International Recognition of a Unilaterally Declared Palestinian State: Legal and Policy Dilemmas

http://www.jcpa.org/art/becker2.htm

Representatives of the PLO, and of the Palestinian Interim Self-Government Authority established pursuant to the Interim Agreement, have repeatedly threatened to unilaterally declare an independent Palestinian state.¹ Indeed, following the conclusion of the Camp David peace summit, Palestinian leaders have re-emphasized their purported right to declare statehood unilaterally. While the Central Council of the PLO decided on September 10, 2000, to temporarily postpone this declaration, it reasserted its inherent right to do so without prior coordination or agreement with Israel. In the event of such a declaration, states will be called upon to consider whether to recognize the Palestinian entity as a sovereign state which is eligible for membership in the international community.

The question of recognition of a Palestinian state involves complex legal and policy issues. Here we will address the questions with which each state will be confronted in the event of a Palestinian unilateral declaration of statehood and examine whether the Palestinian entity, as a matter of international law, may be recognized as a sovereign state. In particular, we will focus on three fundamental questions:

1. Does the Palestinian entity satisfy the traditional criteria for statehood?
2. Does the Palestinian entity satisfy the additional contemporary criteria for statehood?
3. What other legal or policy considerations apply?

The Traditional Criteria for Statehood

Recognition and the Traditional Criteria for Statehood

Clearly, if the Palestinian entity fails to satisfy the traditional legal criteria for statehood, it cannot be recognized as a sovereign state. Eligibility for recognition does not depend on whether an entity ought to satisfy the criteria for statehood,² but on whether it meets those standards as a matter of fact and law.³

It is a well established principle that unless an entity can show that, in practice, it meets the indicia of statehood, recognition must be withheld. As Kelsen has asserted, “a state violates international law and thus infringes upon the rights of other states if it recognizes as a state a community which does not fulfill the requirements of international law.”⁴ Similarly, Lauterpacht has declared that the recognition of an entity which is not legally a state:

…is a wrong…because it constitutes an abuse of the power of recognition. It acknowledges as an independent state a community which is not, in law, independent and which does not therefore fulfill the essential conditions of statehood. It is, accordingly, a recognition which an international tribunal would declare not only to constitute a wrong but probably also to be in itself invalid.⁵

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 premise that independent and sovereign governmental control are the sine qua non of statehood. Thus, Crawford describes independence as “the central criterion of statehood.”⁶ Indeed, it will be readily apparent that the basic attributes of statehood essentially flow from this requirement.

The fundamental connection between independence and statehood was clearly enunciated by Judge Huber in the Island of Palmas Case, in which he declared that “independence in regard to a portion of the globe, is the right to exercise therein, to the exclusion of any other State, the functions of a State.”⁷ Higgins has similarly affirmed that “traditional international law has long demanded that before an entity can be acknowledged as a state, it must possess independence and sovereignty.”⁸ Clearly, in the absence of independence, of exclusive and sovereign control, a claim to statehood cannot succeed.

International law has traditionally required that four separate criteria be satisfied before the recognition of an entity as an independent sovereign state can be considered:⁹

1. The entity must exercise effective and independent governmental control.
2. The entity must possess a defined territory over which it exercises such control.
3. The entity must have the capacity to freely engage in foreign relations.
4. There must be effective and independent governmental control over a permanent population.

Only if the Palestinian entity satisfies the traditional criteria for statehood by exercising independent and sovereign governmental control (including the capacity to freely engage in foreign relations) over a permanent population in a defined territory over which it has possession, can its recognition as a sovereign state be considered.

Is There an Effective and Independent Government?

Effective governmental authority is a crucial element of statehood and is closely related to the notions of independence and sovereignty.¹⁰ Oppenheim, for example, has defined the effective government criterion with explicit reference to sovereignty:

There must…be a sovereign government. Sovereignty is supreme authority, which on the international plane means…legal authority which is not in law dependent on any other earthly authority. Sovereignty in the strict and narrowest sense of the term implies, therefore, independence all round, within and without the borders of the country.¹¹

Similarly, the Encyclopedia of Public International Law stipulates that “the government, in exercising its power, must be capable of acting independently of foreign governments,”¹² while von Glahn writes that “even nominal subordination to an outside governmental authority must be absent” for an entity to claim to be a state.¹³ In the language of the Permanent Court of International Justice in the Austro-German Customs Union Case, a separate state has to possess “the sole right of decision in all matters economic, political, financial or other.”¹⁴

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 Manchukuo,¹⁵ Katanga¹⁶ and Biafra,¹⁷ in part due to a lack of effective and independent governmental authority. Recognition was also opposed or delayed with respect to Mongolia,¹⁸ Ceylon (Sri Lanka),¹⁹ and the German Democratic Republic²⁰ on the basis, inter alia, that independent governmental control had not yet been established.

For the Palestinian entity to meet this criterion it would therefore be necessary to show that it possesses exclusive governmental powers over a defined territory, 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 subsistence of an existing state.²¹ Accordingly, the question of whether the Palestinian entity exercises the requisite degree of governmental control must be rigidly tested.

The Palestinian leadership has asserted that the governmental institutions created under the agreements between Israel and the PLO satisfy this criterion of statehood.²² But the terms of these agreements and the manner of their application clearly indicate that the Palestinian entity does not meet the exacting demands of independent and effective governmental control required by international law.

Under the Declaration of Principles on Interim Self-Government Arrangements, signed between Israel and the PLO on September 13, 1993 (D.O.P.),²³ the framework for reaching a just and lasting settlement to the Israeli-Palestinian conflict was agreed upon between the two sides. In accordance with the D.O.P., a Palestinian Interim Self-Government Authority was to be established for an interim period, pending the outcome of permanent status negotiations.²⁴ The Palestinian Interim Self-Government Authority was to be transferred a limited sphere of powers from the Israeli Military Government which has been responsible for administering the West Bank and the Gaza Strip since 1967.²⁵

In the D.O.P., the parties agreed that the Palestinian Authority would only have limited competence. Under Section B of the Agreed Minutes to the D.O.P., it was stipulated that the Palestinian Authority’s jurisdiction, as set out in Article IV, would cover only “the agreed powers, responsibilities, spheres and authorities transferred to it.” Moreover, the Agreed Minutes expressly provided that Israel would continue to exercise those powers and responsibilities not transferred to the Council.²⁶

The blueprint for limited Palestinian autonomy set out in the D.O.P. was implemented by the parties in the Israeli-Palestinian Interim Agreement on the West Bank and Gaza Strip signed on September 28, 1995. This document regulates the relations between the two sides and the administration of the West Bank and Gaza Strip pending the outcome of permanent status negotiations, and it carefully outlines the scope and content of the Palestinian Authority’s jurisdiction.

