Revisiting Lessons on the New Law of Statehood

Cambridge Books Online

http://ebooks.cambridge.org/

Statehood and Self-Determination

Reconciling Tradition and Modernity in International Law

Edited by Duncan French

Book DOI: http://dx.doi.org/10.1017/CBO9781139248952

Online ISBN: 9781139248952

Hardback ISBN: 9781107029330

Chapter

7 - Revisiting lessons on the new law of statehood: Palestinian indepe

ndence in a post-Kosovo world pp. 187-207

Chapter DOI: http://dx.doi.org/10.1017/CBO9781139248952.011

Cambridge University Press

7

Revisiting lessons on the new law of statehood:

Palestinian independence in a post-Kosovo world

tamar megiddo and zohar nevo

I. Introduction

On 23 September 2011, Mahmoud Abbas, Chairman of thePalestinian National Authority, submitted an application for theadmission of the State of Palestine to membership in the UnitedNations (UN). While not declaring Palestinian independence anew,Abbas referred to the 1988 declaration of independence, amongothers, as he described himself, exceptionally, as the President ofthe State of Palestine.1 The UN application was preceded by a waveof recognition of Palestine as a state, principally among LatinAmerican countries. Starting in 2010, the State of Palestine was awardedrecognition by Brazil,2 Venezuela,3 Argentina,4 Bolivia,5 Ecuador,6

1 Application of Palestine for Admission to Membership in the United Nations, UN Doc.A/66/371 (23 September 2011); Statement by H.E. Mr. Mahmoud Abbas, President of theState of Palestine before United Nations General Assembly 66th Session (23 September2011), http://gadebate.un.org/sites/default/files/gastatements/66/PS_en.pdf.

2 República Federativa do Brasil, Ministerio das Relações Exteriores, Recognition of thePalestinian State along the 1967 Borders (3 December 2010), www.itamaraty.gov.br/sala-de-imprensa/notas-a-imprensa/reconhecimento-do-estado-palestino-nas-fronteiras-de-1967.

3 Gobierno Bolivariano de Venezuela, Ministerio del Poder Popular para la Comunicacióny la Información, Gobierno y Pueblo Venezolano Ratifican Su Solidaridad con el EstadoPalestino (27 April 2009), www.minci.gob.ve/internacionales/1/188715/gobierno_y_pueblo.html.

4 La República Argentina, Ministerio de Relaciones Exteriores, Comercio Internacional yCultora, La República Argentina Ha Reconocido a Palestina Como Estado Libre eIndependiente (6 December 2010) www.mrecic.gov.ar/portal/ver_adjunto.php?id=3048.

5 DPA, ‘Bolivia Formally Recognizes Palestine as an Independent State’, Ha’aretz.com (22December 2010).

6 República del Ecuador, Ministerio de Relaciones Exteriores, Ecuador Reconoce el EstadoPalestine (24 December 2010) www.mmrree.gob.ec/2010/bol992.asp.

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Chile,7 Guyana,8 Peru9 and the Dominican Republic.10 In conjunctionwith this trend, Russia reaffirmed its recognition of the Palestinian unilat-eral declaration of independence of 15 November 1988.11 Various otherstates, while not (yet12) officially recognising an independent State ofPalestine, have since upgraded the level of the Palestinian diplomaticrepresentation in their countries to ‘missions’ and ‘embassies’, termsnormally reserved for the diplomatic representatives of recognised states.13

Against this backdrop, this chapter will revisit conclusions outlined ina previous paper, derived from Kosovo’s 2008 unilateral declaration ofindependence,14 and will seek to assess whether these conclusions areconsistent with developments in the Palestinian quest for independence.

II. The international law of statehood

1. The classical conditions for statehood

States have long acknowledged the existence of other states by means ofrecognition.15 Recognition is today predominantly considered declara-tory and not constitutive.16 Nevertheless, declaration may indicate that

7 Gobierno del Chile,Declaración del Gobierno de Chile sobre el Reconocimiento del Estadode Palestina (7 January 2011), http://informa.gob.cl/destacado/declaracion-del-gobierno-de-chile-sobre-el-reconocimiento-del-estado-de-palestina/.

8 Republic of Guyana, Statement by the Government of Guyana in Recognition of the Stateof Palestine (13 January 2011), www.minfor.gov.gy/tsite/index.php?option=com_content&task=view&id=62&Itemid=.

9 Ministerio de Relaciones Exteriores del Perú, Perú Reconoce al Estado Palestino (24January 2011) www.rree.gob.pe/portal/boletinInf.nsf/mrealdia/5ACB6C577AC253100525782200615A34?OpenDocument.

10 Presidencia de la República Dominicana, RD y Palestina firman relaciones diplomáticas(14 July 2009) www.presidencia.gob.do/app/article.aspx?id=11145.

11 B. Ravid and A. Issacharoff, ‘Medvedev Falls Short of Recognizing Palestinian State’,Ha’aretz.com (19 January 2011).

12 B. Ravid and A. Issacharof, ‘France May Support Full UNMembership for Palestinians ifPeace Talks Remain Deadlocked’, Ha’aretz.com (5 June 2011).

13 B. Ravid and News Agencies, ‘Britain to Upgrade Palestinian Delegation to “Mission”’,Ha’aretz.com (7 March 2011).

14 Z. Nevo and T. Megiddo, ‘Lessons From Kosovo: The Law of Statehood and PalestinianUnilateral Independence’, (2009) 5(2) Journal of International Law and InternationalRelations 89.

15 R. Higgins, Problems and Process: International Law and How We Use It (ClarendonPress, 1994), p. 42.

16 On the various formulations of the constitutive and declaratory approaches to recog-nition, see H. Lauterpacht, Recognition in International Law (Cambridge UniversityPress, 1948), pp. 38–63.

188 tamar megiddo and zohar nevo



an entity has conformed to the requirements of statehood, andmay carrysignificant weight in borderline cases.17

The principle underlying the 1933 Montevideo Convention on theRights and Duties of States’ criteria of statehood – population, territory,government and capacity to enter into relations with other states18 – isthe effectiveness of the territorial unit; namely, its ability to function asan independent self-governing entity.19

The ‘permanent population’ requirement has been understood to referto a stable community of any size, residing in a given territory. Similarly,the ‘defined territory’ of a state may be extremely small, fragmented, oreven an enclave within another state. Furthermore, precise demarcation ofthe state’s boundaries is not necessary.20 The ‘government’ requirementrefers to the effective exercise of authority with respect to persons andproperty within a territory, while the ‘capacity to enter into relations’ is thelawful right and ability to exercise that authority with respect to otherstates.21 Together, these last two requirements form the central condition –effectiveness, which is assessed both formally and substantively.22

2. Additional considerations: Legality and legitimacy

A survey of international practice reveals a number of cases in which theclassical requirements were not the only considerations taken intoaccount by extant states when considering whether to recognise newstates. Some entities which did not fully meet the classical criteria werenonetheless broadly recognised as independent, while, in other cases,entities which seemed to fulfil the classical criteria were denied suchrecognition.23 An emerging set of additional considerations, based on

17‘Opinion No. 8, Conference on Yugoslavia’, International Law Reports 92 (1992), 201;M. N. Shaw, International Law, 5th edn (Cambridge University Press, 2003), pp. 189,369.

