17 Fall 2024 authority; that such a state is characterized by sovereignty.”19 International law has clear conditions for an entity to be recognized as a State. They are enumerated in the 1933 Montevideo Convention which is “the most widely accepted formulation of the criteria of statehood in international law.”20 The conditions are: a permanent population, a defined territory, a government, and capacity to enter into relations with other States. There is room to examine whether the State of Palestine fulfils the criteria of the Montevideo formula. A Permanent Population The Palestinians are currently universally recognized as a separate people. Defined Territory The issue of defined territory is more problematic. The existence of a dispute about borders does not necessarily mean that a State has no defined territory. When Arab States objected to Israel’s application for membership, the U.S. representative, Jessup, famously responded: Both reason and history demonstrate that the concept of territory does not necessarily include precise delimitation of the boundaries of that territory. There must be some portion of the earth’s surface which its people inhabit and over which its government exercises authority.21 The Palestinian application for UN membership makes no reference to the borders of the Palestinian State.22 Legally, the Palestinians were not obliged to denote what they consider to be their borders when applying for membership of the UN. However, the official website of the “State of Palestine” declares “The 1967 border, which is defined as the 1949 Armistice Line along with all legal modifications thereto up to 4 June 1967, is the internationally recognized border between Israel and the occupied State of Palestine.”23 In an accompanying letter to the UN Secretary General, Abbas, as “President of the State of Palestine and Chairman of the Executive Committee of the Palestine Liberation Organization” writes that “the vast majority of the international community has accorded recognition to the State of Palestine on the basis of the 4 June 1967 borders, with East Jerusalem as its capital.” The Palestinian submission for membership refers to only two supporting documents: the 1947 Partition Plan24 and the 1988 Palestinian Declaration of Independence. The 1988 Declaration was deliberately vague in reference to borders. The two documents referred to in their application, UNGA Resolution 181 (The 1947 Partition plan) and the 1988 Palestinian Declaration of Independence, bear no relation to the 1967 borders. The letter notes that the international community supports the 1967 line, but again does not address what the Palestinians themselves see as their border. The Oslo Accords define the boundary of the Gaza areas and of Palestinian controlled areas “A” and “B” within the West Bank. However, the outer borders of the West Bank, between Israel and the West Bank and between Jordan and the West Bank, are not defined. Hamas, which acts as the de facto government of the Gaza Strip at the time of this writing, holds that it “works toward raising the banner of Allah on every inch of Palestine.”25 Most of the territory claimed to be part of the State of Palestine, namely, Area “C” of the West Bank and East Jerusalem, is not controlled by the Palestinian Authority and has never been controlled by it. This situation, together with Hamas’s control of Gaza and the fact that the extent of territory claimed by the State of Palestine has been left vague, makes this issue of whether the State of Palestine possesses defined territory a problematic question. 19. Definition used by the Arbitration Committee for Former Yugoslavia, quoted in A. Pellet, “The Opinions of the Badinter Arbitration Committee: A Second Breath for the Self-Determination of Peoples,” EJIL 3, at 178, 182, 239 (1992). 20. Malcolm N. Shaw INTERNATIONAL LAW 182 (9th ed., 2021). 21. UN SCOR, 3rd Sess., 383d mtg. at 41, UN Doc. S/ PV.383 (Dec. 2, 1948). 22. SC Res. 66, UN Doc. A/66/371-S/2011/592 (Sept. 23, 2011). 23. “Borders,” Palestine Liberation Organization Negotiations Affairs Department (July 2024), available at www.nad. ps/en/our-position/borders 24. The letter ignores the fact that the 1947 Partition Plan excluded Jerusalem from both the Jewish and Arab States and that article 19 of the Palestinian National Charter declares that the 1947 Partition Resolution was legally invalid. 25. Muhammad Maqdsi, “Charter of the Islamic Resistance Movement (Hamas) of Palestine,” 22 J. PALESTINE STUD. 122-134 (Summer 1993). (The phrase does not appear in the revised Charter, however according to Hamas, the new Charter supplements the previous Charter and the previous Charter remains in force.)
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