The Creation of the State of Palestine:

L> The Creation of the State of Palestine:

The Creation of the State of Palestine:

Too Much Too Soon?

James Crawford ^*1

I. Introduction

It seems to be difficult for international lawyers to write in an impartial and balanced way about the Palestine 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. Still, such a level of partisanship in legal discourse is disturbing. Perhaps the sceptics are right in claiming that "impartiality" is a facade and a pretence, in which case Boyle at least has the merit of honesty and lack of hypocrisy in his pleading. But the problem is that, if they are right, we should not merely give up the pretence but the game itself. And the obstinate fact remains that the actors, most of the time, continue to use the language of law in making and assessing claims. (International law scholars are not like critics in an empty theatre). That the language of 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.

It may be conceded that Boyle's evident and - if his work is to be read as stating a legal claim rather than as a disguised oath of allegiance - regrettable partisanship has illustrious antecedents, on both sides of the dispute. Even so, an unusually high proportion of what Boyle has to say is directed at issues of strategy and is concerned to advocate a certain position within the overall spectrum of the Palestinian cause. However, those views are supported by legal arguments of various kinds, which call for separate examination. To the extent that it involves propositions of international law, Boyle's thesis, as outlined in "The Creation of the State of Palestine"² and stated in more detail elsewhere,³ involves three basic propositions:

(1) Having regard to the classical "four elements constituent of a state", Palestine, under the provisional government of the Palestine Liberation Organization, is already a state in international law: "all four characteristics have been satisfied by the newly proclaimed independent state of Palestine."

(2) The General Assembly, whether as the successor of the League of Nations with respect to the mandate system or by virtue of the authority to recognize the new state, and in its Resolution 43/177 has "essentially" done so, such recognition "being constitutive, definitive, and universally determinative." (Boyle has however already stated that the Palestine National Council's Declaration of Independence was "definitive, determinative and irreversible").

(3) To add yet a third level of determinacy (to make assurance trebly sure), he adds that other states, and in particular Israel and the United States, are bound to accept the new state, either because the international status of the Palestinian people had already been "provisionally recognized" in Article 22 of the League of Nations Covenant, a position preserved by Article 80 of the Charter, or (in the case of Israel) because its acceptance of the Partition Resolution was a "condition for its admission" to the United Nations.

Other questions which he discusses include the present legal status of Jerusalem, and the partly related issue of the modalities for terminating the Israeli occupation of the occupied territories. Boyle's "solution" for the Jerusalem problem would involve a demilitarized "corpus separatum", under United Nations auspices, with neither side relinquishing its claim to sovereignty over the Old City. His suggestion for an orderly termination of Israeli occupation seems to be involve the imposition of a trusteeship with the United Nations itself, apparently, as administering authority. Both suggestions raise complex legal issues: for example, are the occupied territories "now held under mandate" within the meaning of Article 77(1)(a) of the United Nations Charter, and if not, which state or states are currently "responsible for their administration"? But they raise even more formidable difficulties at the levels of policy, practicality and finance, and there seems no need to discuss them in detail here. But it is necessary to say at least something about the other three arguments.

1 ^* Challis Professor of International Law, Dean, Faculty of Law, University of Sydney; Associé, Institut de Droit International.

2 Boyle, `The Creation of the State of Palestine', EJIL (1990) 301.

3 See Boyle, `Create the State of Palestine!' (1988) 7 Scandinavian Journal of Development Alternatives 25.

© 1990-2004 European Journal of International Law
All comments and suggestions should be sent to webmaster
This site is part of the Academy of European Law online, a joint partnership of the Jean Monnet Center at NYU School of Law and the Academy of European Law at the European University Institute.
This file was last modified: Thursday, November 11, 1999 12:27PM