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The Creation of the State of Palestine Research Paper

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Updated: May 30th, 2020

Introduction

Palestine is a traditional Arabic name that refers to a territory that is in close proximity to the Mediterranean Sea. It is also delimited by River Jordon. The disintegration of the great Ottoman Empire marked the onset of territorial disputes in Palestine. In the modern world, the boundaries of Palestine were first defined in 1920 through the Franco-British Frontier Accord. The second delineation of Palestine was done towards the end of 1922 by the Transjordan Territorial Agreement. The region encompasses Israel and various territories under Palestine establishment. “One of the essential attributes of a state under International Law is external sovereignty—that is, the right to exercise freely the full range of power a state possesses under international law” (Asem 21). A country is deemed independent when other countries that acknowledge its autonomy do not have any legal mandate over it.

A totally autonomous country is, therefore, different from a vassal state which is governed by a superior nation. Over the years, Palestine has made serious efforts to gain its independence. Notably, these frantic efforts have been quite successful.At present, over ninety countries already acknowledge Palestine as a nation. Moreover, several states have diplomatic ties with Palestine. Indeed, Palestine has fulfilled a few of the requisite requirements to make it sovereign. Moreover, it also meets some of the terms and theoretical conditions which fundamentally recognize the qualifications. Nonetheless, the authenticity of its self-government has been disputed by some countries, especially, the European powers. It is against this background that this paper examines the legal requirements that are needed for Palestine to fully claim her independence.

Palestine Statehood

Palestine has been grappling with the challenge of gaining considerable acceptance since World War One. Although some nations assert that Palestine is autonomous and should be given the essential acceptance, some are indisposed and fail to recognize that position. For example, “both the US and Israel do not recognize the sovereignty of Palestine” (Brownlie 31). Israel often criticizes Palestine for enduring to duplicate a historical Palestine on their maps that leaves out the Country of Israel. It is worth noting that the presence of distinct precincts does not necessarily mean that a country exists and vice versa. Besides, “some commentators declare that the West Bank, Jerusalem East, the Gaza Strip, and other Arab territories were conquered and occupied by Israel through war; thus, they are formally known as occupied territories” (Cattan 123).

In accordance with the international law, the only authentic boundaries of the Israel are those that the Division Plan proclaimed. In line with Article 22 of the global edict, Palestine is among the territories that were conditionally documented as autonomous countries. However, Palestine would need governmental guidance and support of a superior nation on its way to gaining nationhood and such a process must be supported by Palestinians.

As a superior nation, Britain was given the mandate to oversee the transition of Palestine to an independent status after World War One. In addition, Britain was also to facilitate the attainment of independence by other Arab territories. In 1946, Britain reassigned its mandate responsibilities to the United Nations soon after the disbanding of the League of Nations. Apart from Palestine, other Arab countries were declared autonomous. “The pulling out of Great Britain from Palestine meant that the mandate on Palestine was, de facto, once more entrusted to the UN General Assembly (UNGA), which had adopted the Partition Plan for Palestine, in its resolution No. 181, of 29 November 1947” (Grant 67). After thirty days, the autonomy of Israel was defined. Since that time, no Arab country has been created within the territories of Palestine.

The United Nations made a declaration through which it expressed its desire to have both Palestine and Israel autonomous. Israel supported this division and became autonomous in 1948. Since it gained its self-determination, Israel has gained vast recognition from other states and global bodies. Nonetheless, Palestine never conceded this partition and has not attained independence status. The mandate of Britain was, therefore, not sufficiently implemented in Palestine. Israel seized the unsecured territories of Palestine when the Six Day Conflict came to an end. The UN and other world powers lamented that Israel’s action was illegitimate. On the other hand, some individuals supported Israel stating that its actions were aimed at securing its borders from the belligerent Arab states. However, critics of Israel argue that its seizure of Palestinian territories during the conflict did not give it the authority to retain them after the war. The lawful borders of Palestine as well as Israel have not been altered since they were ratified through Resolution 181.

Boyle reacted to the proclamation of self-sufficiency that was facilitated by the National Council that claims governance of Palestine. He contended that four mandatory factors should work collectively to facilitate State formation. “These four elements are: territory, people, government, and capacity to establish relations with other States” (Boyle 301-306). These are the requisite conditions that were stipulated in the 1933 Montevideo Conference. Palestine maintains that it has fulfilled these conditions; hence, it has attained de facto rank. Nonetheless, to be accepted as a country, an entity should wield power without being influenced by external authorities. Indeed, Palestine has not met the majority of these mandatory requirements; it is against this background that it cannot claim its sovereignty.