Several features of the Interim Agreement illustrate that the parties have established a Palestinian self-government authority which does not possess the independent, effective and sovereign governmental control that is required to satisfy the definition of statehood:

The Palestinian Autonomy is Subject to Overriding Residual Israeli Authority

In the first place, under the D.O.P. and the Interim Agreement, pending a permanent status settlement, Israel remains the source of authority and retains residuary jurisdiction in all spheres not specifically transferred to the Palestinian Authority. Far from being sovereign or independent, the Palestinian entity is in fact subject to the overarching residual authority of the Israeli military government.

Article 1(1) of the Interim Agreement mirrors the provisions of the D.O.P. regarding the limited competence of the Palestinian Authority and the continuing jurisdiction of the Israeli military government:

Israel shall transfer powers and responsibilities as specified in this Agreement from the Israeli military government and its Civil Administration to the Council in accordance with this Agreement. Israel shall continue to exercise powers and responsibilities not so transferred [emphasis added].

Similar provisions in Article 1(5),²⁷ Article XVII(1)(b),²⁸ Article XVII(4),²⁹ and Article XXXI(8)³⁰ make it clear that the parties did not establish an independent and sovereign governmental entity, but a limited self-governing body.

This, of course, is not surprising. The intention of Israel and the Palestinians in drafting the Interim Agreement was to create a Palestinian self-governing authority with limited autonomy and responsibility in those spheres that were considered less controversial by the parties. The possibility of transferring powers to the Palestinian entity more extensively, and on a permanent basis, is an issue which has been specifically reserved for the permanent status negotiations and is not one which is addressed by the Interim Agreement.³¹

Moreover, in accordance with Article XXXI(6) of the Interim Agreement, the powers transferred to the Palestinian Authority are not to prejudice the final nature of the Palestinian entity and do not amount to a waiver of either side’s existing rights or positions.³² Consequently, these powers are of a temporary character only and cannot be relied upon to substantiate a claim that the legal status of West Bank and Gaza Strip territory has been altered.

Sovereign Powers are Exercised by Israel, Not the Palestinian Authority

That Israel and the Palestinians agreed to create an entity without independent governmental control is also evident from another feature of the Israel-PLO agreements. In accordance with express provisions of the D.O.P. and the Interim Agreement, certain powers and responsibilities which are elementary attributes of a sovereign government either remain under Israel’s sole jurisdiction or are expressly excluded from Palestinian jurisdiction. As a matter of practice, the Palestinian Authority has no jurisdiction over significant areas of responsibility which are essential to an effective and independent government.³³

Perhaps the most fundamental prerogative of the state is to protect its borders from external threats. But this is precisely an area of responsibility which the parties agreed would not be transferred to the Palestinian Authority, but rather would continue to be exercised exclusively by Israel. Article VIII of the D.O.P. provides that “Israel will continue to carry the responsibility for defending against external threats.”³⁴ Similarly, Article XII of the Interim Agreement provides that:

Israel shall continue to carry the responsibility for defense against external threats, including the responsibility for protecting the Egyptian and Jordanian borders, and for defense against external threats from the sea and from the air…and will have all the powers to take the steps necessary to meet this responsibility.³⁵

In this context, it should be noted that a study prepared for the U.S. Department of State on the theory and practice of autonomy identified the absence of authority over external security as a classic characteristic of an autonomous non-sovereign entity.³⁶ The Palestinian Authority’s lack of jurisdiction in relation to external security thus confirms that the parties created an autonomous body rather than an independent governmental authority.

Another indicia of sovereign control is the capacity of the government to exercise jurisdiction over all persons present in its territory. Yet, here again, the Palestinian Authority’s powers are limited and exclusive jurisdiction over Israelis continues to be vested in Israel. Thus, for example, the agreements repeatedly emphasize that Israel alone is responsible for the security of Israelis in Palestinian Authority areas.³⁷ The restrictions placed on the Palestinian Authority in this regard are not limited to security. The agreements specify that the territorial and functional jurisdiction of the Palestinian Council does not include Israelis.³⁸ Indeed, the issue of the status of Israelis in the West Bank and Gaza Strip is expressly reserved for permanent status negotiations.³⁹

Independent control over airspace is yet another attribute of sovereign governmental authority. Article 1 of the Chicago Convention on International Aviation,⁴⁰ which is regarded as reflective of customary law, specifically provides that “every state has complete and exclusive sovereignty over the airspace above its territory.”⁴¹ However, the territorial jurisdiction of the Palestinian Authority, both in the agreements and in practice, does not include airspace.⁴² Thus, Article XIII(4) of the Security Annex to the Interim Agreement provides that control over the airspace is not transferred to the Palestinian Authority but continues to be exercised by Israel:

All aviation activity or use of the airspace by any aerial vehicle in the West Bank and Gaza Strip shall require prior approval of Israel. It shall be subject to Israeli air traffic control including, inter alia, monitoring and regulation of air routes….

Significant Palestinian Authority Powers are Exercised Only with Israeli Cooperation or Approval

The existence of a Palestinian self-governing entity which lacks the governmental control of a sovereign state is not only evident from the fact that sovereign powers are exclusively exercised by Israel. It is also clear from the agreement between the parties that the implementation of many of the powers and responsibilities exercised by the Palestinian Authority require some degree of approval or coordination with Israel. The Palestinian Authority can hardly be regarded as an independent government if the administration of even certain key spheres of responsibility transferred to Palestinian jurisdiction require continuing cooperation and often prior authorization by Israeli authorities.

