18 No. 72 JUSTICE Effective Government The Palestinian Authority, as the State of Palestine, has the usual organs of a State. It has a president, an executive cabinet and a judiciary. It sets its own budget and collects its own taxes. It has a national flag and anthem. It has a constitution that declares “Islam is the official religion in Palestine. Arabic shall be the official language.”26 It has its own police, armed militias and security services. It has full civil and security powers in the Palestinian towns (Area “A”) and full civil powers in the Palestinian villages (Area “B”). However, in Area “C,” which encompasses most of the territory of the West Bank, Israel has full control. Moreover, Israel controls the West Bank’s entire airspace and the security of Israelis and travel outside the area. The Palestinian Authority has no effective control of the Gaza Strip, which is administered by Hamas. It is therefore controversial as to whether the “State of Palestine” fulfils the criterion of having an effective government over the territory of the State it claims to be. Capacity to Enter into Relations with Other States The Oslo Accords prohibit both parties from changing the status of the West Bank and the Gaza Strip pending the outcome of permanent status negotiations. The Accords also prohibit the Palestinian Authority from conducting foreign relations.27 Nevertheless, the Palestine Authority styles itself as the State of Palestine. Some 140 States have recognized Palestine as a State, many of which maintain representative delegations, some at the level of embassies. Palestine is a full member of several international organizations including the International Criminal Court, and has State observer status at the UN. Palestine is a party to many international treaties. The conclusion is that Palestine has the capacity to enter into relations with other States. Recognition Recognition by other States is not listed as a criterion in the Montevideo Convention but it is subsumed in the requirement of an entity being able to conduct foreign relations. States will not exchange ambassadors with a State that they do not recognize. Even if these conditions are present, other States have discretion as to whether to recognize such a new international entity. Formally, the UN has no role to play in the question of recognition, although those States that vote to support Palestinian membership in the UN presumably may be deemed to have recognized Palestine as a State. 26. Palestine National Charter, available at https://www. constituteproject.org/constitution/Palestine_2005 27. Israeli-Palestinian Interim Agreement on the West Bank and Gaza Strip, 36(3) ILM 551 (1997); Ch. 1, art. IX(5) (a); art. XI, 1995; arts. XXI(8), IX(5). “Neither side shall initiate or take any step that will change the status of the West Bank and the Gaza Strip pending the outcome of the permanent status negotiations.” “The Council will not have powers and responsibilities in the sphere of foreign relations.” 28. See Yäel Ronen, “Recognition Creates a State,” TELEM, June 11, 2023, available at https://telem.berl.org.il/10328/ (Hebrew). 29. Martin Waehlish, “Beyond a Seat in the UN: Palestine’s U.N. Membership and International Law,” 35 HARV. INT'L L.J. 260 (June 2012). 30. James Crawford, THE CREATION OF STATES IN INTERNATIONAL LAW 93 (2nd ed., 2007). 31. See generally, European Community: Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union, 31 I.L.M. 1486 (Dec. 16, 1991). There are international jurists who hold that widespread recognition by other States can overcome the absence of effective government, bringing the examples of Congo in 1960, Kosova in 2008, and South Sudan in 2011, which all received recognition as States without having an effective government. According to this theory, the fact that over 140 States have recognized Palestine as a State overcomes any deficiency in fulfilling the conditions of the Montevideo Convention.28 One jurist writes, “The question of whether Palestine is a state is eventually contingent upon the will to let Palestine be a state.”29 Crawford however, comments, “an entity is not a State because it is recognized; it is recognized because it is a State.”30 Illegality of the Unilateral Declaration of Statehood An additional contemporary criterion for statehood requires that an entity seeking recognition demonstrate that it has not been established as the result of illegality.31 The Oslo Accords, which received UN and international support, stipulate that neither party will unilaterally change the status of the West Bank and Gaza and prohibit the Palestinian Authority from conducting foreign
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