Australia / Israel Review

Daniel Meyerowitz-Katz

Last year, Palestinian Authority (PA) President Mahmoud Abbas went to the UN Security Council (UNSC), attempting to have “Palestine” admitted to the UN as a member state. It soon became clear, however, that the Council was not going to approve the bid, as “Palestine” does not yet meet the criteria for statehood.

Indeed, “Palestine” does not appear to meet the requirements to be a state under any recognisable definition. The classic definition of statehood was coined by social theorist Max Weber, who said that “a state is a human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory.” The leading legal definition comes from Article 1 of the Inter-American Convention on Rights and Duties of States of 1933, (more commonly the “Montevideo Convention”), which provides that:

The state as a person of international law should possess the following qualifications: a ) a permanent population; b ) a defined territory; c ) government; and d) capacity to enter into relations with the other states.

“Palestine” does not yet fulfil these criteria. Nevertheless, Abbas has announced his intention to go to the UN General Assembly (UNGA) and request that the designated status of the Palestinians be upgraded from “observer” to “non-member state”.

The move is unprecedented. Previously, when an aspiring state was rejected by the UNSC, it altered its situation, then re-applied once it had more convincingly established itself. For example, Kuwait’s first application in 1961 was vetoed by the Soviet Union because of concerns relating to a lack of independence from Britain, and to a territorial dispute with Iraq. Two years down the line – after these issues were resolved – Kuwait made a second attempt and, this time, was successful.

It is important to note that, legally, actual Palestinian statehood has little bearing on the term that UNGA chooses to refer to it by. It is true that, in the past, “non-Member State” status has been conferred on entities like Switzerland and Nauru, which were incontrovertibly states, but had declined UN membership. However, the term is defined nowhere in the UN Charter and has no inherent meaning – so it is doubtful whether using it to refer to “Palestine” would have any legal effect.

In fact, recognition of statehood has rarely correlated with actual statehood – it has always been an intensely political decision. Many de facto states are not recognised to be states for political reasons. For example, Greece refuses to recognise Macedonia because of its name and certain potential claims over Greek territory. China has been sitting at the “China” seat in the UN since 1971, yet Taiwan continues to maintain that it is the legitimate “China” and refuses to be recognised as an independent state.

Conversely, many non-states have been recognised as states. For example, Russia recognises Abkhazia and South Ossetia – breakaway areas of Georgia – as states in their own right. Eighty-two states recognise the Western Sahara as the Sahrawi Arab Democratic Republic, but dozens of others recognise it as part of Morocco.

After the Indonesian invasion of East Timor in 1975, the UN and many members of the international community continued to recognise the territory as a “non-self-governing territory under Portuguese administration” – something it plainly was not. By contrast, Australia recognised Indonesia’s annexation of East Timor.

On the other hand, actual UN Membership has generally been permitted only after political disputes surrounding a state’s creation are resolved. For example, the leadership of the “Republic of China” was ousted by the “People’s Republic of China” and fled to Taiwan in 1949, but it was not until 1971 that the PRC became “China” at the UN; Vietnam was admitted after the two sides unified to form one state. Meanwhile, despite the Pakistani army withdrawing from Bangladesh in 1971, Bangladesh was only admitted after Pakistan recognised its independence three years later.

The only separatist movement other than the Palestine Liberation Organisation (PLO) to be given UN observer status was the South West African People’s Organisation (SWAPO) in the former League of Nations Mandate of Namibia. After the Mandate was dissolved, Namibia was, for a long time, ruled by an unrecognised South African puppet regime. Namibia only became a member of the UN – and recognised as a state – after the struggle was resolved and the SWAPO had won genuine independence.

This is not to say that only functional states have sat at the UN. The Democratic Republic of the Congo (DRC) has long been an anarchic mess ruled by numerous rival warlords. Similarly, since the government of Somalia collapsed in 1991, the entire country has been ungovernable, with the “legitimate government of Somalia” for many years confined to a heavily-fortified section of the capital, Mogadishu. Somalia and the DRC went through decades with neither governments nor any capacity to enter into relations with other states. Nevertheless, they both sit at the UN and are recognised as states for all intents and purposes.

However, they do not provide relevant models for the Palestinians. These were pre-existing states that failed or collapsed. In contrast, Palestine is attempting to establish a state where one has never existed before.

