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The Creation of the State of Palestine:
II. The Status of Palestine under the Traditional Criteria for Statehood
It is 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 1933,4 continues to exercise so strong a hold. It is even more curious when the Montevideo definition, which looks to the ostensibly separate elements of territory, permanent population, government and the capacity to enter into relations with other states, is then minutely examined - in some cases one would say tortured - in order to be able to argue that a particular entity fits within those criteria.
Even applying the Montevideo Convention, in a relatively superficial way, in accordance with its terms, it is difficult to see how Palestine could constitute a state. Its whole territory is occupied by Israel, which functions as a government in the territory. The Palestine Liberation Organization has never functioned as a government in respect of the occupied territories. But the Montevideo Convention treats statehood essentially as an existing state of affairs, as a matter of fact as much as a matter of law.5 And as a matter of fact, notwithstanding that allegiance, neither the PLO nor the Palestine National Council has been in a position to exercise the whole range of governmental powers within the territory concerned. That they may have a right to do so - or, more accurately, that the Palestinian people may have a right to choose a representative authority to govern themselves - is beside the point, from the perspective of the Montevideo formula. That formula is concerned with the existence of secure governing authority rather than with any right to exercise that authority in future. It should be recalled that the Montevideo Convention was drafted at a time when the principle of self-determination was not generally recognized in international law, and when the implications of the nascent rule prohibiting the use of force between states in this context had not been worked out. It may be that the idea of statehood, imperfectly expressed in the Montevideo Convention, has been modified by these developments. But it is curious that the debate about the statehood of entities such as Palestine is still conducted in terms of that Convention. Boyle's essay is a good example of this.
Rather than examining separately the four apparently discrete criteria listed in the Montevideo formula, it is preferable to focus on the notion of state independence as a prerequisite for statehood. Essentially that notion embodies two elements - the existence of an organized community on a particular territory, exclusively or substantially exercising self-governing power, and secondly, the absence of the exercise of another state, and of the right of another state to exercise, self-governing powers over the whole of that territory.6
From this perspective, the often stated proposition 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." It is the basis in space for the organized community which is the state. No doubt the PLO directly and indirectly exercises considerable influence within the occupied territories, and commands the allegiance of a significant part of the population of those territories. But this falls far short of what is required in terms of the first element, the existence of an organized self-governing community. Moreover, that Israel's governmental power and authority over those territories does not amount, for the most part, to a claim of sovereignty, that it would be unlawful if it did amount to a consensus that the Palestinian people are entitled to form a state - none of this could affect the point that they do not currently do so, if the generally-accepted principle of state independence is applied. In this respect Boyle fails to face up either to the law or the facts.
Of course there are other conceptions of statehood under which different results might be reached. The first and most obvious alternative - though Boyle does not rely upon it - is the constitutive theory of statehood. According to this view an entity is a state if, and only if, it is recognized as such by other states. But the difficulty is that the constitutive theory inevitably leads to extreme subjectivity in the notion of the state. There is no rule that majority recognition is binding on third states in international law. At present Palestine has been recognized as a state by over 100 states, but it does not yet command anything like the level of quasi-unanimous support as such which would be required to establish a particular rule of international law to the effect that Palestine is a state. In the absence of such a "particular" rule, the constitutive theory leads inevitably to the proposition that another state is not bound to treat an entity as a state if it has not recognized it. Since the crucial actors here are the United States and Israel, which vehemently do not recognize Palestine as a state, the theory leads nowhere. In any event, there are compelling reasons for rejecting the constitutive theory, and most modern authorities do so.7
The second alternative would be to seek to take advantage of 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, at least in some situations. Thus entities which would have otherwise qualified as a state may not do so because their creation is in some significant sense illegitimate (Rhodesia, the Bantustans, the Turkish Federated States of Cyprus). 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.
