I want to address this issue in the most simple and direct manner possible, so this will be written in a simple and direct manner. Some of the controversy about names will be ignored: State of Palestine/Palestinian State and other variations, will be treated as the same thing.

The latest developments

Three EU states, Ireland, Norway and Spain have announced they will jointly recognise Palestinian statehood on May 28, 2024.  This follows a campaign by Spanish Prime Minister Pedro Sanchez to try and persuade as many European states as possible to follow this course. There are already several EU states which recognise a Palestinian state, but they are generally from the newer, poorer end of the membership. These are mainly states that recognised Palestine before they joined the EU, when they were communist states and they felt obligated to show sympathy with the oppressed workers of the world. Thus, Hungary, Poland, Romania, the Czech Republic, Slovakia,[1] and Bulgaria recognised Palestinian statehood in 1988. Sweden recognised Palestinian statehood in 2014, but as of 2022 seems to have reversed its position. Cyprus and Malta also recognise Palestinian statehood. Norway is not a member of the EU but has a very close relationship with it.

The three states in question are interesting. None is a significant arms supplier to Israel. Norway has a linkage to Israel in that Norway helped to sponsor the peace process that was supposed to lead to a Palestinian state, in the 1990’s: the Oslo Accords (1993). Ireland has always been perceived as hostile to Israel. Terrorist organizations based in Ireland provided assistance to the Palestinian Liberation Organisation in the Twentieth Century, with the relative success of the Northern Ireland peace process putting an end to this. Israel will regard all three recognitions as serious but will perhaps be least surprised by Ireland’s position. Indeed, the Irish Prime Minister Simon Harris is making pointed references to the role foreign recognition played in securing Irish independence from British rule. The two situations are not really comparable: what became the Republic of Ireland was not a territory where there was significant dispute as to who should be in government. The remaining disputes relating to Irish independence were all geographically and politically packed into the disputed territory of Northern Ireland, where they continued to fester. Recognition of Irish independence did nothing to fix this.

Israel has responded by recalling its Ambassadors, which is the strongest action they can realistically take, but is likely to be temporary. It is likely that the three states in question will respond in kind. Withdrawal of consular officials would not mean de-recognition of Israel: withdrawal of such officials is just exactly what it says it is. It might be argued that this implies at least dissatisfaction with the Israeli government, but no more than that. And de-recognition of governments is not the same as de-recognition of the state. In any event, most states no longer formally recognise governments. It creates more problems than it is worth, because it implies approval. No one wants to recognise the Taliban, or the leaders of the latest African state to go through a coup d’etat.

What makes for a state

This is easy enough to answer, because there is a treaty telling us the criteria. The Montevideo Convention on the Rights and Duties of States, 1933. Article 1 explains:

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.

These require a little further explanation:

a) and b) are straightforward enough. There is no need for all the population or territory to be indisputably part of one state, as long as there is a core that is not disputed. There must be actual territory, so for example, the frozen ice of the North Pole does not count. This is met in relation Palestinian statehood – Israel does not claim sovereignty over Gaza or all of the West Bank. These would be the core of a Palestinian state. The population are the people who live there, and those Palestinians who are in areas where Israel does claim sovereignty, but who would wish to be considered Palestinians. West Bank Palestinians illegally evicted from their homes by Israeli settlers would fall into this category. There are also the many Palestinians displaced in the region and around the world who might want to exercise the right of return. Interestingly, while the figure given for this is often quite high, as much as 5 million, the number who would be likely to actually exercise it is bound to be significantly lower: those living settled and successful lives in a different part of the world are unlikely to move. But they at least want recognition that they are entitled to.

c) is usually prefaced by the word ‘effective’. This word is not in the text, but it seems necessary for two reasons: First, there is always some group of people who can claim to be the government of a certain part of the World, but who, in practice do not control much of it. Second, there is the problem of multiple governments claiming to run a certain area. This is a problem in relation to Palestinian statehood. The government in the West Bank, under Fatah, is largely dependent on Israel to function. The government in Gaza, Hamas, exercised more effective government than Fatah did in the West Bank, until 7 October 2023. Since then, relentless attack by the Israeli Defence Force (IDF) have made this less true.