18 Montevideo Convention on the Rights and Duties of States (26 December 1933), 165LNTS. 19; J. Crawford, The Creation of States in International Law, 2nd edn (ClarendonPress, 2006), p. 46.

19 Ibid.20 Ibid., pp. 46–7, 52; I. Brownlie, Principles of Public International Law, 6th edn (Oxford

University Press, 2003), p. 70; North Sea Continental Shelf (Germany/Denmark),International Court of Justice Reports 3 (1969), para. 46.

21 Crawford, The Creation of States, pp. 55, 62–6.22 R. Higgins, The Development of International Law Through the Political Organs of the

United Nations (Oxford University Press, 1963), pp. 25–6; Crawford, The Creation ofStates, pp. 67–89.

23 Nevo and Megiddo, ‘Lessons from Kosovo’, pp. 91–6.

palestinian independence in a post-kosovo world 189



principles of legality and legitimacy, had a decisive effect on recognitionof states in these cases.24

Self-determination – a people’s right to determine their own politicalstatus – has had the most profound impact on the willingness of states torecognise an entity’s statehood. Although this principle came into being asthe basis for equal rights in the context of decolonisation,25 it has broad-ened over time to include certain post-colonial contexts.26 In principle,self-determination may be exercised ‘internally’ within an existing state,for example, through autonomy or cultural rights granted to a certaingroup.27 International law is reluctant, however, to recognise a generalright to ‘external’ self-determination (i.e. secession from a state), as thatwould be at odds with the fundamental principle of the territorial integrityof states.28Nevertheless, self-determination has significant influence in thecontext of statehood. In cases where the right to self-determination of apeople is recognised, it maymitigate the extent to which an entity claimingstatehood is required to fulfil the classical criteria of statehood, especiallyin the context of decolonization.29 The right to self-determination mayalso be seen as a prerequisite to the establishment of a state.30

In addition, it has been argued that in certain circumstances theright to self-determination generates a right to ‘remedial secession’.31

While upholding the principle of territorial integrity, the 1970Declaration on Friendly Relations adopted by the UN GeneralAssembly also implicitly acknowledges an exception to its protection,when a government denies a people the right to self-determination and

24 Shaw, International Law, p. 178; Brownlie, Public International Law, p. 70; Crawford,The Creation of States, pp. 97–9.

25 UN Charter, arts. 1(2), 55, 73(b) and 76(b); Crawford, The Creation of States, p. 114;Higgins, Problems and Process, pp. 111–14. See also Declaration on the Granting ofIndependence to Colonial Countries and People, GA Res. 1514 (XV), UN GAOR, UNDoc. A/4684 (1961) 174.

26 International Covenant on Civil and Political Rights (16 December 1966), 999 UNTS171, art. 1; A. Cassese, Self-determination of Peoples: A Legal Reappraisal (CambridgeUniversity Press, 1995), pp. 65–6, 118–24.

27 Declaration on Friendly Relations; D. Raič, Statehood and the Law of Self Determination(Kluwer Law International, 2002), p. 226.

28 UN Charter, art. 2(4); Crawford, The Creation of States, p. 390.29 M. Shaw, Title to Territory in Africa: International Legal Issues (Clarendon Press, 1986),

pp. 151–62. An example may be found in the case of Eritrea, see Nevo and Megiddo,‘Lessons from Kosovo’, 94–5.

30 Shaw, International Law, pp. 184–5.31 Raič, Statehood, pp. 324, 332; L. C. Bucheit, Secession: The Legitimacy of Self-

Determination (Yale University Press, 1978), p. 220.




equality.32 Further support for this position was provided by the SupremeCourt of Canada, in its reference decision regarding the legality of a possiblesecession of Quebec.33 Consequently, some scholars have argued thatinternational law allows for ‘remedial secession’ in exceptional circum-stances,34 for example, when a minority residing in a defined territory ispersistently denied the right to internal self-determination, or when gravehuman rights violations indicate that internal solutions are not possible.35

Other writers have denied the existence of a right to remedial secession,pointing to a lack of international practice and opinio juris.36

Another legal principle which has gained importance with regardto the law of statehood suggests that when a state is founded througha breach of a peremptory norm of international law, other states arearguably obligated to deny it recognition.37 Further considerationsare based on notions of legitimacy, as evidenced by the guidelines onrecognition of new states adopted by the then European Community in1991, which predicate the recognition of new states on their establish-ment of democratic institutions and respect for human rights.38 It isdoubtful whether these suggested requirements have become peremp-tory norms that could invalidate an already-recognised entity’s

32 Declaration on Friendly Relations; cf. Vienna Declaration and Programme of Action (12July 1993), UN Doc. A/CONF.157/23 at para. 2; Declaration on the Occasion of theFiftieth Anniversary of the United Nations (24 October 1995), GA Res. 50/6 , UN GAOR,UN Doc. A/RES/50/49.

33‘Re Secession of Quebec’ International Law Reports 115 (1998), para. 130 (Canada, SC);see also, Loizidou v. Turkey, no. 15318/89, [1996] VI ECHR 2216 at 2241, Wildhaber J.,Concurring Opinion.

34 C. Tomuschat, ‘Secession and Self-determination’ in M. G. Kohen (ed.), Secession:International Law Perspectives (Cambridge University Press, 2006), p. 41; J. Dugardand D. Raič, ‘The Role of Recognition in the Law and Practice of Secession’ in Kohen(ed.), Secession, ibid., pp. 109–10.

35 Dugard and Raič, ibid., p. 109.36 Cassese, Self-determination, pp. 118–24; Crawford, The Creation of States, pp. 417–18;

see also R. Higgins, ‘Postmodern Tribalism and the Right to Secession, Comments’ in C.Brölmann et al. (eds), Peoples and Minorities in International Law (Nijhoff, 1993); butsee Raič, Statehood, pp. 362–6.

