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International Law and Recognition of State: US Foreign Policy Intrigues and Implications
Bola A. Akinterinwa
Recognition in international law is an important subject area for various reasons. First, it is an attribute of national sovereignty. Every sovereign state has the right to recognise or not to recognise the existence of another state as sovereign. An act of recognition is preparedness to enter into relationship with the recognised state. Refusal to recognise is non-preparedness to relate. Secondly, recognition has been admitted as a fourth condition for the existence of a state. Normally, only three conditions were required for a state to exist under international law before the December 26, 1933 Convention of Montevideo was done. They were a) existence of a government that has the capacity to enforce internationally-contracted obligations b) existence of a permanent population over whom jurisdictional authority is exercised, and c) available territory over which to also exercise authority.
Put differently, a people without territory or land is meaningless as a territory without people is also meaningless. Contrarily to the principle of terra nullius (nobody’s land) which was used to justify colonial occupation, there is no land without ownership. A people must own land to exist as a state. In the same vein, people-to-people or government-to-government relationship also requires representatives to act on their behalf. In spite of this, the Montevideo Convention has added recognition as a fourth condition without which a state cannot enter into international relations.
When this postulation is explicated in the context of US foreign policy on recognition of the State of Palestine, there is no disputing the fact that a State of Palestine already exists. Several sovereign States have already recognised it, but Israel and United States have refused to recognise it. The US is not only using its right of veto to intimidate, but to also block, other Member States of the United Nations from recognising the State of Palestine. This is most unfortunate, because it is a violation of International diplomatic law. The violation is loaded with multidimensional implications.
Recognition in International Law and Practice
Theoretically speaking, there are two types of recognition in international law: declarative and constitutive. Both of them are explained as the process of formally accepting the existence of a State or government. Declarative recognition admits the existence of a state in the sense that the three basic requirements of statehood had already been met, and therefore, the act of recognition only acknowledges the existence of the state. On the contrary, constitutive recognition says that a state can only become a subject of international law or enter into international relations and acquire international personality through the act of recognition by other sovereign states.
Put differently, recognition by other states is nothing more than a declaration of acceptance, which does not create the state but only confirms its existence. This implies that declaratory recognition is not part of the constitutive criteria for the formation of a state. Declaratory recognition is more of a political act. As such, what makes recognition particularly significant in international law and relations is that it enables a state to have international personality. Without declarative or constitutive recognition, even if the state has already met the requirements of statehood, a state does not have and cannot enjoy the privileges of international personality.
It is against this background that the current international controversy surrounding the Palestinian State should be explained and understood. The State of Palestine already exists. Some have recognised it constitutively and declaratorily. Some are preparing to do so this month at the UN General Assembly, and very few countries, basically the State of Israel and the United States of America, have refused to recognise the State of Palestine as a sovereign state.
In this regard, it is useful to note that the recognition of a state is different from the recognition of government. In a different vein, the rights of a state before and after an act of recognition remain the same. First, at the level of recognition of state, as noted earlier, and as stipulated in Article 1 of the Montevideo Convention which was done on December 26, 1933 and entered into force on December 26, 1934, a state is considered ‘a person’ and exists when there is a union of a permanent population, a well-defined territory, a functional government to ensure law and order at the municipal level, as well as having the capacity to enter into international relations or enforce international law.
Article 3 of the Montevideo Convention provides further that ‘the political existence of the state is independent of recognition by the other states. Even before recognition the state has the right to defend its integrity and independence, to provide its conservation and prosperity, and consequently to organise itself as it sees fit, to legislate upon interests, administer its services, and to define the jurisdiction and competence of its courts…’ Put differently, the point of emphasis is that the political existence of a state has nothing to do with its being recognised or not. With or without recognition, a state that exists constitutively has the right to defend its independence and integrity. Additionally, and perhaps more importantly, Article 6 of the Convention stipulates that ‘the recognition of a state merely signifies that the state which recognises it accepts the personality of the other with all the rights and duties determined by international law. Recognition is unconditional and irrevocable.’
This Article 6 not only strengthens Article 3 but also underscores the importance of recognition and why thinking twice is always necessary before engaging in any act of recognition. The article says that recognition is ‘unconditional,’ that is, the act of recognition is done freely. There is no country under any obligation to recognise. When an act of recognition results from a sovereign decision, it eventually becomes ‘irrevocable.’ It is at this juncture that the recognition of a state should be differentiated from the recognition of a government which has a transient character. Recognition of a government can be revoked.
One other article of the Montevideo Convention relevant to our discussion here is Article 11. It requires the contracting States to ‘establish as the rule of their conduct the precise obligation not to recognise territorial acquisitions or special advantages which have been obtained by force whether this consists in the employment of arms, in threatening diplomatic representations, or in any other effective coercive measure. The territory of a state is inviolable and may not be the object of military occupation nor of other measures of force imposed by another state directly or indirectly or for any motive whatever even temporarily.’
