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The Creation of the State of Palestine
Francis A. Boyle *1
The Elements of Palestinian Statehood
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. As a result of these elemental processes, the Unified Leadership of the Intifadah requested the Palestine Liberation Organization (PLO) to proclaim the existence of a new state of Palestine in recognition of the courage, suffering, and bravery of the Palestinian people living under Israeli occupation. On 31 July 1988 the creation of the Palestinian state became an inevitability when King Hussein of Jordan announced that he was terminating all forms of administrative and legal ties with what he called the West Bank. And on 15 November 1988 the independent state of Palestine was proclaimed by the Palestine National Council meeting in Algiers, by a vote of 253 to 46, as well as in front of Al-Aksa Mosque in Jerusalem, the capital of the new state, after the close of prayers.
I will not bother to discuss at great length the legal basis for the Palestinian people to proclaim their own state. This matter has already been analyzed in detail by me in a position paper that was requested by the PLO in 1987 and later published in the summer 1988 issue of American-Arab Affairs entitled "Create the State of Palestine!" Generally put, however, there are four elements constituent of a state: territory, population, government and the capacity to enter into relations with other states. As I argued in my position paper, all four characteristics have been satisfied by the newly proclaimed independent state of Palestine.
Indeed, as long ago as 1919 the Palestinian people were provisionally recognized as an independent nation by the League of Nations in League Covenant Article 22(4) as well as by the 1922 Mandate for Palestine that was awarded to Great Britain. This provisional recognition continues into effect today because of the conservatory clause found in Article 80(1) of the United Nations Charter. Pursuant to the basic right of self-determination of peoples as recognized by U.N. Charter Article 1(2) and by the International Court of Justice in its 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.
1. Territory
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. Thus, the state of Palestine does not have to have declared borders either. Rather, borders will be negotiated between the government of Israel and the government of Palestine. This is the same way peace negotiations would be carried out between any other two states/governments in dispute over the existence of their respective borders. To be sure, however, 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 Strip, with its capital being East Jerusalem.
2. Population
In occupied Palestine there lives the population of the Palestinian people; they have lived there forever, since time immemorial. They are the original inhabitants and occupants of this territory. They are fixed and determinate, and so they definitely constitute a distinguishable population. They have always been in possession of their land and therefore are entitled to create a state therein.
3. Government
During the course of his various public pronouncements in Europe during December 1988, Yasir Arafat, Chairman of the Executive Committee of the Palestine Liberation Organization, stated that the PLO is currently serving as the Provisional Government of the state of Palestine. Acting in conjunction with the Unified Leadership of the Intifadah, this Provisional Government already controls substantial sections of occupied Palestine as well as the entire populace of occupied Palestine. It is thus already exercising effective control over large amounts of territory and people and is providing basic administrative functions and social services to the Palestinian people living in occupied Palestine and abroad. This is all that is required for there to be a fulfillment of this criterion for statehood under international law.
4. The capacity to enter into international relations.
Over 114 states have already recognized the newly proclaimed state of Palestine, which is more than the 93 that maintain some form of diplomatic relations with Israel. Furthermore, on 15 December 1988 the United Nations General Assembly adopted Resolution 43/177, essentially recognizing the new state of Palestine and according it observer-state status throughout the United Nations Organization. That resolution was adopted by a vote of 104 in favor, the United States and Israel opposed, and 44 states abstaining. For reasons fully explained in my position paper, the General Assembly's recognition of the new state of Palestine is constitutive, definitive, and universally determinative.
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