A Contested Question

Is Palestine Considered a State?

Clare Roth

The question of Palestinian statehood has been disputed for decades–the current Israel-Hamas conflict has just brought it to the forefront again. Here are the basics.

Though Palestine is not officially considered a state, the Palestinian Authority has flown their official flag for decades. Palestinian statehood is currently disputed among scholars, diplomats and individual nations. Here's what you should know.

There are two theories of statehood: The declarative theory and the constitutive theory.

Subscribers to the declarative theory say a state can be considered as such if it meets the definition of statehood declared in the 1933 Montevideo Convention, which says that in order to be considered a state, a territory must have a permanent population, a defined territory, its own government and the capacity to enter relations with other states. The convention explains that the political existence of a state "is independent of recognition by the other states."

"Even before recognition the state has the right to defend its integrity and independence, to provide for its conservation and prosperity, and consequently to organize itself as it sees fit, to legislate upon its interests, administer its services, and to define the jurisdiction and competence of its courts," it says.

That leads to the second theory of statehood: constitutive theory. Unlike the Montevideo Convention, this theory says that a state can only be considered a state if the rest of the world recognises it as such. This theory is not codified in law: rather, it considers modern statehood a matter of both international law and diplomacy.

As a permanent member of the UN Security Council, the US, an ally of Israel, has blocked a number of Palestinian bids for statehood.

Scholars have differing opinions on whether the Palestinian territories fit the legal definition of a state.

Some say they do, while others say they don't meet the requirements enshrined in the Montevideo Convention.

Some argue against the use of the Montevideo Convention in determining statehood altogether, saying the Palestinian territories' best hope of claiming statehood is through international recognition.

The majority of the 193 UN member states–139–recognize the Palestinian territories as a state.

A state's bid to join the United Nations must be approved by at least nine of the 15 members of the UN Security Council. If any of the five permanent members of the council veto the bid, the country cannot join. China, France, the Russian Federation, the United Kingdom and the United States make up those five. The Palestinian territories are not recognised by the US, France or the UK as a state.

These three nations have said they will not recognise Palestinian statehood until the conflict with Israel is peacefully resolved. Nine of the 27 EU member states recognise Palestinian statehood. Almost all of the EU member states that recognise Palestinian statehood were once members of the Soviet-aligned Eastern bloc, and all recognised its statehood before joining the European Union.

Sweden, which recognised Palestinian statehood in 2014, is the only country to have done so as a member of the bloc.

Palestine is currently considered a nonmember observer state to the UN, which means it is welcomed to participate in sessions of the General Assembly and can maintain offices at the UN headquarters in New York.

Because of its nonmember observer status granted in 2012, it was given membership in the International Criminal Court (ICC) in 2015, the only permanent international court that can prosecute individuals for war crimes.

In 2021, then-Prosecutor FatouBensouda announced that the ICC was opening an investigation into the situation in the Palestinian territories. Palestine's accession to the Rome Statute and ICC membership gave the ICC the legal capacity to investigate crimes committed by Palestinians or on Palestinian territory.

The probe, which Israel has condemned, is currently ongoing.

Germany, like the US and many of its EU counterparts, does not recognise Palestinian statehood. It does, however, support "the establishment of a future Palestinian state as part of a two state solution negotiated between the parties to the conflict," according to the German Foreign Ministry.

As it does not recognise Palestine as a state, Germany uses the term "Palestinian territories" for the occupied West Bank, east Jerusalem and Gaza. When speaking with Palestinian representatives, it uses the term "Palestinian Authority."

Germany's position on Palestinian statehood has come up in the country's courts in cases that have to do with refugee status. In a November 2020 decision, a German court confirmed that "there is no Palestinian nationality" and no state of Palestine. The court ruled that the Palestinian refugees in question be considered "stateless."

Since Palestine isn't a UN member state, it cannot vote in UN General Assembly resolutions.

A state can have statehood but not be a UN member state. For example, Switzerland only joined the UN as a member state in 2002, while Liechtenstein didn't join until 1990 and San Marino until 1992. All were considered internationally recognised states before joining.

Palestine's nonmember observer status means it can observe UN proceedings but can't cast votes in the General Assembly. So, for example, Palestine couldn't vote in the recent failed resolution calling for a cease-fire in the Israel-Hamas conflict in the General Assembly. Nor could it vote on the resolution calling for a "humanitarian truce" in the conflict, which did pass.

[Source: DW]

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Vol 56, No. 25, Dec 17 - 23, 2023