When this particular article is examined in the context of the Israelo-Arabo-Palestinian conflict, when we also factor into our analysis the policy stand of the United States, and when we also recall the fact that the United States is a signatory to the Montevideo Convention even if its involvement is with reservation, under no circumstance should any state be violated.
In this regard, and without whiff of doubt, entering into international relations or enforcing international law is an act that creates obligations that every state must also implement: preventing its domestic conditions from threatening international peace and security. For instance, a state is required to settle all its disputes with other sovereign states peacefully to avoid endangering global peace and security. This is one major rationale for the existence of a state and also for the establishment of the United Nations.
Secondly, at the level of recognition of government, recognition has a discretionary character. It is a political act that acknowledges the competence of a body to act on behalf of the state regardless of whether it even possesses the constitutive requirements of statehood. From the foregoing recall of some theoretical postulations and relevant convention, there is no disputing the fact that the State of Palestine exists declaratorily and constitutively, at the level of the majority of the countries of the world. For the United States and Israel, the State of Palestine does not even exist constitutively, not to even go to the extent of its recognition declaratorily. Why have the majority of the Member States of the international community recognised the State of Palestine and the United States and Israel, in particular, have refused to recognise it?
US Foreign Policy Intrigues and Implications
The existence of the State of Palestine dates back to 15 November, 1988 when the Palestine Liberation Organisation (PLO) declared it and claimed sovereignty over the West Bank, which includes East Jerusalem, and the Gaza Strip. West Bank and the Gaza Strip are internationally recognised as Palestinian territories. East Jerusalem was earmarked to be the political capital.
And true enough, when the State of Palestine was declared on 15 November, 1988 not less than 78 countries recognised it immediately. Countries like Algeria, Bahrain, Indonesia, Iraq, Kuwait, Libya, Malaysia, Mauritania, Morocco, Somalia, Tunisia, Turkey and Yemen recognised the State of Palestine on 15 November, 1988. Twelve countries recognised it on the 16th, five countries did so on the 17th, nine countries, including Nigeria, did so on the 18th five countries recognised it on the 19th, and only one country, China, did so on the 20th. Six countries did so the following day. The recognitions have continued since then.
It is useful to remind here that in 2011, the State of Palestine was admitted into UNESCO, as well as admitted as an observer State of the UNGA following the vote on UNGA Resolution 67/19 on the Status of Palestine. 138 Member States voted in favour. As at the time of the adoption of the Resolution, 132 countries had already recognised the State of Palestine. The resolution was therefore nothing more than the codification of the situational reality on the ground. For instance, Article 1 of the Resolution ‘reaffirms the right of the Palestinian people to self-determination and to independence in their State of Palestine on the Palestine territory occupied since 1967.’ This Article 1 is a reflection of the constitutive recognition of the State of Palestine. It is also a reflection of the fact of existence of the State.
More important, paragraph 2 of the Resolution stipulates the decision of the UNGA ‘to accord to Palestine a non-member observer State status in the United Nations, without prejudice to the acquired rights, privileges and role of the Palestine Liberation Organisation in the United Nations as the representative of the Palestinian people, in accordance with the relevant resolutions and practice.’ In our view, a State that does not exist and also duly recognised cannot be given an ‘observer status.’ Thus, the State of Palestine is already a fait accompli in the eyes of the UNGA. It has been recognised declaratorily and constitutively.
With the admission of the State of Palestine as an observer State, the use of ‘State of Palestine’ began in international diplomatic practice. And true again, the International Criminal Court strengthened the new status by also recognising the State of Palestine in December 2014 without prejudice to future judicial determinations on the matter. As of today, not only have 148 out of the 193 Member States of the UNGA recognised the State of Palestine, some great powers, including France, have also recently indicated their preparedness to recognise the State of Palestine in the next UNGA beginning next week. In fact, it can be rightly argued that Israel has recognised the Government of the State of Palestine by virtue of the 1993 and 1995 Oslo agreements, regardless of the usage of the terminology of ‘Palestinian Authority as a self-governing interim administration in the Gaza Strip and around 40% of the West Bank.’
After the assassination of Yitzhak Rabin and Benjamin Netanyahu’s ascension to power, negotiations between the Palestinian Authority were stalled. This led the Palestinians to pursue the international recognition of the State of Palestine without Israeli acquiescence (Wikipedia). The disagreement of the Israelis, however, does not prevent, and has not prevented the continued existence of the State of Palestine. The relevant point to note therefore is that the non-recognition has not enabled the establishment of diplomatic ties with Israel.