37 International Law Commission, Draft Articles on Responsibility of States forInternationally Wrongful Acts, UN Doc. A/56/10 (2001), art. 41(2); UN Charter, art.2(4); Crawford, The Creation of States, p. 155. The non-recognition of the Bantustanstates, set up by South Africa in pursuit of its apartheid policy, is considered to be amanifestation of this principle; see also, The Accordance With International Law of theUnilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion (unpub-lished, 22 July 2010), para. 81 (ICJ Kosovo Advisory Opinion).

38‘Opinion no. 4, Conference on Yugoslavia’, International Law Reports, 92 (1992), 173.




statehood.39Nevertheless, they may have an impact on the willingness ofstates to recognise new entities.40

In our view, the classical Montevideo criteria still form the prominentrequirements for assessing statehood; and yet, the complete fulfilment ofthese criteria is no longer the exclusive yardstick for statehood. Theclassical criteria remain important because they fundamentally capturethe elements essential for an entity to function effectively as a state.Therefore, an entity which does not meet them must present compellingadditional considerations in order to be recognised. It is at this point thatthe additional considerations come into play. The continued relevance ofthe classical criteria is evidenced by the international community’sefforts to ensure that all recognised entities ultimately achieve effective-ness. Such efforts include, for example, the establishment of the UnitedNations Transitional Authority for East Timor (UNTAET),41 with theobjective of piloting the reconstruction of an independent East Timoresestate after the Indonesian ‘scorched earth’ withdrawal, or the interna-tional administration installed in Kosovo.42 We now turn to review thelessons which may be drawn from the case of Kosovo with regard to thedevelopment of the law of statehood.

III. Lessons from Kosovo

1. International recognition of the Republic of Kosovo

On 17 February 2008, the Republic of Kosovo declared independence.43

This declaration was met with mixed international reactions, and raisedquestions regarding the international law of statehood, and Kosovo’spossible precedential value for this body of international law. Some 88states have so far formally recognised the independent Republic ofKosovo. Among them are the United States, a majority of the

39 Crawford, The Creation of States, p. 155.40 For a review of relevant past cases, in which statehood was attained despite deficiencies

with regard to the classical criteria, and in which the principles regarding legality andlegitimacy seemed to have played a role, see Nevo and Megiddo, ‘Lessons from Kosovo’,93–6.

41 SC Res. 1272, UN SCOR, UN Doc. S/RES/1272 (1999).42 Ibid., J. D’Aspremont, ‘Regulating Statehood: The Kosovo Status Settlement’, (2007) 20

Leiden Journal of International Law 654.43 Kosova Declaration of Independence (17 February 2008), www.assembly-kosova.org/

common/docs/Dek_Pav_e.pdf.




European Union (EU) member states and a majority of the NorthAtlantic Treaty Organization (NATO) members.44

In a previous paper we submitted that, solely on the basis of theclassical criteria, it would be difficult to find that Kosovo had attainedstatehood.45 We argued, therefore, that an international recognition ofKosovo’s statehood would likely draw on additional considerations.Analysing Kosovo’s circumstances against the background of the devel-opment of the law of statehood in recent decades, we suggested that thefollowing factors contributed to Kosovo’s recognition so far: its right toself-determination; its history of enduring human rights violations; thedissolution of the Socialist Federal Republic of Yugoslavia; the interna-tional administration and involvement in guiding Kosovar institutionbuilding; the deadlocked negotiations and the concern that stagnationwould create further regional destabilisation; the existence of a compre-hensive plan for its future development; and the apparently successfulestablishment of democratic institutions in Kosovo. These factors signallegitimacy as an important element of the calculus of new-state recog-nition. While it is likely that none of these factors can independentlydetermine an entity’s statehood, they may have a cumulative impact,allowing a claim for independence to win the recognition of the interna-tional community in spite of deficiencies in the entity’s fulfilment of theclassical criteria of statehood.46

2. The International Court of Justice decision on Kosovo

In its Advisory Opinion on the Accordance with International Law ofthe Unilateral Declaration of Independence in Respect of Kosovo, theInternational Court of Justice (ICJ) avoided discussing the questionof whether Kosovo had indeed been transformed into a state. Instead,it considered whether it is illegal unilaterally to declare independenceunder international law, and held that generally it was not. The Courtdid, however, make several interesting points on the issue of the estab-lishment of new states. First, regarding Kosovo itself, the Court notedthat UN Security Council Resolution 1244 created an interim interna-tional administration in Kosovo, which superseded the legal order inforce at the time in the territory of Kosovo – that is, Serbia’s rule of the

44 www.rks-gov.net/sq-AL/Pages/ShtetKaneNjohurKosoven.aspx.45 For a more detailed review of the history of Kosovo and the circumstances of the Kosovar

declaration of independence, see Nevo and Megiddo, ‘Lessons from Kosovo’, 96–9.46 Ibid., 106.




territory and sovereignty over it – pending a future decision on Kosovo’sfinal status. This assertion reaffirms the idea that international admini-stration may be a key step towards statehood and one that may defeat acompeting claim of sovereignty over the territory.

Another important comment made by the Court is its apparentendorsement of the assumption that declarations of independence ‘con-nected with the unlawful use of force or other egregious violations ofnorms of general international law, in particular those of peremptorycharacter [jus cogens], may be considered illegal’.47 The Court furthermentioned that the interim international administration of Kosovo wasdesigned to achieve humanitarian purposes, following the crisis Kosovohad endured.48 This point may be read to affirm that humanitarian crisesor a pragmatic intent to avoid further destabilisation may also tilt thescales towards recognising the end of an incumbent regime in a territory,and perhaps the rise of a new one, under a new sovereign entity.

IV. A State of Palestine?

Clearly, the cases of Kosovo and Palestine are not perfectly analogous, andeach has its own unique characteristics. However, both Kosovo andPalestine have striven for independence and have done so within thelegal framework of the international law of statehood. Thus, if the caseof Kosovo has made an impact on this body of law or has highlightedexisting trends, the Palestinians may benefit from such developments,notwithstanding possible differences between these cases in context orbackground. In light of recent developments on the Palestinian front, wesubmit that some of the factors that played a role in the internationalrecognition of Kosovo are now coming into play in the Palestinian context.

In our previous paper, we concluded that the Palestinian Authority didnot meet the classical criteria for statehood and that its prospects of receiv-ing international recognition were questionable, as long as the internationalcommunity had not yet lost hope of reaching a negotiated solution to theIsraeli–Palestinian conflict. We suggested, however, that if future negotia-tions proved fruitless despite good faith engagement on the Palestinian side,and if the Palestinians achieved governance goals, undertook to respecthuman rights, brokered a successful reconciliation between the differentPalestinian factions behind a Palestine Liberation Organization (PLO)-ledgovernment, and formally acknowledged the State of Israel, a unilateral

47 ICJ Kosovo Advisory Opinion, paras. 79–81. 48 Ibid., paras. 97–100.




declaration of independence would be more likely to receive internationalacknowledgement and support. Reassessing Palestinian prospects for inter-national recognition under the current circumstances, we now contend thatfurther support for this argument has since emerged.