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. In this sphere of responsibility, intimately associated with the sovereign prerogative of states,⁴³ Israel retains significant authority. Not only is the Palestinian Authority’s jurisdiction with regard to the grant of permanent residency limited to specific categories of people,⁴⁴ but, in accordance with Article 28(11) of Appendix 1 to the Civil Affairs Annex, such status cannot be granted without “the prior approval of Israel.” Moreover, 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 authorities,⁴⁵ and that Israel has the right to deny entry to any person who is not a registered resident of the West Bank or Gaza Strip.⁴⁶

Within the areas in which the Palestinian Authority exercises its jurisdiction, significant responsibilities with respect to internal security are either shared or held exclusively by Israel. In addition to its exclusive jurisdiction over external security and Israelis,⁴⁷ Israel continues to be responsible, inter alia, for safety and security in the sea off the Gaza Coast (and may sail through the three maritime zones without restriction);⁴⁸ for security at border crossings and terminals;⁴⁹ for security at Rachel’s Tomb;⁵⁰ for internal security in Area B⁵¹ and the Mawasi Area in the Gaza Strip;⁵² while Israel also retains overriding powers for security in the “Yellow Area” of the Gaza Strip.⁵³ In addition, joint Israeli-Palestinian patrols and mobile units operate throughout West Bank and Gaza Strip territory under Palestinian control.⁵⁴

The fact that the parties agreed to transfer only limited powers to the Palestinian Authority is evident from countless articles of the Israel-PLO agreements. All forty spheres of civil jurisdiction transferred to the Palestinian Authority are specifically defined and limited, with some degree of Israeli cooperation or approval often required.⁵⁵ In many spheres of activity, the parties established joint Israeli-Palestinian committees which are responsible for coordination and cooperation in areas transferred to the Palestinian side.⁵⁶ Further limitations are placed by the agreements on the size, operations, and ammunition of the Palestinian Police,⁵⁷ on Palestinian economic policy,⁵⁸ and on the movement of vessels in the sea off the Gaza Coast.⁵⁹

Importantly also, the legislative powers of the Palestinian Council are strictly limited. Article XVIII of the Interim Agreement confirms the lack of Palestinian sovereign governmental control by providing that:

Legislation which exceeds the jurisdiction of the Council or which is otherwise inconsistent with the provisions of the DOP, this Agreement, or of any agreement that may be reached between the two sides during the interim period, shall have no effect and shall be void ab initio.

The Palestinian Entity is a Non-Sovereign Autonomy in Practice

The fact that the parties agreed to transfer only limited authority to the Palestinian entity is not only evident on paper. As a matter of practice, and in the daily exercise of its functions, the interim Palestinian Authority has only restricted governmental capacities in accordance with the provisions of the Israel-PLO agreements. The absence of independent and sovereign governmental control is thus not merely a reflection of the formal agreements signed between the parties, but represents an accurate description of the actual powers of the Palestinian Authority.

This continues to be the case, even following May 4, 1999 — the target date originally set for the conclusion of a permanents status agreement — and the parties continue to rely on the interim arrangements established in the Interim Agreement as the basis for their conduct in practice. Indeed, agreements signed following May 1999, such as the Sharm el-Sheikh Memorandum signed on September 4, 1999 and the Protocol Concerning Safe Passage between the West Bank and the Gaza Strip, signed on October 5, 1999, demonstrate that the parties continue to view themselves as regulated by the Interim Agreement (see below).

A Palestinian Claim to Statehood Over Areas Not Under Effective Palestinian Control

As indicated above, statehood can only be recognized under international law with respect to territory in which the criteria for statehood have been satisfied. It follows that a Palestinian claim to statehood can only be valid with respect to those areas over which it exercises effective and independent control.

It has been shown that such Palestinian control is lacking in all West Bank and Gaza Strip territory. Even in Area A and in the Gaza Strip, where more extensive powers and responsibilities have been transferred, the Palestinian Authority does not exercise the powers of a sovereign government. The absence of the requisite degree of control is all the more evident in Areas B and C, where the Palestinian Authority’s jurisdiction is of a more limited nature and Israel continues to exercise significant authority. Similarly, a Palestinian declaration of statehood which purported to include parts of Jerusalem within the territory of a Palestinian “state” would be legally meaningless in light of the absence of any Palestinian authority over Jerusalem, and the actual exercise of Israeli sovereignty and jurisdiction in all parts of the city. Indeed, as the Israel-PLO agreements make clear, the issue of Jerusalem is reserved as a subject for permanent status negotiations, and no powers or responsibilities have been transferred to the Palestinian Authority in Jerusalem during the interim period.

The Palestinian claim to statehood lacks legitimacy, in this regard, because it cannot point to any body of territory over which it exercises effective and independent control. Palestinian efforts to acquire statehood are in fact weakened by advancing a claim before the requisite degree of control is established, and by the attempt to extend this claim to areas which clearly lack any semblance of Palestinian sovereign authority.

In sum, the Israeli-Palestinian agreements have transferred only limited powers to the Palestinian entity. Practically, the Palestinian Authority lacks the capacity to function independently in a wide variety of governmental spheres. In light of these facts, it must be concluded that a claim for the existence of an independent and sovereign Palestinian government over any West Bank and Gaza Strip territory is untenable at this stage. This criterion of statehood requires the exercise of independent sovereign governmental control to the exclusion of all other states. The Palestinian Authority clearly fails to meet this threshold.

Does the Palestinian Entity Possess a Defined Territory?

The second criterion of statehood requires that a state possess at least some defined corpus of territory. Traditionally, it has been necessary for an entity to show, firstly, that it has sovereign title over the territory in question and, secondly, that the territory is adequately defined.

Palestinian Authority representatives have regularly asserted that the Palestinian entity satisfies both aspects of this criterion of statehood.⁶⁰ But despite these assertions, an examination of the legal and factual situation with respect to West Bank and Gaza Strip territory not only illustrates that the Palestinian claim to vested sovereign title cannot be sustained, but that the territory also lacks the requisite degree of definition.