According to Boyle the conception of a defined country is not determinate and predetermined. Undeniably, the autonomy of both Egypt and Israel has been accepted under International Law, but their territories have not been completely determined. On the other hand, Cassese asserts that being in charge of a territory is vital for a country’s autonomy. Fundamentally, this enables a nation to exercise legal and factual procedures inside the territory and forbid foreign governments form wielding such authority in its land without its permission.

Consequently, Stefan affirms that both the West Bank and the disputed Gaza Strip are within the territorial demarcations of Palestine. Nonetheless, Palestine does not have a complete control over these aforementioned territories. Accordingly, “the existence of the Palestinian Liberation Organization (PLO), the Palestinian people, and the territory (West Bank and Gaza Strip) are not enough individually” (Crawford 307). These aspects of nationhood should be well coordinated. In addition, Crawford notes that that fact that the autonomy of Palestine is acknowledged by some nations does not grant it nationhood. It only shows the willingness or reluctance of the other nations to work in partnership with a newly established country. Indeed, most nations saw the autonomy of Palestine as a legal ambition and not an existing reality. “In the Palestinian case, the nation therefore, exists prior to the State, independently of it, and can justify the creation of a State” (Crawford 307).

The need for an autonomous government is another precondition for a territory to be granted nationhood. Certainly, governance is significant for efficient operation of a country. Above all, governments uphold lawful authority within the country and augment constitutional independence of a particular country. To a large extent, it makes it possible for a country to operate independently and circumvent complete reliance on other countries for crucial decision making. In his investigation, Crawford contends that Palestine fails to meet this condition; hence, it does not qualify to be self- sufficient.

The affirmation of self-rule by Palestinians is a reflection of their outlook, their struggles, and it also reflects the kind of nation they envisage to establish. At this level, the significance of such a pronouncement did not necessarily mean that Palestine was autonomous, but it enhanced the chances of achieving it. Palestine made remarkable efforts to gain its autonomy during the 20th Century by struggling to gain global approval of their prerogative to liberally wield political authority over their territories. Despite these efforts, Palestinians never realized their ambition of creating an autonomous state. This disappointment is largely blamed on Israel which invaded and seized Palestinian land in early 1967. Nonetheless, they have been able to maintain their identity as Palestinians.

Alqasem observes that Palestinians have remained focused on their agenda to acquire their autonomy since the termination of the British mandate on their territory. This elucidates the nature of transition of Palestinian governance from one regime to another with reference to the nation. Originally, Palestinians embraced democratic principles in their government. However, after the end of the October 1973 conflict, the Palestinians began thinking about rebelling against their government as the initial significant strategy towards establishing democracy in their territory. Moreover, “when the Palestinian National Council (PNC) proclaimed the independence of the State of Palestine in 1988, the state has become synonymous with the West Bank, Gaza Strip, and Jerusalem East as Capital” (Boyle 304). Based on the Oslo Accord the leaders of Palestine reintroduced the notion of a self sufficient government as a solution. This explicates the present discrepancy. On one end, “the ongoing Palestinian arrangements for nationhood-guided by the structure of the ‘two countries solution’, which was supported by UNGA; on the other hand, Israel is struggling to facilitate the creation of self sufficient Palestinian nation” (Asem 34).

The global community commonly agrees that ending the antagonism between Israel and Palestine will help in restoring peace in the region. The peace negotiations between Palestine and Israel started in the 1990s and it was made official through many accords. The peace initiatives should not be regarded as a peace accord, but as a statement of peace intent by the legal agents of the two parties.

The Oslo peace process that would facilitate the achievement of autonomy of Palestine collapsed and created more tension and confusion in the already difficult situation. One of the profound outcomes of the Oslo Accord was the emphasis on the differentiation between the Palestinians occupying the West Bank area and those living in the Gaza Strip. That was an avoidable outcome of the differentiation between transitory and permanent issues. “On the other hand, there is a quasi-unanimous recognition of the Palestinian people as subjects of international law in spite of the fact that a Palestinian State does not exist” (Watson 89). This acceptance is articulated in varied mechanisms; for instance, the exchange of diplomatic duties or agents and the stipulation of intergovernmental accords. Nonetheless, the PLO is the only legal entity that is mandated to act on behalf of the Palestinians. Over the past few years, the Palestinian Authority has increasingly assumed critical roles in the global affairs. Indeed, Palestinian Authority (PA) is increasingly wielding more power in Palestine than the PLO (Weiss 109).