1. Does the Palestinian Authority meet the classical criteriaof statehood?

The Palestinian population in the West Bank and Gaza Strip fulfils therequirement of a ‘permanent population’,49 and is recognised as a dis-tinct population by the international community,50 including Israel.51

The territory internationally regarded and accepted as a prospectiveterritory for a Palestinian state52 is the West Bank and the Gaza Strip,occupied by Israel since 1967. This would seem to be a sufficientlycoherent territory, notwithstanding its imprecise demarcation, limitedsize and fragmentation.53

49 J. Quigley, ‘Palestine: the Issue of Statehood’ in S. R. Silverburg, (ed.), Palestine andInternational Law (McFarland & Company, 2002), pp. 44; J. Crawford, ‘Israel(1948–1949) and Palestine (1998–1999): Two Studies in the Creation of States’ in G. S.Goodwin-Gill and S. Talmon (eds), The Reality of International Law (Clarendon Press,1999), p. 111; F. A. Boyle, ‘The Creation of the State of Palestine’, (1990) 1 EuropeanJournal of International Law, 302; T. Becker, ‘International Recognition of a UnilaterallyDeclared Palestinian State: Legal and Policy Dilemmas’, jcpa.org/art/becker1.htm.

50 Council of the League of Nations, Mandate for Palestine, arts. 2 and 3, www.mfa.gov.il/MFA/Peace+Process/Guide+to+the+Peace+Process/The+Mandate+for+Palestine.htm;GA Res. 181, UN GAOR, 2nd Sess, UN Doc. A/RES/181 (1947); GA Res. 21/43, UNGAOR, 45th 43rd Sess, UN Doc. A/RES/43/21 (1988).

51 Camp David Accords, Israel and Egypt, 23 September 1978, Section A, online www.mfa.gov.il/MFA/Peace%20Process/Guide%20to%20the%20Peace%20Process/Camp%20David%20Accord andDeclaration of Principles on Interim Self-Government Arrangements, Israel andPLO, 13 September 1993, art. 1, www.mfa.gov.il/MFA/Peace+Process/Guide+to+the+Peace+Process/Declaration+of+Principles.htm.

52 Ibid.; TheWye River Memorandum, Israel and PLO, 23 September 1998, Sections IV and V,www.mfa.gov.il/MFA/Peace%20Process/Guide%20to%20the%20Peace%20Process/The%20Wye%20River%20Memorandum; The Initiative of the Saudi Crown PrinceAbdullah, and The Performance-based Roadmap to a Permanent Two-state Solution tothe Israeli-Palestinian Conflict (Roadmap) adopted by SC Res. 1397, UN SCOR, UNDoc. S/RES/1397 (2002) and SC Res. 1515, UN SCOR, UN Doc. S/RES/1515 (2003),respectively.

53 Crawford, The Creation of States, pp. 46–7, 52; but see, G. E. Robinson, ‘TheFragmentation of Palestine’, (2007) 106 Current History 425–6; Case ConcerningSovereignty Over Certain Frontier Land (Belgium/Netherlands), International Court ofJustice Reports (1959), 212–13, 229; Case Concerning Right of Passage over IndianTerritory (Portugal v. India), Merits, International Court of Justice Reports (1960), 27.




On the issue of effective government, the prevailing view until recentlyhas been that the Palestinian Authority does not fulfil this criterion.54

Crawford supports such a conclusion by pointing out that the PalestinianAuthority controls a population, not a territory.55 Others56 emphasise thefact that control over material issues, as well as residual control, was left inthe hands of Israel by Israeli–Palestinian agreements, and that even thelimited powers entrusted to Palestinian hands are derived from agree-ments and not from an independently constituted Palestinian mandate.57

While some believe the formal limitations on the PalestinianAuthority’s governmental capacity, set by the Israeli–Palestinian agree-ments, may no longer be valid,58 these limitations are coupled with apractical dependency on Israel. Israel collects the tax revenue that com-prises two-thirds of the Palestinian Authority’s budget; the Palestinianeconomy relies heavily on the Israeli market for employment, amongothers; the Palestinian Authority does not have its own infrastructure,and receives its electricity and fuel from Israel; and Israel controls almostall routes in and out of the Palestinian Authority.59 Furthermore, Israelhas not refrained from using its power over the Palestinian Authority, orfrom applying pressure on its leaders.60 For example, after the swearing-in of the Hamas government in 2006, the Israeli cabinet froze all of thePalestinian tax revenue it had collected, pending Palestinian approval of

54 For the review of different positions on the issue, see International Criminal Court,The Office of the Prosecutor, Situation in Palestine: Summary of Submissions onWhether the Declaration Lodged by the Palestinian National Authority Meets StatutoryRequirements (3 May 2010), www.icc-cpi.int/Menus/Go?id=d3c77fa6-9dee-45b1-acc0-b41706bb41e5&lan=en-GB.

55 Crawford, ‘Israel and Palestine’, pp. 120–2.56 O.M. Dajani, ‘Stalled Between Seasons: The International Legal Status of Palestine

During the Interim Period’ (1997) 26 Denver Journal of International Law and Policy86; Becker, International Recognition; but see Quigley, Palestine, p. 51; Boyle, ‘Creation’,301–3; ICC Summary of Submissions, 10–11.

57 Declaration of Principles on Interim Self-Government, Annex II, art. 3(b); Israeli-Palestinian Interim Agreement on the West Bank and Gaza Strip, Israel–PLO, 28September 1995, art. 1(1), (5), www.mfa.gov.il/MFA/Peace+Process/Guide+to+the+Peace+Process/THE+ISRAELI-PALESTINIAN+INTERIM+AGREEMENT.htm.

58 Cf. G. R. Watson, ‘The Wall Decisions in Legal and Political Context’, (2005) 99American Journal of International Law, 22–4 (arguing against this notion).

59 N. Lochery, ‘The Politics and Economics of Israeli Disengagement, 1994–2006’, (2007)43 Middle Eastern Studies, 14–15; Robinson, ‘Fragmentation’, 422; The Rafah Crossingis effectively controlled by Egypt. While, in the past, Egypt kept this crossing closed,under agreement with Israel, this has changed since the fall of the Mubarak regime, andEgypt has opened the crossing on several occasions since. See below, n. 72.

