By Sonia Boulos & Xavier Abu Eid
Abstract: Recognizing the State of Palestine is first and foremost an act of historical justice, and a reaffirmation of the inalienable right of the Palestinian people to self-determination. But if the aim of recognition is to end the Israeli occupation, it should not be an empty, symbolic gesture. Recognizing a Palestinian State without explicitly recognizing the 1967 borders could even exacerbate the vulnerability of the Palestinian people and embolden Israel's colonial policies. Recognition should also be followed by decisive action to put an end to all the violations of peremptory norms of international law committed by Israel that aim at preventing the Palestinian people from exercising its inalienable rights.
Introduction
Recognizing the State of Palestine is first and foremost an act of historical justice, and a reaffirmation of the inalienable right of the Palestinian people to self-determination. The recognition of a Palestinian statehood can become an international tool for the enforcement of basic norms of international law that Israel violates in Palestine, including the prohibition on settler-colonial occupation, annexation, and Apartheid. The recognition of a Palestinian statehood is in line with Article 1 of the United Nations Charter, which tasks the organization with maintaining international peace and security while taking “effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression.”
The nature of the international law violations inherent in Israeli occupation of Palestinian lands require their immediate cessation. Therefore, opposing the recognition of a Palestinian statehood and insisting on bilateral negotiations between Israel and Palestine, when the Israeli occupation constitutes a flagrant violation of peremptory international norms, contradict the very spirit of international law.
So far, close to 140 countries have already recognized that State of Palestine. Most of them are from the Global South. An ongoing effort led by Spain has brought together several European countries willing to recognize Palestine, including Ireland, Slovenia, Belgium, Malta, and Norway. But if the aim of recognition is to end the Israeli occupation, it should not be an empty, symbolic gesture.
Recognizing a Palestinian State without explicitly recognizing the 1967 borders could even exacerbate the vulnerability of the Palestinian people. It could create the false impression that the international community has met its obligation to bring an end to an illegal situation, while Israel’s colonization project continues aggressively on the ground. Recognizing a Palestinian State without recognizing the 1967 borders would embolden Israel’s colonial policies. It would give it the latitude it needs to create facts on the ground while claiming that the future borders should be the subject of negotiations, as it did in previous negotiation processes. It would also hinder the Palestinian’s ability to use international law institutions to further the cause of their liberation.
The Quest for a Palestinian Statehood: A Historical Overview
The Palestinian struggle for national liberation has been going on for over a century. The call for an independent Palestine was at the core of the demands presented by the Palestinian national movement to the British authorities. The third Palestinian National Council, held in Haifa in 1920, demanded independence and the establishment of a government representative of the people of the country. It also called to put an end to the transfer of Arab land to Jewish immigrants. Such calls were largely ignored by the British authorities who remained committed to the execution of the Balfour Declaration. This involved changing the demography of Palestine and the negation of the right to self-determination for its indigenous population.
Palestine became an exception to the international norm on self-determination from very early on. British disregard for the rights of the indigenous people of the land was reiterated on several occasions by British leaders, notably including Lord Balfour. Balfour acknowledged that “the weak point of our position of course is that in the case of Palestine we deliberately and rightly decline to accept the principle of self-determination (…) we do not propose even to go through the form of consulting the wishes of the present inhabitants of the country... the 700,000 Arabs who now inhabit that ancient land.”
Opposition to Palestinian Arab independence was at the core of the British mandate. In a speech to the House of Lords in 1923, Lord Milner was clear in explaining British policy: “Palestine can never be regarded as a country on the same footing as other Arab countries. You cannot ignore all history and traditions in the matter (…) the future of Palestine cannot possibly be left to be determined by the temporary impressions and feelings of the Arab majority in the country of the present day.”
It was not until the Palestinian rebellion of 1936 that British authorities were forced to accept the indigenous population of Palestine was not going to waive its right to self-determination. But even at that point, what the British authorities were willing to concede (the partition of Palestine in accordance with the Peel Commission of 1937) did not match the demands of the Palestinian leadership, as articulated through the Arab Higher Committee (AHC). The latter made clear that “no settlement could be regarded as acceptable unless it was based on the recognition of their right to independence in their country.”
