Is Palestine a state? This long-standing unresolved question has gained considerable diplomatic, legal and political traction this year as Israel's war in Gaza has ground on with no end in sight.
Authors
Donald Rothwell
Professor of International Law, Australian National University
Sarah Krause
PhD Candidate, College of Law, Australian National University
This week, Muslim leaders pressed again for Australia to recognise Palestinian statehood. They said Prime Minister Anthony Albanese had told them it would be a first-term priority for Labor.
The Greens have also signalled they are likely to move a motion for a vote on Palestinian statehood in parliament.
For Australia, as well as other nations that have yet to recognise Palestine (for example, the United States, the United Kingdom, New Zealand, Japan, France, Germany and Canada), the prevailing narrative is that statehood will be achieved at some point in the future, once appropriate agreements are made and criteria are met by the Palestinian people and their representatives.
However, for most parts of the world, Palestine statehood is not a question for the future. It's already a reality.
Armenia and Slovenia became the most recent states to officially recognise Palestine in June, following Norway, Ireland and Spain the month before.
This brought the global tally of states recognising Palestine to 148 of the 193 United Nations member states. These numbers are steadily growing, edging closer to the 165 UN members that recognise Israel.
Despite the majority view supporting Palestinian statehood, Palestine remains an "observer state" at the UN, without the rights and privileges of full membership.
But is this lack of formal recognition consistent with international law?
Requirements of a state
There is debate among international lawyers about the criteria that must be met for an entity to become a state. However, the most popular test is enshrined in the 1933 Montevideo Convention on the Rights and Duties of States.
This test requires prospective states to possess four key attributes:
- a defined territory
- a permanent population
- a government
- the ability to enter into relations with other states.
Let's go through them one by one, starting with the more straightforward criteria, both of which appear to be satisfied.
A permanent population
Prior to the current Gaza conflict, the population of the Palestinian territories was estimated at more than 5 million people.
The ability to enter into relations with other states
The countries that have recognised Palestine are conducting diplomatic relations with its representatives. Palestine has dozens of embassies around the world. It also has missions in states that have yet to formally recognise it.
Palestine is also a participating member in international organisations such as the United Nations Educational, Scientific and Cultural Organization (UNESCO), the International Criminal Court and the International Court of Justice.
The other two criteria require slightly closer inspection.
Defined territory
There has been a long-running dispute between Israel and Palestine about where their borders should be drawn.
There are many competing claims, including:
- the borders enshrined in the UN Partition Plan of 1947
- the "Green Line" of the Armistice Agreements of 1949 (sometimes referred to as the pre-1967 borders)
- the post-1967 borders, when Israel occupied Gaza, the West Bank, East Jerusalem and the Golan Heights following the Six-Day War
- the status quo of the much-diminished Palestinian territories of Gaza, the West Bank and East Jerusalem.
An agreement on defined territories that would be acceptable to both Israel and the Palestinians has therefore been elusive in negotiations on a possible "two-state solution".
However, for the purposes of international law, it is not necessary that borders be undisputed before a state can be recognised. A number of states have been recognised (and admitted to the UN) despite ongoing border disputes, most notably following the dissolution of the Soviet Union.
A government
The Palestinian Authority (PA) was created in the 1990s as an interim governing body to represent the Palestinian territories. However, its legitimacy has been in question since no elections - either presidential or parliamentary - have been held in the territories since 2006.
Additionally, the governance of the Palestinian territories has been divided since 2007, when Hamas took control of Gaza and the Palestinian Authority retained authority over the West Bank.
The Palestinian Liberation Organisation (PLO), meanwhile, purports to represent Palestinians on the global stage. The PLO, in fact, sits in the UN as the representative of the observer state of Palestine.
While these competing claims may add a level of complexity to the issue, the requirement for a state to possess a government has been applied generously in the past. When South Sudan gained independence in July 2011, for example, a UN peacekeeping mission was quickly established to help the fledgling government bring stability and rule of law to the country.
If a similar interpretation was adopted here - particularly supported by evidence the Palestinian Authority is fulfilling the basic functions of a government in the West Bank - then it is likely this criterion could also be partially satisfied.
Of course, the PA does not have control over Gaza. However, the International Court of Justice has deemed the Palestinian territories, including Gaza, to be occupied by Israel because it still exercises effective control over them.
UN membership off the table - for now
A vote on Palestinian statehood has come before both the UN General Assembly and Security Council this year.
While 143 states - including Australia - voted in favour of Palestine gaining full UN membership in the General Assembly, the approval of the Security Council is ultimately required.
The most recent vote in the Security Council was blocked in April by the United States, which has veto power as a permanent council member. Until the US position shifts, full UN membership for Palestine is effectively off the table.
However, few international lawyers would stipulate that UN membership is required for statehood. It is instead a seal of approval from the global community that an entity has passed its entrance exam.
Switzerland only became a UN member in 2002, yet there was never any question that it was a true state before that.
Whether a state of Palestine exists is a question of both law and fact. On the analysis presented here, it appears both have been met.
Donald Rothwell receives funding from Australian Research Council
Sarah Krause does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.