It should be stressed that we are not dealing with the situation of the extinction of states which were once, incontestably, established as such. The situation here involves the establishment of a new state on territory over which other states have claims of one kind or another. On this issue the practice is limited, though it is not non-existent. In the case of a number of former Portuguese territories in Africa (Guinea-Bissau being the best example8) the view was taken that the National Liberation Organization's extensive de facto control over large parts of the territory in question, and the apparent inevitability of its success, combined with the principle of self-determination, meant that the entity became a state in circumstances in which the recognition of its statehood would otherwise have been premature. Although the arguments in favour of premature statehood were often not set out or were poorly articulated, the importance of the principle of self-determination in such cases seems to have been that it disentitled the former sovereign to rely on its authority over the territory. On the other hand it is significant that in each of these cases the liberation organization did have a significant degree of control in the territory, such that its victory could reasonably be said to be imminent. Moreover the issue presented was one of a simple yes/no kind - independence for the territory in question or the continuation of colonial rule. There was no question of any subsisting claim by the colonial power, or indeed by any other state, to significant parts of the territory in question.
The situation in Namibia provides an instructive contrast. There, notwithstanding the undoubted entitlement of the people of Namibia to self-determination, as declared by the International Court in the Namibia case,9 and despite the fact that the relevant liberation organization, SWAPO, did have a high degree of allegiance, and a fluctuating degree of control, in Namibia, there was no attempt to treat Namibia as being already legally a state. Instead action was taken to bring about its independence, and in the meantime to seek to protect the rights of the people of Namibia through other means (e.g. the Resolution of the United Nations Committee for Namibia on Permanent Sovereignty over its Natural Resources). In this situation the modalities of achieving independence were of great importance, and were undoubtedly an important factor in leading states to maintain the distinction between the rights of the people of Namibia and their present status. Much the same thing could be said of the Western Sahara, especially having regard to the presence of a relatively powerful neighbouring state with claims over the territory.
Thus although a majority of states have taken the view that the next logical step beyond the Guinea Bissau situation should be taken in the case of Palestine, a significant minority of states opposes that step. There is certainly not the level of support in state practice, nor in the other sources of international law, to support that additional development.
This is not to say that the territory now designated as the territory of Palestine lacks a special legal status, or that appropriate representatives of the people of that territory do not share that status for various international purposes. But the continuing reservations held about the status of Palestine are reflected, both in the practice of international organizations and in the actions of individual states. For example, on 12 May 1989 the 42nd World Health Assembly deferred consideration of the application of Palestine for admission as a member of the World Health Organization. The preamble of the relevant resolution (A42/VR/10) states, in part:
Recognizing in this context that the legal and other issues related to the application of Palestine for membership of the World Health Organization require further detailed study...
Similarly the Executive Board of UNESCO deferred consideration of a Palestinian application for membership of UNESCO, while adopting measures to ensure that Palestine had the fullest possible opportunity (short of membership) of participation in the work of UNESCO.10
Another expression of doubt as to the status of Palestine is contained in the Note of Information which Switzerland, as the depository of the 1949 Geneva Conventions on the Laws of War and the 1977 Protocols, addressed to States Parties. In that Note Switzerland reported that it had declined to accept a "communication" from the permanent observer of Palestine to the United Nations office in Geneva, acceding to the Conventions and Protocols, on the grounds that
Due to the uncertainty within the international community as to the existence or the non-existence of a State of Palestine and as long as the issue has not been settled in an appropriate framework, the Swiss Government, in its capacity as depository ... is not in a position to decide whether this communication can be considered as an instrument of accession in the sense of the relevant provisions of the Conventions and their additional Protocols... The unilateral declaration of application of the four Geneva Conventions and of the additional Protocol I made on 7 June 1982 by the Palestine Liberation Organization remains valid.11
Against this general background some brief comments should be made about two other arguments used by Boyle to support the case for the statehood of Palestine.
5 See J. Crawford, The Creation of States in International Law (1979) 36-48 for an examination and critique of the Montevideo formula.
7 Id., 15-24, with references to other authorities.
10 See UNESCO 132 EX/31, 29 September 1989, and the associated Consultation by Professor Alain Pelet, 7 September 1989.
11 Embassy of Switzerland, Note of Information sent to States Parties to the Convention and Protocol, 13 September 1989.
© 1990-2004 European Journal of International Law
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