membership of UNESCO whist adopting measures to ensure that Palestine had the fullest possible opportunity (short of membership) of participation in the work of UNESCO.
B. Other Policy Considerations Under International Law
1. The Considerations
International law does not require a state to recognise another entity as a state; it's a matter for the judgment of each state; whether an entity merits recognition as a state.
Accordingly, even if the Palestinian entity were to satisfy the classical and additional legal criteria for statehood, this will not give rise to be recognised as a sovereign state. For even if the legal requirements were met, the decision whether to grant or withhold recognition will remain at the discretion of each state.
Does the recognition of the Palestinian entity represent a dangerous precedent? What message will the international community be sending by recognising a unilaterally declared Palestinian state? Would recognition of a Palestinian state benefit or harm regional and international stability? Would it enhance or endanger the prospects for peace?...
These are questions which each state will have to consider when deciding whether or not to grant legitimacy to a unilaterally Palestinian declaration of statehood.
In a way, recognition of the unilateral Palestinian declaration would reward the Palestinian Authority for violating the Israel-PLO agreements, a framework which they committed themselves to in order to resolve the Israeli-Palestinian conflict. In an era where ethnic conflicts are prevalent throughout the globe, it sends exactly the wrong message - rejecting negotiations and legitimising unilateral actions.[45]
2. Some Problematic of the Palestinian Problem
Again, the Palestinian problem involves complex legal and policy issues. In fact, as the seasoned Cameroon born Professor R:G Nlep (of blessed memory) writes,
"l'affaire Palestinien est beaucoup plus du destin devin que du fait..."[46] This can be roughly translated thus :The Palestinian question is more of divine destiny than factual. In fact, in many ways", I tend to agree with this writer. For instance, in the Book of Genesis12:4-9, God granted the whole land (territory) of Israel and Palestine-Canaan to the "descendants" of Abraham (Israel (Jacob) and Palestine (Esau) ) without any preference or discrimination to some of the descendants, and there they are today. It goes without saying that either of he two is seen to have just and equitable claims to any parts of the territories without exception, to be questioned by no other person or organisation, or even either of them, but God alone.[47]
Recent developments in the Middle East again proof this true. For instance, On May 1, the Quartet (the U.S., UN, EU, and Russia) unfurled its" road map" for peace in the Middle East, which called on both sides to make concessions and end the wave of deadly violence that has claimed more than 2, 000 Palestinians and about 800 Israelis in the past two-and-a-half years. Sharon publicly acknowledged the need for a Palestinian state and Abbas committed himself to ending terrorism, but the road map has led nowhere, with neither side honouring their obligations: Abbas, with little real political power, did not disable terrorist organizations, and Israel did not dismantle settlements, much less prevent new ones from cropping up.[48]
The so-called roadmap has been variously described to as the "Roadmap to Nowhere" by Sam Bahour and Michael Dahan in counterpunch.[49]
another revealing modern alternative will be to take advantage of the developments in international law since 1945 which have arguably modified the conception of statehood from that implied by the Montevideo formula. There has been a certain departure from the notion of a state as an effective territorial community independent of other states. instead, notions of entitlement or disentitlement to be regarded as a state have been influential, atleast in some situations. Thus entities which will have otherwise qualified as a state may not do so because their creation is in some sense illegitimate (Rhodesia, The Bantustans, The Turkish federal states Of Cyprus) .Again, Palestine involves the converse problem, that of an entity which is not sufficiently effective to be regarded as independent in fact but which is thought entitled to be a state.
The situation here involves the establishment of a new state on territory over which other states have valid legal claims of one kind or another. Not even it's purported capital, East Jerusalem has ever been secured at any one moment in time.
