Recognitions of the State of Palestine which further isolate Israel

By Insaf Rezagui,

On May 28, Spain, Ireland and Norway officially recognized the State of Palestine. On June 4, Slovenia did the same, as did Armenia on June 21. Before them, Jamaica, Barbados and Trinidad and Tobago, three member states of the Caribbean Community, had recognized Palestine in previous weeks. There are now 148 states of the 193 members of the United Nations that recognize Palestine.

The wave of recognition of the State of Palestine comes as the war waged by the Israeli army in the Gaza Strip has, according to figures given by the Hamas Ministry of Health and deemed credible by Hamas agencies, UN, more than 38,000 dead and more than 12,000 missing. With these recognitions, the European and Caribbean states in the maneuver aim for several objectives: to denounce the continuation of the war; further isolate Israeli Prime Minister Benjamin Netanyahu, already cornered by the international legal processes underway before the International Court of Justice and the International Criminal Court; and recall their attachment to the two-state solution, Israeli and Palestinian.

State recognition does not mean existence of a State

In international law, a state does not need to be recognized to exist. A distinction must be made between State recognition and State existence. Palestine can exist as a state without being recognized and vice versa.

Article 1 of the Montevideo Convention of 1933 (signed by many American States, including the United States, Article 1 thereof is still applicable today, because the definition it gives of the State is considered as customary law, applicable to all) sets the criteria to be met to be a State: “The State as a person of international law must meet the following conditions: Permanent population; Determined territory; Government ; Ability to enter into relations with other States. »

This definition has been taken up by international jurisprudence, notably by the Arbitration Commission for the former Yugoslavia in its opinion n°1 of November 29, 1991.

Palestine, which proclaimed its independence in November 1988, has a permanent population (the Palestinian people). It has a specific territory, which is that before the Six-Day War in 1967, which includes the West Bank, East Jerusalem and the Gaza Strip, territories since occupied by Israel. Palestine has a government: the Palestinian Authority, which officially represents the Palestinian people on the international scene. It maintains relations with the 146 States which have recognized Palestine, but also with those which do not recognize it.

In France, for example, a diplomatic representation of Palestine is established in Paris. Palestine also has relations with numerous international organizations, including the UN, within which it has had the status of non-member state since 2012 (it obtains this status, failing to obtain that of full member, because for this it must obtain a favorable recommendation from the Security Council, prevented by the American veto). It is also a member state of UNESCO, the International Criminal Court, Interpol, etc.

Beyond these criteria, the government of the entity claiming state status must also have the capacity to control and administer its territory. It’s about effectiveness. It is on this point that legal debates arise.

Today, Israel militarily occupies the entire Palestinian territory (the Gaza Strip, the West Bank and East Jerusalem), as confirmed by the International Court of Justice, the United Nations General Assembly, the UN Security Council. UN and Pre-Trial Chamber I of the International Criminal Court. This occupation prevents the Palestinian Authority from exercising its governmental prerogatives in Palestine, including in Area A which, since the Oslo Accords, was supposed to be under Palestinian civil and military administration. This control of the Israeli army would have become permanent, because it has continued and increased since 1967. However, the permanence of a military occupation, which is akin to a de facto annexation, is illegal under international law.

Furthermore, the Palestinian Authority no longer controls Gaza since Hamas took control in 2007 following its victory in legislative elections in 2006. Some states claim that this is proof that Palestine is not fulfilling the effectiveness criterion; it nevertheless remains that, in international law, the fundamental principle of non-interference in the internal affairs of a State prevents such an argument from being invoked, because this would amount to commenting on the form and choice of rulers by the governed.

For certain researchers, such as Professor Jean Salmon, Palestine must still be able to exist as a state, because the effectiveness of its government is prevented by an illicit act. Denying Palestine the right to exist as a state due to an unlawful act would amount to making the Israeli occupation lawful. The problem is that there are no mechanisms that could make it possible to determine that an entity meets the criteria of the Montevideo Convention.

This is why to confirm the existence of a State, States decide to recognize it individually. This is where the question of recognition comes into play.

The consequences of the recognition of Palestine

In 1936, in its resolution “The recognition of new States and new governments”, the Institute of International Law – founded in 1873 to promote the progress of international law – affirmed that “the recognition of a new State is the act free by which one or more States note the existence on a given territory of a politically organized human society, independent of any other existing State, capable of observing the requirements of international law and consequently manifest their desire to consider it as a member of the international community.

State recognition has a declarative, not constitutive, value. This is materialized by the adoption of an act (decree, parliamentary resolution, etc.) by a State which notes that the criteria for the existence of a State are met. By this act, the recognizing State then wishes to enter into a bilateral legal relationship with the recognized State. This results, for example, in the opening of embassies in the two states entering into this relationship. Thus, Palestine should soon establish embassies in Madrid, Oslo, Ljubljana and Dublin. However, Israel intends to prevent this process and has already adopted retaliatory measures. He has banned Spain from providing consular services to Palestinians since June 1.

If these recognitions are above all of a symbolic nature, because they cannot alone establish peace in the region, they still make it possible to send certain messages to Israel and, more broadly, to the whole of international society.

First of all, they contribute to further isolating Israel. The calendar is no coincidence. They come a few days after Karim Khan, Prosecutor of the ICC, requested the issuance of arrest warrants against Benjamin Netanyahu, his Minister of Defense, Yoav Gallant, and three Hamas leaders. They also come after the International Court of Justice issued a third order in the Case of the Application of the Genocide Convention (South Africa v Israel). ICJ judges demand that Israel stop its military offensive in Rafah. However, the next day, Israeli strikes in Rafah left 40 people dead in a refugee camp.

Beyond the denunciation of the continuation of the war and its catastrophic consequences for the Palestinian civilian population, the States having recognized Palestine affirm that their approach must make it possible to demonstrate their support for a relaunch of the political process which must lead to the implementation of the two-state solution. On May 22, Spanish Prime Minister Pedro Sanchez said that Benjamin Netanyahu “is causing so much pain, destruction and resentment in Gaza and the rest of Palestine that the two-state solution is in danger.”

Finally, Spain, Slovenia and Ireland – three member states of the European Union – intend to send a message directly to the EU. They have constantly pushed for recognition of Palestine at the regional level, without success. With their recognition, they intend to denounce the absence of European unity. This denunciation was also illustrated when the Irish Prime Minister, Simon Harris, in a public speech on May 22 to announce the upcoming recognition of Palestine, had behind him the flags of his country and the UN , but not that of the European Union.

This new wave of recognition of Palestine therefore increases the pressure on the Israeli government and reinforces the international isolation of Israel, cornered on all sides. They are also a new illustration of a fissure in the Western front, divided on the Palestinian question and singled out by many Southern states. If these recognitions do not change the balance of power on the ground and do not force Israel to change its position, they still allow these states to mark their opposition to the continuation of the war and their support for the two-state solution. .