Recognition under International Law

Issues, perspectives and implications with special reference to Palestine and Israel

Aarif Muzafar Rather
Srinagar, Publish Date: Jan 4 2018 11:15PM | Updated Date: Jan 4 2018 11:15PM
Recognition under International Law

Donald Trump’s recent announcement of recognizing Jerusalem as Israel’s capital sent waves of anger through the Muslim world and in response through a resolution before the United Nations co-sponsored by Turkey and Yemen, 128 countries condemned the move by US and nine counties supported the move in the UN poll. Under International Law and diplomatic forums, the status of Jerusalem remains contested and has become “a city without a country”. The purpose of this research based write-up is to explore the areas that fall under recognition as a concept, historical cases and the instances of Palestinian and Israeli recognition.

What is Recognition?

International law is in a period of transition (Ingrid Wuerth). International law has expanded to almost every corner of the world and its basic principles, including the concept of recognition, have been changing due to political influences, legal factors, different apprehensions and assertions of the Security Council (as have been observed at many instances) and diplomatic tactics of world powers. Likewise, no explicit definitions of international legal terms are conceivable.

Recognition is a statement by an international legal person as to the status in international law of another real or alleged international legal person or of the validity of a particular factual situation (Malcolm N. Shaw). Recognition is followed by legal consequences and the international legal participation and process are important in the context of international relations of the state. A state is, therefore, accorded with rights and duties and it depends upon how different states recognize a particular entity favored by their own considerations. (Recognition) is purely a political judgment, although it has been clothed in legal terminology (Carl Zeiss Stiftung v. Rayner and Keeler [1967] AC 853). An example of how recognition is a political construct is the United States' formal recognition of China almost three decades after its founding because it did not want the legal effects of recognition to apply and demonstrated their “mark of approval” as an absolute authority.

There are two theories of recognition- 1.) Constructive theory of recognition maintains that recognition by other states creates a new state and that such consent of the already existing states is important. 2.) Declaratory theory maintains that states come into existence by virtue of practical situations and that recognition of the state by other states plays no role in its practical and legal establishment as a state.

Israel’s status

 Israel has been accepted by the majority of nations as well as the United Nations as a valid state despite the fact that its frontiers have not been finally settled and despite its involvement in its hostilities with its Arab neighbors over its existence and territorial delineation (Brownlie). The UN General Assembly in its resolution 273 of 1949 declared Israel as a “peace-loving state” and on the recommendation of the Security Council “admit (ted) Israel to membership in the United Nations”.  After the Israeli Declaration of Independence in 1948, United States gave de facto (a case of inconsistency with legal and factual sovereignty) recognition to Israel and Soviet Union became the first country to recognize Israel de jure (signifying acceptance of a permanent recognition) despite having ‘camaraderie’ with the Arab world, little sympathy for Zionism, and holding that Zionism was “a theocratic bourgeois doctrine, unworthy of support” until its realization as a state. It is pertinent to mention here that Russia today denunciates Israel and Zionism as instruments of Anglo-American imperialism. Likewise, when General Assembly addressed the issue of genocide of Palestinians in refugee camps in 1982, Israel was blamed for the atrocity, the Security Council condemned the “criminal massacre of Palestinian civilians” and following this, the Soviet Union said; ‘The word for what Israel is doing on Lebanese soil is genocide. Its purpose is to destroy the Palestinians as a nation.’ At present, however, many countries are yet to give an express recognition to Israel as a legal and factual sovereign.

Arab World’s recognition of Israel is rarely based on the contention that the other party is devoid of powers and obligations before international law and exists in a legal vacuum (Bulletin of the US Department of State, 1958; emphasis added).  The stance is rather that rights and duties are binding upon them, and that recognition has not been accorded for primary political reasons (Malcolm N. Shaw, International Law, p. 447). Israel was recognized by the US and the UK government by the expedient of having its government recognized de facto (Whiteman). There are instances where a state may be recognized impliedly but Arab countries with regard to Israel have maintained that an action involving Israel is not an act of recognition.

Israel today is one of the most powerful-militarily, technologically and diplomatically- countries globally and has a strongly built and advanced economy that make it a major global rival today.

 

Palestine vis-à-vis global developments

The Palestinian issue was first taken to the United Nations by Great Britain on April 2, 1947, the same country that facilitated the settlement of Jews on the Palestinian territory. A theological approach might suggest that Palestine has been “a center of international rivalry intermittently since the beginning of human history,” but the recent past of the deadly conflict dates back to November 2, 1917 when the Balfour Declaration was announced promising Jews a “national home” by the British. As a consequence, Jews began their emigration towards Palestine. What proceeded the emigration of Jews into Palestine is a story of great distress and a living account of the evasion of international criminal justice and the politics around it. The political and geographical fragmentation of Palestine, increasing control of West Bank territory, deteriorating human rights standards, increased Israeli military presence suggest that the resolution of the issue is as remote as it has been through more than a century of the occupation. In 1967, Israel occupied East Jerusalem, the West Bank, the Gaza Strip and the Golan Heights that only increased the methods of warfare and occupation. As far as the international status of Palestine is concerned, it is recognized by 193 member states of the United Nations (as of 2015). The Palestinian Declaration of Independence proclaimed the establishment of Palestinian state in exile and their claims of statehood were rendered even weaker as they were disposed of the territories they claimed. The development of international criminal law witnessed a subjugation of the Palestinian population. As for example, while the Convention on the Prevention and Punishment of the Crime of Genocide was being drafted in 1948, “Palestinians were ‘cleansed’ of areas of the new state of Israel”(Mark Tessler, A History of the Israeli-Palestinian Conflict).  Similarly, when the war crime of transferring settlers into an occupied territory was included in the Rome Statute, Israel objected to it, arguing that it was not an offence of customary nature. (William Schabas, Unimaginable Attrocities, p.37) However, the important moments that highlight the globally acknowledged legal struggle of the Palestinian state vis-à-vis international institutions can be observed in the light of the following timeline of events. 

