Recognition of Palestine is ultimately a political not a legal question

18 thoughts on “Recognition of Palestine is ultimately a political not a legal question”

1. Indeed. The whole thing is a pernicious children’s game. A state can’t be conjured into existence just because some people want it to exist. The “State of Palestine” is a chimera. On Sky, in an interview with Trevor Phillips, David Lammy admitted that “any decision to recognise a Palestinian state does not make a Palestinian state happen”. To be recognised as a state, the Montevideo Convention requires that an entity must have a permanent population, defined territory, effective government and the capacity to engage in relations with other states. The “State of Palestine” meets none of those requirements because a “State of Palestine” does not exist.

   1. Yet most of the signatories to the Montevideo convention recognise Palestine.

      1. The challenge is that ‘recognition’ gets us only so far – wanting something to happen is a bit like hope – it’s not a strategy.

   2. And yet I can answer yes to all those questions – so how does a Palestinian State not exist?

      Permanent population – Check – when they are not being herded around as refugees by the IDF.
      Defined Territory – Check – the Gazan and West Bank enclaves are well defined, if only by the Walls Israel has put up. Other states have non-contiguous enclaves – Russia for one.
      Effective Governments – Check – West Bank does – Gaza did until Hamas decided to self Darwinate.
      Capacity to Engage – Check – plenty of Palestinian diplomats flying around and getting denied entry to the US.

      So it seems your objection is one of materiality? Is materiality defined in the Montevideo Convention? Or is it subject to the same broad consensus as most international relations?

      Finally I have seen a few wags on the internet suggest that since Israel cant make up its mind where its people should live or where its borders should be – perhaps it doesn’t qualify to be State either?

   3. The immediate impact of this recognition is not some magical on the ground effect, but that of a rebuke to the Israeli government. If everyone just ignored it, I’m not sure it would have much effect at all?

      But in practice, people aren’t ignoring it. Far from “emboldening terrorists”, I’m not sure it’ll directly change anything for any Palestinian. But the response from Israel’s government and those who support it shows that maybe it’s having its intended effect anyway?

   4. “A state can’t be conjured into existence just because some people want it to exist.”

      And yet, that is exactly what happened on May 14th, 1948. This was the date when the British Mandate over Palestine expired and the Members of the Jewish People’s Council met in Tel Aviv and issued a proclamation, essentially claiming the creation of the state of Israel.

      I don’t wish or need to take a side in the arguments for or against the states of Israel or Palestine. I merely observe that we should apply the same ‘rules’ – or international laws – in both cases. As a species, we can’t create one set of rules for one minority group and then a different set of rules for another.

      And I do appreciate that a natural counter to the observation I make here could be said to be something along the lines of observing the protocols of the day. In translation: “that was then, this is now”. This creates several challenges: who gets to decide the point in time around which decisions are made? Before or After the regognition of the State of Palestine? Before or After Russia invaded the Crimean Peninsula? Before or After the creation of the State of Israel?

      I am not qualified to answer those questions. But I am human enough to suggest that we have to be consistent with our answers.

      1. That was not as simple as you make it sound. The Sykes-Picot Agreement drew the famous “line in the sand” back in 1916. In1947, the UN recognised it by partition of the land into two states, one Jewish, one Arab, a just solution. And the Jews hadn’t come from nowhere but, in addition to a gradual return to the Holy Land over a couple of centuries, were refugees from Hitler’s Germany.

         However, although the Jewish Zionists and the international community recognised partition, the Arabs rejected it, and have continued to do so. In defiance of that continuing hostility, Keir Starmer, fancying himself as head of a new colonial power, has high-handedly drawn another line in the sand.

         But it isn’t a question of recognition by Israel or recognition by the international community. It is recognition by the Arabs of “Palestine” themselves. As Ernest Bevin, the British Foreign Secretary in 1947 said, “For the Jews, the essential point of principle is the creation of a sovereign, Jewish state. For the Arabs, the essential point of principle is to resist to the last the establishment of Jewish sovereignty in any part of the land.

         The clock is now turned back to 1947, in that acceptance of Palestinian rejectionism and the placement of the entire burden of responsibility upon the Jews, has become international policy. Once more, a Palestinian government may sanction murder, rape, kidnapping, and destruction in the full knowledge that they will not be held accountable.

      2. I’m not sure this is quite right. ISIS claimed it was a state, but no states concurred. A state is not a mere government–if so, some Mafiosi could claim to be a state. It is the concurrence of other states that counts. That’s why Russia is a state, and not a mere mafia.
         By the end of 1948, enough other states had concurred so that Israel became a state. The May proclamation may have been necessary, but was not sufficient.

2. Perhaps the title of this piece, sad but true, says it all?

   It confirms our lived experience – that International Law is subordinate to domestic political expediency.

   At which point I find myself wondering, rhetorically, what possible function International Law serves? This is uncharitable, of course, because it serves many purposes, both large and small – those in and out of the headlines. If we look more closely, doubtless we would see that behind the scenes, down in the weeds, International Law does a pretty good job.

   But when it comes to geopolitical decisions the law part seems to take a distinct back seat in favour of the subjective expediency of the key players in the room. I am reminded, for example, of the completely tasteless, AI-generated video puporting to show President Trump and Benjamin Netanyahu relaxing on sun loungers in a resort built upon a completely re-developed Gaza Strip… or the number of almost universally agreed UN resolutions that are summarily vetoed by one of the Permanent Members.