As the British Mandate was coming to an end, the United Nations (UN) began discussions on the issue of Palestine. In April 1947, Palestinian representative Henry Cattan stated that “Palestine’s right to independence should be recognized, and that this tormented country enjoy the blessing of a democratic government.” A few months later, the UN General Assembly (UNGA) voted to partition Palestine (UNGA Resolution 181) leading to the Nakba of 1948. The partition was deemed as an illegal act by the Arab States represented in the assembly, as it was argued the assembly had no legal right to divide Palestine, in what was considered to be a violation of the right to self-determination of the people of Palestine.
After the Nakba, the representation of the Palestinian people before the Arab League was kept for a few years under the “All Palestine Government” that was based in Gaza. The government called for a state in all historic Palestine, yet its political role was always limited, and clashed with the role of Jordan that had annexed the West Bank. The Foreign Minister of the Palestinian government, Jamal Husseini, was never accepted into UN discussions. This government ceased to exist in the fifties, leading to the creation of multiple Palestinian organizations, until 1964 when the Palestine Liberation Organization (PLO) was founded in Jerusalem as the umbrella organization, and as the political representative of the Palestinian people.
It was not until 1974 that the UN would hear directly from a Palestinian representative. On that occasion, the PLO leader Yasser Arafat reaffirmed the Palestinian demand for statehood, including the possibility of living in the same state with the Jews as equal citizens: “[L]et us work together that my dream may be fulfilled, that I may return with my people out of exile, there in Palestine to live (…) in one democratic state where Christian, Jew and Muslim live in justice, equality, fraternity.”
Since Arafat’s speech, the Palestinian demand for statehood has been at the core of UN discussions on the question of Palestine. A landmark on this path was the issuance of the Palestinian Declaration of Independence of November 15, 1988, when the PLO recognized the Partition Plan for first time. The deviation from the 1947 position was explained as follows:
"Despite the historical injustice done to the Palestinian Arab people in its displacement and in being deprived of the right to self-determination following the adoption of General Assembly resolution 181 (II) of 1947, which partitioned Palestine into an Arab and a Jewish State, that resolution nevertheless continues to attach conditions to international legitimacy that guarantee the Palestinian Arab people the right to sovereignty and national independence.”
The declaration of independence of Palestine took place in the context of the First Intifada, which represented the first massive Palestinian rebellion in the territory occupied by Israel in 1967, including East Jerusalem. The Palestinian declaration set the borders of the State of Palestine, accepting for first time the principle of two states in historical Palestine.
This compromise was achieved after years of internal Palestinian debates and dialogue with members of the international community. It included the “10 principles” approved by the PLO in 1974 when it affirmed that “any step taken towards liberation is a step towards the realization of the Liberation Organization's strategy of establishing the democratic Palestinian state specified in the resolutions of previous Palestinian National Councils.” Furthermore, it was the first time that the PLO publicly agreed to resolutions 242 and 338, which emphasize the inadmissibility of the acquisition of land through the use of force and had been used as a framework for the Camp David Agreement between Egypt and Israel.
The Palestinian declaration of independence was warmly welcomed by the UNGA through Resolution 43/177, in which it decided that “the designation “Palestine” should be used in place of the designation “Palestine Liberation Organization” in the United Nations system.” Palestine also gained the recognition of dozens of Arab and Islamic countries and the Soviet bloc, as well as members of the Non-Aligned Movement. The declaration also opened up an official PLO – US diplomatic channel. A few years later, the Middle East Peace Process (MEPP) was launched in Madrid, followed up by talks in Washington and a secret negotiation channel between the PLO and Israel in Oslo that led to the Declaration of Principles (DoP) of 1993.
According to the DoP, one of the goals of the agreement is to establish the following:
"[A] transitional period not exceeding five years, leading to a permanent settlement based on Security Council resolutions 242 (1967) and 338 (1973). It is understood that the interim arrangements are an integral part of the whole peace process and that the negotiations on the permanent status will lead to the implementation of Security Council resolutions 242 (1967) and 338 (1973).” The agreement never conditioned Palestinian statehood to negotiations, nor states that had recognized the State of Palestine."