The Requirement of Sovereign Title

With respect to the first aspect of this criterion, sovereign title, Menon declares that states must “have a territorial basis and thus…enjoy the territorial sovereignty.”⁶¹ Similarly, Crawford writes that the proposition that statehood “necessarily involves territorial sovereignty is generally accepted,”⁶² while Blix has referred to “sovereignty over territory, the airspace above it and the territorial water that may be adjacent to it,” as an essential attribute of statehood.⁶³ Indeed, the lack of legitimate title over territory has in the past been the basis for withholding recognition from such entities as Manchukuo⁶⁴ and the Turkish Republic of Northern Cyprus.⁶⁵

The Palestinian claim to vested sovereign title over the West Bank and Gaza Strip lacks a firm legal basis. The arguments traditionally made by Palestinians are, at best, the basis for a possible future claim to limited title, to be raised in the context of permanent status negotiations. They do not provide support for the contention that sovereign title is currently vested in Palestinian hands.

The Palestinian argument for vested sovereignty is based variously on the alleged illegality of the Palestine Mandate,⁶⁶ which provided for the establishment of a Jewish national home in Palestine,⁶⁷ and on General Assembly Resolution 181 of 1947 (the Partition Resolution),⁶⁸ which recommended the partition of Mandatory Palestine into an Arab and a Jewish state.⁶⁹

Neither of these positions, however, find support in international law. With respect to the Palestine Mandate, international bodies called upon to consider its terms repeatedly rejected the Arab contention that sovereignty was vested in Palestinian Arab hands. By accepting the Mandate as legally valid and consistent with the provisions of the League Covenant, bodies such as the Council of the League,⁷⁰ and the Permanent Court of International Justice⁷¹ confirmed that the duty of the mandatory power to “secure the establishment of the Jewish national home” was not subject to legal challenge. Indeed, the United Nations Special Commission on Palestine subsequently concluded that the Palestinians “have not been in possession of it [Palestine Mandate territory] as a sovereign nation,”⁷² and that there were “no grounds for questioning the validity of the Mandate for the reason advanced by the Arab states.”⁷³

The Palestinian case for vested sovereignty is also not supported by General Assembly Resolution 181. Indeed, it is somewhat surprising that the Palestinians have sought to justify their claim for vested territorial title by reference to this resolution. For decades the Arab states and the Palestinians themselves repeatedly declared that the Partition Resolution was legally invalid.⁷⁴ Thus, Article 19 of the Palestinian National Charter proclaimed that “the partition of Palestine in 1947 and the establishment of Israel are entirely illegal.”⁷⁵ Similarly, in arguing the Palestinian case, jurist Henry Cattan states that “at no time was the partition resolution accepted by the Palestinians or by the Arab states,”⁷⁶ while the Seminar of Arab Jurists on Palestine referred to the resolution as “absolutely null and void.”⁷⁷

Resolution 181 cannot serve as a basis for Palestinian sovereignty because it never had binding force. As a General Assembly resolution it could only have the status of a recommendation. And while Israel was prepared to uphold the resolution,⁷⁸ it was the Arab rejection of the Assembly’s proposal that prevented its adoption. In what former UN Secretary General Trygvie Lie termed the “first armed aggression which the world has seen since the end of the [Second World] War,”⁷⁹ the surrounding Arab countries attacked the fledgling Israeli state demonstrating, by force of arms, that Resolution 181 was, in their eyes, a legal nullity.

Indeed, in order to respond to the new realities that emerged in the years and decades following the Partition Resolution, the United Nations itself abandoned the proposal contained in Resolution 181. In its place, the Security Council adopted Resolutions 242⁸⁰ and 338⁸¹ which provided a radically different formula for the settlement of the conflict. This is the only formula which has been accepted by both sides as the basis for permanent status negotiations⁸² and it reflects a mutual recognition that Resolution 181 has been overtaken by the events and does not provide an appropriate proposal for the resolution of the conflict.

Nor can the Palestinians maintain that the transfer of powers over portions of West Bank and Gaza Strip territory in accordance with the Israel-PLO agreements has involved the acquisition of sovereign title. In the first place, the absence of sovereign Palestinian governmental control over any of the West Bank or Gaza Strip is in itself evidence that the Palestinians lack territorial sovereignty. As Judge Huber stated in the Island of Palmas Case, “territorial sovereignty…involves the exclusive right to display the activities of a state.”⁸³ The limited competence of the Palestinian entity is thus inconsistent with the view that the Palestinians are vested with sovereignty over the territory in question.

Indeed, the Palestinians, as party to the D.O.P. and the Interim Agreement, have in effect acknowledged that at present they are not in sovereign possession of any territory. By affirming that the legal status of the West Bank and Gaza Strip is to be resolved in permanent status negotiations, these agreements reveal that both Israel and the Palestinians recognized that the issue of sovereignty over this territory is yet to be settled.⁸⁴

Furthermore, as is evident from Article XXXI(8) of the Interim Agreement, the transfer of limited authority to the Palestinian entity does not involve any change to the legal status of West Bank and Gaza Strip territory.⁸⁵ Accordingly, while the Palestinian Authority has been transferred several powers over portions of this territory, the territory itself has not been transferred and its final status remains an issue for negotiation.

The fact that the Israel-PLO agreements did not involve a transfer of title to the Palestinian Authority is clear, inter alia, from the absence of Palestinian jurisdiction over the airspace. As Brownlie explains, “airspace superjacent to land territory…is in law part of state territory, and as a consequence other states may only use such airspace for navigation or other purposes with the agreement of the territorial sovereign.”⁸⁶ However, as Article XVII⁸⁷ of the Interim Agreement and Article XIII(4)⁸⁸ of the Security Annex affirm, the airspace superjacent to the West Bank and the Gaza Strip is not subject to Palestinian territorial jurisdiction but remains under Israeli control. It follows that title over West Bank and Gaza Strip territory cannot be regarded as being presently vested in Palestinian hands. In fact, as Brownlie has affirmed, lack of control over the airspace is a clear indication that the entity in question is not the territorial sovereign.⁸⁹

In sum, the Palestinian argument for vested sovereignty is not supported by international law or by the provisions of the Israel-PLO agreements. The failure to show that title is currently vested in Palestinian hands means that the Palestinian entity cannot satisfy this criterion of statehood.