60 Robinson, ‘Fragmentation’, 421.




the Roadmap prerequisites, such as combating terror.61 In 2007, afterdeclaring the Gaza Strip a ‘hostile entity’, the Israeli cabinet also signifi-cantly reduced the supply of electricity and fuel to Gaza.62 The effectivedivision of the Palestinian Authority into a Hamas-controlled Gaza Stripand a PLO-controlled West Bank63 following the 2006 elections, furtherweakened the Palestinian Authority’s governmental capacity.64

Nevertheless, positions on the issue of the effectiveness of Palestiniangovernance seem to be shifting. In August 2009, the PalestinianAuthority declared a two-year national state-building programme,65

the implementation of which was supported and monitored by the AdHoc Liaison Committee for Assistance to the Palestinians (AHLC),comprised of representatives of several donor states. The PalestinianAuthority has further published a 2011–13 National Plan aimed atcontinued development and state-building.66

In a report submitted to a meeting of the AHLC in April 2011, theSpecial Coordinator for the Middle East Peace Process reviewedPalestinian institution-building in six different areas: governance, therule of law and human rights; livelihoods and productive sectors; edu-cation and culture; health; social protection; and infrastructure andwater provision. The Special Coordinator notes that the effective divi-sion of the Palestinian Authority and the persistence of the Israelioccupation hamper the Authority’s ability to extend its institutionalauthority in all areas. Nevertheless, he concludes that, within the currentpolitical and physical space, Palestinian progress has paved the way formeeting the September 2011 target date of completing the institutionalreadiness for statehood: ‘governmental functions are now sufficient for afunctioning government of a state’.67

61 Israei Cabinet Decision 4705, art. A(1) (19 February 2006) (in Hebrew) www.pmo.gov.il/PMO/Archive/Decisions/2006/02/des4705.htm; Roadmap, adopted by SC Res. 1551.

62 Israel Security and Policy Cabinet Decision (19 September 2007), cited in HCJ 9132/07Jaber et al. v. Prime Minister (unpublished, 27 January 2008), para. 2 (Israel, HC).

63 See generally, Robinson, ‘Fragmentation’, 423. 64 See below, n. 68.65 The Palestinian National Authority, Palestine: Ending the Occupation, Establishing the

State (August 2009), www.mop-gov.ps/issues_details.php?pid=15.66 The Palestinian National Authority, National Development Plan 2011–13: Establishing

the State, Building our Future (April 2011), www.mopad.pna.ps/web_files/publishing_file/Establishing%20the%20State%20Building%20our%20Future_%20NDP%202011-13.pdf.

67 The Office of the United Nations Special Coordinator for the Middle East Peace Process,Palestinian State-Building: A Decisive Period 1 (13 April 2011), www.unsco.org/Documents/Special/UNs%20Report%20to%20the%20AHLC%2013_April_2011.pdf.




Similarly, a report published by the World Bank in 2011 cites aprevious conclusion that ‘if the Palestinian Authority (PA) maintainsits performance in institution-building and delivery and public services,it is well-positioned for the establishment of a state at any point in thenear future’. This report further comments that ‘Considerable progresshas been made over the years’ and that ‘The PA’s performance todate. . . bodes well for the future.’68 And indeed, according to theWorld Bank data, significant progress has been made by the Palestinianssince 2007, when the Palestinian Authority was ranked very low in alldimensions of governance.69 In a new Country Data Report published in2010, while Palestinian Political Stability and Absence of Violence werestill ranked at below 10%, other indicators have dramatically increased: theGovernment Effectiveness indicator doubled to approximately 20%;Regulatory Quality rose from below 10% in 2007 to around 50% in2009; Rule of Law rose from a little over 20% to about 45%; and Controlof Corruption quadrupled from 10% to approximately 40%.70

Furthermore, on 4 May 2011, Hamas and Fatah signed a reconciliationaccord and agreed on an interim government supported by both factionsuntil the general elections due the following year.71 Shortly thereafter,Egypt’s new (post-Mubarak) regime declared the opening of the Rafahpassage to Gaza, which was closed until then at Israel’s behest, and thussignificantly diminished the impact of Israel’s policy of closure of Gaza.72

Intra-Palestinian reconciliation is important for bringing the GazaStrip back under the control of the Palestinian Authority, hence improv-ing its de facto governing capacity in this part of the prospectivePalestinian state’s territory. It is also important to note that the differentcomponents of the Palestinian territory are not constituent units of anysovereign state, and not subject to any competing claims of sovereignty:with the exception of East Jerusalem, Israel does not claim sovereigntyover them, and Egypt and Jordan long ago relinquished any claims overGaza and the West Bank, respectively.73 Moreover, following the 2005

68 The World Bank, Building the Palestinian State: Sustaining Growth, Institutions, andService Delivery, 5, 30 (13 April 2011).

69 http://info.worldbank.org/governance/wgi/pdf/c238.pdf. 70 Ibid.71 E. Bronner, ‘Palestinian Factions Sign Accord to End Rift’, The New York Times (4 May

2011).72 D. D. Kirkpatrick, ‘Egypt to Open Border With Gaza, in the Face of Israeli Objections’,

The New York Times (25 May 2011).73 Treaty of Peace between the State of Israel and the Hashemite Kingdom of Jordan,

Israel and Jordan, 26 October 1994, art. 3, www.mfa.gov.il/MFA/Peace+Process/Guide+to+the+Peace+Process/Israel-Jordan+Peace+Treaty.htm; Camp David Accords,




Israeli disengagement,74 Israel no longer views itself as an occupier of theGaza Strip.75 Thus, at least in the Gaza Strip, no sovereign entity nowclaims a foothold. Nevertheless, the reconciliation accord also createssubstantial difficulties, as Hamas is classified by numerous governmentsas a terrorist organisation,76 and has consistently denied the legitimacyof Israel’s existence.

In sum, despite the fact that the Palestinian Authority’s effectivegovernmental control is hampered by formal restrictions and by prac-tical obstacles, significant progress seems to have been made in recentyears. The Palestinian Authority still has considerable progress to makebefore it can be said to have achieved fully effective governance, althoughperhaps not more than certain existing states.77 It now seems to fulfil – atleast by a minimal standard – the criterion of government.

With regard to the requirement of ‘capacity to enter into internationalrelations’, the right and ability to independently exercise authoritytowards other actors on the international stage is explicitly excludedfrom the scope of authority granted to the Palestinian Authoritypursuant to the 1993 Oslo Declaration of Principles and the 1995Israeli–Palestinian Interim Agreement.78 Moreover, it is the PLO,79 notthe Palestinian Authority, which has been the representative of thePalestinian people in the UN since 1974, holding observer status underthe title ‘Palestine’, following the 1988 declaration of independence by

Section A; ‘Address by His Majesty King Hussein I to the Nation’, International LegalMaterials, 27 (1988), 1638.