   It is Mahatma Gandi who is widely attributed to have said, “The true measure of any society can be found in how it treats its most vulnerable members.”

   The measure of our international society, then, the brotherhood of nations that makes up humanity, can apparently be measured by our collective willingness to let a once-oppressed people commit genocide against another.

3. Recognition must be of the de Jure borders, not the de facto.

   1. Agreed. An Israel constrained to exist within its 1967 borders is at least the starting point for a just, peaceful path towards righting the wrongs done to the Palestinians.

      Even that essential but limited degree of restitution can’t be obtained without putting extreme pressure on both the Israeli government and Jewish Israeli society.

      Living outside Israel’s 1967 boundaries are 750,000 settlers (many of them armed extremists working in cahoots with parts of the IDF to drive out yet more Palestinians from their own villages and farms). That’s quite a large minority of the Jewish Israeli population (6 million or so).

      The settler issue is just one of the many longstanding internal and external problems with the ability to destabilise Israel so badly its continued existence may be in doubt. These problems are growing and can’t be dodged.

4. Agreed, international law has reached crisis point now, the peoples of the whole world have seen UN Security Council members as well as other UN members refusing to carry out their legal obligations to enforce ICC and ICJ judgements.

   We have also seen outrageous attacks (by America and Israel) on the only world institutions we have to protect world order, encourage peaceful resolutions of conflicts and do what’s possible to safeguard the interests of those with least firepower.

   Our choice now has become stark – we EITHER create (and use!) enforcement tools against genocide, war crimes etc that even the world’s superpowers can’t dodge; OR international law becomes a code of law that both parties in a dispute may voluntarily agree to apply (or not).

   In a world where the dominant power will soon be China – not the USA – very many Western and other nations have a strong interest in making a reality of international law.

   The world is already taking baby steps towards solving some of the current great weaknesses of international law – inability to arrest alleged offenders; put them on trial; and jail the guilty. In very many countries now, national courts have been asked to try cases against their own governments and against individuals where it’s alleged they have broken international law. Some cases have been wholly or partly successful (in spite of the very high obstacles against ANY being successful).

   1. The aspect of this that shocks me – and your point gets to the heart of it – is that given the ascendancy of China, a reasonable person might expect the United States to be strengthening historical alliances and partnerships, to be further integrating financial and economic ties, to help build a coalition to counter that ascendancy.

      What did we get from President Trump this week? A rambling, hour-long speech in which he explicitly told his audience that their countries were “going to hell”, a statement that he would abandon climate accords and, in simple parlance, that America First means “to hell with everyone else”.

      The time will come when nations and people have to take a side.

      And the message from the United States this week was that they don’t want the rest of the world on their side. That may well not just come back to haunt them, it may presage their demise.

   2. I don’t think international law has ‘reached a crisis point’ because I don’t think it’s application is any worse/inconsistent/more politically motivated than it has ever been.

      It may be that now the Cold War is over and the geopolitics have changed so dramatically (and, it looks, dangerously) that our perspective in the West/UK of the iniquities and inconsistencies and the essentially political nature of ‘international law’ has changed – but I suspect that for a huge amount of the World’s population they will be thinking, ‘welcome to our world’.

      Does that mean we should give it up? No, just that we should be realistic about its limits whilst remaining grateful for its contribution to suggesting/establishing norms and a sense that, even if we don’t always adhere to it, we understand the essential concepts of justice.

      Never forget that hypocrisy is the compliment that vice pays to virtue.

      1. I think you can’t ignore the moral and emotional impact on the peoples of the world of what they’ve seen Israel DO in Gaza. Seeing 4 premature babies moving feebly (they died later) in the only incubator still undamaged within a bombed hospital is something I’ll never forget (or forgive).

         International law used to be a fairly abstract thing to many. It’s now much more important to far more of the world’s humanity because we’ve all seen just how horribly some people act when they believe they won’t be held accountable.

5. I am struck by the almost Trumpian lack of modesty in Starmer’s description of his own decision as “historic”. As DAG points out, over three-quarters of the UN’s member states currently recognise Palestine as a state. I wondering in what sense HM Government’s decision to do as the great majority of other countries have already done counts as historic. Can we now expect the Starmer administration’s actions to be routinely described as “tremendous”, “like nobody’s ever seen before”, or even “the greatest and biggest . . . ever”?

6. In the corporate world the company car rules and pension contribution rules cease to apply at the ‘they matter’ level.

   I don’t suppose Mr Netanyahu or Donald Trump lose much sleep over lawyers, they are at the ‘they matter’ level. Michael Lewis in ‘Liars Poker’ had an apt but indelicate phrase for what matters.

   International Law is the fig leaf that fails to cover what matters.

   In my view Mr Netanyahu is at a crossroads defined by the influence of Trump. He has the opportunity to push the Palestinians out more or less completely or he could push them into a very small corner and call it a ‘two state solution’. What the RoW thinks seems more or less irrelevant, non is going to take Mr Netanyahu to task. Time is on his side. We shall see.

7. I’ve just seen a quote attributed to Sir Humphrey Waldock, one of two people to serve both as president of the ECHR and as president of the ICJ: the other was Lord Arnold McNair.

   Waldock said said that international law is diplomacy under a different name.

   Indeed, like self-imposed so-called “fiscal rules” fettering a Chancellor of the Exchequer, more like guidelines than actual rules.

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