November 29, 2012
Where's the Coverage? "Palestine" Doesn't Qualify as a State
There has been quite a bit of coverage of Palestinian Authority President Mahmoud Abbas asking the United Nations General Assembly to recognize a Palestinian state. But the media has focused mostly on the political angle: which nations will support this gambit and which nations will not support it. There has been coverage of the fact that the GA will almost certainly vote to approve and likely by a landslide. However, scant attention has been paid to the fact that "Palestine" does not qualify for statehood under international law. Other than CAMERA's backgrounder, we could find only one blog post on the subject.
According to article 4 of the United Nations charter membership is reserved for states (and "peace loving" states at that, but that's a whole other story). But Abbas is asking for "non-member state" status. This would presumably make it easier for "Palestine" to join the International Criminal Court with the intention of bringing cases against Israeli leaders. (This could backfire, of course, since Palestinian leaders would also be subject to the ICC – see "peace loving" above.)
The question remains, however, does "Palestine" qualify as a state? Article 1 of the Montevideo Convention on Rights and Duties of States provides the internationally recognized criteria of statehood:
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.
Does "Palestine" have a permanent population? If so, why do Palestinian leaders frequently demand that residents be allowed to become citizens of another state, Israel?
Does "Palestine" have a defined territory? According to article 17 of the 1995 Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip, signed by Israeli and Palestinian leaders, the Palestinian Legislative Council does NOT have jurisdiction over "issues that will be negotiated in the permanent status negotiations: Jerusalem, settlements, specified military locations, Palestinian refugees, borders, foreign relations and Israelis". No jurisdiction over borders? No defined territory.
Does "Palestine" have a government? You could argue it has two: one government in areas of the West Bank and one in Gaza. And they don't even get along with each other. That's not an effective government by any stretch of the imagination.
Does "Palestine" have the capacity to enter into relations with other states? Again, not under the Interim Agreement. Article 9, paragraph 5-a states clearly:
...[T]he [Palestinian Legislative] 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.
So on all four counts, "Palestine" does not qualify as a state and hence cannot be cannot be recognized as such by the United Nations General Assembly. But then, as Abba Eban said, "If Algeria introduced a resolution declaring that the Earth was flat and that Israel had flattened it, it would pass by a vote of 164 to 13 with 26 abstentions."
No permanent population, no defined territory, no effective government, no capacity to conduct foreign relations, and yet... no coverage either!