During the years of the MEPP (1993 – 2000) there was scarcely a discussion on the recognition of the State of Palestine. The most important step taken by the PLO was the enhancement of Palestine’s status at the UNGA in 1998 (only opposed by the United States, Israel, Micronesia, and Marshall Islands) as well as the push for recognition of statehood by the interim period’s end in May 1999. This was a result of Israel’s refusal to engage in final status negotiations. Palestinian diplomacy managed to initially gain positive messages from the European Union regarding the willingness of its member states to consider recognition “in due course,” something that, 25 years lattr, remains to be materialized.
It was twenty years after the first wave of recognitions of Palestine in 1988 that a new country was added to the list of recognized nations: Costa Rica. But a few years later, with the collapse of the MEPP and the expansion of Israel’s colonial-settlement activities in the occupied Palestinian territory, the PLO decided to go back to international recognition, both at a bilateral level as well as in the multilateral settings. This prompted a second wave of recognitions, mainly from Latin American and Caribbean States, as well as from the Holy See and later on Sweden. Nevertheless, the vast majority of Western nations did not recognize Palestine.
In 2011, the UN Educational, Scientific and Cultural Organizations (UNESCO) voted to admit Palestine as a full member with the necessary two-thirds majority. But the most significant result for the diplomatic initiative of recognizing Palestine was the adoption of UNGA Resolution 67/19 that enhanced the status of Palestine in the organization, by granting it a non-member observer State status, thereby becoming the “State of Palestine.” This prepared the ground for Palestinian access to several international treaties and organizations, from the Geneva Conventions to the Rome Statute of the International Criminal Court (Rome Statute).
There are two theories of international law regarding the recognition of States. According to the declaratory theory, the recognition of a State is “merely a political act recognizing a pre-existing state of affairs” (M Dixon, R McCorquodale and S Williams, 2016, p. 163). According to the constitutive theory, recognition by other states is “a necessary act before the recognized entity can enjoy an international personality.” Dapo Akande argues, “[t]heory, practice and judicial decisions favour the declaratory theory and assert that recognition does not create Statehood.” However, Akande emphasizes that UNGA Resolution 67/19 constitutes an act of collective recognition that “can have a constitutive effect.”
The Montevideo Convention of the Rights and Duties of States sets forth the criteria for recognizing statehood in its Article 1: “The state as a person of international law should possess the following qualifications: a. a permanent population; b. a defined territory; c. government; and d. capacity to enter into relations with the other states.” Some insist on a strict reading of the Montevideo criteria to oppose the recognition of Palestine as a State. For example, in opposing the International Criminal Court’s (ICC) jurisdiction over Palestine, Germany argued that Palestine has yet to fulfill the criteria of statehood, emphasizing that the Oslo Accords “did not create a Palestinian State, but created a Palestinian Authority tasked with limited self-governance of parts of the West Bank and the Gaza Strip” (para. 24). A similar position was expressed by Hungary, according to which the Palestinian Authority “does not possess those powers, which would constitute an exclusive and competent authority, such as the control of external security, sovereignty over airspace, tax collection, the use of the electromagnetic sphere, the establishment of telecommunication network, and most importantly, criminal jurisdiction, which is severely limited” (para. 40). A different position was expressed by the prosecutor of the ICC, Fatou Bensouda, who posited that even if Palestine does not fully meet the Montevideo criteria, given the centrality of the right to self-determination of peoples, Palestine should be recognized as a State for the purpose of the ICC jurisdiction. Bensouda hinted that Israel’s own actions are the ones that deprive Palestinians of this right. The ICC avoided dealing with the question of Palestinian Statehood. Instead, it decided to rely on the accession procedure and the determination made by the UNGA granting Palestine a non-member observer State status. Gross argues that this seemingly technical approach of the ICC represents a moment of decolonization of international, as its colonial legacy “demand[s] that peoples be organized as a State”. The ICC “was able to overcome the exclusion of peoples who do not “have” a State from the ICC”, refusing to deny protection “to those who may need it most, including those living under foreign rule or occupation”.
