RESEARCH PAPER ON THE STATEHOOD STATUS OF PALESTINE THROUGH THE LENS OF THE MONTEVIDEO CRITERIA OF STATEHOOD AND PRE - TRIAL CHAMBER (PTC): Shreya Chaudhary & Sravishtha T
RESEARCH
PAPER ON THE 'STATEHOOD STATUS’ OF PALESTINE THROUGH THE LENS OF THE MONTEVIDEO
CRITERIA OF STATEHOOD AND PRE-TRIAL CHAMBER. (‘PTC’)
Authored
By: Shreya Chaudhary (B.A. L.L.B.)
Institutional
Affiliation: O.P. Jindal Global University (Penultimate year)
Contact
Number: 8130149460
Email
id: 19jgls-shreya.c@jgu.edu.in
Co-Author:
Sravishtha T (B.A. L.L.B.)
Institutional
Affiliation: O.P. Jindal Global University (Penultimate year)
Contact
Number: 9840472268
Email
id: 19jgls-sravishtha.t@jgu.edu.in
Abstract:
Amongst
a surfeit of unresolved questions in International Law, the conflict between
Palestine and Israel is not only a provocative subject but also raises a
significant point of contention regarding the status of Palestine within the
international community. The status of Palestine beyond its persisting conflict
with Israel also encompasses its 'statehood status', which has for long been an
argumentative issue in the global arena. The paper endeavours to examine the
'statehood status’ of Palestine through the lens of the Montevideo Criteria
of statehood and Pre-Trial Chamber. (‘PTC’). The paper begins by succinctly
listing out the elements under the Montevideo Criteria to attain statehood and
goes on to comprehensively breakdown the two theories of statehood, namely
Declaratory and Constitutive theory. The paper further endeavours to provide a
brief history of Palestine and its statehood claims and the decision rendered by the Pre Trial
Chamber vis a vis the jurisdiction of Palestine.
Brief
History of Palestine and its statehood claims.
In
the International Legal Jurisprudence, the concept of ‘states’ is not codified
with an universally accepted definition even though states have earned the
moniker of ‘prime legal persons’[1]
in the realm of international law. It is instructive to highlight that in order
to determine whether an entity can be observed as a state, one must resort to
the Montevideo Criteria of statehood which enunciates the
following conditions to be fulfilled as set forth in Article 1 namely : a) a
permanent population; b) a defined territory; c) government; and d) capacity to
enter into relations with other states.[2]
The first element underlines the presence of a permanent population that, “if
states are territorial entities, they are also aggregates of individuals.”[3]The
second element posits the presence of governmental control over a defined
territory with no precondition of a minimum area. The third requirement is
the presence of a government that can exercise independent and effective
authority over the population and territory. The last element finds its essence
in independence, highlighting the capacity of the entity to enter relations
with other states, highlighting the importance of recognition by other
countries, as well as its formal statement that it is not subject to any other
sovereignty, thereby unaffected by factual dependence upon other states.
Finally, it refers to the legal capacity of an entity to participate in public
international relations, including the legal competence to carry out its
obligations.
However,
even though the international legal rules governing the pertinence of
recognizing states are present, there is an intricate interplay of legal norms
and politics where factors like ‘convenience’ and ‘superior powers’ may
supersede the existing norms. The same may be encapsulated by the two theories
of statehood, which will be explained sequentially in the paper.
Declaratory
Theory
This
theory, in consonance with the traditional positivist doctrine, endows supremacy
on states and implies that fulfilling the elements in the Montevideo Convention
is sufficient to attain statehood. Article 6 of the Convention states,
"the recognition of a state merely signifies that the state which
recognizes it accepts the personality of the other with all the rights and
duties determined by international law.”[4]Therefore
it does not hold recognition as a necessary element for statehood. Instead, it
states that recognition is extraneous for statehood as it relies on facts for the
same rather than the opinion or discretion of individual states, and
recognition should be automatic.[5]
Constitutive
Theory
While
the declaratory theory has amassed considerable scholarly consensus, a deluge
of detractors have assailed this theory on the premise that statehood cannot be
exclusively interpreted as a factual question since it stems purely from a
legal context.[6]
The key question here is whether a political entity can be viewed as a state
under international law, despite the absence of recognition of existing states.