74 Lochery, ‘Disengagement’, 7; Israeli Cabinet Decision 1996 (6 June 2004) (in Hebrew),www.pmo.gov.il/PMO/Archive/Decisions/2004/06/des1996.htm.

75 HCJ Jaber, para. 12; Y. Shany, ‘Far Away, So Close: The Legal Status of Gaza AfterIsrael’s Disengagement’, International Law Forum, The Hebrew University of Jerusalem,Research Paper No. 12–06 (2006), ssrn.com/abstract=923151.

76 US Department of State, Country Reports on Terrorism (2008), Chapter VI state.gov/s/ct/rls/crt/2007; EU Council Decision 2008/583/EC, (15 July 2008), OJ L 188, eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:188:0021:0025:EN:PDF.

77 The World Bank, Building the Palestinian State, Sustaining Growth, Institutions,and Service Delivery, 5 (13 April 2011) http://siteresources.worldbank.org/INTWESTBANKGAZA/Resources/AHLCReportApril2011.pdf.

78 Declaration of Principles on Interim Self-Government, art. IV and Annex II, art. 3(b);Israeli–Palestinian Interim Agreement, art. IX(5); Crawford, ‘Israel and Palestine’,120–2; Dajani, ‘Stalled’, 87.

79 National Covenant of the Palestine Liberation Organisation (28 May 1964); see also,‘Palestine National Council: Charter’ (1968), reprinted in W. Laqueur and B. Rubin(eds), The Israel–Arab Reader, 6th edn (Penguin Books, 2001), p. 117.




PLO leaders.80 Furthermore, many states refuse to engage the Hamasgovernment and leaders in any way.81 This situation raises questions asto the Palestinian capacity to conduct international relations, especiallyfollowing the Palestinian reconciliation accord which brought Hamasback to power at the national Palestinian level.82

Nevertheless, as we noted above, over the past few years, several countrieshave established diplomatic relations with ‘the State of Palestine’ or haveupgraded the level of Palestinian diplomatic representation to ‘missions’ or‘embassies’, terms regularly reserved for diplomatic delegations of states.83

These declarations, coupled with the recent recognition of several states ofan independent Palestinian State, indicate Palestinian progress towards acapacity to form international relations, especially in light of extensivediplomatic mobilisation in the run-up to the General Assembly session inSeptember 2011, in which Palestine submitted its bid for membership withthe blessing and support of the Secretary General.84 These factors indicate asubstantial strengthening of the Palestinian capacity to form internationalrelations. Nonetheless, it is difficult to establish whether this capacity issufficient to meet the last of the classical criteria for statehood.

As we argued above, international recognition may carry significantweight in borderline cases, andmay compensate for non-decisive fulfilmentof the Montevideo criteria. While supportive of future Palestinian inde-pendence, many states and international bodies do not view the PalestinianAuthority as a state today.85 This is true despite the 15 November 1988 PLO

80 Quigley, ‘Palestine’, 41; GA Res. 3236, UN GAOR, 29th Sess. (1974); GA Res. 3237, UNGAOR, 29th Sess. (1974); see also SC Res. 607, UN SCOR, UN Doc. S/RES/607 (1988);GA Res. 43/177, UN GAOR, 82nd Mtg. (1988); Crawford, ‘Israel and Palestine’, 111.

81 Supra. n. 75; see United States of America, President Barack Obama, Remarks on theMiddle East and North Africa at the State Department (19 May 2011), http://whitehouse.gov/the-press-office/2011/05/19/remarks-president-middle-east-and-north-africa.

82 Ibid.83 Notice of DR–Palestine Diplomatic Relations; Notice of Venezuela–Palestine

Diplomatic Relations; B. Ravid and News Agencies, ‘Britain to Upgrade PalestinianDelegation’.

84 Secretary-General’s Message to United Nations Latin American and Caribbean Meetingin Support of Israeli-Palestinian Peace (29 March 2011) UN Doc. SG/SM/13484, http://un.org/apps/sg/sgstats.asp?nid=5173.

85 Roadmap, adopted by SC Res. 1551; Israeli Cabinet Decision 1996; Obama, Remarks on theMiddle East; Legal Consequences of the Construction of a Wall in the Occupied PalestinianTerritory, Advisory Opinion, International Court of Justice Reports (2004), para. 139;cf. Higgins J., Separate Opinion, paras. 34–5, ibid.; M. Pomerantz, ‘The ICJ’s AdvisoryJurisdiction and the Crumbling Wall Between the Political and the Judicial’, (2005) 99American Journal of International Law 26–7; Ungar v. Palestinian Liberation Org., 402F.3d 274 (2005), 32–34 (USA), and the authorities mentioned there; HCJ 4060/03




declaration of Palestinian independence.86 While the General Assemblyaffirmed this declaration as the implementation of the 1947 Plan ofPartition (General Assembly Resolution 181) and of the Palestinian ‘need’to ‘exercise sovereignty over their territory’, the UN did not admit‘Palestine’ as a member.87 Furthermore, while some states established mis-sions in the Palestinian territories, these were not ‘embassies’,88 and otherstates refused to recognise Palestinian independence, in light, among otherreasons, of its refusal to recognise Israel.89 The prevailing scholarly view isthat the Palestinians did not achieve statehood in the aftermath of thisdeclaration.90

In the context of Kosovo, we found that the following considerationsand circumstances were influential in states’ decisions to recognise itsindependence, despite its questionable fulfilment of the classical criteriafor statehood: self-determination; a history of human rights violations;federal dissolution; international involvement and administration; dead-locked negotiations; the hope to avoid further destabilisation; the exis-tence of a comprehensive plan; and the adoption of democraticinstitutions. We next turn to examine whether such additional consid-erations and circumstances may play a role in the Palestinian context.

2. New considerations evident in recent developments

Latin American resonant support of an independent State of Palestine,the decision to upgrade the level of Palestinian diplomatic representationby the United States91 and several EU member states,92 and the support

Palestinian Authority v. Dayan (unpublished, 17 July 2007) (Israel, HC); Written StatementSubmitted by Palestine (2009), icjcij.org/docket/files/131/1555.pdf; Watson, ‘The WallDecisions’, 22–4; see, especially, the discussion on the recognition of Palestine by states andinternational organisations in ICC Summary of Submissions, 8–9.

86‘Palestine National Council: Declaration of Independence (November 15, 1988)’, reprin-ted in Laqueur and Rubin, Reader, pp. 354–8.