The “Defined Territory” Requirement

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. It is generally accepted that the boundaries of a nascent state need not be accurately delimited in their entirety for an entity to satisfy this criterion of statehood.⁹⁰ But the issue is a relative one. The greater the lack of definition, the more the statehood of the entity is in question. As Lauterpacht has asserted, “when the doubts as to the future frontiers [are] of a serious nature, statehood becomes in doubt.”⁹¹ Similarly, the German-Polish Mixed Arbitral Tribunal held that while an entity need not have precisely defined borders, its territory must have a “sufficient consistency” and there must be “independent public authority over that territory.”⁹²

There thus comes a point where the territory of an entity seeking recognition as a sovereign state is so indeterminate that its claim to a “defined territory,” required by the criteria of statehood, must be questioned. Lauterpacht, for example, cites the non-recognition of Lithuania in 1919 as such an instance. In that year, while the Allied powers recognized Estonia and Latvia as sovereign states, recognition was withheld from Lithuania on the express ground that lingering frontier disputes meant that Lithuania’s territory was not yet sufficiently defined.⁹³

Similarly, states have withheld recognition on the basis that an entity’s territory is so fragmented that it does not satisfy the “defined territory” criterion. For instance, this position was taken by the United Kingdom in its decision not to recognize Bophuthatswana as an independent state in 1986. According to the United Kingdom, the fact that Bophuthatswana constituted at least six separate regions meant that its territory was too fragmented to be regarded as “defined” within the meaning of the criteria for statehood.⁹⁴

The non-contiguity and fragmentation of areas under Palestinian control suggest that the Palestinian entity similarly fails to satisfy the requirement for defined territory. Even if the Palestinians were to hold sovereign title over some portion of territory and exercise independent control over it, the scope of this territory cannot be adequately defined. At this stage, the Palestinian Authority’s powers are scattered throughout non-contiguous portions of West Bank and Gaza Strip territory to the extent that the territory lacks the consistency required for statehood. Indeed, it may be questioned whether the Palestinian entity, in its fragmented state, could ever function effectively as a sovereign body.

The loose territorial make-up of the Palestinian entity serves as further evidence that the parties agreed to establish an autonomous body with limited territorial powers rather than an entity with clearly defined sovereign territory. Moreover, the fact that the powers transferred to the Palestinian Authority under the Interim Agreement are neither contiguous with the portions of territory under Palestinian control⁹⁵ nor uniform throughout the Palestinian areas⁹⁶ indicates that the Palestinian entity’s powers are not defined in relation to a fixed territory.

In fact, the parties agreed that the territorial scope of the Palestinian Authority’s powers would not be permanently fixed until a permanent status agreement was reached. The principle of phased further redeployments, provided for in Article XIII of the D.O.P. and Article XI of the Interim Agreement, shows that the territory under Palestinian control is not strictly defined, but rather is subject to change in accordance with the extent of future redeployments. This fluctuation in the territorial jurisdiction of the Palestinian Authority under the Interim Agreement is confirmed by the mutual agreement to consider the final borders of the Palestinian entity only in the context of permanent status negotiations.⁹⁷

The Palestinian entity cannot claim vested sovereign title over a defined territory. Additionally, the extreme fragmentation of the territory under Palestinian control and the variable nature of the Palestinian Authority’s territorial jurisdiction casts doubt over the claim to a defined or fixed territory, as required by the definition of statehood. Indeed, the Palestinians themselves have agreed that the legal status of the territory will be resolved by negotiation.

Does the Palestinian Entity have the Capacity to Freely Engage in Foreign Relations?

An entity which is incapable of freely engaging in foreign relations cannot be defined as a state. As Crawford explains, the capacity to enter into relations with other states is an essential prerequisite of independence.⁹⁸ As a result, the lack of competence in foreign relations is regarded as a classic indication that a given entity is not an independent state but an autonomous non-sovereign body.⁹⁹

The provisions of the Israel-PLO agreements provide unequivocal evidence as to the Palestinian Authority’s lack of capacity to conduct foreign relations. In setting out the powers and responsibilities of the Palestinian Council, Article IX(5) of the Interim Agreement clearly stipulates as follows:

1. In accordance with the DOP, the Council will not have powers and responsibilities in the sphere of foreign relations, which sphere includes the establishment abroad of embassies, consulates or other types of foreign missions and posts or permitting their establishment in the West Bank or the Gaza Strip, the appointment of or admission of diplomatic and consular staff, and the exercise of diplomatic functions.

2. Notwithstanding the provisions of this paragraph, the PLO may conduct negotiations and sign agreements with states or international organizations for the benefit of the Council in the following cases only:

   1. economic agreements, as specifically provided in Annex V of this Agreement.;
   2. agreements with donor countries for the purpose of implementing arrangements for the provision of assistance to the Council;
   3. agreements for the purpose of implementing the regional development plans detailed in Annex IV of the DOP or in agreements entered into in the framework of multilateral negotiations; and
   4. cultural, scientific and educational agreements.

3. Dealings between the Council and representatives of foreign states and international organizations as well as the establishment in the West Bank and the Gaza Strip of representative offices other than those described in paragraph 5.a above, for the purpose of implementing the agreements referred to in subparagraph 5.b. above, shall not be considered foreign relations.

Several features of this provision warrant special attention. First, it will be noted that the Palestinian self-governing entity is specifically and absolutely denied any authority in the sphere of foreign relations. Secondly, the right to enter agreements with states and international organizations is restricted to those areas where responsibility for limited foreign contacts is occasionally transferred to autonomous non-sovereign entities.¹⁰⁰ Thirdly, while Israel agreed that in order to enable international aid and assistance to the Palestinian autonomy limited foreign contacts could be made, the Israel-PLO agreements specify that it is the PLO and not the Palestinian Authority which may engage in such activity.¹⁰¹ 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.