In a way, the claim of a Palestinian state is not founded, especially when those who are presented as it's leaders proclaim that their objective is finally to destroy Israel and to reject the Jews with the sea.[50]
Appraisal
It's a curious feature of modern discussions of territorial status that the "traditional definition" of a state, as expressed in the four criteria referred to in the Montevideo convention on the Rights and Duties of states of 1933 , continues to exercise so strong a whole. Why should the entity of Palestine be dependent on the precepts of this convention (when she never consented and probably doesn't consent to it) ?Where are the rights and duties of the Montevideo convention from, by the way? are they from God? If no, what then is their binding force? The questions keep looming with every uncertainty. I strongly feel that the Montevideo convention are not any hard and fast rules to which there can be no derogation.Infact, the convention was entered at a time when several other considerations as illustrated in this essay were neither envisaged nor were they foreseeable, and which today act as necessary prerequisites for statehood.
Rather than examining separately the four apparently discrete criteria listed in the Montevideo formula, it's preferable to focus on the notion of state independence as a prerequisite for statehood. The criteria for statehood which must be satisfied before recognition can be considered have been formulated in different ways. But the various formulations share the common that independence and sovereign governmental control are the sine qua non of statehood.
It's my personal submission that the Palestinian question is a very unruly horse which may take it's rider (in this case, anyone who wants to talk or write on the subject) to where he knows not. It's a very unstable foundation to built on.[51]
Again, the Palestinian question in a way begins from no where and ends nowhere. even the points so advanced by proponents to support the argument and justify Palestinian statehood are infact the same points used to deny it status.
It's again my humble submission that the Palestinian question at the moment should be and is infact one of self-determination. The Palestian national Authority's right to declare an independent state of Palestine are "peremptory" (essentially so fundamental that they are beyond legal challenge) and therefore override any expectations of the non-treaty Oslo agreement with the state of Israel.
One must envy the Palestinians the dexterity with which they have successfully outwitted the Israelis. For years, they have listened and learned and watched and persevered.
Conclusion
Both in law and in fact, Palestine is a nation, but she is not yet a state. The fact remains that a real state of Palestine is by no means yet assured. The manipulation of legal categories is unlikely to advance matters. At the same time, it is hard to conclude that Palestine is not a state: Whilst she has not yet been recognised by most Western countries and Israel as such, it is clear that such a recognition will come, and that this will have only formal importance.
The Palestinian question is a time bomb and has come of age, whether it will be ignited or diffused, ... only time will tell.
It's my final submission, fellow readers that the final establishment of a viable Palestinian state is neither imminent nor unavoidable.
Postgraduate Research Fellow
Helsinki University
Submitted June, 2004
Notice: The opinions expressed in this article are those of the author, and are not necessarily shared by LAWJO.
===========================
Avant Propos
"...And Isaac prayed to the Lord for his wife, because she was barren, and the Lord granted his prayer, and Rebekah his wife conceived.
The children struggle within her; and she said, if it's thus, why do I live? 'So, she went to inquire of the Lord. And the lord said to her,
'Two Nations are in your womb, and two peoples, born of you, shall be divided;
The one shall be stronger than the other; the elder shall serve the younger."[1]
"No regional crises have great potentials to affect world peace than the Israeli-Palestinian conflict. None has proved intractable, and seemingly impossible to resolve.Yet, at the end of the day, most commentators agree that the only solution to the conflict lies in the creation of a viable Palestinian state under the guidance and norms of international law: Only International Law can provide an autonomous legal system capable of rendering objective judgment on the claims of the competing parties"[2]
Historical Synopsis Of Palestine And Palestinian People
Palestine can be genuinely classed into three broad distinct generations to wit: the ancient Palestine (Philistine or "Biblical Palestine") , the classical/contemporary Palestine (used to include the whole territories of Israel and Palestine, then placed under the protectorate of United Kingdom since 1918-The state of Israel was created in 1948 by UNO in agreement with the unanimous international community (except for Arab countries) , on the part of this territory) , and finally the new Palestine (Palestine as it is or is to-be, today excluding Israel) .
For the purpose of this Research paper, I will be concerned only with the latter Palestine, although I will occasionally make brief allusions to the two others.
The State of Palestine was proclaimed in 1988, but in exile. Land was granted to the state, by Egypt (Gaza Strip) and Jordan (west Bank) , but this was under full Israeli occupation, and parts of these lands were even used to establish Jewish colonies.