87 GA Res. 43/177; Crawford, ‘Israel and Palestine’, 111.88 Dajani, ‘Stalled’, 60; Quigley, ‘Palestine’, 47.89 Ibid., 42; Boyle, ‘Creation’, 301–3; Crawford, ‘Israel and Palestine’, 115–16; Country

Cooperation Strategy for WHO and the Occupied Palestinian Territory 2006–2008, UNDoc. WHO-EM/ARD/018/E/R (2005) 9.

90 Crawford, ‘Israel and Palestine’, 120–2; Watson, ‘The Wall Decisions’, 23; but seeQuigley, ‘Palestine’; Boyle, ‘Creation’.

91 N. Mozgovaya, ‘U.S. upgrades status of Palestinian mission in Washington’, Haaretz.com (22 July 2010).

92 K. Abu Toameh, ‘Erekat: 10 EU states will upgrade their PLO missions’, The JerusalemPost (19 December, 2010). See also, ‘EU recognition of a Palestinian state a “possibility”:France’, EUBusiness at www.eubusiness.com/news-eu/israel-palestinians.93s/.




of the UN Secretary-General, Ban Ki-moon93 all seem to indicate that theinternational tide has turned over the two-and-a-half decades that haveelapsed since Palestine’s declaration of independence in 1988. We arguethat this change is not only a result of progress made by the PalestinianAuthority towards the fulfilment of the classical criteria of statehood, butrather, is also indicative of the growing importance of considerations otherthan the classical criteria. We now turn to examine whether such consid-erations were cited as having played a role in various states’ declarations oftheir recognition of a Palestinian State or on the upgrading of the level oftheir diplomatic relations with the Palestinian Authority.

2.1 Self-determination

The Palestinian people’s right to self-determination was recognisedinternationally as early as 1947, in General Assembly Resolution 181,which envisioned two states in the territory of Mandatory Palestine: aJewish state and an Arab state.94 Following the 1967 war, SecurityCouncil Resolution 242 emphasised the inadmissibility of the acquisi-tion of territory by war, and demanded the ‘Withdrawal of Israeli armedforces from territories occupied’, which included the West Bank andGaza.95 These Resolutions indicate an international recognition of aPalestinian right to independent statehood, coupled with discontentwith Israeli occupation of territories of the prospective Palestinianstate. The 1978 Camp David Accords and the 1995 Israeli–PalestinianInterim Agreements later recognised the ‘legitimate rights of thePalestinian people’ and envisioned some degree of autonomy for thePalestinians in the West Bank and Gaza.96 Finally, the US-sponsoredRoadmap, adopted by the Security Council and Israel,97 as well as theArab Peace Initiative,98 reflect the widely held international view that thePalestinians may eventually exercise their right to self-determination‘externally’, i.e. by means of an independent state in the West Bankand Gaza.99 As compared to pre-independence Kosovo, it seems that aPalestinian right to external self-determination enjoys broader support,

93 Secretary-General’s Message to Latin American and Caribbean Meeting.94 GA Res. 181, art. I.A.1.95 SC Res. 242 , UN SCOR, UN Doc. S/RES/242 (1967), preamble and art. 1; this was

reaffirmed in SC Res. 338, UN SCOR, UN Doc. S/RES/334 (1973), art. 2.96 Israeli-Palestinian Interim Agreement.97 Roadmap, adopted by SC Res. 1551; Israeli Cabinet Decision 1996; Obama, Remarks on

the Middle East.98 Saudi Crown Prince Peace Initiative. 99 See also Obama, Remarks on Middle East.




possibly indicating that a unilateral declaration of independence wouldbe more easily recognised, despite deficiencies in Palestinian fulfilmentof the classical criteria. Possible resentment of a unilateral move may befurther mitigated in light of the fact that Palestinian statehood does notrequire secession or the disintegration of a state, but rather, the end of afrowned-upon occupation. This hypothesis finds confirmation in thedeclarations of recognition recently issued by various Latin Americanstates, most of which cited the Palestinian people’s ‘right to establishitself as an independent state’ or its right to self-determination as one ofthe reasons – or as the primary reason –motivating their declarations ofrecognition.100 The application for UN membership of Palestine alsodoes not fail to cite the international recognition of the Palestinian rightto self-determination since 1947.101

2.2 Deadlocked negotiations

It seems that a strong basis for international recognition of Kosovo wasthat its negotiations with Serbia had reached a dead end.102On this issue,contrary to our previous position,103 we now note that internationalpublic opinion may be inching towards a conclusion that the Israeli–Palestinian negotiations are headed towards a point of irreversible stag-nation. In fact, apart from the Palestinian right to self-determination,this seems to be the principal motivation behind the Latin Americanstates’ recognition of the State of Palestine. For example, Argentinaspecifically mentioned that it has decided to recognise the PalestinianState ‘so as to promote a breakthrough in the process of negotiation’;Chile stated that it believes that recognition of Palestine ‘is essential toreinvigorate the process of negotiations’; and Guyana hoped that‘increasing recognition of the State of Palestine will contribute to aresolution of the Israeli-Palestinian conflict’.104 Secretary-General Banalso referred to this issue in a recent statement: ‘The target dates for

100 Brazilian Recognition of Palestine; Ecuadorean Recognition of Palestine; ChileanRecognition of Palestine; Guyanese Recognition of Palestine; Peruvian Recognition ofPalestine.

101 Abbas, Address before General Assembly 66th Session.102 Report of the Special Envoy of the Secretary-General on Kosovo’s Future Status (26

March 2007), UN Doc. S/2007/168, para. 3.103 Nevo and Megiddo, Lessons from Kosovo, pp. 113–14.104 Argentinean Recognition of Palestine; Chilean Recognition of Palestine; Guyanese

Recognition of Palestine, respectively (translation of Argentine and Chilean declara-tions is ours); see also Ecuadorean Recognition of Palestine, citing as base for recog-nition; Brazilian Recognition of Palestine, Peruvian Recognition of Palestine, and




reaching an Israeli–Palestinian agreement on permanent status issuesand completing the Palestinian Authority’s two year state-building pro-gramme are fast-approaching. Yet, the Israeli-Palestinian negotiationsremain at a worrying standstill. We must intensity efforts to break thedeadlock’, he wrote. The Secretary-General also referred to Israel’scontinued settlement construction, house demolition and forced transferof Palestinian residents as actions that ‘erode trust’ and ‘prejudge theoutcome of the process’, and called for Israel to stop them.105 Suchstatements generate the overall impression that the international com-munity is seeking means to alter the balance of power in the Middle Eastpeace process, in the hope that this might accelerate the resolution of theIsraeli–Palestinian conflict. If this position continues to gain momen-tum, international endorsement of unilateral Palestinian independence,rooted in the belief that negotiations are unlikely to achieve an inde-pendent state and a solution to the conflict, is quite conceivable.106

This momentum may have been somewhat undercut by PresidentObama’s emphatic rejection, in May 2011, of the Palestinian claim thatnegotiations have failed and, more specifically, of his denunciation of their‘walking away’ from negotiations as part of a campaign to isolate Israelinternationally. ‘Symbolic actions to isolate Israel at the United Nations’, hewarned, ‘won’t create an independent state.’107 The prospects of this courseof action therefore remain unclear. Nevertheless, it is important to remem-ber in this context that neither refusal by the United States to recognise aPalestinian unilateral declaration of independence nor a rejection of its bidto UN membership would be sufficient to prevent the creation of aPalestinian state. If the Palestinian Authority proves it meets the classicalcriteria for statehood, or if it gains the widespread recognition of theinternational community as a borderline case, it could make the transitionfrom a non-state entity to an independent state notwithstanding anyresistance on the part of the United States.

