In recent days, officials in Canada, France, Portugal and the United Kingdom have stated that their nations will, or might, soon recognize Palestine as a state:
- On July 23, French President Emmanuel Macron announced that France would formally recognize Palestine at the United Nations General Assembly in September.
- Six days later, on July 29, British Prime Minister Keir Starmer announced that the UK will also recognize Palestine at the September UN General Assembly meeting “unless the Israeli government takes substantive steps to end the appalling situation in Gaza, agrees to a ceasefire and commit to a long-term, sustainable peace, reviving the prospect of a Two State Solution. And this includes allowing the UN to restart the supply of aid, and making clear there will be no annexations in the West Bank.”
- The next day, July 30, Canadian Prime Minister Mark Carney announced that Canada would recognize Palestine at the same September UN meeting, but only if the Palestinian Authority commits “to much-needed reforms, including the commitments by Palestinian Authority President Abbas to fundamentally reform its governance, to hold general elections in 2026 in which Hamas can play no part, and to demilitarize the Palestinian state.”
- And on July 31, Portuguese Prime Minister Luis Montenegro announced that Portugal “is considering recognition of the Palestinian state, as part of a procedure that could be concluded during the high-level week of the 80th United Nations General Assembly, to be held in New York in September.”
On July 30, 40 British parliamentarians and lawyers addressed a public letter to UK Attorney-General Richard Hermer, asking him to advise Prime Minister Starmer that UK recognition of Palestine “would be contrary to international law.”
The next day, July 31, Professor Marko Milanovic published a post on EJIL Talk! in which he argued that the parliamentarians/lawyers letter is mistaken insofar as it suggests that UK recognition of Palestine would violate international law. That, wrote Milanovic, “is plainly incorrect”: “such recognition would be perfectly lawful.”
Also on July 31, Professor Malcolm Shaw, who serves as counsel for Israel in the proceedings brought by South Africa before the International Court of Justice, issued an “opinion,” which Lord Mendelsohn had requested, on whether the UK should recognize Palestine as a state. Shaw concluded that there are compelling policy reasons for the UK not to recognize Palestine at this time and also that such recognition would be “inconsistent with international law.”
This Wednesday, August 6, one of the signatories to the July 30 letter, Guglielmo Verdirame—a barrister, part-time professor, and member of House of Lords—published a response to Professor Milanovic, defending the July 30 letter. Professor Milanovic (and others) in turn replied to Lord Verdirame in the comments to his post.
If you’re interested in the issues surrounding states’ possible recognition of Palestine, I highly recommend reading the July 30 letter, the Milanovic and Verdirame posts, and the Milanovic response in the Verdirame comments, all of which are quite short. The Shaw opinion is longer, but it, too, is worth reading.
My sense, though it’s based largely on anecdotal evidence, is that there’s not much support in the British legal community, nor in the UK government, for the positions expressed in the July 30 letter and the Shaw opinion. Perhaps, therefore, there isn’t much of an active debate within the UK itself. Nevertheless, I thought it might be useful to offer Just Security readers a few brief reactions to the July 30 letter, the Shaw opinion, and the Milanovic/Verdirame colloquy, in order to clarify and elaborate upon the legal questions raised in the recent discussions in the UK. I don’t have a considered view on whether, as matter of policy, the UK or other states should recognize Palestine now and, if so, under what conditions. These reflections therefore are limited to the legal issues raised in the recent UK debate.
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1. What’s at stake? The principal legal effect of a state’s recognition of another state is that under the domestic law of the recognizing state, the recognized state can become entitled to certain statuses, privileges and immunities. Of course, recognition can also have significant geopolitical effects, but those generally aren’t legal in nature. Even so—and perhaps of greatest significance here—although the dominant view is that recognition, even by many states, does not conclusively establish statehood of the recognized entity as a matter of international law, recognition by an overwhelming number of states “can resolve uncertainties as to status and allow for new situations to be regularized,” and “where recognition is general, it may be practically conclusive.” James Crawford, The Creation of States in International Law 27 (2d ed. 2006) (emphasis added).
2. Currently, 147 of the 193 member states in the United Nations recognize Palestine as a state. If all four of the recent announcements result in recognition at the UN in September, that number would increase to at least 151. Canada, France and the UK would be the first states in the “Group of Seven”—the intergovernmental political and economic forum consisting of Canada, France, Germany, Italy, Japan, the United Kingdom and the United States—to recognize Palestine; and recognition by France and Britain would leave the United States as the only permanent member of the UN Security Council that hasn’t done so. As I predicted in a post here back in October, widespread recognition of Palestine, particularly by prominent states such as Canada, France and the UK that had resisted such recognition for many years, would, as a practical matter, make it very unlikely that any international tribunal or organization would conclude that Palestine is not a state.
