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1 Covenant of the League of
Nations 1919 (adopted 29th April 1919), 1919 UKTS 4 (Cmd. 153), Art. 22.

2 Editorial
Comment, Termination of the British Mandate for Palestine, 2 Int’l L.Q. 57 (1948).

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3 Zionism
is a national revival movement that supports the re-establishment of a Jewish
homeland in the now contested Palestinian territory.

4
UNGA Res 181(II) (29 November 1947) UN Doc A/RES/181(II). https://unispal.un.org/DPA/DPR/unispal.nsf/0/7F0AF2BD897689B785256C330061D2533
accessed 7 September 2016.    

5 Anthony D’Amato, ‘Israel’s
Borders under International Law’, Northwestern University School of Law, Public
Law and Legal Theory Series No.06-34.                   

6 Aitza M.
Haddad, ‘Recognition of Palestinian Statehood: A Clarification of the Interests
of the Concerned Parties’ (2012) 40 Ga.J. Int’l & Comp. L. 341.

7 Including
the United States of America and the former USSR.

8 ibid 6.

9
UNSC Res 242 (22 November 1967) UN Doc S/RES/242.
https://unispal.un.org/DPA/DPR/unispal.nsf/0/7D35E1F729DF491C85256EE700686136
accessed 5 September 2016.

10 Background
on Observer Status at the UN, Permanent Observer Mission of Palestine to the
United Nations. http://www.un.int/wcm/content/site/palestine/pid/11550
accessed 4 September 2016.

11 David O. Lloyd,
‘Succession, Secession, and State Membership in the United Nations’ (1994) 26
N.Y.U.J. Int’l L. & Pol. 761.

12
Wasim I. Al-Habil, ‘Occupations, A. Diaspora, and the Design of Local
Governments for a Palestinian State’ (Nov. 5, 2008) (unpublished Ph.D.
dissertation, Cleveland State University),
http://etd.ohiolink.edulsend-pdf.cgi/AlHabil%20Wasim.pdfcsul226688053 accessed
8 September 2017.

13
Winston P. Nagan & Alitza M. Haddad, Recognition of Palestinian Statehood:
A Clarification of the Interests of the Concerned Parties, 40 Ga.J. Int’l &
Comp. L. 341 (2012), available at http://scholarship.law.ufl.edu/facultypub/590
accessed 9 September 2017.  

14
‘State Defined’ in Restatement of the
Law, Third of the Foreign Relations Law of the United States (1978) para
201.

15
Assaf Likhovski, Law and Identity in
Mandate Palestine 21-22 (2006) (the “Mandate for Palestine” which
was granted to the British by the League of Nations accelerated a massive
growth in the Jewish population adding to the diversified remnants of the late
Ottoman Empire made up of wealthy Muslims, middle class Christian merchants,
and peasants and nomads).

16
Francis A. Boyle, ‘The Creation of the State of Palestine’ (1990) 1 Eur.
J. Int’l L. 301.

17
Rashid Khalidi, Palestinian Identity: The
Construction of Modern National Consciousness (Columbia University Press
2010).

18
CIA World Factbook, West Bank and Gaza, https://www.cia.gov/library/publications/the-world-factbook/geos/we.html
accessed 6 September 2016.

19
James R. Crawford, The Creation of States
in International Law (2nd edn, Oxford Scholarship Online 2007).

20
Justus Reid Weiner & Diane Morrison, ‘Legal Implications of “Safe Passage”
Reconciling a Viable Palestinian State with Israel’s Security Requirements’
(2007) 22 Conn. J. Int’l L. 233.

21
Declaration of Principles on Interim Self-Government Arrangements, Isr.-PLO,
Sept. 13, 1993, art. 1.

22
Gudrun Kramer, A History of Palestine:
From The Ottoman Conquest to The Founding of the State of Israel (Princeton
University Press, 2008), at 306.

23
Christopher C. Joyner, International Law
in the 21st Century: Rules for Global Governance (Rowman & Littlefield,
2005).

24
UN G.A. Res 3237 (XXIX), U.N. Doc. A/RES/3237 (Nov. 22, 1974),
https://unispal.un.org/DPA/DPR/unispal.nsf/0/512BAA69B5A32794852560DE0054B9B2
accessed 10 September 2017.

25
Appendix B: International Organizations
and Groups, CIA World Factbook, http://www.cia.gov/library/publications/the-world-factbook/appendix/appendix-b.html#C
accessed 11 September 2017.

26
Taylor & Francis Group, The Europa
World Year Book 2004: Volume II 3325 (45th ed. 2004).

27
Alan Berger, Harvey Cox, Israel and Palestine: Two States for Two Peoples, If
Not Now, When? at https://scholar.harvard.edu/files/hckelman/files/Israel%20and%20Palestine_Two%20States%20for%20Two%20Peoples.pdf
accessed 12 September 2017.

