Commentary Magazine


Topic: Montevideo Convention

“Palestine” Does Not Qualify as a “State”

Back in 2005, after Israel removed every soldier and settler from Gaza, Palestinian President Mahmoud Abbas announced that “from this day forward, there will be no security turmoil and weapons chaos and abductions, which are not characteristic of our culture.” He proved a poor prognosticator regarding Palestinian culture: given the chance to live “side by side in peace and security” with Israel, the Palestinians demonstrated they could not do so even with themselves. 

Abbas was expelled from Gaza in 2007; there have been no parliamentary or presidential elections since 2006; no functioning Palestinian legislature exists; Abbas is entering the 95th month of his 48-month term; he cannot set foot in half of his purported state (in the words of Israel’s UN ambassador, he cannot even see it with binoculars); he has refused to negotiate with Israel for more than four years; he demands recognition of a Palestinian state while refusing to recognize a Jewish one; and he now seeks admission to the UN as a non-member state even though “Palestine” meets none of the four requirements under international law for a state. 

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Back in 2005, after Israel removed every soldier and settler from Gaza, Palestinian President Mahmoud Abbas announced that “from this day forward, there will be no security turmoil and weapons chaos and abductions, which are not characteristic of our culture.” He proved a poor prognosticator regarding Palestinian culture: given the chance to live “side by side in peace and security” with Israel, the Palestinians demonstrated they could not do so even with themselves. 

Abbas was expelled from Gaza in 2007; there have been no parliamentary or presidential elections since 2006; no functioning Palestinian legislature exists; Abbas is entering the 95th month of his 48-month term; he cannot set foot in half of his purported state (in the words of Israel’s UN ambassador, he cannot even see it with binoculars); he has refused to negotiate with Israel for more than four years; he demands recognition of a Palestinian state while refusing to recognize a Jewish one; and he now seeks admission to the UN as a non-member state even though “Palestine” meets none of the four requirements under international law for a state. 

Under the Montevideo Convention (1933), a state “should possess the following qualifications”: (1) a defined territory; (2) a government; (3) capacity to enter into relations with the other states; and (4) a permanent population. 

“Palestine” lacks a “defined territory.” A “defined territory” cannot include an area whose status and borders can only be defined, under longstanding international agreements, by negotiations. To have a defined territory, “Palestine” has to negotiate it with Israel; until then, its self-definition of territory is not a “defined territory” under the law; it is simply a negotiating position. 

“Palestine” lacks a “government.” It is ruled half by a terrorist group and half by an unelected administrative entity. Its last election occurred nearly seven years ago, and it has no capacity (much less inclination) to hold a new one. The government of each half considers the government of the other half illegitimate, and both are correct: one regime took power by a coup, and the other remains in power four years after its term expired. There is no legal governing body in either half of the purported state, much less one that governs both. 

“Palestine” lacks the “capacity to enter into relations with the other states.” Abbas has no capacity to bind the rulers of Gaza, nor even to implement his own commitments in the area in which he can at least set foot. While in office, he failed to implement his prior obligations, including Phase I of the Roadmap (which mandated the dismantling of Hamas and other terrorist groups), and he is currently an unelected official, unrecognized by half his putative state, with no capacity to bind “Palestine” to anything. 

“Palestine” lacks a “permanent population.” Most of the population considers themselves not putative citizens of a new state but perennial “refugees” — an inherited status under the unique definition applicable to Palestinians — who reject any suggestion they should form the permanent population of a new state. They consider themselves instead to be temporary residents (and UNRWA, the UN agency devoted to caring for them, is legally a “temporary” UN body) who seek to “return” to a different state, not to be permanent residents where they currently live. 

When you refuse to negotiate a defined territory (and demand instead that it be conceded before you deign to “negotiate”); when you lack a government that controls your purported territory (and instead have multiple regimes each lacking legitimacy); when you lack the capacity to enter into relations with other states (and ignore the agreements you already signed); and when you have residents who reject permanent residence and assert instead a “right” to “return” to another state, you meet none of the requirements for a state. 

The irony is that between 2000 and 2008, the Palestinians received three formal offers of a state, and rejected them all — the modern equivalent of the Three Nos. Now one group of Palestinians seeks UN recognition as a “non-member state,” when they fail to qualify as a state at all, and they ignore the fact they could already have been a member-state three times over (or more), had they simply said yes. As Stephen J. Rosen noted last year, they have: 

two incompatible presidents, two rival prime ministers, a constitution whose most central provisions are violated by both sides, no functioning legislature, no ability to hold elections, a population mostly not under its control, borders that would annex territory under the control of other powers, and no clear path to resolve any of these conflicts. 

Once again, “Palestine” is all set to be a failed state, no more ready for statehood than it was a year ago. Article 10 of the Montevideo Convention provides that the “primary interests of states is the conservation of peace.” The Palestinian gambit at the UN is not intended to produce peace, but to provide a platform for law-fare. It will do nothing to bring the Palestinians closer to the state they could have had long ago, if a state were really what they wanted, and it will in fact put peace further away.

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