Many countries that have recognised the State of Palestine have exchanged diplomatic missions. Explained in other words, Yitzhak Rabin opted for peace but his successor, Benjamin Netanyahu, opted for belligerence and the United States has been actively supportive of Israel in this regard. It is in this context that we discuss here the international politics of recognition and particularly the US foreign policy intrigues and implications. Without jot of doubt, many countries are guilty of policy dualism and intrigues. They condemn Israel and support the Palestinian Authority and, at the same time, strengthen Israel to engage in policy intransigence and recklessness. By so doing, they encourage Israel to disrespect international humanitarian law.
For instance, the European Union adopted an encouraging policy stand that insists on non-recognition of any changes to the 1967 borders other than those agreed upon between the parties to the dispute. Israeli occupations on Palestinian territories following the Six-Day War have continued forcefully since then and they have always been generally condemned but condoned. The EU says the Israeli settlements and military activities on Palestinian territories are illegal, disproportionate, involving excessive use force and therefore calling for immediate ceasefire.
And true enough, the EU, following the Gaza War of 2008-2009, the European Parliament also endorsed the Goldstone Report. It also condemned the Israeli blockade of Gaza, preventing humanitarian aid to the people. In the eyes of the European Parliament, it was an unacceptable ‘collective punishment.’ With this type of policy stand, one cannot but expect unconditional active engagements to translate the policies into action.
Most unfortunately, however, on the diplomatic field, the story is completely different. It should be recalled that, during the Operation Defence Shield in 2002, the European Parliament passed a non-binding resolution calling for economic sanctions on Israel and an arms embargo on both parties. Calling for economic sanctions is quite good a resolution but the resolution does not have any legal, binding effect to compel implementation compliance.
In the same vein, the European Community and the European Union made different declarations in the 1970s that considered and admitted the Palestinians as a people, a requirement for the establishment of a sovereign state in international relations. They also recognised the need for the Palestinians to have a homeland as earlier promised in 1917 by the then British Prime Minister, William Balfour, in his Declaration of November 2. It was therefore not surprising to have had the EU Foreign Policy Chief, Javier Solana, calling for a homeland and recognition of the Palestinian State in July 2009.
As Javier Solana put it, ‘the mediator has to set the timetable. If the parties are not able to stick to it, then a solution backed by the international community should— be put on the table. After a fixed deadline, a United Nations Security Council resolution… would accept the Palestinian State as a full Member of the United Nations, and set a calendar for implementation.’ Additionally, in December 2009, the EU Council reasserted the need for a 2-State solution to the conflict.’
Good aspirations that meant nothing indeed, so to say. However, Javier Solana’s call was still quite significant because of his insistence that the EU ‘has never recognised the annexation of East Jerusalem’ and that the EU ‘will not recognise any changes to the pre-1967 borders including with regard to Jerusalem, other than those agreed by the parties.’ For various reasons of conflicting national policy positions, Javier Solana’s call could not but mean nothing.
The House of Commons of the United Kingdom, one of the major sources and instruments of the politico-military lull in the Israelo-Palestinian conflict, voted to recognise Palestine as a State in 2014 in the belief that it would help in achieving a negotiated 2-State solution. The UK government acted contrarily, positing that the UK would continue to maintain its policy of ‘reserving the right to recognise Palestine bilaterally at a more opportune time for peace efforts.’ The German government openly supports the 2-State solution but maintains that Palestinian recognition should be a follow-up to diplomatic negotiations rather than precede the peace process.
The argument of the US is quite different and more disturbing. The United States not only ‘believes the establishment of a Palestinian State on the West Bank would be destabilising and harmful to the peace process’ but also that it will create more problems. This explains why President Reagan ‘continuously opposed the establishment of a Palestinian State or negotiating with the Palestinian Liberation Organisation.’ This also explains why he proposed a Palestinian authority under the Jordanian supervision. The US recognises the PLO as the legitimate representative of Palestinians but does not recognise the State of Palestine. What does this really mean? United States wants to be a mediator in the Israelo-Palestinian conflict but has partisan interests. US supports Israel. The US wants ceasefire but has sanctioned three Palestinian human rights organisations that wanted the International Criminal Court to investigate and arrest Israeli leaders for war crimes in Gaza. The US revoked visas given to the Palestinian leader, Mahmoud Abbas, and 80 others to prevent them from attending the 80th UNGA contrarily to the UN-US Headquarters agreement. All these acts are not more than foreign policy intrigues that have the potential to militate against the maintenance of international peace and security in the foreseeable future. If about 150 countries have already recognised the State of Palestine, the warning or threatening by US Secretary of State, Marco Rubio, to France and others intending to recognise the Palestinian State are nothing more than policy intrigues that should be stopped..