3. Let’s turn now to the “merits” question of whether Palestine is properly viewed as a state as a matter of international law. As countless volumes of scholarly erudition will attest, there is no hard-and-fast, widely agreed upon test for statehood in international law. It’s a notoriously knotty question.
4. International law entitles the Palestinian people to exercise the right of self-determination. There’s not a great deal of dispute about that proposition. Even Professor Shaw agrees: “It is undeniable that the Palestinians have the right to self-determination.” (¶ 50). The right of self-determination alone, however, doesn’t establish statehood. As James Crawford wrote in his landmark treatise (p.446), “it misrepresents the reality of the situation to claim that one party already has that for which it is striving.” This point, too, is relatively uncontroverted.
5. The current debate in the UK has devoted a good deal of attention to Article 1 of the Montevideo Convention on the Rights and Duties of States, which provides that “[t]he state as a person of international law should possess the following qualifications: a) a permanent population; b) a defined territory; c) government; and d) capacity to enter into relations with the other states” (emphasis added).
6. The primary point asserted by the attorneys and parliamentarians in their July 30 letter to the UK Attorney-General is that Palestine allegedly does not satisfy at least two of the four Montevideo qualifications: According to the letter, it doesn’t have a defined territory or a “functioning single government.” The letter is probably right about at least the “government” qualification, as I wrote here last October (see note 6):
The Oslo Accords established the Palestinian Authority as the lawful government in Gaza, and in January 2015, when Palestine submitted its instrument of accession to the Rome Statute, Gaza was nominally subject to control by a Palestinian Unity Government that had been formed in June 2014 pursuant to the April 2014 Fatah-Hamas Reconciliation Agreement. That Unity Government dissolved shortly thereafter, however (on June 17, 2015), when President Abbas acknowledged that it was unable to operate in the Gaza Strip. Accordingly, the Palestinian Authority has had no practical ability to govern in Gaza, notwithstanding the Oslo Agreements, since Hamas forcefully took control of the Gaza Strip in 2007.
(Whether Palestine satisfies the first Montevideo criterion is a closer question. As Professor Shaw writes, “there is no rule in international law necessitating fully defined and delimited land boundaries. A State may be recognised as a legal person even though it is involved in a dispute with its neighbours as to the precise demarcation of its frontiers, so long as there is a consistent band of territory which is undeniably controlled by the government of the alleged State.” (¶ 27))
7. The July 30 letter further asserts that because Palestine (arguably) doesn’t satisfy all four Montevideo “qualifications,” it would be “contrary to international law” for the UK to recognize Palestine as a state. The basis for this conclusion is the writers’ assertion that the Montevideo qualifications are “the international law criteria for recognition of a state.”
That latter assumption, however, is wrong. The four Montevideo “qualifications” do not establish an exclusive test for statehood under international law—as the use of “should” in Article 1 of the Convention itself indicates, they’re not necessary conditions, and they might not be sufficient, either. (For what it’s worth, Professor Shaw appears to agree. Although he asserts somewhat vaguely (and without citing any authority) that “the four Montevideo criteria constitute the presumptive paradigm,” he acknowledges that they “are not necessarily exhaustive in all circumstances and … the balance between them may vary in particular instances.” (¶ 20))
More importantly, it’s widely (although perhaps not universally) agreed that states have fairly often (and permissibly) recognized the statehood of other entities in circumstances where one or more of the Montevideo qualifications have not been satisfied.
8. Professor Milanovic believes the letter writers have made an even more indefensible error by suggesting that if the UK were to recognize Palestine, that act of recognition itself would actually violate international law.
The July 30 letter does not quite ever say that—not in so many words, anyway. Instead, it states that recognition would be “contrary to international law.” I suppose that phrasing could be intended merely to mean that the British decision would be mistaken as a matter of international law, rather than that it would itself breach the law. Thus, for example, in his response to Milanovic, Lord Verdirame does not expressly assert that recognition would violate international law; instead, he merely insists that there would be no “justification” for a UK recognition unless international law has changed, and suggests that such recognition would not be “in line with” international law.