My concern here is with the development of the status of Palestine with reference to international institutions only-

 

1. 1947: UN adopted a partition plan for a two-state solution to the Palestinian problem.

2. 1972: The UN Security Council permitted PLO to participate in the debates with the same rights of participation as a member state.

3. 1974: UN invited PLO to participate as an observer at the General Assembly.

4. 1982: Israeli forces sealed off two Palestinian refugee camps and it followed mass killings. UNGA labeled the crime genocide.

5. 1988:

a. Palestinian Declaration of Independence was proclaimed by Yasser Arafat and was adopted by Palestine National Council on 18 Nov, 1988. 

b. PLO’s engagement in institution-building started in the occupied Palestinian territory with close diplomatic cooperation with the European Union and the United States, as well as with Israel. Palestine thus emerged as a de facto state entity. Palestine (emerged) as an international actor without significant controversy (Palestine and the Politics of International Criminal Justice, Kearney and Reynolds).

c. The General Assembly decided that the designated ‘Palestine’ would replace ‘PLO’ at the UN.

5. 1989: a. Yasser Arafat is elected the first President of the State of Palestine.

                b. The PLO engaged with international law, submitting ratification of documents for the Geneva Conventions.

                c. The Security Council admitted the Palestinian delegation to sessions of concern to Palestine and ‘treated Palestine as a state,’ as some argued (Quigley).

6. 1993: Israel-PLO Declaration of Principles on Interim self-government Arrangements began as a result of the Oslo Declaration. The great euphoria produced by this extremely limited breakthrough obscured the fact that far from guaranteeing Palestinian rights, the document in effect guaranteed the prolongation of Israeli control over the Occupied Territories (Edward Said, Speaking Truth to Power).

From the inception of the PLO-Israel negotiations, expansionist Israeli settlement activity was increasingly promoted and funded by successive Israeli governments, keen to gain control over as much West Bank territory as possible beneath the convenient veil of a stuttering peace process (International Criminal Law, The Ashgate Research Companion, p. 409).

7. 1994: Palestinian Authority is established.

8. 1995:

 a. Palestine was admitted into the International Olympic Committee.

 b. Palestine was admitted as the member of FIFA.

 c. ICANN provided Palestine with an Internet suffix and Palestinian phones received a national prefix.

It’s important to mention here that Palestinian passports are accepted globally.

9. 2004: ICJ, in its advisory opinion, calls the construction of wall by Israel within the occupied West Bank as unlawful upon PLO’s submission.

10. 2005: The number of Israelis living in the West Bank and East Jerusalem almost doubled to 443,303 from 227,600 in 1991. (Source: Foundation of Middle East Peace, Statistics and Tables).

11. 2009: ‘Goldstone Report’ is published by the UN fact-finding mission on the Gaza Conflict. In relation to Israel’s assault on Gaza, the report concluded that ‘what occurred in just over three weeks at the end of 2008 and the beginning of 2009 was a deliberate disproportionate attack designed to punish, humiliate and terrorize a civilian population…’ (UNHRC Report of 2009

12. 2009: Palestine attempted to accept the jurisdiction of ICC.

13. 2012: The application of 2009 by Palestine for invoking jurisdiction was declined by ICC.

14. 2015: Palestine lodged a declaration under article 12(3) of the Rome Statute accepting the jurisdiction of the International Criminal Court. Following this, ICC announced the opening of a preliminary examination into the situation in Palestine.

 

The absence of global support for Palestinian independence continues. The ICJ recognized the independence of the state of Kosovo in its Advisory Opinion in 2008 but the failure and reluctance towards the realization of the Palestinian state continues. While the Muslim World is concerned about Palestine as a political movement, the West continues to frame policies of seeing the Palestinian issue as one of violence and extremism. The reluctance to the state of Palestine is not reserved to different state policies alone, but is endorsed by intellectuals, media and experts who determine how Palestine has to be controlled. As Edward Said wrote, “…Personally I have encountered them in one of the toughest of all contemporary issues, Palestine, where fear of speaking out about one of the greatest injustices in modern history has hobbled, blinkered, muzzled many who know the truth and are in a position to serve it.” To conclude, amid the strong resistance sentiment that has seen the rise of many young heroes in Palestine, the suppression and dispossession of Palestinians continues.

 

Abbreviations:

FIFA: Fédération Internationale de Football Association

ICC: International Criminal Court

UNGA: United Nations General Assembly

UNHRC: United Nations Human Rights Council

ICJ: International Court of Justice

PLO: Palestinian Liberation Organization

PA: Palestinian Authority

ICANN: Internet Corporation for Assigned Names and Numbers

UN: United Nations

UNSC: United Nations Security Council.

(Aarif Muzafar Rather is pursuing a bachelor’s in law from Central University of Kashmir.