Introduction
Is Palestine A State? That is the question-which question many International Law analysts have Christian as "The Palestinian Question". In one sense, Palestine has been seen to share much in common with other states in the international scene. However, and as is the case on the opposite arm of the debate, Palestine does not carry with her all the identity features required by these states to fully form part of the static community.
Language at times too seems to make a further nuance of the question. For instance, The Palestinian entity is variously referred to in the Queen's language as "The Palestinian territory", " The Palestinian Entity". On the other hand, the French (language) commonly refer to the entity as "L'Etat Palestinien", translated as the Palestinian state. Whatever language is used, the fact is that Palestine remains what it is, for language is only an aberration and does not create states. It is just a jargon of its own right.[3]
It seems to be difficult for International lawyers to write in an impartial and balanced way about the Palestinian issue. Most of the literature, some of it by respected figures is violently partisan. It is true that this only reflects much of the political and personal debate about Palestine.[4]
Nevertheless, that the language of the Law is used implies that these claims can be assessed, on the basis of values which extend beyond allegiance to a particular party, country, bloc or religion.
The Intifadah has been a time of terrible tragedy and great suffering for the Palestinian people. And yet, paradoxically, it has also proven to be the time of their greatest glory, an affirmation of their essential dignity as an independent people.[5] But how far has it helped them toward their goal of becoming a state?
I. Palestine Is A Subject Of International Law Sur Generic
By this, I mean to say Palestine is subject of international Law in its own way, in its own very special way and by its own right. Thus, Palestine has a unique legal personality (A) and in many ways can be seen to meet up with additional criterion of statehood. (B) .
A) Palestine Has A Legal Personality - "Statehood" And International Law
1) She Is A Nation
A Nation is a part, or division, of the people of the earth, distinguished from the rest By common descent, language, or institutions; a race; a stock. "All nation, and kindreds, and people, and tongues."[6]
Naturally, the Nation is the Best foundation of a state.[7] In other words, for there to be a state, there must be an existing nation. Hence, the Nation is the first prerequisite of a state.
Palestine is a nation both in fact and in law. factually, allusion can be made to afore-cited Biblical text:
"...And Isaac prayed to the Lord for his wife, because she was barren, and the Lord granted his prayer, and Rebekah his wife conceived.
The children struggle within her; and she said, if it's thus, why do I live?[8] 'So, she went to inquire of the Lord. And the lord said to her,
'Two Nations are in your womb[9] , and two peoples, born of you, shall be divided[10] ;
The one shall be stronger than the other; the elder shall serve the younger."
So, in fact right from conception, God granted Palestine (Esau) nationhood, which can neither be questioned nor altered. But does this imply that she is a state as well? That's the question.
Legally, Palestine fulfils the basic criterion of nationhood. She has a common history, population and territory. The Palestinians have always felt a sense of belonging and solidarity for their beloved nation. In fact, countless acts of suicide bombings as a sign of retaliation against the Israelis can be justified on patriotic sentiments, which is nothing else but a feeling of one belonging
.
2) Elements Of Statehood And Palestine
Does the Palestinian nation as it currently Sands meet up with static requirements? Under authoritative international law, for a state to exist, certain basic elements must first be met. The Montevideo convention[11] provides the following qualifications: a) a permanent population) a defined territory) a government, and d) the capacity to enter into relations with other states.
a. Territory
The control of territory is the essence of a state.[12] This is the basis of the central notion of "territorial sovereignty", establishing the exclusive competence to take legal and factual measures within that territory and prohibiting foreign governments from exercising authority in the same area without consent. So is the case with Palestinian territory. It's main territorial land mask includes the west bank:2, 263 sq.mi (5, 860sq km) and Gaza Strip:139sq mi (360 sq km) [13] Her large cities includes Gaza;1, 331, 600 (metro area) , 407, 600 (city proper) , Hebron137, 000 and Nablaus 115, 400.Other important cities include Ramallah and Bethlehem
The territory of a state does not have to be fixed and determinate. for example, Israel does not have fixed and permanent borders (except most recently with respect to Egypt ) and yet it is generally considered to be a state.