I think it’s fairly obvious that the letter writers, including Lord Verdirame, are engaged in a bit of deliberate ambiguity here about the nature of their legal claim. Whatever their actual intent might be, however, Professor Milanovic is surely right that describing recognition as “contrary to international law” foreseeably “created the impression … that the UK would be acting illegally if it recognized Palestine,” which is indeed, according to Milanovic, how the British media have characterized the letter. That’s not correct as a matter of international law (Milanovic’s main point), and the letter writers, Lord Verdirame among them, could easily clarify that they didn’t intend to make such a claim if they so desired. Apparently, however, they welcome the fact that many or most observers have understood the letter to be making the stronger, incorrect claim that recognition would be illegal.
Professor Shaw, for his part, writes that UK recognition of a State of Palestine “would in current circumstances be premature and inconsistent with international law.” (¶ 51) That phrasing, too, is ambiguous; some might read it as a statement that the UK would be violating international law if it recognized Palestine. Nothing else in Shaw’s detailed opinion, however, suggests that international law prohibits such recognition.
9. Lord Verdirame also argues that UK recognition would be inconsistent with established British policy and practice (as opposed to international law). “In 1986,” he writes, “the Government confirmed to Parliament that Britain applied the four classic criteria of statehood to matters of state recognition.” The 1986 colloquy in Parliament to which Lord Verdirame links, however, suggests something very different. There, then-Secretary of State Lynda Chalker was asked “what are the criteria which Her Majesty’s Government will require to be satisfied for Her Majesty’s Government to recognise Bophuthatswana.” Secretary Chalker responded: “The normal criteria which the Government apply for recognition of a state are that it should have, and seem likely to continue to have, a clearly defined territory with a population, a Government who are able of themselves to exercise effective control of that territory, and independence in their external relations. Other factors, including some United Nations resolutions, may also be relevant.” (Emphasis added.) As far as I know, the British Government has continued to articulate this same formulation since that time. See, e.g., 81 British Year Book of International Law 503 (2010) (stating the same view in 2009 regarding how the UK Government would determine whether Somaliland was an independent state). Assuming that’s so, long-established UK policy thus has been to begin with the Montevideo criteria “normally,” but also to take into account “other factors,” as well, if and when they’re relevant. That practice is, to say the least, in considerable tension with the position of the July 30 letter that the four Montevideo criteria are the be-all and end-all.
10. Professor Milanovic and Lord Verdirame discuss a well-known passage in James Crawford’s esteemed book. Although Crawford did not think that, as of 2006, Palestine should be recognized as a state, he added this provocative idea (pp. 447-48):
There may come a point where international law may be justified in regarding as done that which ought to have been done, if the reason it has not been done is the serious prejudice to another. The principle that a State cannot rely on its own wrongful conduct to avoid the consequences of its international obligations is capable of novel applications, and circumstances can be imagined where the international community would be entitled to treat a new State as existing on a given territory, notwithstanding the facts.
Professor Milanovic suggests it would, at a minimum, be reasonable for the UK to conclude, in accord with Crawford’s suggestion, that that “point” in time has now come because Israel, “through its continued illegal occupation of Palestinian territories,” “is preventing Palestine from fulfilling the Montevideo effectiveness criteria.” Milanovic is certainly right that Israel has significantly contributed to the inability of the Palestinian people to satisfy the Montevideo criteria, not least by virtue of its longstanding, blatantly unlawful practice of allowing the expansion of settlements in the West Bank. Israel is not wholly responsible, however. As I note in Point 6, above, the failure to satisfy all the Montevideo criteria is also a function of the fact that the Palestinian Authority has had no practical ability to govern in Gaza, notwithstanding the Oslo Agreements, since Hamas forcefully took control of the Gaza Strip in 2007.
There is no “right” answer to whether this situation of mixed, or joint, responsibility is sufficient to establish the degree or type of Israel-generated “serious prejudice” to the Palestinian people that might warrant state recognition of Palestine pursuant to Crawford’s (tentative) suggestion—nor is there an established consensus that states should heed Crawford’s suggestion in making recognition decisions. Reasonable minds can certainly differ on these questions.
11. In sum, international law does not prohibit the UK from recognizing Palestine as a state—as almost 150 other states have done. But neither does it require such recognition. As Professor Shaw notes, “[r]ecognition by one State of another is a political act which will occur within the context of a particular political situation. There is no obligation to recognise the statehood of another entity.” Therefore, at least as far as international law is concerned, the UK Government is free to make either choice. And so, too, are the governments of Canada, France, and Portugal. If most or all of those four nations do recognize Palestine, that might be something of a watershed development, regardless of what the United States does. As I explained above in Points 1 and 2, where recognition is general it may become conclusive as a practical matter. And recognition of Palestine by states such as Canada, France, and the UK, all of which have resisted such recognition for many years, would, as a practical matter, make it very unlikely that any international tribunal or organization would conclude that Palestine is not a state.