Right to Self-determination

The Palestinian prerogative to fight for autonomy has often been discussed by the international community at various levels and it is also worth exploring. Self-determination is a modern development whose origin is quite unclear. This phenomenon arose out of the need to bring to an end European domination of the African and Asian territories. With reference to Palestine, self-rule is aimed at ending the foreign occupation of territories and ensuring that other countries do not meddle with its internal affairs. Self-determination is one of the primary provisions of the international law and it has been widely accepted by various states. However, the main challenge is determining who qualifies to claim self-determination and how they should go about claiming it. Therefore, it is not an issue of nations accepting acknowledgement to the prerogative of self-determination for all individuals who purport to have a common origin and culture. This principle provides the legal grounds on which the Palestinians struggle to gain their autonomy. There is a global acceptance that the Palestinians exist and are accorded unchallengeable prerogatives. It is against this background that other nations enter negotiations and make agreements with Palestinian leaders so that they can end the Israeli-Palestine bickering.

The fact that Palestinians lack autonomy does not deny them the prerogative to claim self-governance. The practice of this prerogative is not a preserve for the individuals who form part of a country and it does not automatically lead to the creation of an autonomous nation. Therefore, “the principle of self-determination becomes a legal right the moment it is called upon, by a group recognized as constituting a people, and in relation to a territory which can be deemed a unit for self determination” (Summers 345). Stone contends that the Palestinians satisfy this decisive factor of claiming autonomy. He further asserts that Palestinians were, initially, wrongly defined. The Palestinian issue was specifically observed as an issue of refugees who had prerogatives, but lacked a community. In the 1960s, several factors contributed to the acceptance of the Palestinians as a distinct group of individuals with unique cultural practices and experiences (Stone 69).

The struggle for nationalism in Palestine has remained vibrant in the entire Middle-East region, and it is believed to have emerged almost at the same time with Arab nationalism. The desire to achieve an appropriate Arab identity best explains why the Arabs and Palestinians struggle to embrace modernity. The Palestinians claim a common identity based on their cultural similarities that demonstrated in terms of common language and religion. Nonetheless, having a common culture does not make them to be fully recognized as a people because other Arab masses can also claim their identity based on the same principle of sharing a common culture. Therefore, Palestinians can be differentiated from other Arabs by examining their awareness of being a distinct group or a people. Zionism to some extent influenced the Palestinian awareness, but it would be incorrect to conclude that it was the main factor that contributed to the emergence and development of their uniqueness. Palestine has a permanent population which is the initial mandatory condition for claiming the privilege to nationhood. Nonetheless, the ability of a nation to exclusively possess permanent inhabitants and whether it should wield power over them has been contested. “As stated by the Third U.S. Restatement of the Law, the population must be under the control of its own government” (Asem 35). Although Palestine is exerts much power and authority over its subjects, it is still facing domination and influence from Israel.

Palestinian Territories

A defined territory is the second significant criterion that must be effectively met by a territory before its autonomy claims can be approved by other countries. This criterion has remained controversial in the case of Palestine. For a country to satisfy this requirement it should prove that first, it has supreme power over territory. Secondly, the land must be properly defined. Palestine lacks control of the West Bank. This territory was allocated to Israel in 1917 through the Balfour Declaration that was ratified through the mandate of Britain. When the League of Nations was formally disbanded the UN started dealing with the Palestinian issue through Resolution 181which advocated for the application of an amicable solution to the land disputes in the area bordering Palestine and Israel. Palestine has always claimed possession of the Gaza Strip through Resolution 181, but the practicability of such a claim is yet to be realized. Moreover, this Resolution was not implemented since Palestine failed to accept some of its provisions.

The second important component of a land is definition. At present, Palestine lacks a properly defined land. In the past, some territories failed to acquire nationhood class since they were seriously fragmented. For instance, in 1919 the nationhood of Lithuania was not acknowledged by Allied Forces because its boundaries were poorly defined. Palestine experiences a similar obstacle on its way to gaining autonomy because its land is seriously fragmented and mixed together with Israelis; thus, it does not meet the second condition of acquiring a de facto rank. Thirdly, a state can only be respected and acknowledged if it has a stable government that wields its authority without external interference and influence. The Palestinian government has never been autonomous because it takes orders from Israel; thus, it lacks sovereignty. “Declaration of Principles (DOP), which was signed by both sides, gave limited powers to the Palestinian National Authority” (Crawford 308). The DOP states clearly that Israel has more power than Palestine. For instance, Palestine can organize internal security operations, but cannot establish a military installation. This implies that Israel is the one dealing with external security matters of Palestine. The success of Palestine in both political and economic spheres, therefore, largely depends on the will of Israel. Lastly, Palestine lacks the capacity to handle diplomatic matters with the international bodies, and it can only do so if it is bolstered by Israel. This implies that Palestine operates under the tutelage of Israel’s authority.