The Legality of the Israeli occupation
International law principles applicable to the Israeli Occupation
Following the Israeli aggression of 1967, Israel managed to occupy 22% of Palestine that had not been occupied by the Rhodes Armistice of 1949, in addition to occupying the Syrian Golan Heights, the Lebanese Shebaa Farms, and the Egyptian Sinai. As a result, the UN Security Council (UNSC) adopted Resolution 242, which reaffirmed the inadmissibility of acquisition of land through the use of force. In May of 1968, as Israel moved towards the annexation of Jerusalem, the UNSC adopted Resolution 252 which did not just reaffirm that “acquisition of territory by military conquest is inadmissible,” but considered that “all legislative and administrative measures and actions taken by Israel, including expropriation of land and properties thereon, which tend to change the legal status of Jerusalem are invalid and cannot change that status.”
In 1969, as Israel continued taking action to change the status quo of the occupied territory, the UNSC adopted Resolution 267, which recalled previous resolutions on the inadmissibility the of acquisition of land by force, and condemned “in the strongest terms all measures taken to change the status of Jerusalem.” In 1980, the UNSC issued Resolution 465, setting a clear framework:
"[The UNSC] Determines that all measures taken by Israel to change the physical character, demographic composition. institutional structure or status of the Palestinian and other Arab territories occupied since 1967, including Jerusalem, or any part thereof have no legal validity and that Israel's policy and practices of settling parts of its population and new immigrants in those territories constitute a flagrant violation of the Geneva Convention relative to the Protection of Civilian Persons in Time of War and also constitute a serious obstruction to achieving a comprehensive, just and lasting peace in the Middle East."
In the same year, as the Israeli occupation moved forward with actions to strengthen its control over occupied Jerusalem, the UNSC adopted Resolution 476, which reaffirmed previous resolutions with regard to the illegality of Israeli actions while strongly deploring “the continued refusal of Israel, the occupying Power, to comply with the relevant resolutions of the Security Council and the General Assembly.” A few months later the UNSC followed with Resolution 478, calling upon all member states to withdraw any diplomatic missions established in Jerusalem. This resolution led to the withdrawal of over a dozen of diplomatic missions from Jerusalem to Tel Aviv. Today, there are several countries that stand in violation of Resolution 478, including the United States, Guatemala, and Honduras, among others.
The most recent UNSC resolution that addresses the illegality of Israel’s colonial-settlement enterprise is Resolution 2334 of 2016, which includes myriad reference that make clear that the borders between Israel and Palestine are those of 1967. Likewise, it clarifies that any border modifications cannot be adopted unilaterally by Israel, nor be imposed through colonial-settlement expansion. Any modification is allowed only if the Palestinians consent to it.
The UNGA has also approved dozens of resolutions on the issue of Israel’s occupation and colonial-settler enterprise. In 1974, the UNGA approved Resolution 3236, which referred to the inalienable rights of the Palestinian people, including “the right to self-determination without external interference (…) the right to national independence and sovereignty.” The resolution also calls for the right of return and the restitution of Palestinian properties. Several resolutions followed on the terms of Resolution 3236, helping the goal of enshrining the inalienable rights of the Palestinian people in the UN system.
With the beginning of the MEPP, the United States and other powers tried to prevent Palestinian diplomatic action at the UN, as it would “undermine” the process. This led the US representative to veto a resolution on the first Israeli colonial-settlement built after the DoP in Jabal Abu Ghneim (Beit Sahour/Bethlehem), known by the Israelis as “Har Homa.” The mission of Palestine took the case to the UNGA in April 1997, where a comprehensive resolution, ES-10/2, was largely supported, reaffirming “the need to preserve the territorial integrity of all of the Occupied Palestinian Territory and to guarantee the freedom of movement of persons and goods in the territory, including the removal of restrictions into and from East Jerusalem, and the freedom of movement to and from the outside world.”
On December 2003, the UNGA approved Resolution ES-10/14 requesting an advisory opinion from the International Court of Justice (ICJ) on the legal consequences of the construction of the Israeli wall in the occupied Palestinian territory, where it denounced “de facto annexation of large areas of territory”. In 2004, during the Second Intifada, and as the Israeli government was moving for further colonial-settlement expansion, the UNGA adopted Resolution 58/292 where it reaffirmed “that the status of the Palestinian territory occupied since 1967, including East Jerusalem, remains one of military occupation, and […] that the Palestinian people have the right to self-determination and to sovereignty over their territory and that Israel, the occupying Power, has only the duties and obligations of an occupying Power”. On November 29 of 2012, the UNGA adopted Resolution 67/19 on the enhancement of the status of Palestine in the organization, including an operative paragraph explicitly reaffirming the right of the Palestinian people to self-determination and to their right to an independent State with the borders of 1967.