28
ibid.

29 Khaled
Elgindy, “Palestine Goes to the UN: Understanding the New Statehood Strategy,”
in Foreign Affairs, Vol. 90, No. 5 (September/October 2011), pp. 102?113.

30
Henry J. Steiner, “West Bank Settlements and Boarders”, in Alan Berger and
Harvey Cox (eds), Israel and Palestine: Two States for Two Peoples, If Not Now,
When? at
https://scholar.harvard.edu/files/hckelman/files/Israel%20and%20Palestine_Two%20States%20for%20Two%20Peoples.pdf
accessed 12 September 2017.

 

31 ibid.

32  UNSC Res 2334 (23 December 2016) UN Doc S/RES/2334
at http://www.un.org/webcast/pdfs/SRES2334-2016.pdf accessed 10 September 2016.

33 ibid.

34 ibid.

35 ‘White
House will not push for two-state solution in Middle East’, (DW, 15 February 2017) http://www.dw.com/en/white-house-will-not-push-for-two-state-solution-in-middle-east/a-37555323
accessed 7 September 2017.

36 ‘Palestinian
officials urge US to clarify stance on future state’, (DW, 5 August 2017) http://www.presstv.ir/Detail/2017/08/08/531061/Palestine-Saeb-Erekat-US-Trump-stance-Palestinian-state
accessed 8 September 2017.

 

 

 

It is
the authors’ opinion that the illegality of the Israeli settlements coupled
with the legally binding nature of Resolution 2334 tilt the issue towards the
Palestinian cause. It is only a matter of time before the international
community takes cognizance of Palestine’s competence to be declared a state for
the purposes of international law.

 

On 23
December 2016, the UNSC passed Resolution 2334 (2016), which declares Israeli
settlements in the West Bank area as illegal and untenable in the eyes of
international law.32
The Resolution also goes on to state that the settlements are a “major obstacle to the vision of two States
living side by side in peace and security.”33 The
Resolution was passed with 14 affirmative votes and one abstention, notably from
the United States of America (“USA”).34
This Resolution, thus serves as key insight into the geopolitical stance of
major players like India, Russia and the USA with relation to the Palestinian
question. However, it is important to note that the change in regime in the USA
has brought about some confusion in USA’s official stance.35
This has prompted the international community to demand the Trump
administration to make their position on the Israel-Palestine conflict clear.36

 

Israel,
the PLO and PA, non-governmental organizations (NGOs) and legal experts have
all expressed views about the legal status under international law of the
occupation and of the construction of settlements. The Israeli government’s
arguments, made before its own High Court of Justice, to the UN and to other
countries, have claimed that Israeli policies and actions comply with
conventional and customary international law. The dominant, indeed
overwhelming, opinion of other states—including almost all democratic states,
UN organs, the EU, NGOs and foreign legal experts—holds that the settlements
are illegal under international law. Agreement is even deeper that settlements
constitute a major block to peaceful resolution of the conflict.31

Israeli
settlements began, in modest number and in population, in the years immediately
following the Six-Day war in the West Bank area. Currently, residential housing
sits upon approximately three percent of the territory of the West Bank, within
some 120 settlements.30

b.     
Israeli
Settlements in West Bank

 

This
solution, however, is rapidly being foreclosed by ever-expanding Israeli settlements and other “facts on
the ground” such as checkpoints, restrictions on movement, and land
confiscation.29

 

4.      The
issue of Palestinian refugees would be resolved in a manner that satisfies the
Palestinian concern for justice and historical recognition but would not
jeopardize Israel’s character as a Jewish-majority state.28

 

 

3.      Jerusalem
would be a shared and open city. Jewish neighbourhoods would be under Israeli
sovereignty and Palestinian neighbourhoods under Palestinian sovereignty. The
western portion would become the internationally recognized capital of Israel.
East Jerusalem would become the capital of the Palestinian state; and

 

2.      The
two sides would agree to security provisions designed to protect them from
attack;

 

1.      Israel
would withdraw from nearly all of the West Bank and end its blockade of Gaza.
The new Palestinian state would be territorially contiguous on the West Bank,
with equitable access to water resources and a secure land connection between
the West Bank and Gaza. If Israel retains small agreed-upon portions of the
West Bank, the Palestinian state would be compensated with land of equal size
and value from Israel;

These
elements include:

 