Mr. Abbas’s address before the UN General Assembly stressed thatnegotiations with Israel are at a standstill. While characterising thePalestinian approach as one of ‘open hearts, attentive ears and sincere

Notice of DR–Palestine Diplomatic Relations, referring to this issue, but not explicitlystating it as a basis for recognition.

105 Secretary-General’s Message to Latin American and Caribbean Meeting.106 E. Bronner, ‘In Israel, Time for Peace Offer May Run Out’, The New York Times (2

April, 2011).107 Obama, Remarks on the Middle East.




intentions’, Abbas described the Israeli position as preventing anyprogress.108

2.3 Remedial secession

While the ICJ could have used the opportunity presented to it in theKosovo Advisory Opinion to clarify the conditions and legality of reme-dial secession, it did not. However, this failure does not affect thePalestinian case, which does not revolve around the remedial secessionframework; the Palestinian territories are not a constituent unit of asovereign state and are not subject to competing claims of sovereignty.

Nonetheless, the remedial secession framework may be influential, asan indication that the Palestinian starting point is even more favourablethan that of Kosovo, whose territory is still considered by Serbia to be anintegral part of its own territory. If Kosovo represents a precedent forlegitimate remedial secession, it would seem that a claim to independ-ence made under similar circumstances by an entity whose territory isnot subject to competing claims of sovereignty would be justified afortiori.

2.4 International involvement and the existence of acomprehensive plan

As in the case of Kosovo, international involvement in the Palestinianfuture is significant. While, unlike Kosovo, no international administra-tion has been set up to manage Palestine, the world closely monitors andsupports the Palestinian Authority’s independent progress. The ‘Endingthe Occupation, Establishing a State’ programme published by thePalestinian Authority in 2009 and the Palestinian National Plan for2011–13 lay out a comprehensive plan for institution building and forachieving governance capacity. They are monitored and supported bythe UN and by the AHLC. As was the case in Kosovo, the deep involve-ment of the international community may add significant weight to itswillingness to recognise an independent State of Palestine, even if spe-cific programmes will not yet have achieved their ultimate goals.

2.5 Democracy and human rights and relations with Israel

Another issue which may tip the scales towards international recogni-tion of a unilateral Palestinian declaration of independence is the char-acter of the state established. PLO leaders, and in particular its present

108 Abbas, Address before General Assembly 66th Session.




leaders, Mahmoud Abbas and Salam Fayyad, enjoy international sym-pathy, as opposed to Hamas leaders, who are viewed as extremists.109

A Palestinian state committed to democracy and the protection ofhuman rights will probably be acknowledged more easily than one thatfails to do so, and may offset doubts as to whether Palestine meets theclassical criteria for statehood.110

In assessing the Palestinian governance capacity, the UN SpecialCoordinator for the Middle East Peace Process emphasised thePalestinian institutions’ progress towards achieving goals of transpar-ency, freedom of the media, compliance with international human rightslaw and access to legal services. He specifically commended thePalestinian Authority’s ‘institutional commitment towards protectinghuman rights, a core function and responsibility of any state’.111 In hisaddress at the UN General Assembly, Mr. Abbas declared thePalestinians’ aspiration for a state ‘characterized by the rule of law,democratic exercise and protection of freedoms and equality of allcitizens without any discrimination and the transfer of power throughthe ballot box’.112 This commitment may be of importance in the world’swillingness to recognise an independent Palestine.

Another point stressed by Latin American states recognising Palestine– including Brazil, Argentina, Chile, Peru and Guyana – is Israel’s rightto live in secure and internationally recognised borders. Secretary-General Ban and President Obama both reaffirm this position unequiv-ocally.113 In his address, Mr. Abbas alluded to this concern, saying that‘The PLO and the Palestinian people adhere to all renouncements ofviolence’ and that they intend to ‘adhere to all agreements’ signed withIsrael. Furthermore, he declared the Palestinian commitment to thebuilding of ‘cooperative relations based on parity and equality betweentwo neighboring states – Palestine and Israel’.114

V. Conclusion

Significant progress has been made in the way of Palestinian state-buildingover the past few years. Economic reforms and institution-building are

109 Robinson, ‘Fragmentation’, 422; Special Coordinator Report.110 Brazilian Recognition of Palestine. 111 Special Coordinator Report, 11.112 Abbas, Address before General Assembly 66th Session.113 Secretary-General’s Message to Latin American and Caribbean Meeting; Obama,

Remarks on the Middle East.114 Abbas, Address before General Assembly 66th Session.




supported and monitored by the international community. Nevertheless,the international community is likely to continue pressing for bilateralnegotiations with Israel as long as these are seen as a viable course. This islikely to slow down the success of Palestinian efforts to gain internationalrecognition of its independence, unless Palestinians succeed in convincingthe world that bilateral negotiations with Israel are no longer a viable course,or one likely to lead to a peaceful resolution of the Israeli–Palestinianconflict in the foreseeable future. Such conviction appears to have beenthe principal motivation behind recent recognition by various states of anindependent State of Palestine and has also played a central role in thePalestinian bid for UN membership. In the words of the UN SecretaryGeneral, it appears that the international community is arriving at theconclusion that ‘the resolution of the Israeli-Palestinian conflict is longoverdue. The status quo is untenable, particularly at a time when so manythroughout the region are pursuing freedom and dignity through non-violence’.115 As the Palestinian fulfilment of the classical criteria forstatehood progresses and additional considerations lean heavily in favourof the Palestinian claim for independence, an independent State of Palestinemay very well be recognised by the international community in the nearfuture.

115 Secretary-General’s Message to Latin American and Caribbean Meeting.




Revisiting Lessons on the New Law of Statehood

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