It is possible to be creative with this however, and argue that were it not for Israeli interference, then there would be effective government in both territories. The fact that they historically fought each other is a matter for them to resolve amongst themselves if they want Palestinian statehood to be taken seriously.

d) This is the one that has tended to cause the most problems – this basically means recognition by other states. Article 3 of the Montevideo Convention claims: ‘The political existence of the state is independent of recognition by the other states.’ This would seem to make a nonsense of Article 1 (d). In fact it is Article 3 that is largely ignored. There are two classical theories of recognition: constitutive and declaratory. Constitutive theory claims that the existence of the state is created by recognition from other states. This fits with Article 1(d). Declaratory theory embraces Article 3, and claims that recognition only declares to be true something that was always true: the independent, political fact of statehood. Constitutive theory has won the day. States use recognition so sparingly because they understand the power it gives them in international relations. It is a creative, not merely declaratory act.

Recognitions

Arguments about statehood thus often come down to two elements: First, the proto-state in question must declare statehood. Palestine, through its legitimate representatives, the Palestinian Liberation Organisation (PLO) did this in 1988. The claim was reiterated in 2012, as attempts were made to gain admittance to the United Nations (UN). There is nothing to stop a people from declaring statehood, as the International Court of Justice hints in relation to Kosovo in Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Request for Advisory Opinion) [2010][2]. The judgment is restricted solely to whether declarations of independence are legal in international law, with the Court finding they were lawful. The judgment does not formally address the question of statehood, but it is a logical implication that Kosovo could achieve statehood if it met the criteria.[3] Second, whether other states recognise them as such. This often comes down to numbers. For simplicity’s sake, let us say there are about 200 states in the world. It is obvious that the Turkish Republic of Northern Cyprus (the TRNC) is not a genuine state. Only one genuine state recognises it as such: Turkey. Turkey uses the TRNC as a legal fiction to try and avoid liability in international courts. It does not work. At the other end of the extreme, most states are recognised by every other state. Even The United States recognises Iran: it just does not recognise the government or have relations with it. But the existence of the state of Iran is not disputed by any other state.

So when looking for recognition by other states, a figure closer to 200 is better than closer to 0. About 139 states recognise Palestinian statehood, with this due to rise to 142. All 139 of the existing recognising states want Palestine to be given full member status at the United Nations (UN). At the moment Palestine enjoys a kind of enhanced observer status. Full member status is generally reserved for states, but UN membership and statehood are not strictly the same thing.[4]

The point is that this is a pretty impressive figure. It is well over two-thirds, and it is growing. There is no accepted figure for how many recognitions a proto-state needs, but two-thirds is the universally regarded super-majority figure in most entrenched, national constitutional systems. It is submitted that it is good enough here. This should be enough to give Palestine statehood and full membership of the UN.

The United Nations Security Council has no role

It is a common misapprehension that the United Nations Security Council (UNSC) has a role in determining statehood. It does not. What the UNSC can do is admit states to the UN. Article 4 of the United Nations Charter suggests:

Article 4

Membership in the United Nations is open to all other peace-loving states which accept the obligations contained in the present Charter and, in the judgment of the Organization, are able and willing to carry out these obligations.

The admission of any such state to membership in the United Nations will be effected by a decision of the General Assembly upon the recommendation of the Security Council.

As we have seen, UN membership and statehood are separate things: Switzerland did not become a member of the UN until 2002 but was definitely a state for hundreds of years before. The fact that the UNSC has refused to recommend recognition of Palestinian statehood, or to in any other way facilitate it, is thus not fatal to a claim of statehood.

Of course, UNSC endorsement is nice to have. The UNSC is an important and prestigious body. The Five Permanent Members of the UNSC (P5)[5] either have to agree with the decision or at least abstain. When it comes to something as important as Palestinian statehood, they each could be expected to exercise their veto power if they so choose. This would imply that any UNSC decision on membership would have the approval of the P5 themselves. These are significant, globally powerful states. But this is not a vote on statehood, only on UN membership.