Infact International law does not require that the boundaries of a nascent state be accurately delimited in their entirety.[14] Thus, the state of Palestine doe not have to have declared borders either[15] Rather, borders will be negotiated between the government of Israel and the government of Palestine. This is the same way peace negotiations will be carried out between any other two states/governments in dispute over the existence of their respective borders.
To be sure, it is quite clear from reading the Palestinian Declaration of Independence and the attached political communiqué that the PLO contemplates that the new state of Palestine will consist essentially of what has been called the west bank and Gaza Strips with it's capital being East Jerusalem.[16]
b. Population
The criterion of a "permanent population" is connected with that of territory and constitutes the physical basis for the existence of a state. who belongs to a permanent population is determined by the internal law on nationality, which international law leaves to the discretion of states.[17] This criterion is in many respects satisfied by Palestine. The Palestinian authority can identify a group of people that are permanently resident in the West bank and Gaza strip territory.[18]
In occupied Palestine, there lives the population of the Palestinian people; they have lived there forever, since time immemorial. They are the original inhabitants of this territory. They are fixed and determinate, and so they definitely constitute a distinguishable population.[19] They have always been in possession of their land and therefore are entitled to create a state therein.
In fact per the data collected in 2003[20] , the population of the West Bank stood at 2, 237, 194;Gaza Strip 1, 274, 868 (growth rate: West Bank3.0%, GazaStrip:3.7%...density per sq.mi:West bank:989, Gaza strip:9, 172...
Palestine has the following ethnicity/race: West Bank: Palestinian Arab and others 83%, Jewish : 17 %.Gaza Strip: Palestinian Arab and others 99.4%, Jewish0.6%[21]
c. Government
Effective governmental authority is a crucial element of statehood. There are two aspects following from this control by a government, one internal and the other external.Internally, the existence of a government implies the capacity to establish and maintain a legal order in the sense of constitutional autonomy.Externally, it means the ability to act autonomously on the international level without being legally dependent on other states within the international legal order.[22] Palestine is seen to satisfy both requirements, atleast from the face value. The Palestinian Authority (PA) with Yasser Arafat as it's elected leader, took control of the non-occupied areas, assuming governmental duties in 1994.
During the course of his various public pronouncements in Europe during 1998, Yasser Arafat, Chairman of the Executive committee of the Palestian Liberation Organisation (PLO) , stated that the PLO is currently serving as the provisional government of the state of Palestine. Acting in conjunction with the unified leadership of intifadah, this provisional government already controls substantial sections of occupied PAlestine as well as the entire populace occupied Palestine, providing administrative functions and social services also to Palestinian people living in occupied Palestine and abroad.[23]
Moreso, since March 2003, there has been the post of Prime Minister, having significant powers both in internal and external affairs, with Mahmoud Abbas as Pioneer. Upon resignation, Arafat in September appointed a new PM Ahmed Qurei.
d. The Capacity To Enter Into International Relations / Constitutive Theory of Statehood
As Crawford explains, [24] the capacity to enter into relations with other states is an essential prerequisite of independence (statehood) .Over 114 states have already recognised the newly proclaim state of of Palestine, which is more than the 93 that maintain some form of diplomatic relations with Israel.[25] More importantly, Palestine is recognised by all it's neighbour countries, except Israel .[26]
Furthermore, on December 1988 the UN General Assembly adopted Resolution 43/177 essentially recognising the new state of Palestine and according it observer-state status throughout the UNO[27]
B. Additional Criterion of "Statehood"
1. Additional Criterion Proper
In a more recent international practice, several additional criteria have been identified as prerequisites for statehood. Hence, the overwhelming positions taken by contemporary jurists as well as the increasing recognition policy of of many states indicate that the traditional criteria for statehood are being extended to include additional elements.
Indeed, it has become accepted to investigate several other features of a putative state before considering it's eligibility for recognition.[28]
Briefly put, the additional contemporary criteria for statehood require that an entity seeking recognition demonstrate that it has not been established as a result of illegaility.Secondly, that it is willing and able to abide by international law. A third criterion is that it constitute a viable entity, and finally that it's claim to statehood is compactable with the right to self-determination. In many ways, Palestine is seen to meet up with these criterion, as will be summarily illustrated.
a. Lawful Claim to Statehood
It is now well established that in order to qualify for recognition, a state must not emerge as a result of illegality. Palestine has a lawful claim to statehood.Indeed, as far back as 1919, the Palestinian people were provisionally recognised as a member nation by the League of Nations.[29] This provisional recognition continues into effect today because of the conservatory clause found in Article 80 (1) of the UN charter.
