Burning questions: Is Palestine considered a state?

WASHINGTON: Palestinian statehood is currently disputed among scholars, diplomats and individual nations. Here’s what you should know. There are two theories of statehood: The declarative theory and the constitutive theory. Subscribers to the declarative theory say a state can be considered as such if it meets the definition of statehood declared in the 1933 Montevideo Convention, which says that in order to be considered a state, a territory must have a permanent population, a defined territory, its own government and the capacity to enter relations with other states.

The convention explains that the political existence of a 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 for its conservation and prosperity, and consequently to organize itself as it sees fit, to legislate upon its interests, administer its services, and to define the jurisdiction and competence of its courts,” it says.

That leads to the second theory of statehood: constitutive theory. Unlike the Montevideo Convention, this theory says that a state can only be considered a state if the rest of the world recognizes it as such. This theory is not codified in law: rather, it considers modern statehood a matter of both international law and diplomacy.

Do the Palestinian territories fit the definition of a state? Scholars have differing opinions on whether the Palestinian territories fit the legal definition of a state. Some say they do, while others say they don’t meet the requirements enshrined in the Montevideo Convention. Some argue against the use of the Montevideo Convention in determining statehood altogether, saying the Palestinian territories’ best hope of claiming statehood is through international recognition.

The majority of the 193 UN member states — 139 — recognize the Palestinian territories as a state. A state’s bid to join the United Nations must be approved by at least nine of the 15 members of the UN Security Council. If any of the five permanent members of the council veto the bid, the country cannot join. China, France, the Russian Federation, the United Kingdom and the United States make up those five. The Palestinian territories are not recognized by the US, France or the UK as a state. These three nations have said they will not recognize Palestinian statehood until the conflict with Israel is peacefully resolved. Nine of the 27 EU member states recognize Palestinian statehood. Almost all of the EU member states that recognize Palestinian statehood are states that were once members of the Soviet Union, and all recognized its statehood before joining the bloc.

Sweden, which recognized Palestinian statehood in 2014, is the only country to have done so as a member of the bloc. Palestine is currently considered a non-member observer state to the UN, which means it is welcomed to participate in sessions of the General Assembly and can maintain offices at the UN HQ.

Because of its non-member observer status granted in 2012, it was given membership in the International Criminal Court (ICC) in 2015, the only permanent international court that can prosecute individuals for war crimes. In 2021, then-Prosecutor Fatou Bensouda announced that the ICC was opening an investigation into the situation in the Palestinian territories. Palestine’s accession to the Rome Statute and ICC membership gave the ICC the legal capacity to investigate crimes committed by Palestinians or on Palestinian territory. The probe, which Israel has condemned, is currently ongoing.