Other provisions of the Israel-PLO agreements confirm that the Palestinian Authority lacks any powers in the foreign relations sphere. Thus, Article 3 of Annex II of the D.O.P. provided in relation to the Gaza Strip and Jericho Agreement that the powers and responsibilities of the Palestinian Authority do not include foreign relations. Similarly, Article XVII of the Interim Agreement provides that foreign relations are not within the jurisdiction of the Council but are a subject for permanent status negotiations.

The Palestinian Authority’s lack of capacity to freely conduct relations with other states is also evident in practice. Even in those instances where the Palestinians have sought to exceed the terms of Israel-PLO agreements relating to foreign relations power, it has invariably been the PLO and not the Palestinian Authority that has been responsible for this activity. Indeed, it is doubtful whether the Palestinian Authority can rely on the foreign relations activity of the PLO, conducted in violation of the Israel-PLO agreements, in order to demonstrate a capacity to engage in foreign relations. The governmental institutions of the Palestinian Authority remain both unauthorized and unable to freely conduct foreign relations in an independent and unrestricted manner.

In sum, the Palestinian Authority does not have the capacity to freely conduct foreign relations. The agreements which it has signed explicitly deny it competence in this area. Moreover, as a matter of practice, the Palestinian entity is unable to engage in foreign relations in an unrestricted way.

Is There Effective and Independent Control Over a Permanent Population?

The final criterion of statehood requires that a state be able to exercise governmental control over a permanent population resident in its territory. In one respect, this criterion would seem to be satisfied. The Palestinian Authority can identify a group of people that are permanently resident in West Bank and Gaza Strip territory.

But even with respect to this criterion, the Palestinian claim to statehood can be questioned. According to this criterion, it is not sufficient that a permanent population exist; a state is also required to exercise effective and independent governmental control over that population. As the Third U.S. Restatement of the Law notes, the population must be “under the control of its own government.”¹⁰² But, as highlighted above, while the Palestinian Authority does exercise significant powers over Palestinian residents, its jurisdiction cannot be regarded as independent or comprehensive. Moreover, as the U.S. Court of Appeals has held, where there are doubts as to the territorial scope of a putative state, its claim to a permanent population is necessarily also in doubt.¹⁰³ 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.

Unilateral Palestinian Attempts to Acquire the Attributes of Statehood

Finally, it should be noted that the Palestinian Authority’s failure to satisfy the criteria for statehood could not be overcome by unilateral measures which are inconsistent with express Palestinian undertakings. As will be discussed below, an entity claiming to be a state on the basis of unlawful conduct must, under international law, be denied recognition. Accordingly, any Palestinian attempt to unilaterally acquire the attributes of statehood in violation of Israeli-Palestinian agreements would have no legal effect.

Conclusion

The Palestinian entity does not appear to satisfy the traditional criteria for statehood. As a matter of law, the Palestinian entity does not have the capacity to function as an independent and sovereign state, nor does it actually exercise such powers in practice. It does not possess independent and effective governmental control; it does not hold sovereign title over a clearly defined portion of territory; and it lacks the competence to freely engage in foreign relations. Moreover, any Palestinian attempt to unilaterally acquire the attributes of statehood in violation of express Palestinian undertakings would constitute unlawful conduct and as such could not serve as a basis for satisfying the prerequisites for recognition.

Additional Contemporary Criteria for Statehood

The Additional Criteria for Statehood

In more recent international practice, several additional criteria have been identified as prerequisites for statehood. The recognition policy of many states and the positions taken by contemporary jurists indicate that the traditional criteria for statehood are being extended to include additional elements. Thus, for example, the recognition policy of the European Community (now the European Union) with respect to the former republics of Yugoslavia and the Soviet Union conditioned recognition not only on the satisfaction of the traditional criteria for statehood, but on the fulfillment of a long list of other requirements.¹⁰⁴ Indeed, it has become accepted to investigate several other features of a putative state before considering its eligibility for recognition.

The additional contemporary criteria for statehood require that an entity seeking recognition demonstrate that it has not been established as the result of illegality, that it is willing and able to abide by international law, that it constitutes a viable entity, and that its claim to statehood is compatible with the right to self-determination. It is therefore necessary to consider whether the Palestinian entity satisfies these additional elements of statehood so that its recognition as a sovereign state can be contemplated by other states.

Would the Unilateral Establishment of a Palestinian “State” be the Result of Illegality?

The Duty Not to Recognize an Unlawful Claim to Statehood

It is now well established that in order to qualify for recognition a state must not emerge as the result of illegality. This principle was enunciated in broad terms by Lauterpacht when he declared that facts, however undisputed, resulting from conduct which violates international law cannot be a source of legal rights or obligations.¹⁰⁵ Contemporary jurists have subsequently affirmed that unlawful acts associated with the establishment of a nascent state prevent its recognition by the international community.¹⁰⁶ Thus, for example, Wallace-Bruce has formulated the doctrine in the following way:

[A]n entity, in satisfying the traditional criteria must do so in accordance with international law…when an entity claims to be a state, it has to satisfy the international community that it is not the product of international illegality. Put another way, the process by which the entity emerges should not have breached any international rule.¹⁰⁷

Indeed, it is widely accepted that there exists a legal duty not to recognize as a state an entity which claims statehood on the basis of acts which are illegal. The Restatement of the Foreign Relations Law of the United States, for example, provides that a state is required not to recognize or treat as a state any entity which has “attained the qualifications of statehood in violation of international law.”¹⁰⁸ Similarly, as Lauterpacht affirms, “non-recognition is the minimum of resistance which an insufficiently organized but law-abiding community offers to illegality; it is a continuous challenge to a legal wrong.”¹⁰⁹

The principle that an entity claiming statehood on the basis of unlawful acts must, as a matter of law, be denied recognition has been supported in state practice. The non-recognition of Manchukuo by the international community, for example, was justified on the basis that its creation involved a violation by Japan of its treaty obligations under the League Covenant and the Pact of Paris.¹¹⁰ Similarly, there was collective international non-recognition of the unilateral declarations of statehood by the Turkish Republic of Northern Cyprus¹¹¹ and by Rhodesia¹¹² on the grounds that the establishment of these entities was the result of illegality.