Furthermore, on 15 December 1988, the UN General Assembly adopted Resolution 43/177, essentially recognising the new state of Palestine and according it observer-state status throughout the UNO.The resolution was adopted by a vote of 104 in favour. The US and Israel opposed, and 44 states abstaining. Be it as it may be, Boyle has forcefully demonstrated and argued out that "the General Assembly recognition of of the new state of Palestine is constitutive, definitive, and universally determinative".
b. Being Willing and Able to Abide to International Law
The requirement that a state be both willing and able to abide by International law has become a regular feature of the recognition policy of states and International organisations. What is the PA's present capacity to abide by international law and function as a member of the international community?The following statement by it's Chairman is instructive:
"The PLO commits itself to the Middle East peace process, and to a peaceful resolution of the conflict between the two sides and declares that all outstanding issues relating to permanent status will be resolved through negotiations."[30]
This undertaking was repeated in a letter sent by Chairman Arafat to Prime minister Rabin on May 4th 1994.In that letter, the PLO confirmed that "neither side shall initiate any step that will change the status of the Gaza Strip and the Jericho area pending the outcome of the permanent status negotiations."[31]
c. Is Palestine a Viable Entity?
In order to ensure that after it's recognition, a state will continue to satisfy the criterion for statehood, evidence of it's viability is generally sought. Since the peace process was started in 1993, many of the most central state institutions have been established for PAlestine.The PA (as it's officially called) controls part of the West Bank and the Gaza Strip, there's an elected president, a government, police, a juridical system and from 1995 even a Palestinian passport (only recognised by 29 countries) .[32]
d. Is Palestinian Statehood Compatible With The Right to Self-Determination?
"All peoples have a right to self determination. By virtue of that right, they freely determine their political status and freely pursue their economic, social and cultural development."[33]
The vocabulary of self-determination has been contested by the international community in the context of the Palestinian people, but the Palestinians themselves, and many states that recognise Palestinian statehood, accept this as a major aspiration.
Pursuant to the basic right of self-determination of peoples as recognised by the UN charter Article 1 (2) and by the international court of Justice in it's Namibia and Western Sahara Advisory opinions, the Palestinian people have proceeded to proclaim their own independent state in the land they have continuously occupied for thousands of years.[34]
2.
The Special Status of Palestine
As aforesaid, the UN general Assembly on the 15th of December 1988 adopted Resolution 43/177, essentially recognising the new state of Palestine and according it observer-state status throughout the UNO in what Boyle has conceived to be constitutive, definitive and universally determinative.Infact, in the case of Israel, it's acceptance of the Partition Resolution was a "condition for it's admission" to the United Nations.[35]
although not a full state yet, the international community has for a very long time accorded Palestine a very special and unique status.Infact, as early as 1974, PLO led by Yasser Arafat addressed the UN General assembly, the first stateless government to do so.
Moreso, under authoritative international law, Palestinians are regarded to have Palestinian nationality and governed by Palestinian law (unlike the case of Taiwan for example which still depends on China for the said attributes) .Since 1995, there's even a Palestinian passport (only recognised by 29 countries)
II. The Controversy About Palestinian Statehood - "A State To-Be"
Palestine involves the converse problem, that of an entity which is not sufficiently effective to be regarded as independent in fact, but which is thought entitled to be a state, [36] if not in the nearest future. The fact remains that a real state of Palestine is by no means yet assured. Not only does she lack the dynamic requirements under international law (B) but in many ways is seen to fall short of the basic traditional criteria of statehood (A) .