This is precisely wherein the constitutive theory has answered the question
negatively. The constitutive theory posits that an entity cannot be labelled as
a state merely by possessing fundamental attributes of statehood, and it
becomes so, only by virtue of recognition from states.[7]
Once the factual criteria of statehood, government and population is adhered
to, the very same factuality must be approved by existing states, failing which
the entity would be deprived of the rights inherent in international law.[8]
The
interpretation of the term “recognition” is in consonance with 19th century
discourse on legal positivism, which has emphasised upon the consensual nature
of international law, which prescribes that existing states were conferred with
the right to consent to the formation of the new state.[9]
However, the constitutive theory has attracted trenchant criticism for its lack
of nuance since it fails to set up precise standards pertaining to statehood,
like the precise states in number essential to obtain legal recognition or the
quantum of international recognition an entity must be conferred with.
Moreover, where only a certain part of the legal community has granted
recognition to an entity’s statehood, it has remained unclear on whether that
entity can be considered fully as a state. Herein, Palestine must lay recourse
to the self-determination principle which prescribes that a country can
ascertain its statehood by forming their own government and populace.
Brief
History of Palestine and its statehood claims.
In
1947, the United Nations General Assembly (hereafter, UNGA) approved Resolution
181, which created the Arab states of Palestine and the Jewish states of Israel
in the territory of Palestine. Israel eventually seized the Arab lands and
occupied the Gaza Strip, East Jerusalem, and West Bank engendering hostilities.
The series of wars have led to a humanitarian crisis wherein Israeli Defence
Force as well as the Palestinian groups such as Hamas have been in conflict because
of the forced displacement of Palestinians.[10] with no truces or peace agreements coming to
their aid. The Palestinian Liberation Organization (hereafter, PLO) obtained
observer status at the UNGA in 1974 and internationally has diplomatic
recognition as the delegate of the Palestinian people. Principal authority
concerning Municipal governance has been vested in the Palestinian Authority
(PA).[11]It had made
numerous efforts to gain statehood recognition both at the United Nations and
internationally, finally achieving formal recognition from the UNGA in 2012
when it received ‘non-member state’ status.[12] Having laid down
both theories of Statehood, the Montevideo Criteria for Statehood and the
events that transpired in Palestine, one must apply them in the context of
Palestine.
The
first component is the presence of a ‘permanent population.’ Despite the
establishment of the state of Israel, the international community has
consistently recognized the existence of a Palestinian community wherein the UN and the rest
of the world employ the words "Palestinians" or "Palestinian
refugees" in reference to the population residing in Gaza, West Bank and
Palestinian refugees worldwide. Moreover, it can be inferred from the
government documents that Israel has recognised Palestinians inevitably
admitting that they are a nation.[13] Although the primary
contention here is to examine if Palestinian authorities have control over a
permanent population, independent of whether it is constituted only by
Palestinians. In the present case, these two concepts overlap because the
population in the Occupied Palestinian Territory (Hereafter, OPT) comprises
mainly of Palestinians. Palestine has five million people, with more than three
million living in the West Bank and almost two million residing in the Gaza
Strip.[14] In conclusion, we can
affirm that the Palestinian authorities control a permanent population in the
OPT.