The rights of the Palestinian people were also addressed by the ICJ in its 2004 advisory opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (The advisory opinion on the Wall). The ICJ concluded that that the existence of a “Palestinian people” is no longer in issue. It further added that the right of the Palestinian people to self-determination has been recognized on a number of occasions by the UNGA. It further declared that the establishment of settlements in the West Bank, including East Jerusalem, constitutes a beach of international law. The ICJ introduced the notion of de facto annexation by arguing that “the construction of the wall and its associated régime create a ‘fait accompli’ on the ground that could well become permanent, in which case, and notwithstanding the formal characterization of the wall by Israel” (para. 121). It concluded that construction of the wall coupled with previous colonizing policies that resulted in the alteration of demography and the displacement of Palestinians severely impede the exercise by the Palestinian people of its right to self-determination.
A paradigm shift: from temporary occupation with illegal components to an illegal occupation
In his 1958 commentary on the Geneva Convention IV of 1949, relative to the Protection of Civilian Persons in Time of War, Jean Pictet emphasized that:
"[T]he occupation of territory in wartime is essentially a temporary, de facto situation, which deprives the occupied Power of neither its statehood nor its sovereignty; it merely interferes with its power to exercise its rights. That is what distinguishes occupation from annexation (emphasis added)."
For the last 57 years, three generations of Palestinians have lived under the Israeli military occupation. According to Francesca Albanese, the UN Rapporteur on the situation of human rights in the Palestinian Territory occupied since 1967, Palestinians living under the Israeli military occupation have been subjected to continuous gross human rights violations including:
"[D]raconian restrictions on Palestinian movement inside and outside the occupied Palestinian territory; repression of political and civic participation; denial of residency rights, status and family unification; dispossession of Palestinian land and property; forcible transfers; unlawful killings; widespread arbitrary arrests and detention, including of children; the obstruction and denial of humanitarian aid and cooperation; the denial of ownership and access to natural resources; settler violence; and violent suppression of popular resistance against the occupation." (para. 6)
These continuous above-mentioned violations and the continuous denial of the right to self-determination have resulted in a paradigm shift among scholars and experts studying and analyzing the Israeli occupation. Instead of focusing on specific practices and policies of the occupation, analyzing the occupation as a whole has recently gained traction. This is reflected in the UNGA’s 2023 request of an advisory opinion from the ICJ, which reads as follows:
"(a) What are the legal consequences arising from the ongoing violation by Israel of the right of the Palestinian people to self-determination, from its prolonged occupation, settlement and annexation of the Palestinian territory occupied since 1967, including measures aimed at altering the demographic composition, character and status of the Holy City of Jerusalem, and from its adoption of related discriminatory legislation and measures?"
"(b) How do the policies and practices of Israel referred to in paragraph 18 (a) above affect the legal status of the occupation, and what are the legal consequences that arise for all States and the United Nations from this status?"
Civil society and human rights experts have been pushing for this line of analysis for years, prompting UN experts to delve on such an inquiry. Michael Lynk, the former UN Rapporteur on the situation of human rights in the Palestinian Territory occupied since 1967, argued in in a report from 2017 that an occupation must meet four legal tests to be considered legal. Those are: The belligerent occupier cannot annex or gain any legal or sovereign title under any circumstances over any portion of the territory under occupation. This principle was endorsed by the UNGA in the 1970 Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States, which emphasizes that “[t]he territory of a State shall not be the object of acquisition by another State resulting from the threat or use of force. No territorial acquisition resulting from the threat or use of force shall be recognized as legal.” Therefore, the “belligerent occupation” must be temporary. The Occupying Power has a duty to end the occupation and return the occupied territory to the sovereign State as soon as possible; throughout the duration of the temporary occupation, the Occupying Power must also act in the best interests of the people of the territory, subject only to legitimate security concerns; and the belligerent Occupying Power must always act in good faith. Lynk believed that if the Israeli occupation violates one or more of these four legal tests, it should be deemed illegal.