A. Palestine In Many Ways Falls Short of the Traditional Criterion of Statehood
1. Not a Nation-State
This must not be confused with my earlier assertion in Part One that Palestine is a Nation. As i did mention, the nation is the best foundation of the state. Palestine satisfies this condition. To amount to a nation-state, the component must be fully viable, constitutive and in fact fully sovereign. Hence the state is as big as the Nation and bigger.[37]
The Palestinian autonomy is subject to the overriding residual Israeli autonomy.Infact, the provisions of article 1 (5) , ArticleXVII (4) , and ArticleXXXI (8) of the Declaration Of Principles (DOP) of the Israel-PLO talks, makes it clear that the parties did not establish an independent and sovereign governmental entity, but a limited self-governing body. So, it's not surprising that most sovereign powers are in effect exercised by Israel , not the Palestinian authority. For instance, The PA's lack of jurisdiction in relation to external security. This confirms that the parties created an autonomous body rather than an independent governmental authority.
2. The Basic Traditional Criteria of Statehood and Palestine
Eligibility for recognition (as a state) does not depend on whether an entity ought to satisfy the criteria for statehood, but on whether it meets the standards as a matter of fact and law.[38] Higgins has affirmed that "Traditional International Law has long demanded that before an entity can be acknowledged as a state, it must possess independence and sovereignty.[39]
a. Is There an Effective and Independent Government?
The lack of effective and independent governmental control has served as a basis for the non-recognition of an entity as a sovereign state in a significant number of cases. Thus recognition was withheld from Manchukkuo, Katanga and Biafra, in part due to a lack of effective and independent governmental authority.
For the Palestinian entity to meet up with this criterion, it will therefore be necessary to show that it possesses exclusive governmental powers, and is independent of external involvement. It should be noted that this test is strictly applied when considering the creation of a new state, as opposed to the more flexible approach adopted when evaluating the the substance of an existing state.Accordingly, the question of whether the Palestinian entity exercises the requisite degree of governmental control must be rigidly tested.
As aforesaid, the Palestinian autonomy is still subject to the overriding residual Israeli authority. Summarily put, the PA does not function as an independent government. In accordance with the Israel-PLO agreements which established it, The PA constitutes an autonomous body to which only temporal 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 airspace, and security responsibility at all border crossings and terminals are not transferred to the Palestinian entity but remain under Israeli's sole jurisdiction. The parties have agreed that the implementation of many of the powers and responsibilities exercised by the PA require some degree of approval or coordination with Israel . Thus, for example, The parties have agreed that Israel will continue to hold a degree of decision-making power with respect to the grant of admission into Palestinian areas and the conferral of permanent residency status.[40]
As if that was not enough, the Israeli and Palestinian sides agreed that visitors wishing to enter the portions of the West bank and Gaza strip under Palestinian control must obtain clearance from Israeli authourities, and that Israel has the right to to deny entry to any person who is not a registered resident of West bank or Gaza Strip.
b. Possession of a Defined Territory?
The Palestinian claim to statehood is also difficult to sustain in light of the requirement that the territory over which a putative state exercises control be adequately defined.Infact, the greater the lack of definition, the moe the statehood of the entity is in question. As Lauterpacht has asserted, "when the doubts as to the frontier [are] of a serious nature, statehood becomes in doubt".[41] And the doubts are of a serious nature indeed. For instance, it's purported to-be capital, East Jerusalem has never at any one single moment in time been subjected to overriding Palestinian control.Moreso, the Palestinians are not at all unique nor consistent with their territorial claims. They have never been really settled about what territories to lay their claims. Funnily enough, the Palestinian expectation includes amassing the entire state of Israel as part of it's territory.Indeed, as the pro-Palestinian writer neatly puts it,
"Over time, Palestine will likely enlarge to include what Palestinians still refer to as the 'occupied Palestine', that is, the entire state of Israel . This has always been the undisguised PLO/PA objective-..."
At this stage, the PA's powers are scattered throughout non-contiguous portions of West bank and Gaza Strip territories to the extend that the entity the consistency required for statehood.