While
the conventional path to statehood runs through the United Nations, the UNSC
and the UNGA have wrestled with the complicated questions of Israeli and
Palestinian statehood since those bodies’ founding. The two-state solution
envisages ‘two states for two groups of people’ and has been advocated for from
the time of the 1947 UN Partition Plan. It offers the only realistic
prospect for lasting peace and attainable justice for Israelis and Palestinians.
Considerable diplomatic efforts have
gone into negotiating a two-state solution between the parties, the most
significant one being the Oslo Accords, which eventually culminated into the
Camp David Summit in 2000. No mutually satisfactory agreement has ever been
reached. The basic elements of a two-state solution are however
established and widely, though not universally, accepted by Palestinians,
Israelis and many states in the Middle East.27

a.      Elements and Framing of a Two-state Solution

 

The
authors are of the opinion that the most practical and tenable solution to the
Palestinian question is the two-state solution, which ideates the concept of
having two different states for two groups of people.

 

Concluding Observations

 

In
terms of a functioning government, it is the authors’ opinion that the PNA is
competent in and of itself and meets the criteria for statehood unambiguously.
The PNA does meet some of the criteria with relation to ability to enter into
relations with other states.23
Additionally, the PNA’s observer status at the UN,24
its participation in international organizations,25
and the international recognition it has received from the world community26
is testament to the legitimacy of its claims for statehood.  

 

The
issue of governance is one of the most complex issues in the question of
statehood. Under the Oslo Accords, a Palestinian National Authority (“PNA”) was
set up.21
However, the agreement left the issues relating to the final status of
Palestine up to the negotiations between Israel and the PNA. This move
implicitly left the PNA with a certain level of internal and external autonomy
and competence. It is the authors’ opinion that the UNSC resolutions which recognize
the West Bank and Gaza Strip areas as Palestinian land give the PNA de jure recognition. Additionally, it is
our opinion that the legally binding nature22
of the UNSC resolutions trumps Israel’s illegal occupation of the Palestinian
lands.

c.      
Functional
Government

 

Another
key criterion for the determination of statehood is a determinable territory.19
It is the authors’ submission that the relevant UNSC resolutions with relation
to the determining of territory of Palestine indicate a determinable territory.
However, Israel’s ultra-nationalist interests in the expansion of their
territory lead to a complicated situation with regards to the issue. Despite various
international interventions and promises, Israeli Prime Minister Benjamin
Netyanahu has not ceased the construction of Israeli settlements in the
West-Bank region. This approach is in line with his ultra-nationalist,
right-wing tendencies. In light of this dynamism of territories, the Montevideo
Convention on the Rights and Duties of States prescribes certain
qualifications, which state that if a Palestinian state is to exist, the
agreed-upon boundaries must be such that they create a viable territorial base
for a state.20

b.     
Determinable
Territory

 

The
criteria of population with relation to Palestine’s claims has been contentious
ever since the initiation of the Class A Mandate.15 However,
under this Mandate, Britain announced a policy for Palestine, under which the
people were to secure a homeland in Eretz Israel, for the Jewish people. This
was further emphasized in the Balfour Declaration. Article 22 of the Balfour
Declaration gave the Palestinians the right of self-determination. However, as
it also provided for an undertaking to promote a Jewish homeland in Palestinian
territory, Article 22 could not be implemented.16
Thus, it becomes important to analyse how true the Palestinian identity remains
in today’s day and age. Careful research has shown that there does exist a
continuity in the Palestinian national identity.17
It is our submission, thus, that Palestinians do possess a robust national
identity which can be clearly recognized under the UN Charter framework.  Moreover, there has certainly been a permanent
Palestinian population in the West Bank and Gaza areas.18

a.     
Population

 

To
properly understand the nuances of the ingredients of statehood, an in-depth
analysis of the same is necessary.

 

c.       This
entity must have the capacity to explicitly or implicitly engage in diplomatic
relations with members of the international community.14

b.      It
must have a relatively stable population and its population and territory must
be under the control of its government13;
and

a.       The
state must be a territorially defined entity;

The
most authoritative definition of a ‘state’ under international law can be found
under Article I of the Montevideo Convention on the Rights and Duties of
States.12 A
few key elements of the definition are as under:

 

The
PLO has been constantly lobbying for the international recognition of the State
of Palestine. These efforts have been ongoing ever since the Palestinian
Declaration of Independence in November 1988, in a session-in-exile held by the
Palestinian National Council. In light of the same, it becomes necessary to
analyse the legality of Palestine’s claims and whether they are good in law or
not. The issues involving “criteria for statehood” and the various specific
effects and implications of recognition, are intertwined and complex in the
eyes of international law.11
The status of Palestine draws its sustenance from modern developments of
international law.

