Jure Vidmar is Leverhulme Early Career Fellow in the Faculty of Law, and Research Fellow at St Johns College, University of Oxford. He has written widely on the process of State creation (see SSRN page here), including: ‘Explaining the Legal Effects of Recognition’ (2012) International and Comparative Law Quarterly 361.
On 29 November 2012, with 138 votes in favour, nine against and forty-one abstentions, the General Assembly adopted Resolution 67/19, which, inter alia, “accord[ed] to Palestine non-member observer State status in the United Nations…” This post considers whether the vote in the General Assembly objectively confirms that Palestine is a state and/or whether the General Assembly on 29 November 2012, in fact, created a new state (a matter considered briefly by Dapo at the end of his post on the Resolution). In essence, did the Resolution change anything in terms of legal status and did Palestine on 29 November become more of a state than it was on 28 November? The post thus narrowly focuses on the implications of Resolution 67/19; it does not intend to clarify Palestine’s legal status in general.
In this instance, Palestine’s legal status could be implicitly clarified in two ways. One way would be if the Resolution meant admission to the international organisation, which prescribes statehood as a prerequisite for membership. The other possibility is that by voting for the Resolution which accords “to Palestine non-member observer State status” [emphasis added], those states voting in favour implicitly recognised Palestine as a state. Indeed, the Resolution here says that Palestine is a state. What is the legal significance of this phrasing and of the fact that 138 states are happy with it? Did the 138 states voting in favour thus create a state by (implicit) recognition or at least confirm Palestine’s legal status?This post will argue that the General Assembly resolution itself and the voting behaviour of states neither altered nor clarified the legal status of Palestine. On 29 November 2012, Palestine did not become more or less of a state than it was before. The Resolution may well be a significant step in an internationalised political process which could ultimately clarify and settle Palestine’s legal status. But the Resolution of 29 November 2012 does not have any direct legal implications for Palestine’s statehood.
Statehood through the UN?
Article 4(1) of the UN Charter provides: “Membership in the United Nations is open to all … peace-loving states which accept the obligations contained in the present Charter and, in the judgment of the Organization, are able and willing to carry out these obligations.” [emphasis added].
While non-membership of the UN does not automatically mean that the entity in question is not a state, membership can confirm the status of a state implicitly. This is because membership is only open to states. Thus, had Palestine on 29 November 2012 become a member of the UN, this would implicitly mean that it is a state. But it did not become a member of the UN.
While UN membership implicitly confirms an entity’s statehood, the same cannot be said for the status of an observer state. This status is not foreseen by the UN Charter; it has rather developed through practice. Since nothing in the Charter says that observer status would be ‘open to all peace-loving states’, this status cannot not have implicit effects analogous to those of full UN membership. This can be further confirmed by reference to treaty law. The UN Charter is a (virtually) universal treaty which only allows states to become parties to it. On 29 November 2012, Palestine did not become a party to this treaty.
It is also worth mentioning that throughout history the status of non-member states has been granted to some entities for which it is at least debatable whether or not they really were states at the time. Was Austria a state in 1952? Was Bangladesh doubtlessly a state in 1973? Not to mention the difficult example of South Vietnam. It would be beyond the scope of this contribution to discuss these issues further. Suffice it to say that historically the status of non-member states has been granted not only to clear cases such as Switzerland prior to 2002, but also to entities whose legal status was – at the time – not settled.
The conclusion that follows in this part is that on 29 November 2012, Palestine did not become a member of an international organisation which prescribes statehood as a prerequisite for membership and it did not become a party to a (virtually universal) multilateral treaty which allows only states to become parties to it. Consequently, the statehood of Palestine was neither implicitly created nor confirmed via an international organisation or an international treaty. Moreover, some historic practice may well indicate that the status of a non-member state has been accorded even to entities for which it was not entirely settled at the time whether or not they were states.
Statehood through recognition?
While the General Assembly resolution unto itself has no legal effect, the same cannot necessarily be said of voting in the General Assembly. In this case, the vote for Palestine’s status of an observer state could mean that states which voted in favour implicitly recognise Palestine as a state. Did 138 states voting in favour create a state or at least confirm that Palestine is a state?
Doctrinally, this argument could be problematic from the perspective that recognition is declaratory. But the declaratory nature of recognition should not be taken as a dogma. Writings on this topic often seem to conflate two things that should be separated: (i) non-recognised states can exist; but, (ii) irrespective of that, sometimes (universal) recognition can create a state.
Non-recognised states have indeed existed before (e.g. Macedonia) and there was no doubt they were states. But to say that non-recognised states can exist is not the same as saying that under some circumstances statehood may depend on recognition. These are two different legal situations. In the Quebec case, the Supreme Court of Canada held that where secession is unilateral, its ultimate success would depend on international recognition (The Quebec case, para 155).
In the UN Charter period, international acceptance of a unilateral claim to independence is very rare in practice. However, if recognition were near-universal, this could have the effects of a collective state creation. Kosovo is a difficult example. With ninety-six recognitions to date, it is impossible objectively to determine its legal status. For some it is a state, for others it is not. It thus seems that recognition which is widespread – yet not universal – created at least ambiguity with regard to its legal status. And this ambiguity may only be clarified over time, as was the legal status of Bangladesh; if we read history backwards, knowing how its legal status was ultimately settled. But what if we were asked back in 1973, that is, before Pakistan accepted Bangladesh’s independence and before the latter’s admission to full membership of the UN? Objectively, we could only say that its legal status was ambiguous.
What does this tell us about Palestine? It is doctrinally acceptable that near-universal recognition could have the effects of a collective state creation. However, the Resolution was adopted with 138 votes in favour, nine against and forty-one abstentions. The preamble of the Resolution affirms that 132 members of the UN had recognised Palestine as a state before. In essence, on 29 November 2012, the number of recognitions (implicitly) went up for a few more states. Does this push Palestine over the threshold of recognitions that are required for statehood? This can hardly be the case.
If we accept that recognition can sometimes have constitutive effects, we, of course, also accept the old problem of the constitutive theory: how many and whose recognitions are necessary? There is no answer to this challenge but, as argued earlier, universal or near-universal recognition could have effects of a collective state creation. And (implicit) recognition of Palestine on 29 November 2012 does not seem to be more universal or near-universal than before that date. In effect, even from the perspective of (implicit) recognition, the Resolution neither alters nor objectively clarifies the legal status of Palestine.