By the end of May, at least five European countries, including Ireland, Norway, Spain, Slovenia and Malta, are expected to officially recognize the State of Palestine. This decision follows the symbolic vote on May 10th at the United Nations General Assembly, where 143 out of 193 member states endorsed a resolution granting Palestine all the rights and privileges of a UN member state, except for voting rights in the General Assembly.
What does the legal recognition of a state entail? Can recognition as such establish the existence of a state? What is the current legal status of Palestine? The answers to these questions are fraught with both legal and political intricacies.
A population, a territory, a government... These are the three essential criteria for the recognition of a state, based on the 1933 Montevideo Convention on the Rights and Duties of States*.
"This implies that a permanent population is established in a defined territory with its own political organization, whose existence is legally independent and falls under international law," explains Professor Jean-Yves de Cara, a legal expert at the European Court of Justice and an ad hoc judge at the International Court of Justice, in an interview with This is Beirut.
A population
"The population, as the primary and fundamental element of a state, is inherently linked to its territory," Professor de Cara elaborates. "However," he explains, "it may be 'nomadic' if it moves within a defined territory, where it has a permanent establishment with the intention of remaining there.” It's essential to emphasize that this population encompasses all residents of the state.
Hence, it includes nationals, foreigners and stateless individuals, which raises the question of nationality from a legal standpoint, and as such falls under the exclusive authority and discretion of the state. However, it also raises discussions about the concept of a nation from sociological and political perspectives. Within this framework, there are multinational states, in which many nations coexist, and some of them are not organized into states. The Kurds and Native American nations in the United States are two examples.
According to François Dubuisson, professor at the Université Libre de Bruxelles and researcher at the Center of International Law – frequently sought out by the UN General Assembly for his deep knowledge of the Israeli-Palestinian dossier – Palestine meets the demographic requirement.
However, the question remains whether those pertaining to a territory and a sovereign or effective government are considered a state as well.
A territory
The territorial aspect raises numerous legal considerations. According to Professor de Cara, this includes its composition (land, maritime and airspace), its demarcation (the establishment of both maritime and land borders), and its integrity (which prohibits any form of coercion). "A state's territory can be composite and non-contiguous, often due to historical factors," he notes. Territorial discontinuity is characteristic of Palestine: fragmented and divided into several zones, each under a distinct "authoritarian regime."
However, according to Professor Dubuisson, "Even if the Palestinian territory is not fully defined, this condition can be overcome." He argues that the issue of territorial demarcation is a recurring problem for many countries. "It's worth noting in this regard that the State of Israel has never defined all of its borders. Yet, it is still recognized as a state," he argues.
A government
Meanwhile, it's essential for a population and territory to be under the jurisdiction of an organized political government able to "exercise internal and legal political functions (such as justice, public order, administration and policymaking), and to also be involved in the international arena," as Professor de Cara explains. These are essential functions that any state must carry out, and it's precisely this aspect that forms the core discussions regarding Palestine, especially as modern doctrine emphasizes effective governance.
In other words, "the mere proclamation of independence is not enough; one must also effectively exercise state power over the population and territory," he stresses. The requirement of an effective government entails the ability to engage in relations with other states. "This is where challenges may arise, especially regarding Palestine," Professor Dubuisson highlights.
He argues that “there is no Palestinian government capable of exercising exclusive and sovereign authority over the territory." The Palestinian Authority's powers are quite limited under the Oslo Accords, signed on September 13, 1993, by Tel Aviv and the Palestine Liberation Organization (PLO) under the auspices of the United States. These agreements were intended to put an end to the hostilities between Israelis and Palestinians.
The fragmentation of the Palestinian territories into separate areas (Gaza and the West Bank), the contested status of East Jerusalem, in addition to the Israeli occupation of the West Bank and colonization issues, further hinder the Palestinian Authority from exerting genuine control over these territories and exercising effective power.