 

The Legality of Palestine’s Claims for Statehood

 

Even
though the attempt to establish a Palestinian state proved fruitless, the Six-Day
War still had a positive consequence for Palestinians, whereby a number of
Palestinian organizations joined together to form the Palestinian Liberation
Organization (“PLO”). The PLO created “The Palestine
National Charter”, a declaration of Palestinian identity and sovereignty, with
the expressed goal of establishing a sovereign Palestinian state. The PLO,
recognized as the ‘sole legitimate representative of the Palestinian people’
was ultimately granted observer status by the UNGA and in 1988 when the PLO
adopted the “Declaration of Independence of Palestine”, proclaiming the new
State of Palestine, the UN upgraded the observer seat of the PLO, according it the
designation “Palestine” without explicitly referring to it as a state.10 However
the PLO has now split into two groups- Fatah and Hamas, whose approaches to
claiming statehood are radically divergent.

 

The
Six-Day war of 1967 further increased the size of Israel at the expense of the
Palestinians. In the direct aftermath of the war, the United Nations Security
Council (“UNSC”) passed Resolution 242 calling for the withdrawal of Israeli
forces “from territories of recent conflict” and “achieving a just settlement
of the refugee problem.”9 Israel took the position
that it was not legally required to withdraw from the West Bank and the Gaza
Strip that it had just conquered, and that it could erect Israeli settlements
in those territories.

 

The effect of the Resolution
was the “Declaration of the Establishment of the State of Israel”, on 14th
May, 1948.  In
addition to Resolution 181, the Jewish Agency relied for its claim to Palestine
on self-determination and ancient title. This
declaration was followed by other
sovereign states bilaterally recognizing the state of Israel as a sovereign
nation-state.7
The creation of a state and a declaration by its people were thus preceded by a legal fact creating some factual conditions, suggesting that
there was an expectation that, the community will seize upon the legal “green
light” of statehood.8 This proclamation was however
not well received by neighbouring Arab nations, who invaded “the new State” in
an act of support of the Palestinian Arabs, resulting in the 1948 Arab-Israeli
War. Israel emerged victorious in this war, which further cemented their claim
for statehood. In addition to this, Israel also invaded those territories which
had been handed over to the Palestinians under Resolution 181(II). This
resulted in a drastic demographic change with Palestinians refugees fleeing
their homes from areas that subsequently became Israel.  This was then followed by increased Jewish
immigration to the contested territories. Such mass population movements have
made it impractical to return to the legal boundaries set forth in the
Partition Plan of 1947.

 

Thus, eventually when the
British intended to terminate their mandate over the Palestinian territory, Great
Britain argued that it could not leave Palestine as a unitary self-governing
state, but it should be able to relinquish its trusteeship if the territory
were divided into two states.  In
order to solve the conflicting objectives of Zionism and Palestinian
nationalism, the United Nations General Assembly (“UNGA”) on 29th
November, 1947 adopted ‘Resolution 181(II)’, proposing a partition of Mandatory
Palestine and the creation of
independent Arab and Jewish States and a Special International Regime for the
city of Jerusalem.4 This was the first,
last, and only legally
authorized demarcation of the Israeli-Palestine border. It was
legally authoritative not because it took the form of a United Nations (“UN”)
Resolution, but solely because the UN Resolution itself served as a
ratification of the British proposal to divide the Mandate and leave its
governance to the people.5
The problem however was that the Resolution did not envisage a community acting
as a people and with discernible leadership and representation expressing a
claim to self-determination and independence.6

 

During the late 19th
Century, Europe witnessed the golden age of ‘nationalism’ and with it, the rise
of modern Zionism.3  In 1917, the British Government, in order to
garner popular Jewish support during WWI, released the Balfour Declaration
which endorsed the creation of a Jewish homeland in Palestine. It also
facilitated Jewish immigration to the concerned territory which had
the consequence of creating a critical Jewish presence in Palestine. For resident Palestinians
this influx of outsiders, who were then given various preferences, was
extremely threatening. This resulted in a very hostile atmosphere.

 

The contested territory of
Palestine was initially under the Ottoman Empire. However, after the Empire’s
defeat and dissolution during World War I (“WWI”), the territory was put under
the mandate of its colonial acquirer – Britain.1 This
mandate commenced a process of international supervision of colonial
administration, thereby permitting Britain to administer Palestine. It
was envisaged that the mandates would find their natural and only conclusion in
the attainment of independence by the mandated territory.2

Historical Background of the Palestinian
Statehood Conflict

The idea of a Jewish State was
first proclaimed by Theodor Herzl several years ago. At that time, there were
absolutely no grounds to justify such claims (such claim being based on a
“right of return”). Thus, the eventual crystallization of a Jewish State in
Palestine is hardly less than a miracle. While the statehood of Israel has now
been concretely established, the status of Palestine under international law is
yet to be determined.

Introduction

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