An Unstoppable Avalanche Toward Palestinian Statehood?

The Palestinians can’t have a state and still claim they’re under occupation, says one Israeli scholar. The international community seems to disagree

By Raphael Ahren

December 28, 2014 "ICH" - "TOI" -   The avalanche of European resolutions calling for the recognition of a Palestinian state is entirely symbolic and therefore meaningless, Israeli officials often argue. Palestinian statehood, they say, will only come about when the two sides sit together, negotiate and come to an agreement.

And yet, the large number of parliaments that have voted in favor of recognition — including in Britain, France, Spain, Ireland, Belgium, Portugal, Luxembourg and the European Union — is more than just a symbolic gesture.

While Europe cannot create a state where there is none, it could be argued that the mere fact that more and more countries want to recognize Palestine accords this entity a certain status approaching statehood.

The former chief Palestinian negotiator Saeb Erekat said Friday that the Palestinians will submit their UN Security Council statehood resolution to a vote by Monday at latest. However it fares, the snowball of international recognition for “Palestine” is gathering pace.

The constitutive view of statehood vs…

According to one school of thought in international law, an entity becomes a state not only when it fulfills all objective criteria of statehood, but also when it is recognized by a critical mass of other states. The so-called constitutive theory postulates that “the act of recognition itself actually creates the state” based on a common definition.

Followers of this theory could argue that if Palestine hadn’t already been considered a state before the onset of the European moves toward recognition, that time has certainly come. Indeed, the argument that it’s the recognitions that make the state could have been made since November 29, 2012, when 138 countries voted to accord Palestine non-member state status at the United Nations General Assembly. The European legislators’ current eagerness to recognize Palestine further strengthens that reasoning.

“Each act of recognition, though not constitutive, is essentially another pebble in the pan of the balance, especially in light of the momentum captured in the 2012 GA resolution,” said John Cerone, a professor of international law at Lund University in Sweden and a visiting professor at Tufts University’s Fletcher School.

“Of course, whether each is seen as a sizable pebble or as a grain of sand is a matter of interpretation,” he told The Times of Israel in an email. “It would also be relevant whether this new act is consistent with that state’s vote in the GA, or whether this is a ‘new’ pebble.”

In 2012, France and Portugal, for instance, voted in favor of non-member state status for Palestine — they already recognized Palestinian statehood, and their parliamentary motions don’t add anything.

While the new status at the UNGA actually improved the Palestinians’ standing in that it enabled them to accede to international treaties, conventions and organizations such as the International Criminal Court, the largely symbolic parliamentary votes have absolutely no concrete effect.

Britain, on the other hand, abstained in 2012, which lends the House of Commons’ October 14 vote some significance, in that it adds the UK to the list of states that officially endorse Palestinian statehood.

Whether recognition of states is indeed constitutive (or, as the rival school of thought believes, declaratory) is a complicated issue and one needs to proceed with caution before applying this theory to Palestine, said Frances Raday, an Israeli professor of international law and the president of the Concord Research Center for Integration of International Law in Israel.

“The only short answer I can give is that there is cumulative impact in the international arena of diplomatic and public discourse and [the European parliamentary votes] will further impact attitudes to Israeli policy in the West Bank and Gaza.”

…the declarative view

Some scholars argue that the constitutive theory has long lost out to the declarative theory of statehood, which postulates that statehood is entirely independent of recognition and that an entity needs to fulfill certain objective criteria before it can be considered a state.

According to the first article of the 1933 Montevideo Convention on the Rights and Duties of States, which has traditionally been recognized as the benchmark to determine what constitutes a state under international law, a state needs to possess the following qualifications:

• a permanent population
• a defined territory
• government; and
• capacity to enter into relations with the other states.

Article 3 states that the “political existence of the state is independent of recognition by the other states,” which leads some to argue that the fact that many other states have moved to recognized Palestine doesn’t necessarily mean it’s really a state — since it doesn’t fulfill the four criteria.

“In fact, it’s hard to find a single country that exists today through the constitutive approach,” said Eugene Kontorovich, a law professor of at Northwestern University. “There are no cases where there is no state but people wished it into existence. It doesn’t really happen. Statehood isn’t subjective — it’s a yes or no question.”

Few people would deny that Taiwan — officially called the Republic of China — is a bona fide state, yet it is only recognized by 21 other countries. On the other hand, Russia and a handful of other states recognize the Republic of Abkhazia and hardly anyone outside these countries would argue this breakaway republic actually belonging to Georgia deserves to be considered an independent state.

Wanting the best of both worlds

But things aren’t always black and white in statehood theory, said Amichai Cohen, a senior lecturer of international law at Ono Academic College. “It’s a process. There is not always an exact moment in time when an entity becomes a state.” Regarding Palestine, “we’re currently in the middle,” he assessed.

As more and more states and international organizations move to recognize a Palestinian state, its recognition will at some point become final. Retroactively, the current wave of European endorsements will then be seen as one step in the continuum toward statehood, he said.

Palestine’s ostensible statehood raises some other questions, said Kontorovich, who is currently also a senior fellow at Kohelet, a Jerusalem-based think tank.

“They’re acting in an incoherent way,” he said about the Palestinian leadership. “A state means something, it’s not just an idea. Being a state means having a territory with a government that exercises control. It can’t be under occupation. Because being occupied means you’re not in control.”

In historical precedents, new countries came into being by getting rid of foreign rule. Israel, for instance, was declared only after the British Mandate ended. “Before that, it would have been a joke,” Kontorovich said. An Arab state of Palestine would be the first new “state” that still is occupied at time of its inception, he said.

“The Palestinians want to have best of both worlds. They want to have a foreign ministry and embassies across the world, give out passports and pass laws, and at the same time complain that they’re dispossessed and controlled by Israel.”

The Palestinians argue that theirs is a state under occupation, similar to France being occupied by Germany during World War II. But this situation cannot be compared to today’s Palestine, which claims to have come into being while under occupation.

“There is no example in the last 50 years of a state being created while all of its territory is being occupied,” Kontorovich said.

In his view, the Palestinians indeed have a state, but therefore can no longer claim to be occupied.“ Rather, the current conflict should be seen as a border dispute,” Kontorovich said. The Palestinian people exercise self-determination in the parts of the West Bank under their control (Areas A and B), which means Palestine is indeed a state. While the Palestinians wish to exert control over the entire West Bank, self-determination doesn’t necessarily mean you get the best possible borders for your state, he argued. “There are Hungarians in Serbia, that doesn’t mean that Hungarians don’t have self-determination.”

International recognition

In January 2015, more European parliaments will vote on the recognition of a Palestinian state. Finland, Italy, Belgium and Slovenia have already scheduled votes; other states are sure to follow. (Thirteen European states — Sweden, Cyprus, Malta and 10 Central and Eastern European states — already formally recognized Palestine; and countless countries in the rest of the world).

In addition, the Palestinians are planning in the next days to take their statehood bid to the UN Security Council, where it will likely be vetoed by the United States.

Jerusalem’s response to all these processes is that all unilateral recognitions in the world won’t change anything on the ground, and that actual Palestinian independence will only come about as the result of negotiations with Israel. That may be so, but meanwhile it seems as if the world has decided not to wait for that day and start by bestowing formal statehood upon Palestine.