In accordance with state practice and international legal principle, states would be subject to a legal duty not to recognize the Palestinian entity as a sovereign state if its claim to statehood is based on acts which are unlawful.

It has been shown that the Palestinian entity fails to satisfy the traditional criteria for statehood and that as a result it cannot be recognized as an independent state. But even if the Palestinian entity were to meet those criteria, the illegality associated with its current unilateral claim to statehood demands that recognition be withheld.

The Obligation to Resolve All Outstanding Issues by Negotiation

In an effort to overcome the legal problems which undermine their claim, Palestinian representatives have argued that a unilateral declaration of statehood is not an unlawful act despite the existence of repeated undertakings not to alter the legal status of the West Bank and Gaza Strip pending the outcome of permanent status negotiations. In support of this argument, Palestinians maintain that the obligation to refrain from a unilateral declaration of statehood is limited in time and will have expired by September 13, 2000 — the new target date set for a permanent status agreement under the Sharm el-Sheikh Memorandum. This follows attempts made by Palestinian representatives to argue that the Interim Agreement was to expire on May 4, 1999 — the original target date for the permanent status agreement.¹¹³ In practice, of course, the parties have continued to view the Interim Agreement as binding after May 1999, and have signed agreements (such as the Sharm el-Sheikh Memorandum) to that effect.

The argument that a unilateral declaration of statehood would no longer constitute an unlawful act after September 13, 2000, is central to the Palestinian claim to statehood. If the Palestinians have committed themselves to refrain from unilateral measures and resolve outstanding issues with Israel only by way of negotiation, then a unilateral declaration prior to the conclusion of those negotiations would constitute an unlawful act and would be fatal to any Palestinian attempts to gain recognition in accordance with international law. But this is precisely the nature of the Palestinian obligation. It is not time-sensitive. It is an independent and continuing legal duty undertaken by both sides not to engage in unilateral measures and to resolve the conflict by good faith negotiations.

The claim that the prohibition against unilateral acts expires on September 13, 2000, cannot be sustained. The entire peace process is founded on the principle that a comprehensive and lasting peace between Israel and the Palestinians can only be achieved by a negotiated settlement. Unilateral measures which attempt to alter the legal status of the West Bank and Gaza Strip undermine any real prospect for peaceful resolution, and their prohibition has therefore been recognized as an essential foundation of the Israeli-Palestinian peace process.

The duty to resolve issues by negotiation is included in every major document associated with the Middle East peace process. It is a central feature of Security Council Resolutions 242 and 338 which the parties have accepted as the basis for a peace settlement.¹¹⁴ As Nicholas Rostow, former legal adviser to the U.S. National Security Council, has observed:

International law, specifically Resolution 242, requires both sides to pursue and achieve a negotiated settlement — which is why a Palestinian unilateral declaration of independence (UDI) would be incompatible with the law.¹¹⁵

This duty was also the cornerstone of the Madrid peace initiative of 1991, and serves as the basis upon which the Israel-PLO agreements are founded.¹¹⁶ Accordingly, the prohibition against unilateral acts and the obligation to negotiate constitute a fundamental element of every document signed within the D.O.P. framework.

Indeed, PLO Chairman Yasser Arafat has repeatedly affirmed in written undertakings to the Government of Israel that the prohibition against unilateral acts is not limited in time but constitutes an independent and continuing obligation which lies at the very heart of the peace process. Thus, for example, in the initial exchange of letters of mutual recognition on September 9, 1993, Chairman Arafat made an express and unconditional commitment to resolve the Israeli-Palestinian conflict only by negotiation:

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.

This undertaking, made prior to the signing of any agreement regarding the interim period, was repeated in a letter sent by Chairman Arafat to Prime Minister Rabin on May 4, 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.”¹¹⁷

It is clear that these undertakings do not expire in September 2000. They are neither expressly or implicitly limited in time. Rather, they express legal obligations which both sides have accepted as fundamental prerequisites to a peaceful settlement. As a result, they render any attempt to unilaterally declare a sovereign Palestinian state on all or part of West Bank and Gaza Strip territory a clearly unlawful act.

In light of the importance of these principles, it is not surprising that the prohibition against unilateral acts and the duty to resolve all issues by negotiation constitute a fundamental part of the agreements signed between the parties. Thus, for example, Articles IV and V of the D.O.P. stipulate that all remaining issues are to be settled by negotiation. Similarly, Article XXXI(7) of the Interim Agreement formulates this obligation in unequivocal terms:

Neither side shall initiate or take any step that will change the status of the West Bank and the Gaza Strip pending the outcome of the permanent status negotiations.

Indeed, the prohibition was repeated both in Article V of the Wye River Memorandum signed in October 1998, and in Article 10 of the Sharm el-Shiekh Memorandum.

Most recently, the parties have restated this undertaking in the Trilateral Statement issued on July 25, 2000, at the conclusion of the Camp David Peace Summit. In the statement, Prime Minister Barak and Chairman Arafat reaffirmed:

…the importance of avoiding unilateral actions that prejudge the outcome of negotiations and that their differences will be resolved only by good faith negotiations.

As on the previous occasions where this commitment has been made, the duty to refrain from unilateral acts and resolve all issues only through negotiations is not limited in time. In light of this most recent undertaking, and the previous commitments referred to above, a unilateral Palestinian declaration of statehood would clearly constitute an unlawful act regardless of whether it is made on September 13, 2000, or on any date thereafter.

