Palestine/Gaza Does Not Meet De Facto (ACTUAL) Requirements OF Statehood

 

Palestine or the land mass of Gaza, at this point and time, cannot legally be considered a state under international law.

The ICC and ICJ have made a political not legally binding decision on Israel, Palestine, or Gaza. The ICC and ICJ have ignored the requirements for granting statehood and have made decisions based solely on political ideologies and not international legal grounds.

The ICJ is known, as the World Court, a UN body for hearing disputes between states and Gaza and or Palestine are NOT States under international law.

1.         Palestine/Gaza does not meet the de facto requirements of statehood as it lacks independent control over its population, territory, government, and foreign relations. While it has some recognition and a degree of self-determination, it does not achieve de jure statehood under international law. For the ICC and ICJ to recognize Palestine/Gaza as a state/statehood prematurely it shall continue to destabilize the region further.

2.         For Gaza or Palestine to meet the legal requirements for a state/statehood first a group i.e. Hamas that is or has been designated as a terrorist organization, as a legitimate government under international law, it must “unequivocally renounce terrorism and cease all terrorist activities.” Hamas’s stated Mission is “Murder Jews; “Obliteration” of Israel. “

3.         Hamas and the Palestinian Authority must both disarm, and demobilization of all armed terrorist factions are crucial steps for even being legally considered for statehood/state and further have demonstrated significant shifts in both the group's behaviour and the perceptions of the international community.

4.         Compliance with International Law: The group must commit to and comply with international humanitarian and human rights laws and not be a terrorist organization or supporter of terrorism.

5.         While the PLO transitioned through peace processes, recognized Israel's right to exist, and gained recognition as the representative of the Palestinian people under Article 3 of the Draft United Nations Declaration on the Rights of Indigenous Peoples defines self-determination as the right of an entity to “freely determine their political status and freely pursue their economic, social and cultural development. Nowhere is it stated that the right to self-determination equals a right to statehood.  Israel has granted Palestine numerous powers in which it has obtained a great degree of self-determination.

6.         Palestine/Gaza is an autonomous entity, not a state. 

7.         The UN considers Palestine an international organization rather than a state.  States may individually recognize Palestine, but the international community as a whole does not recognize Palestine as a state.  Therefore, Palestine is not a state by de jure standards as well.

8.         A state must have the ability to engage in diplomatic and foreign relations with other states. The DOP Article XI creates an Israeli-Palestinian Economic Cooperation Committee to promote the development of the West Bank and the Gaza Strip. Palestine therefore cannot enter into economic agreements with other states without the approval of Israel.

9.         Section 2 of Article IX on Laws and Military Orders reiterates this point: “Both parties will review jointly laws and military orders presently in remaining spheres.” Under the terms of both the Interim Agreements and the Declaration of Principles, it is clear that the powers Palestine possesses do not extend to the realm of foreign relations.  By signing these agreements, Palestine acknowledged and accepted its inability to conduct foreign relations.  Without this fourth component, Palestine has not achieved de facto statehood.

10.       Palestine’s ability to enter foreign relations is severely limited by the Interim Accord of 1995.  Article IX, Section 5, which lays out the Powers and Responsibilities of the Palestinian Council, states that: “…the Council will not have powers and responsibilities in the sphere of foreign relations, which sphere includes the establishment abroad of embassies, consulates or other types of foreign missions and posts or permitting their establishment in the West Bank or the Gaza Strip, the appointment of or admission of diplomatic consular staff and the exercise of diplomatic relations [emphasis added].”

11.       Furthermore, the 1994 Agreement of the Gaza Strip and Jericho calls for the creation of a joint committee called the Civil Affairs and Cooperation Committee to handle civil affairs in the region. Members from both Israel and Palestine are to meet once a month to discuss civil matters including infrastructure, licensing, hospitalization, transportation and other such matters. In this agreement, Israel also states it has authority over “the Settlements, the Military Installation Area, Israelis, external security, internal security and public order” and “shall exercise its authority through its military government” in the region. This again shows that it is Israel who has the overriding authority of the area. 

12.       An entity must have a government to be considered a state.  The Encyclopedia of Public International Law states that “the government, in exercising its power, must be capable of acting independently of foreign governments.” Palestine does not possess such independence for it rules under the overarching authority of Israel.  The Declaration of Principles (DOP), which was signed by both sides, gave limited powers to the Palestinian National Authority.

13.       In UN General Assembly Resolution 181, the United Nations called for a partition of the land into both a Jewish State and an Arabic State.  Resolution 181 is often used as evidence of Palestine’s sovereign title over the West Bank and Gaza Strip, though this remains unfounded. The United Nations tried to create a state, which goes well beyond the powers granted to it by the UN Charter.  As stated in Chapter IV, Article 10, UN resolutions are only recommendations and not binding laws. Furthermore, the UN abandoned Resolution 181 with the passing of Security Council Resolutions 2428 and 3389.

14.       Palestine’s rejection of Resolution 181 that prevented its adoption. In the Palestine National Charter, Article 19 states that “The Partition of Palestine, which took place in 1947, and the establishment of Israel, are fundamentally invalid.” For decades Palestinians have declared the partition void, therefore rejecting sovereign title to the area. 

15.       By signing the Declaration of Principles (DOP) in 1993, Palestine acknowledges that the sovereign title of the West Bank and Gaza Strip had not yet been resolved.  Article V of the DOP states that future permanent status negotiations shall cover the issue of borders in the future, but as of right now, Palestine does not have sovereignty over the land. The DOP and latter agreements granted certain powers to Palestine but never sovereign title over the land.

16.       As stated by the Third U.S. Restatement of the Law, the population must be “under the control of its own government.” While Palestine has been granted many powers over its people, it is still not independent of Israeli control.