It's often stated that the absence of clearly delimited boundaries is not a prerequisite to statehood is axiomatic. Boundaries are the consequence of territory. But territory in the context of statehood , is not "something owned". Although the PLO directly and indirectly exercises considerable influence within the occupied territories, and commands te allegiance of a significant part of the population of those territories; this still falls far short of what is required for the existence of an organised self-governing community.[42]
In a like manner, a Palestinian declaration of statehood which is purported to include parts of Jerusalem within the territory of a Palestinian "state" will be legally meaningless in light of the absence of any Palestinian authority over Jerusalem, and he actual exercise of Israeli sovereignty and jurisdiction in all parts of the city.finally, this provision expressly stipulates that any Palestinian authority activity aimed at implementing agreements signed by the PLO in accordance with article V is not to be regarded as foreign relations.
c. Effective and Independent Control Over a Permanent Population?
In many respects, this criterion seems to be satisfied.Atlest the Palestinian Authority can identify a group of people that are permanently resident in West Bank and Gaza Strip territories.
Nevertheless, whilst the PA does exercise significant powers over Palestinian residents, it's jurisdiction cannot be regarded as independent or comprehensive. The Palestinian claim to statehood over an indeterminate territory thus makes it difficult to clearly identify a population which meets the requirements of this criterion of statehood.
d. Other Considerations
Indeed, it has become accepted to investigate several other features of a putative state before considering it's eligibility for recognition. Firstly, there is the constitutive theory of statehood. according to this view, an entity is a state only if it is recognised as such by other states. There is no rule that majority recognition is binding on third states in International law. At present, Palestine has been recognised as state by over 100 states, but it does not yet command anything like the level of quasi-unanimous support as such. Since the crucial actors here are the United States and Israel , which vehemently do not recognise Palestine as a state, the theory leads no where.[43]
Moreover, the continuous reservations held about the status of Palestine are reflected, both in the practice of International Organisations and in the actions of individual states. For example, the World health organisation (WHO) deferred consideration of the application of Palestine for admission as a member of the WHO. The preamble of the relevant resolution[44] states, in part:
"recognising in this context that the legal and other basis related to the application of Palestine for membership of the WHO require further consideration..."
Similarly, the executive board of UNESCO deferred consideration of a Palestinian application for membership of UNESCO whist adopting measures to ensure that Palestine had the fullest possible opportunity (short of membership) of participation in the work of UNESCO.
B. Other Policy Considerations Under International Law
1. The Considerations
International law does not require a state to recognise another entity as a state; it's a matter for the judgment of each state; whether an entity merits recognition as a state.
Accordingly, even if the Palestinian entity were to satisfy the classical and additional legal criteria for statehood, this will not give rise to be recognised as a sovereign state. For even if the legal requirements were met, the decision whether to grant or withhold recognition will remain at the discretion of each state.
Does the recognition of the Palestinian entity represent a dangerous precedent? What message will the international community be sending by recognising a unilaterally declared Palestinian state? Would recognition of a Palestinian state benefit or harm regional and international stability? Would it enhance or endanger the prospects for peace?...
These are questions which each state will have to consider when deciding whether or not to grant legitimacy to a unilaterally Palestinian declaration of statehood.