The second element is the
existence of a defined territory. Palestine has established its borders, and an
overwhelming majority of the international community, including the UN and the
EU, recognizes the 'Green Lines' as a legitimate partition between Palestinian
and Israeli territory, including West Bank, Gaza Strip and East Jerusalem. The
international community has approved that Palestine and Israel should use the
pre-1967 borders as a starting point for further deliberations regarding the
border issue.[15]
The territorial integrity of Palestine has been recognized both by the Security
Council through Resolution 242 and the ICJ in its Advisory Opinion on
the Legal Consequences of the Construction of a Wall in the OPT.[16]
Even though the territory of Palestine can be contested to be fragmented,
the territory of a state in international law does not require continuity.[17]
The third element highlights
the presence of a government exercising effective and independent control over
the set territory and population that cannot be mechanically applied to a
situation of belligerent occupation. In instances like this, the pre-existing
government would, under such an occupation, "lack the capacity to function
independently in a wide variety of governmental spheres." This would
tantamount to saying that any existing militarily occupied state ceases to be a
State. States like Bosnia, and East Timor had governments lacking the capacity
to independently function in multiple governmental spheres and had no control
over their bodies during periods of civil conflict. The fact that the interim
Iraqi government with limited governmental powers, when Iraq was under American
occupation, did not see any Montevideo Convention criteria obstacles to joining
the Rome Statute of the ICC demonstrates that agreements as to what limited
powers a government may have under belligerent occupation should not affect
other external capacities.
Under
the fourth element, the competence of the Palestinian Authority (PA) to engage
in foreign relations has been exhibited through its membership in the PLO and
its triumphant negotiation of international agreements with comprising of both
states and organizations. Even though the PLO appears as the intermediary for
these associations, there is substantial overlap between the PLO and the PA.
Together these entities preserve active diplomatic networks and partake in
numerous international organizations at distinct levels of engagement.
Furthermore, Palestine has acquired bilateral recognition from around 137
states and has lately received formal recognition from certain European
governments. It has also instituted embassies, missions, and general
delegations in several countries, emphasizing on its capacity to determine
relations with other states.
Pre-Trial
Chamber
The ruling rendered by the PTC is path-breaking given that it has
kickstarted conversations surrounding the myriad of complexities involved in
Palestine’s claim to statehood. On February 5th, 2021 - The PTC unequivocally
held that it had territorial jurisdiction over Palestine, including the West
Bank, Gaza, and Jerusalem.[18]
While tackling the issue of jurisdiction, the PTC was tasked to decide whether
Palestine qualifies as a state, to ascertain whether such a claim can be
brought before the forum of ICC or whether it be incompatible with the
objectives of the Rome Declaration. [19]The
ICC is deprived of the competency to examine the issues of statehood.
Therefore, the chamber opined that since Palestine is a state party to the Rome
Statute, it qualifies as a ‘state’ for the objectives outlined under Article
12(a) of the Rome Statute. [20]
PTC’s ruling encompasses a bold interpretation of Article 12(a) of the
Rome statute, which stipulates that ‘the Court may exercise its jurisdiction if
one or more of the following States are Parties to this Statute’. The majority
foregrounded their opinion in the Rome Statute and contended that since
Palestine prior accession to the Rome statue, cannot be arbitrarily revoked. [21]The
Chamber noted that a perusal of Article 12(a) makes it conspicuous that the
word ‘following’ draws out a nexus between ‘state parties to this statue’ and
the ‘conduct in question to have occurred in the state’, which demonstrates
that Palestine is a state party to the statute. Essentially, the Rome statute
does not mandate Palestine to satisfy the elements of statehood enshrined under
international law but must interpret article 12(a) considering the
circumstances of every case. [22]
Another
acute observation was that while the judges remained mute on the issue of
statehood, the majority placed heavy reliance on UNGA resolutions.