The right to self-assertion cannot be fully realized without taking into consideration the importance of a territory because it is the one that dictates how a people will practice self-rule. Therefore, it is important to determine those lands that form the basis of Palestinian assertions. This implies that for Palestinians to have an authentic self-rule, they should reclaim their territories which in 1967 were seized by Israel. In other words, “it is not enough that there is Palestinian people who are entitled to self-determination, it is also necessary that the occupied territories form a viable unit for the exercise of that right” (Brownlie 187). Israel has often complicated territorial claims of Palestine as a way of subverting their efforts to gain self-rule.

This motive is exemplified by the manner in which Israel has settled its population in the conquered land, and of late, it has come up with a strategy of erecting a wall on its boundaries near Palestine. The Palestinians, argue that their land that was alienated by Israel should be surrendered back to them. The UN also supports that assertion. Nonetheless, Israel has more often than not refuted such claims stating that the territories they have occupied are disputed. In late 1967, “the United Nations Security Council adopted Resolution 242 which called for the withdrawal of Israel from occupied territories” (Asem 32). The Resolution was drafted poorly and it lacked the definite article ‘the’; thus, Israel declined to pull out of the occupied territories claiming that the resolution was not authentic. The syntax inaccuracy had serious implications on the Palestinians whose lives have been seriously affected by the failure of Israel to exit their territory. The omission is believed to have been deliberate effort of Israel not to surrender the territories it had annexed (Boyle 303).

In October 1973, the Security Council of the UN drafted the Resolution 338 which urged the conflicting parties to refrain from aggressive measures and use Resolution 242 in solving their disputes. Through Resolutions 242 and 338, the Security Council states that acquisition of territories through military aggression is illegal. Further, the Security Council through Resolution 446 denounces the settling of Israeli citizens in the conquered territories.

Conclusion

From this discussion and review of literature, it can be concluded that Palestine does not have the capacity to rule itself separately. As already stated, the fact that Palestine depends on Israel makes it more vulnerable to external attacks. Besides, it can only exert little authority over West Bank. Therefore, unless Palestine operates separately without influence from Israel, its autonomy will never be unproved. On the hand, Palestine has maintained claims that it is self-sufficient. Although many countries have acknowledged its independence, this does not grant it nationhood.

In other words, Palestine does not have legal authority to rule itself. First, untimely acknowledgment of a nation is a breach of international law. “In principle a state can only recognize another state when it has met de facto requirements of statehood” (Summers 235). Second, universal associations have not accorded Palestine any sort of recognition. Thus, Palestine acts as a witness not as a country in global matters because the global community does not honor its statehood. Consequently, “it can be concluded that Palestine is an independent body and not a nation because it does not meet the de facto principle of seeking statehood” (Asem 45).

Works Cited

Asem, Khalil. “Israel, Palestine and International Law.”Miskolc Journal of International Law 12.2 (2005): 20-39. Print.

Boyle, Francis. “The Creation of the State of Palestine.” European Journal of International Law 8.9 (1990): 301-306. Print.

Brownlie, Ian. The Principles of Public International Law. London: Oxford University Press, 2003. Print.

Cattan, Henry. Palestine and International Law. New York: Longman Group Ltd, 2010. Print.

Crawford, James. “The Creation of the State of Palestine: Too Much Too Soon?” European Journal of International Law 24.1 (1990): 307. Print.

Grant, Thomas. The Recognition of States: Law and Practice in Debate and Evolution. New York: Praeger, 2009. Print.

Stone, Julius. Israel and Palestine. New York: The John Hopkins University Press, 2008. Print.

Summers, James. People and International Law: How Nationalism and Self-Determination Shape a Contemporary Law of Nations. Ohio: Wiley, 2007. Print.

Watson, Geoffrey. The Oslo Accords International Law and the Israeli-Palestinian Peace Agreements. London: Oxford University Press, 2000. Print.

Weiss, Jeffery. “Terminating the Israel-PLO Declaration of Principles: Is it Legal Under International Law.” Journal of International Law 32.1 (1995): 109. Print.

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