In a way, recognition of the unilateral Palestinian declaration would reward the Palestinian Authority for violating the Israel-PLO agreements, a framework which they committed themselves to in order to resolve the Israeli-Palestinian conflict. In an era where ethnic conflicts are prevalent throughout the globe, it sends exactly the wrong message - rejecting negotiations and legitimising unilateral actions.[45]
2. Some Problematic of the Palestinian Problem
Again, the Palestinian problem involves complex legal and policy issues. In fact, as the seasoned Cameroon born Professor R:G Nlep (of blessed memory) writes,
"l'affaire Palestinien est beaucoup plus du destin devin que du fait..."[46] This can be roughly translated thus :The Palestinian question is more of divine destiny than factual. In fact, in many ways", I tend to agree with this writer. For instance, in the Book of Genesis12:4-9, God granted the whole land (territory) of Israel and Palestine-Canaan to the "descendants" of Abraham (Israel (Jacob) and Palestine (Esau) ) without any preference or discrimination to some of the descendants, and there they are today. It goes without saying that either of he two is seen to have just and equitable claims to any parts of the territories without exception, to be questioned by no other person or organisation, or even either of them, but God alone.[47]
Recent developments in the Middle East again proof this true. For instance, On May 1, the Quartet (the U.S., UN, EU, and Russia) unfurled its" road map" for peace in the Middle East, which called on both sides to make concessions and end the wave of deadly violence that has claimed more than 2, 000 Palestinians and about 800 Israelis in the past two-and-a-half years. Sharon publicly acknowledged the need for a Palestinian state and Abbas committed himself to ending terrorism, but the road map has led nowhere, with neither side honouring their obligations: Abbas, with little real political power, did not disable terrorist organizations, and Israel did not dismantle settlements, much less prevent new ones from cropping up.[48]
The so-called roadmap has been variously described to as the "Roadmap to Nowhere" by Sam Bahour and Michael Dahan in counterpunch.[49]
another revealing modern alternative will be to take advantage of the developments in international law since 1945 which have arguably modified the conception of statehood from that implied by the Montevideo formula. There has been a certain departure from the notion of a state as an effective territorial community independent of other states. instead, notions of entitlement or disentitlement to be regarded as a state have been influential, atleast in some situations. Thus entities which will have otherwise qualified as a state may not do so because their creation is in some sense illegitimate (Rhodesia, The Bantustans, The Turkish federal states Of Cyprus) .Again, Palestine involves the converse problem, that of an entity which is not sufficiently effective to be regarded as independent in fact but which is thought entitled to be a state.
The situation here involves the establishment of a new state on territory over which other states have valid legal claims of one kind or another. Not even it's purported capital, East Jerusalem has ever been secured at any one moment in time.
In a way, the claim of a Palestinian state is not founded, especially when those who are presented as it's leaders proclaim that their objective is finally to destroy Israel and to reject the Jews with the sea.[50]
Appraisal
It's a curious feature of modern discussions of territorial status that the "traditional definition" of a state, as expressed in the four criteria referred to in the Montevideo convention on the Rights and Duties of states of 1933 , continues to exercise so strong a whole. Why should the entity of Palestine be dependent on the precepts of this convention (when she never consented and probably doesn't consent to it) ?Where are the rights and duties of the Montevideo convention from, by the way? are they from God? If no, what then is their binding force? The questions keep looming with every uncertainty. I strongly feel that the Montevideo convention are not any hard and fast rules to which there can be no derogation.Infact, the convention was entered at a time when several other considerations as illustrated in this essay were neither envisaged nor were they foreseeable, and which today act as necessary prerequisites for statehood.
Rather than examining separately the four apparently discrete criteria listed in the Montevideo formula, it's preferable to focus on the notion of state independence as a prerequisite for statehood. The criteria for statehood which must be satisfied before recognition can be considered have been formulated in different ways. But the various formulations share the common that independence and sovereign governmental control are the sine qua non of statehood.
It's my personal submission that the Palestinian question is a very unruly horse which may take it's rider (in this case, anyone who wants to talk or write on the subject) to where he knows not. It's a very unstable foundation to built on.[51]
Again, the Palestinian question in a way begins from no where and ends nowhere. even the points so advanced by proponents to support the argument and justify Palestinian statehood are infact the same points used to deny it status.
It's again my humble submission that the Palestinian question at the moment should be and is infact one of self-determination. The Palestian national Authority's right to declare an independent state of Palestine are "peremptory" (essentially so fundamental that they are beyond legal challenge) and therefore override any expectations of the non-treaty Oslo agreement with the state of Israel.
One must envy the Palestinians the dexterity with which they have successfully outwitted the Israelis. For years, they have listened and learned and watched and persevered.
Conclusion
Both in law and in fact, Palestine is a nation, but she is not yet a state. The fact remains that a real state of Palestine is by no means yet assured. The manipulation of legal categories is unlikely to advance matters. At the same time, it is hard to conclude that Palestine is not a state: Whilst she has not yet been recognised by most Western countries and Israel as such, it is clear that such a recognition will come, and that this will have only formal importance.
The Palestinian question is a time bomb and has come of age, whether it will be ignited or diffused, ... only time will tell.
It's my final submission, fellow readers that the final establishment of a viable Palestinian state is neither imminent nor unavoidable.