17.       Palestine does not have sovereign title over the West Bank or the Gaza Strip.  The area was granted to Israel as early as 1917 by the British in the Balfour Declaration. In the Balfour Declaration, Britain recognized the need for a Jewish state and granted the Palestinian land for this purpose.  Later Britain turned the issue of a Jewish state over to the League of Nations, but the Balfour Declaration was upheld through the Mandate for Palestine.

18.       The Permanent Court of International Justice, the UN Special Commission on Palestine, and the Council of the League continue to uphold the Mandate for Palestine.

19.       Palestine/Gaza is not officially recognized as a fully independent country by the United Nations.

20.       The Balfour Declaration, issued by the British government in 1917, did not directly address the issue of a Palestine homeland or self-determination for the people of Palestine.

21.       The Sykes-Picot Agreement, as outlined in the correspondence between Sir Edward Grey and Paul Cambon, did not specifically guarantee a homeland or nation for Palestine. And the Sykes-Picot Agreement did not directly address the issue of a Palestine homeland or self-determination for the people of Palestine or grant the people of Palestine, or any other specific region, the right to determine their future.

22.       The letters exchanged between Husayn and McMahon hinted at possible future arrangements and cooperation between the Arab leaders and the British, there were no explicit assurances of independence for the Arabs, particularly regarding Palestine. There was no explicit indication of an agreement or commitment by the Allies to grant the people of Palestine, or any other specific region, the right to determine their future. Therefore, it cannot be assumed from these letters alone that there was an international commitment by the Allies to grant such rights to the people of Palestine.

23.       The refusal by the Arab population of the mandate territory to accept Resolution 181 demonstrated that they were not interested in establishing their own state if it meant allowing the existence of a Jewish state. This opposition to acknowledging the right of a Jewish state to exist still lies at the core of the conflict.

24.       How can there be between Palestine and Israel or advance peace when none of the Arab universities has a center for teaching the thought, practice, and study of peace? When most of the publications focus on conflict rather than peacebuilding? When the educational curriculum teaches hatred, enmity, antisemitism, and death rather than celebrating life, moderation, and reconciliation? When Hamas terrorists and extremists are celebrated, and peacemakers and moderates are labelled traitors? We need to change our mindset and culture to achieve peace.

Therefore, for Gaza or Palestine to meet the legal requirements for a state/statehood first a group i.e Hamas that is or has been designated as a terrorist organization, as a legitimate government under international law, it must “unequivocally renounce terrorism and cease all terrorist activities.” Hamas’s stated Mission is “ Murder Jews; “Obliteration” of Israel. “

The ICC/! CJ in their decision was Ultra Vires under law. The Montevideo Convention of 1933 outlines the criteria for statehood, which include a permanent population, defined territory, government, and the capacity to enter into relations with other states. Palestine meets some of these criteria, but its full status remains contentious due to ongoing territorial disputes and the lack of a universally recognized government.

While some countries recognize Palestine as a state and has a certain level of recognition at the UN, it does not have universal recognition or full legal status as a sovereign state in the eyes of all international law or actors.

The panel overstepped its legal authority when it stated and based its ruling on agreeing with Khan’s assessment that the ICC has jurisdiction over the case since Palestine is a state party as per the ICC statute.

Palestine is NOT a State or a country therefore the ruling was Ultra Vires. (beyond the legal power or authority of the person performing an action)

Summary and Analysis

Historical Context

Post-Ottoman Empire: Following World War I, Palestine came under British rule along with other Arab nations.

British Withdrawal: Unlike other Arab states that gained independence, Palestine did not.

Balfour Declaration (1917): Britain supported the establishment of a Jewish homeland in Palestine.

UN Involvement: The United Nations proposed a partition plan in 1947, calling for separate Israeli and Palestinian states. Israel accepted the plan and declared independence in 1948; Palestine rejected it and remains without recognized statehood.

Criteria for Statehood (Montevideo Convention)

Permanent Population:

Palestine has a permanent population with a shared culture and history residing in the West Bank and Gaza Strip.

Controversy exists over whether this population is sufficiently governed independently, as per the Third U.S. Restatement of the Law.

 

Defined Territory:

Palestine does not have sovereign title over the West Bank or Gaza Strip.

The Balfour Declaration and subsequent mandates supported a Jewish state, complicating Palestinian claims to the land.

UN General Assembly Resolution 181 proposed a partition, but this was not binding and was later abandoned.

Palestine’s land is fragmented and lacks clearly defined borders, similar to other unrecognized entities historically.

 

Government:

Palestine has limited self-governance but operates under Israeli authority.

Agreements like the Declaration of Principles (DOP) and Interim Accord outline the limited powers of the Palestinian Authority, granted by Israel.

Palestine lacks independent control over security, economy, and infrastructure.

 

Capacity to Enter into Relations with Other States:

Palestine cannot independently engage in foreign relations without Israeli cooperation, as outlined in the Interim Accord.

Diplomatic limitations and the inability to form an army hinder its status as a fully independent state.

 

De Facto vs. De Jure Statehood

De Facto Statehood: Requires actual control over a permanent population, defined territory, government, and foreign relations.

Palestine does not meet these criteria due to Israeli authority and lack of independent control.

De Jure Statehood: Involves legal recognition by other states and international organizations.

Despite recognition by some states, Palestine has not achieved broad international recognition.

Organizations like the UN, WHO, and EU do not recognize Palestine as a state, only granting it Observer Status.

 

Right to Self-Determination

UN Recognition: The right to self-determination is acknowledged by the UN but does not equate to statehood.

Autonomy vs. Statehood: Palestine has autonomy in areas like education, health, and social welfare, but this does not fulfill the criteria for statehood.