The Continuing Force of the Interim Agreement

The Palestinians have argued that the Interim Agreement, which in their view was extended for a limited period by the Sharm el-Sheikh Memorandum, will expire on Sepetmber 13, 2000 — the date established in the memorandum for the conclusion of a comprehensive permanent status agreement. According to this argument, since the Interim Agreement expires on this date, so, too, will the prohibition. But this approach overlooks some elementary features of Israeli and Palestinian undertakings. In the first place, as stated above, the fundamental agreement to resolve issues by negotiation rather than unilateral actions is enshrined in documents which are independent of the Interim Agreement, and forms the basis of the entire peace process. These commitments represent permanent legal obligations which are not subject to any timetable.

Moreover, there is little in the existing agreements to support the claim that the Interim Agreement itself will expire on September 13. Quite to the contrary, all the evidence points to the fact that the interim arrangements, including the prohibition against unilateral acts contained therein, are intended to continue until the conclusion of permanent status negotiations and the achievement of a comprehensive peace settlement.

The force of the Interim Agreement is linked not to an artificial date, but to the conclusion of permanent status negotiations. While the parties expressed their intention to conclude those talks by May 4, 1999 — and then agreed to extend this target date to September 13, 2000 — the letter and spirit of the Israel-PLO agreements suggest that in the absence of a permanent status settlement on that date, the interim period obligations continue to apply. This is why the prohibition against unilateral acts in Article XXXI(7) of the Interim Agreement is limited not to a specific date but to the “outcome of permanent status negotiations.” It is also why the Interim Agreement provides a date for its entry into force, but does not stipulate a date for its conclusion. Indeed, the flexibility of the dates established by the parties is clear from the fact that the sides did not view the May 4 deadline as binding, and agreed to extend it in the Sharm el-Sheikh Memorandum.

Acceptance of the Palestinian argument regarding the expiration of the Interim Agreement would amount to a repudiation of the entire peace process framework. If the interim arrangements were allowed to conclude before a permanent status agreement was reached, the parties would be deprived of an agreed framework for a negotiated settlement and the current Israeli-Palestinian peace process would effectively come to an end.

This could not have been the intention of the parties. The Israeli-Palestinian peace process is not limited in time. No date is set for its conclusion. Indeed, as the parties themselves have expressly affirmed in the Interim Agreement: “the peace process and the new era that it has created, as well as the new relationship established between the two parties, are irreversible.”¹¹⁸

The current peace process thus represents a fundamental and permanent change in the relationship between the two sides and an ongoing commitment to resolve the Israeli-Palestinian conflict by the establishment of interim autonomy arrangements leading to a permanent negotiated settlement.¹¹⁹ It follows that the Interim Agreement, which enables the implementation of one part of the D.O.P. framework, does not expire until it is superseded by a subsequent agreement between the parties. Indeed, the parties have acknowledged that the Interim Agreement is not an independent document concluding on a specific date but an “integral part of the whole peace process.”¹²⁰

Former U.S. State Department legal adviser Herbert Hansell took a similar position when considering the alleged termination of the Israel-PLO agreements by May 1999. His comments, which are of equal relevance to the new target date established by the Sharm el-Sheikh Memorandum, read as follows:

…[it is] difficult to believe that the parties could have intended… that the entire legal structure they so laboriously established would self-destruct on May 4….The interpretation that the Oslo agreements terminate…seems so at odds with the language of the accords and the other Oslo agreements, and with the spirit of the extended legal regime the parties have constructed, that no interruption in the performance of the Oslo agreements or interference with adherence to the legal regime they have created could reasonably be based on that interpretation.¹²¹

Indeed, Hansell has correctly suggested that the duty to negotiate will continue to be a fundamental legal obligation binding both sides:

One overriding principle will govern the legal survival of the Oslo regime: the obligation to resolve final status issues by negotiation….Unilateral repudiation of that obligation…would expose the repudiator not only to potential retaliatory steps by the other party but also to the opprobrium in the eyes of the international community for having destroyed the Oslo regime.¹²²

It should be noted that if, as the Palestinians argue, unilateral acts are no longer prohibited after September 13, 2000, the result must logically be a return to Israeli military government. As a theoretical legal matter, if the current Israeli-Palestinian peace process were to conclude in September 2000 without a permanent status agreement, all the powers and responsibilities transferred to the interim Palestinian Authority would automatically revert back to the Israeli military government since it holds residual jurisdiction and is the source of authority during the interim period.¹²³

The Israel-PLO agreements, however, do not end on September 13, 2000. Such an interpretation would be inconsistent not only with the letter and the spirit of the agreements but also with practice of the parties to date. Rostow, for example, has made the following observation with respect to the deadlines set out in these agreements:

As for deadlines, they must be understood in context: the world will not end, either legally or politically, if they are not met. One could argue that throughout the process there have been explicit and implicit understandings from both sides that deadlines are not the “end-all, be-all.”¹²⁴

Indeed, throughout the implementation of the Israel-PLO accords the parties have agreed to continue existing arrangements in cases where they have been unable to reach agreement by the specified deadline. Thus, for example, the parties did not consider the delay in the withdrawal of Israeli military forces from the Gaza Strip and Jericho area as a license for adopting unilateral measures. Rather, both sides accepted that pending the signing and implementation of the Gaza-Jericho Agreement, the Israeli military government would continue to exercise all of its powers.¹²⁵ Similarly, both parties accepted that the existing situation in Hebron should be continued in view of the delay in reaching an agreement on the modalities for redeployment in that city.¹²⁶

Likewise, in the Wye River Memorandum, the Palestinians agreed that May 4, 1999, is the preferred date for the conclusion of the permanent status talks rather than the final deadline of the peace process. In Article IV of the memorandum, the parties affirmed that they would resume permanent status negotiations and “make a determined effort to achieve the mutual goal of reaching an agreement by May 4, 1999.”¹²⁷ In light of this express provision, it cannot be seriously maintained that the parties intended the obligations of the Israel-PLO agreements to end on this date if no permanent status agreement was reached. Indeed, in the very next provision the parties once again established the prohibition against unilateral actions and, in this way, reconfirmed that unilateral measures were considered unlawful even after May 1999.¹²⁸

In light of this established practice, the existing commitments between the parties, and the need to maintain a framework for negotiation pending the conclusion of a permanent status settlement, the new date referred to in the Sharm el-Sheikh Memorandum