Recognition by the ‘original state’ – nice, but not necessary

One of the other claims advanced about Palestinian statehood is that the state that it emerges from must grant recognition. So a proto-Palestinian State is reliant on Israel to recognise it before it can be real. There are two objections to this: First, it goes against the reality of many experiences of statehood. Many states emerged from another with the consent of the original state. Decolonisation after The Second World war provides many examples. Sometimes the original state is perfectly happy for a new state to emerge: South Sudan emerged from Sudan in 2011 with Sudanese consent, even if they did almost instantly start fighting each other over specific issues. If the people of Scotland had voted for independence in the 2014 referendum, then Scotland would now be independent and no longer part of the United Kingdom. But many examples involve statehood being achieved without the consent of the original state, or least, with ‘consent’ being delivered at the end of a gun: Bangladesh’s independence from Pakistan in 1971 remains one of the best examples.

Second, the territory in question is mostly not actually part of Israel. Nor is it even claimed as such by the Israeli government. They do not hold that Gaza is part of Israel, nor most of the West Bank.  They would not be losing any territory to a Palestinian state, just the ability to operate freely on and over that territory. As a practical matter, Israeli objections could be somewhat alleviated by giving the Israeli military the right, through a treaty, to operate in the airspace above Palestinian territory. This is sometimes described as a demilitarised Palestinian state and is rejected as not guaranteeing Palestinians equality with other states. But there examples of states that are neutral and do not operate much of a military. For example, Ireland operates a de facto version of this: it is not part of its constitution, but Ireland is not a member of NATO, and its military is about as small as a military can be.

What we can conclude is that Israeli acceptance of Palestinian statehood would be nice, but not necessary.

If Kosovo is, then Palestine must be

In 2008 Kosovo declared independence from Serbia. It is now recognised by between 99 and 119 states, depending on how you exactly define recognition. It is recognised as a state by the USA, Canada, Australia and most of Europe. These are globally significant states. It is not recognised by the original state, Serbia. The UNSC is divided, because whilst France, the UK and the US want to admit Kosovo to the UN, China and Russia do not.

Many of the states that recognise Kosovo do not recognise Palestine. This is inconsistent with their position on Kosovo. Consider:

• Palestine statehood enjoys more recognition than Kosovan statehood
• In the Kosovan example, the original state is flat against Kosovan statehood, whereas in relation to Palestinian statehood, there is no original state to object
• The UNSC is divided on both claims of statehood, but that does not matter that much
• The elevation of the Palestinian representatives to enhanced observer status at the UN is clearly being pursued by the Palestinians themselves and many UN member states, with actual, Montevideo-style statehood as the end objective.

The peace process argument only works if we have a peace process

The final argument advanced by both Israel and its allies for non-recognition of Palestinian statehood is that it would harm the peace process. The Oslo Accords envisaged a slow, complex process of handing control over to the Palestinian National Authority (PNA). The PNA was recognised as the legitimate representative of the Palestinian people. This body technically still exists – it is the body that administers the West Bank. In a very, very loose and technical sense, it has authority over Gaza too.  If followed, The Oslo Accords would eventually lead to a Palestinian State. Recognising a unilateral declaration of statehood, without the consent of the Israeli government, is not allowed for in this scheme.

The title of this section says it all: there is no peace process, so to argue that it must be protected is a fallacy. In any event, the clue is in the word ‘process’. A process is not an end in itself, but a means to achieve an objective. The objective is peace and dignity for all the peoples of the region. When the Israeli Government state that recognition of Palestinian statehood now would harm the peace process, it often seems like a threat: it does not necessarily have to harm the process, but Israel will actively ensure that it does. The process should not be protected at the expense of the outcome. The process is servant, not master.

Conclusions

Palestinian statehood should be acknowledged as a reality. This can be argued for using the Montevideo criteria and the opinion of the great majority of the world states. It should be acknowledged that there is a basic hypocrisy in the recognition of Kosovo and the simultaneous non-recognition of Palestine. Kosovan statehood has only been a serious issue for the last 25 years, yet they have been fast-tracked to statehood, whilst the Palestinians, who have been waiting for at least 80 years, have gotten nowhere through the legal channels.

References

[1] When they were joined together as Czechoslovakia

[2] https://www.icj-cij.org/sites/default/files/case-related/141/14799.pdf

[3] Crawford: Kosovo and the Criteria for Statehood in International Law, in Marko Milanovic and Michael Wood (eds.): The Law and Politics of the Kosovo Advisory Opinion.

[4] At least four states somehow want to give Palestine full member status without quite recognising it as a state.

[5] China, France, Russia, United Kingdom and United States