Lynk’s successor, Francesca Albanese, concluded in a more straightforward way that the “Israeli occupation is illegal because it has proven not to be temporary, is deliberately administered against the best interests of the occupied population and has resulted in the annexation of occupied territory, breaching most obligations imposed on the occupying Power” (para 10 (b)). She added that the illegality of the Israeli occupation also stems from:
"[I]ts systematic violation of at least three peremptory norms of international law: the prohibition on the acquisition of territory through the use of force; the prohibition on imposing regimes of alien subjugation, domination and exploitation, including racial discrimination and apartheid; and the obligation of States to respect the right of peoples to self-determination. By the same token, Israeli occupation constitutes an unjustified use of force and an act of aggression."
Albanese argued that that Israeli occupation of 1967 amounts to settler-colonialism and that is based on the denial of Palestinian people’s right to self-determination.
In examining the legal status of the Israeli occupation, the Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem and Israel, relied on two criteria: the permanence of the Israeli occupation and actions amounting to annexation. Its report distinguished between de jure annexation and de facto annexation. De jure annexation was defined as “the formal extension of a State’s sovereignty into a territory recognized under its domestic law” (para. 12). The report defines de facto annexation as: “a gradual or incremental process in which it is not always clear at what point the threshold has been crossed. The transition involves establishing ‘facts on the ground’ that are intended to be irreversible and permanent while avoiding any formal proclamation in order to evade diplomatic and political repercussions” (para. 13). The report concluded that the Israeli occupation is now unlawful under international law, emphasizing that there are reasonable grounds to believe that Israel’s policies and actions “are intended to create irreversible facts on the ground and expand its control over territory are reflections as well as drivers of its permanent occupation” (para. 75).
In the case of the Israeli occupation of Palestine, at least four peremptory norms are violated. These are the prohibitions on annexation, racial discrimination, Apartheid, and “the denial of the right to self-determination.” The Vienna Convention on the Law of Treaties defines peremptory norm as “a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character” (Article 53). But most importantly, these peremptory norms create obligations erga omnes. Due to the importance of the rights involved, such obligations are considered “the concern of all States,” as “all States can be held to have a legal interest in their protection.”
Settlement as a war crime
Both the transfer by an Occupying Power of parts of its own civilian population into the territory it occupies, and the deportation or transfer of the population of the occupied territory within or outside the occupied territory, constitute war crimes under international law.
The prohibition on the transfer of the population of an occupied territory by the Occupying Power originates from Geneva Convention IV of 1949 (Geneva IV), relative to the Protection of Civilian Persons in Time of War. In its Article 147, Geneva IV treats such transfer as a grave breach of the convention, i.e., a war crime. Article 49(6) of Geneva IV also forbids the Occupying Power from transferring parts of its own civilian population into the territory it occupies. This ban originates from Article 85 (4) of the 1977 Protocol I Additional to the Geneva Conventions, which elevated this prohibition to a war crime.
The Rome Statute criminalizes in its Article 8 (2) (b) (viii) “[t]he transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory.” As Michael Lynk has emphasized, the term “directly or indirectly” is meant “to include any active or passive support by the occupying power of a settler implantation project, such as settlement protection measures and economic incentives, subsidies, tax exemptions and discriminatory permits.” Therefore, Lynk concluded that “the policy of settler implantation meets the definition of ‘war crime’ under international humanitarian law and the Rome Statute.” The prohibition on war crimes is also considered an erga omnes peremptory norm of international law.
Furthermore, the continuous presence of settlements is a key violation that is pursued and intended to permanently deprive the Palestinian people of sovereignty and of the right to self-determination. As the Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel highlighted, “[t]he establishment, maintenance and expansion of Israeli settlements throughout the West Bank, including in East Jerusalem, has fragmented and isolated Palestinians from their lands as well as from other Palestinian communities” (para. 30).
Negotiating the illegal
Recognizing a Palestinian state without explicitly recognizing the 1967 borders could increase the vulnerability of Palestinians. It could send the message that the borders of the State of Palestine could be settled through negotiations. But as Albanese Highlights, “breach of international law should not be subjected to negotiations, as this would legitimize what is illegal” (para. 63).