After the ancient Kingdom of Judea was conquered by the Romans and renamed “Palestina”, the territory was passed from one empire to another over two millennia. At the dawn of the 20th century, “Palestine”, to the extent the term was used at all, was an indistinct part of the Ottoman Empire – not even a separate province. Britain took control of the area in 1917-18 and it was subsequently placed under a League of Nations mandate.

In 1947, Britain delegated to the UNGA the responsibility for ending the Mandate. The UNGA then adopted a plan to partition the Mandate into two states, one Arab and one Jewish. The story from then is well known: the Zionist leadership accepted the plan and the Arab states unanimously rejected it; when the British withdrew, Israel declared its independence and was almost immediately invaded by five Arab armies. After the dust had settled, Israel was in effective control of the territory up to armistice lines which became referred to as the “Green Line”. When it became clear to the Arab leaders that they could not wipe out the nascent Jewish state militarily in 1949, they determined to dig-in, aiming to achieve this at a later date. Egypt occupied Gaza, Jordan occupied the West Bank, and the Arab residents of Mandate Palestine were never given a say in the process.

Without the establishment of an Arab state in the Mandate, the partition plan was never actually implemented. Rather, Israel’s legitimacy was derived from its de facto statehood, and was confirmed by its admission to the UN in 1949. The Jewish majority in those areas that became Israel thereby seceded from Mandate Palestine, but the Mandate was never actually dissolved. Jordan’s annexation of the West Bank was never legitimate and was renounced in 1988. Meanwhile since Israel took control of the territories in 1967, it has never exercised nor claimed full sovereignty over any area except east Jerusalem. Technically, therefore, the Mandate is still arguably in place.

Three events have occurred since 1967 that could have a substantial bearing on Palestine’s status. Firstly, in 1988, the PLO declared the independence of the State of Palestine. This was then recognised by the UNGA, which altered the PLO’s designation to “Palestine” accordingly. Palestine was then recognised as a state by over 100 UN member states – a large majority of the UNGA. However, the PLO did not actually govern any of the territory in which it purported to have established a state. All of this fanfare, therefore, was purely symbolic and has been treated as such ever since.

The second event was the signing of the Oslo Accords of 1993 and subsequent agreements, which founded the PA. While Israel did cede some administrative responsibilities, however, they are far from sufficient for statehood. The PA has no real sovereignty as a state – its foreign policy functions are delegated to one of either Israel or the PLO. Furthermore, its existence depends on its adherence to certain limitations and, were it to substantially renege on the Oslo Accords, Israel is entitled, in principle, to re-assert control (as, in fact, occurred in part in response to the massive campaign of terror attacks encouraged by the PA from 2000-05).

The final event was Israel’s withdrawal from Gaza in 2005, after which the PA demonstrated a lack of ability to maintain law and order. The enclave descended into lawlessness and conflict, before Hamas eventually managed to oust the PA leadership and install itself as the governing body.

Unlike the PA, Hamas was able to consolidate power in Gaza, and consequently, Gaza has arguably become de facto an independent state. It has a defined territory, a defined population, an effective government and it can and does conduct relations with the international community.

Yet, in accordance with standard practise, Gaza’s official status is entirely political. Hamas does not wish to declare a state before it takes full control of “Palestine” (which by most accounts includes all of Israel), and the international community does not want to recognise a group as violent and extreme as Hamas as a legitimate governing entity, nor to split the territory most anticipated would be allocated for a future Palestinian entity.

So where does that leave the PA’s statehood bid? Well, it will probably succeed, and the next few steps are not difficult to predict: Israel’s opponents will be outraged at Israel’s refusal to recognise the supposed official UN-declared version of “reality”; Israel’s allies will refuse to recognise the new “state” of Palestine; there will be much opprobrium, and some dramatic theatre at the UN Headquarters in New York and perhaps at the International Criminal Court. At the end of the day, nothing will have changed beyond time being wasted on all sides – and perhaps a new source of distrust, anger and conflicting claims overshadowing Israeli-Palestinian peace hopes.

The UNGA recognised Palestine as a “state” in 1988, but recognising what was not there did not make it magically appear. And today, there are still no shortcuts to statehood. The Palestinians have only one real choice, as unpalatable as it may seem. Like Kuwait, Palestine must accept that its bid was rejected, work hard to resolve the situation, and then reapply after progress has been made. For Abbas, that means negotiating with the Israelis. Parading around New York looking for a repeat of the almost forgotten symbolic victory of 1988 will not bring his people closer to statehood – that can be achieved only by instead sitting in a room with the Israeli Prime Minister.