Does Palestine Meet the Criteria for Statehood at Public International Law - Essay Example

?On the basis of the facts as contained in this summary, in your view does Palestine meet the criteria for hood at public international law? Introduction A State may already exist but in order for it to be given a formal status of statehood so that it can participate in the world affairs and enjoy formal relationship with the rest of the word, it must meet certain criteria as qualifications prescribed for statehood. The 1933 Montevideo Convention on Rights and Duties of Statesi has set out for the first time the four criteria of 1) defined territory, 2) permanent population, 3) government and 4) capacity to enter in to relationship with other states. Originally the Montevideo was a regional treaty but eventually became a customary international law vide Article 38.1 (b) International Court of Justice Statute.ii Although Palestine may meet with these criteria, it is not as simple as that because it has not been accorded statehood by the United Nations which is the international body and source of international law entrusted with power to grant statehood through voting by its member nations. The case of Palestine’s inability to attain statehood in the eye of international law so far is touted to be due to political reasons rather than legally justified reasons. In the light of this scenario and the BBC News report iii, this paper examines whether Palestine meets the criteria for statehood at public international law. The Montevideo Convention’s article of statehood is a restatement or codification of ideas prevalent at the time of its inception iv. Emergence of a State Vattel defines state as a “political body, or society of men, united together”v for “promotion of their mutual safety and advantage” viwith the use of “their common force” viiwhich Wheaton adds to his definition saying that members of any political society subjecting themselves by voluntary obedience to a leadership gave rise to emergence of a sovereign state in the past. Power to control was key to emergence of a state. According to Lorimerviii, a putative state that deserves statehood should be recognized as such by other states and in turn it should have the power and the will to recognize others. Lorimer’s idea of mutual recognition proposed in 1883 has been followed by many states. The modern thinking therefore suggests that legal existence of a state depends upon its ability to control a land and its population. This view came to be well know by the early 20th century which Hall, a publicist described as “the marks of an independent State are , that the community constituting it is permanently established for a political end, that it possesses a defined territory, and that it is independent of external control”ix. The publicist emphasized on territory and permanent control over the territory. Thus, he dismissed “a fugacious”x people as not qualified to be a state. Thus Montevideo’s ideas of a state draw heavily from the Hall’s ideas of a state. These aspects of declaratory model of a state held recognition merely as an acknowledgement of an existing state opposed to a constitutive model which held recognition as an essential requirement to make a state.xi Recognition As stated elsewhere, recognition is central to statehood. Thus, an entity aspiring to become a state must be recognized as such by those who are already regarded as states. If an entity must function as a state, it must enjoy acceptance of other states. Yet, some entities manage to function as states with skeleton contacts with other states. Rhodesia functioned as a state on its own from 1965 to 1980 which major states did not approve of holding that it was in violation of international standards. It has been argued that if an entity is endowed with all the attributes of a state, it is still a state even if the rest of the world or other states refuse to accept the entity as a state.xii Treatment of recognition as a precondition for statehood has been still evolving as James Crawford has observed that recognition is not strictly a condition for statehood.xiii History of Palestine In the World War 1, Britain overthrew Ottoman empire with the help of Arab Military (of Palestine) in return for an assurance of independence from the British. But soon after the League of Nations was formed, it was decided that defeated powers such as Finland, Poland, Czechoslovakia and Yugoslavia as not to be treated as colonies but as independent and countries such as Iraq, Syria and Lebanon be treated as deficient of characteristics of state and would require guidance from an external authority with a local autonomy. Palestine was claimed to be part of what Smuts had excluded and its heterogeneous character of population warranted an external authority to a large extent with local autonomy. The reasoning was that there would be no administrative co-operation between Jewish minority and Arab majority. In a case involving status of Palestine, a US court in 2005 had opined that the nation was fit for provisional recognition as a state.xiv,xv,xvi. Majority Arab population saw in British intentions a hidden agenda to back the minority Jewish population and was convinced that they would never get independence in spite of being eligible for statehood as per Covenant Article 22 (4). Hence, in 1920 General Syrian Congress that included Syria, Lebanon and Palestine declared themselves as an independent state disenchanted with the grand plan of the Western Powers to establish a Jewish state instead.xvii Legitimacy vs effectiveness Legitimacy was the basis on which states were recognized in the past as criteria for statehood. In modern times and modern international law, effectiveness is suggestedxviii. After the Word War II, UN Charter was adopted followed by birth of many nations sequel to decolonization. The criteria for statehood at the time were different from what they are today especially after the Soviet Union disintegrated resulting in a second wave of birth of several communist countries. The four criteria of the Montevideo Conference need to be examined at