The Futility of Recognizing a Palestinian State

On June 17^th the UN will hold a conference to end the Israeli-Palestinian conflict, perhaps by recognizing a “State of Palestine.” However, for practical and legal reasons the initiative is bound to fail.

The Jewish people attained statehood through Israel’s Proclamation of Independence of 1948, which implemented their right to self-determination as authorized by the San Remo Treaty of 1920 and the British Mandate for Palestine of 1922. The territory allocated to the Jewish people by these earlier documents spanned Israel “proper,” the Gaza Strip, and Judea and Samaria (the West Bank).

In response to San Remo, Arabs fought the creation of the prospective Jewish state by all means available, including war, terrorism, and propaganda. They implausibly accused Jews of stealing a country called “Palestine,” even though the word Palestine was merely a synonym for “Holy Land.” Before the Jews declared independence as “Israel,” their own proto-state used the word “Palestine” in its official documents and national flag.

Decades later, pro-Palestinian nations tried to solve the Israeli-Palestinian conflict by recognizing Palestine as a real state. The first wave of recognition accompanied the 1988 Palestinian Declaration of Independence. More nods of recognition followed in 2012, when UN Resolution 67/19 made Palestine a “non-member observer state.” Many governments welcomed Palestine to international bodies meant for states. After Hamas’ October 7, 2023, invasion of Israel, added recognitions flowed from Norway, Ireland, and Spain.

The near-universal recognition of Palestine did nothing to remedy the inter-ethnic struggle. Palestinians remained a politically divergent, geographically disjointed assortment of population hubs, characterized by clan loyalties, terrorism, and dependence on foreign aid. The key obstacle to realizing a Palestinian state was, and remains, a Palestinian refusal to compromise on any of the five main issues in dispute, namely, the so-called “permanent status” issues listed in the now long-neglected Israeli-Palestinian Oslo Accords: borders, Jerusalem, refugees, security, and relations with other states. Palestinians accepted no proposal short of their maximalist demands, satisfaction of which would amount to the destruction of the State of Israel. Since no State of Palestine can function as a normal state without Israeli consent, the only Palestinian government produced by the Oslo Accords so far is an interim administrative body called the Palestinian Authority, which exercises a few limited powers delegated from Israel.

The recognition-based path to Palestinian statehood is fundamentally inconsistent with the Oslo Accords, the legal regime within which any Palestinian state must be established. Under the Accords, the Palestinians agreed to establish their permanent self-rule through bilateral negotiation with Israel. Relatedly, they promised to refrain from any unilateral action that would prejudge the outcome of the negotiation and suspend international diplomacy pending completion of the talks. For these reasons, Palestinian attempts to lobby states for recognition are plainly illegal.

The path forward remains clear, even though Palestinian rejectionism and the consequent hardening of the Israeli position makes it unlikely to be realized any time soon. Palestinians must negotiate the permanent status issues with Israel. In doing so, they could surmount the five above-listed hurdles and earn sovereignty in the manner dictated by Oslo.

A negotiated State of Palestine would more likely become a state as defined by international law. While some observers define a state as any political community with widespread recognition as a state, scholars discount that approach because it falls prey to political manipulation. The prevailing way to determine whether an entity is a state is to apply the four objective criteria listed in the Montevideo Convention of 1933. The fact-based Montevideo test looks for: a defined territory; a permanent population; an independent and effective government; and the capacity to enter into relations with other states.

A review of each permanent status issue shows how Palestinians could achieve sovereignty pursuant to both the Oslo Accords and Montevideo.

Borders: Palestinians believe their state should minimally include Gaza, east Jerusalem, and all of Judea and Samaria. Those territories were illegally invaded and occupied by Egypt and Jordan during their 1948 war on Israel but liberated by Israel in the 1967 Six-Day War. No portion of these “pre-1967 lines” became a Palestinian state during the period of Arab possession. But if a negotiated Israeli-Palestinian border could be drawn, a task that would require mutual compromise, Palestine would have the kind of defined territory required by Montevideo.

Jerusalem: In 1950, Israel made Jerusalem its capital city. In 1988, the Palestinians claimed east Jerusalem as their capital city. While difficult to achieve, a bilateral settlement of this dispute would bolster the Palestinian case for a defined territory.

Refugees: Palestinians currently claim, based on a mutually discarded Arab-Israeli peace proposal of 1949, that 5.9 million of their people – including millions born long after the 1948 war – hold the status of “refugees” with a “right of return” to Israel. Their self-styled concept of “refugee” defies the legal definition of that term in the 1951 Refugee Convention and ignores a long history of state practice. Nevertheless, a negotiated disposition of the applicable immigration rights, with most or all of the 5.9 million having the option of remaining in or entering a newly delineated Palestine, could give that state a “permanent population” that satisfies Montevideo.

Security: Perhaps Israel’s top priority is to protect against jihadist attacks. Ensuring such security would oblige Palestinian leaders to defuse their society’s anti-Israeli militancy. That would help demonstrate effective government as envisioned by Montevideo.

Relations with other states: A jointly-developed protocol of Palestinian foreign relations would mark the last box in the Montevideo checklist.

The UN meeting of June 17^th cannot conjure Palestinian sovereignty through political incantations. If the Palestinians want a state, they must shoulder the burden of bilateral negotiation with Israel. That is their only feasible choice, the only lawful one, and the one that would command legitimacy under Montevideo.