Intriguingly, the chamber took recourse to the 2016 security council
resolution, which laid out how Israeli settlements in Palestine infringes upon
international law and is a major hindrance in achieving Palestinian statehood.[23]
The chamber also took cognisance of the General Assembly Resolution 67/19 which
explicitly recognised Palestine's right to self-determination and asserted that
the right to self-determination tantamount to an internationally recognised
human right as per Article 21(3) of the Rome Statute, which provides
unflinching proof that international bodies such as the UN and ICJ had already
affirmed the right to self-determination vis a vis Palestine.[24]
Therefore, The PTC decision is heralded as progressive since as a formal
international body, it can steer conversations towards Palestinian statehood
under international law.
Conclusion
Palestine
meets the basic requirements for statehood as enunciated in the Montevideo
criteria. However, it could be contended that some elements are only partially
fulfilled due to lack of complete control of its borders, territory and
internal political problems, there is enough evidence supportive of the
Palestinian statehood within the meaning of the Montevideo criteria. Although, recognition
in the current political context is imperative to derive all rights and
obligations attached to being a state. Most of the states and the decision of
the ICC suggest the significance of 'recognition' in international law and its
coherence with the constitutive theory's emphasis on 'recognition’. Moreover, the Institut de Droit International’s 1936
Resolution declares that “the existence of new States with all connected legal
effects is not affected by the refusal of one or more States to recognize.”[25] The unstable status of
Palestine’s statehood may also create plights for the ICC’s investigation and
may necessitate a special tribunal to both prosecute perpetrators and dismantle
the racial domination and oppression wherein Israel-a non-state party may
threaten the funding of the ICC.[26]
[1] Malcolm N. Shaw, “International Law” (8th
edn 2017) pp 156
[2] Convention on
the Rights and Duties of States, Article 1.
[3] James Crawford, “The Creation of States in
International Law”(2nd edn 1979) pp 46
[5] William T. Worster, ?Law,
Politics, and the Conception of the State in State recognition theory.” Boston
University International Law Journal, (vol. no. 1 August 2009) pp. 119.
[6] Jena
Abhinav and Lath Adhiraj, “The Lauterpacht Doctrine: An Objective Attempt
Towards State Recognition?” 1 February 2021.
[7] Zounuzy
Zadeh Ali, “International law and the Criteria for Statehood,” Faculty
of Law Department of International and European Law, (2012)
[10] John Quigley, The Statehood of
Palestine: International Law in the Middle East Conflict (New York: Cambridge
University Press, 2010), 133.
[12] Robert
McMahon & Jonathan Masters, Palestinian Statehood at the UN, Council on
Foreign Rels. (November 30, 2012)
[13] Joshua Berzak, “The Palestinian Bid for Statehood:
Its Repercussions for Business and Law”, Journal of International Business Law
12, no. 1 (2013) pp. 14.
[14] Palestinian Central Bureau of Statistics,
"Population Indicators 2017".
http://pcbs.gov.ps/site/langen/881/default.aspx#Population. (Last Accessed
February 4th, 2018).
[15] Susan Panganiban, “Palestinian Statehood: A Study of
Statehood through the Lens of the Montevideo Convention, 63.
[16] Legal Consequences of the Construction of a Wall in
the Occupied Palestinian Territory, Advisory Opinion (The Hague, International
Court of Justice, July 9th, 2004)
[19] Questions and Answers
on the Decision on the International Criminal Court’s Territorial Jurisdiction
in the Situation in Palestine, Int’l Crim. Ct. (Feb. 15, 2021),
https://www.icc-cpi.int/itemsDocuments/palestine/210215-palestine-q-a-eng.pdf.
[22] Rome Statute of the International
Criminal Court art. 12(3) (Rome, 17 July 1998) U.N. Doc. A/CONF.183/9 of 17
July 1998, entered into force 1 July 2002.
[25] Institut
De Droit International: Resolutions Concerning the Recognition of the New
States and New Governments, Am. J. Int’l L. (Supplement: Official Documents)
163, 185 (Oct. 1936).
[26] Abhinav Mehrotra, “Israel-Palestine
Conflict: Need for a Special Tribunal and ICC.” The Geopolitics, 26th
March 2022