this stage. The word ‘permanent population’ is not in the literal sense that it has to remain at one place for a defined period of time. Nomads are deemed to have a permanent population and are qualified to be states.xix . Besides, size of the population is immaterial and hence Nauru, a territory with less than 10,000 population qualifies permanent criterion.xx. The next criteria of “a territory”, need not have a defined size or precise boundaries. As such a border dispute with a neighbouring country is not a criterion for disqualification. xxi,xxii ,xxiii . Taking the case of Israel, denial about its existence by “certain groups and states “do not deprive it of statehood. Thus, the first two criteria have no interpretational problems with international law practice. The last two criteria of “government and capacity to enter into relationship” do give rise to controversies. Principle of effectiveness drawn from the declaratory model can be applied to resolve the controversies. Effectiveness of “government” does not cause problems as there are no set precondition of the manner in which government is to be constituted and it should act. But the last criteria does pose problems since government must be capable of pursuing international relations and in that context, the third criteria of “government” has to be revisited. In accordance with article 31.1 VCLT, it follows that the government must be sovereign and capable of commencing international relations. Sovereignty is both internal as well as external. While internal sovereignty suggests that the government must be the highest authority within the state, external sovereignty suggests that the state can independently conduct its external affairs without any forces from within the state or outside the state. xxiv The ICJ has in fact pointed out the link between effectiveness and sovereignty in Western Sahara case.xxv. Criterion “d” of Monte Video i.e capacity to enter into relations with the other states implies that other states have to accord recognition in order to commence relations. The text of treaty if to be strictly followed, the capacity means power the government should possess which leads to effectiveness. Apart from the Monte Video criteria, there must be recognition to make out a case of effectiveness. Collective recognition Article 4.1 of U.N.Charter provides for membership only to the peace-loving states that undertake to abide by the obligations set out in the charter and who, in the Organization’s opinion are capable and willing to comply with the said obligations. This article plays a major role for the statehood criteria although there is no condition of U.N. membership to qualify as a state. For instance, Switzerland, a peace loving neutral state volunteered to become a U.N. member only in 2002 though it had become the member of the ICJ statute much earlier. However, article 4.1 makes it obligatory to be a state in order to qualify for U.N. membership. As such, if a willing entity is not admitted as a member, then it must be construed that the entity lacks qualifications for statehood. It lacks legal status though with people. Self-determination Article 1 of the International Covenant on Civil and Political Rights (ICCPR)xxvi and Article 1 of the International Covenant on Economic, Social and Cultural Rights (ICESCR)xxvii which are human rights treaties entitle people the right of self-determination. It has been argued that self-determination takes precedence over effectiveness. Legitimacy of government is therefore implied for statehood. For example, Southern Rhodesia’s formation of minority government in 1965 was not out of self-determination of its people which is the human right of the people. In terms of Monte Video, Southern Rhodesia could call itself a state. Although Smith led an effective government, it lacked legitimacy. Although majority of the states have accorded unilateral recognition, the same majority is unable to ensure U.N. membership without a clearance from the security council as envisaged by Article 4.2 of UNCH which states “The admission of any such state to membership in the United Nations will be effected by a decision of the General Assembly upon the recommendation of the Security Council”. The clearance from the security council requires nine votes of the members within the security council including five permanent members. They are China, France, Russia, United Kingdom and the U.S.A. xxviii There are arguments that Palestine is ruled by puppet government and presence of Hamas and Israel in the Palestinian territories raise doubts if there is an effective government.xxix, xxx . Contrary to what the U.S. court had in 2005 expressed its opinion in favour of provisional recognition already in existence as stated elsewhere above, U.S. Appeals court has said in 2005 that external control of Palestine by Egypt, Jordan, and Israel negated the qualifications for statehood.xxxi It has also been argued that UN General Assembly Resolution (UNGA) is not a binding law except in budgetary matters and hence Resolution No A/67/L/28 only gives a symbolic effect and can have no effect on statehood. The resolution cited was adopted on November 29 ,2012 by 138/9 with 41 abstentions which confers Palestine non-observer status, a prelude to which is mentioned in the BBC news report which is the prompt for this paper.xxxii Conclusion Based on the facts of the case in the summary given and read with the complexities of statehood as discussed above, Palestine meets the four criteria of Monte Video Conference. The conduct of the Palestine also conforms to the principles of legitimacy, recognition and effectiveness discussed above. There is still some controversy surrounding the effective government and external control of Palestine. The only respect Palestine is lacking in is the voting of security council in its favour for statehood. But for the veto of the U.S., Palestine would have got its statehood long ago. Be that as it may, it has to be therefore concluded that according to the strict interpretation of the UNCH article 4.2. Palestine does not meet the criteria for statehood. Read More