However, as the Palestinian people have the right to self-determination, Professor Dubuisson suggests that it could be possible to bypass the requirement of an effective government. He stresses that "Palestinian authority lacks effectiveness mainly due to occupation and colonization.”
Legal recognition
Currently, “Palestine is indeed a legal reality,” underscores Professor Dubuisson. While many countries opt not to recognize the Palestinian State due to political reasons, others maintain ambivalent stances. France and Belgium, for instance, voted to recognize Palestine’s status as an observer state at the UN but refrained from recognizing it as a state in the strictest sense of the term. “Palestine’s situation is ultimately not much different from Israel’s, as the Hebrew state is also unrecognized by some nations,” observes Professor Dubuisson. “Nevertheless, Israel holds the status of a state under international law,” he adds.
Palestine actively operates as a recognized entity, having been admitted to UNESCO in 2011 and acquired the status of a permanent observer state at the UN in 2012. Nevertheless, its bid for full membership in the international body was rejected on April 18 due to an American veto in the UN Security Council.
To mention further evidence of Palestine's legal statehood, Professor de Cara recalls that the UN General Assembly recognized Palestine's declaration of independence as early as 1988. He also, alongside Professor Dubuisson, pointed to the decision of the International Criminal Court (ICC) in 2021, wherein it asserted its jurisdiction over the situation in Palestine. To do so, the ICC had to ascertain that Palestine qualifies as a state eligible to accede to the Rome Statute. Furthermore, with the majority of its judges concurring, the Court ruled that Palestine’s territorial jurisdiction extends to Gaza and the West Bank, including East Jerusalem.
Constitutive or declarative recognition
Does a state's existence solely depend on recognition by others? This question lies at the core of a doctrinal debate in international law, centering on the role of recognition in defining statehood. While some legal experts argue that a state’s legitimacy hinges on external recognition, others posit that recognition merely acknowledges an objective reality. Consequently, this debate gives rise to the opposition between the theories of constitutive recognition and declarative recognition. “The former presupposes that recognition alone is enough to establish an entity, such as a state, which is unrealistic. Positive law contends that recognition is merely declarative, representing an act by which a state observes the existence of certain facts and declares or implicitly recognizes that these facts or this situation are opposable,” explains Professor de Cara.
He recalls that, as stated in Article 9 of the Charter of the Organization of American States of 1948, “the political existence of a state is independent of its recognition by other states. Even before being recognized, the state has the right to defend its integrity and independence, to ensure its preservation and prosperity, and consequently, to organize itself as it sees fit, to legislate on its interests, to administer its services, and to determine the jurisdiction and competence of its courts.”
In the same vein, he specifies that according to the Arbitration Commission of the Conference on peace in Yugoslavia (Badinter Commission), “the existence or disappearance of a state is an issue relying on facts; [...] recognition by other states has purely declarative effects.” (opinion no1 of November 29, 1991, RGDIP 1992, p. 264)
Thus, recognition is not constitutive, as confirmed by Professor Dubuisson. “Merely recognizing Palestine, or any other entity as a state, does not imply that it can automatically assert itself as such in the eyes of the recognizing powers.” Hence, with Palestine being a legal reality, it can benefit from this status within the realm of international relations as much as possible. However, this does not, on a practical level, resolve the problem of occupation and colonization. Achieving a solution requires political will, notably from the US, but also “the imperative for both the Israeli and Palestinian parties to implement the 1947 resolutions, which envision the existence of two states – an Arab and a Jewish one – thus requiring mutual recognition of concerned parties,” emphasizes Professor de Cara. He asserts that for third-party states, the stakes are “highly diverse and contingent upon the different positions of states recognizing the State of Palestine. However, fundamentally, recognition is largely tied to the resumption of negotiations between parties. This underscores the importance of Palestinians’ shared perspectives, rather than the diversity of their representation by rival entities.”
*As per the 1933 Montevideo Convention, a state must “meet the following requirements: a population, a defined territory, a government exercising genuine and effective authority, and the capacity to engage in relations with other states.”
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