In the Wall advisory opinion, the ICJ clarified that the obligations violated by Israel include erga omnes obligations. The ICJ further recalled the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States, which requires all States to promote, “through joint and separate action, realization of the principle of equal rights and self-determination of peoples.” Therefore, the ICJ concluded the following:
"[A]ll States are under an obligation not to recognize the illegal situation resulting from the construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem. They are also under an obligation not to render aid or assistance in maintaining the situation created by such construction. It is also for al1 States, while respecting the United Nations Charter and international law, to see to it that any impediment, resulting from the construction of the wall, to the exercise by the Palestinian people of its right to self-determination is brought to an end. In addition, al1 the States parties to the Geneva Convention relative to the Protection of Civilian Persons in Time of War… are under an obligation, while respecting the United Nations Charter and international law, to ensure compliance by Israel with international humanitarian law as embodied in that Convention" (para 159).
Explicitly recognizing the 1967 borders is the bare minimum that the international community must do to meet its obligations under international law. Otherwise, Israel would use “negotiations” as a pretext to fortify its colonizing project. Subjecting the borders to negotiations has already gained some support among legal institutions. For example, in his minority opinion on the jurisdiction of the ICC over Palestine, Judge Kovacs argued:
"Their ‘pre-1967 borders’ type formulas do not stand alone: they should be read alongside the references to Oslo I and Oslo II, the Road Map (which is very clear about when and how Palestine’s borders will be established) and the Quartet, or even with direct reference to negotiations on borders and recalling the previously adopted resolutions containing the same elements" (para. 234).
The Draft articles on Responsibility of States for Internationally Wrongful Acts make it clear that a State that is responsible for an internationally wrongful act is under an obligation “to cease that act, if it is continuing” (Article 30). Furthermore, the Draft Articles unequivocally state no justification, such as self-defence or necessity, can “preclude the wrongfulness of any act of a State which is not in conformity with an obligation arising under a peremptory norm of general international law” (Article 26). Under Article 41 of the Draft Articles, third States are under the obligation not to recognize the legal validity of any situation that constitutes a “breach of a peremptory norm” of international law. Third States are also under the obligation to cooperate in order to bring to an end any serious breach of a peremptory norm.
For over 75 years the international community, particularly the Western powers, have tolerated the systematic violation of the inalienable rights of the Palestinian people. This has translated into a full-fledged colonial-settlement enterprise, the imposition of a regime that has been labeled as Apartheid by UN experts and scholars, and a pending case before the ICJ on the commission of the crime of genocide in Gaza while governments continue to talk about the “two-state solution.”
The UNSC, UNGA, and the ICJ advisory opinion on the Wall make it unequivocally clear that the State of Palestine is under no obligation to negotiate any changes to its borders. Therefore, forcing Palestinians to negotiate borders cannot be used as a condition for recognizing Palestinian statehood. This condition negates that peremptory status of the prohibition on the acquisition of land by war. Whether the State of Palestine would want to negotiate “minor border modifications equal in quantity and quality” as it has accepted in previous negotiations, or to negotiate other political solutions (one state solution, a confederation, etc.), it should be left to its own discretion. And it can do so only as a sovereign state and not as a people under occupation.
Furthermore, most Western powers condition recognition to an inexistent MEPP, without even considering that the Israeli government fully rejects the principle of an independent State of Palestine. By refusing to recognize Palestine on the 1967 borders, those countries will continue to provide Israel with a veto over Palestinian statehood and right to self-determination, telling the Palestinian people, the Arab world, and the rest of the Global South that double standards will continue to prevail in their treatment of Israel. Such behavior has been based on a de facto acceptance of grave violations to basic principles and norms of international law. This has undermined the whole concept of a rules-based world order and it would seriously curtail the ability of Palestine to use international legal institutions to promote the right to self-determination of the Palestinian people and its right to be free from foreign domination based on racial supremacy. The recognition of a Palestinian State in its 1967 borders is only a minimal yet necessary step in this direction. It should be followed by decisive action to put an end to all the violations of peremptory norms committed by Israel against the Palestinian people, as indicated by the ICJ.
Sonia Boulos, Associate Professor of International Human Rights Law, Nebrija University, Spain
Xavier Abu Eid, Former adviser to the PLO Negotiations Team, author of “Rooted in Palestine: Palestinian Christians and the Struggle for National Liberation 1917 - 2004” and PhD candidate at Trinity College Dublin
