No, Recognizing Palestine Would Not Be Contrary to International Law

A group of British peers, among them several distinguished lawyers, yesterday sent a letter to the Attorney-General, Lord Hermer, asking him to advise the UK Government that its announced forthcoming recognition of the state of Palestine would be contrary to international law. (Report in The Times, report in The Independent; the letter itself is here.) I have to say that the letter – whatever its political purpose or effects might be – is underwhelming, to put it mildly. The authors argue that Palestine fails to fulfill the Montevideo effectiveness criteria for statehood (a topic discussed ad nauseam in the literature). To say that they do this without any nuance would be an understatement (e.g. in the first paragraph they just assert that Hermer ‘must know’ that Palestine does not meet the criteria for recognition, as if this was somehow an uncontroversial proposition). 

It can reasonably be argued that Palestine does not meet the Montevideo criteria, and that it does not currently exist as a state. But it can also reasonably be argued otherwise. This is not an obvious issue – this is why, for example, both the ICC and the ICJ have (so far) avoided pronouncing on Palestine’s statehood under general international law, one way or the other. Yet it is crystal clear that the Palestinian people have the right to establish their own state, by virtue of their right to self-determination, which has twice been authoritatively reaffirmed by the ICJ. Curiously, this is a right that the letter authors do not even mention. It is also clear that the international community, especially states acting collectively, can compensate for any defects in effectiveness (this is how, for example, entities such as the Holy See or the Sovereign Order of Malta have been endowed with legal personality, or how the statehood of micro-states is uncontested, or how many states emerged into being through decolonization despite having very weak governments, weak territorial control or contested borders). With the passage of time, and through the gradual increase in recognition, the statehood of Palestine has become increasingly clearer. When James Crawford wrote 35 years ago in EJIL that it was ‘too soon’ to say that Palestine was already a state, this is likely not what he would write today, if he was still with us.

What really boggles the mind when it comes to the letter is not that it presents the question of the statehood of Palestine as one on which the answer is obviously in the negative. Rather, it is the bald assertion that any recognition of Palestine by the UK would be contrary to international law, rather than simply being ineffective. Let me get this straight – so the 3/4 of all states in the world that have so far recognized Palestine as a state have somehow done this in violation of international law? And if France, the UK and Canada do the same, they too would violate international law? This is just plainly incorrect.

Recognition is precisely a device through which contested claims to statehood can gradually be resolved. Yes, there are some cases in which the act of recognition can violate international law. When Russia recognized the statehood of the Donetsk and Luhansk people’s republics in February 2022, that act of recognition alone (regardless of the invasion that followed it) was a violation of Ukraine’s sovereignty and an intervention in its internal affairs. Indeed, the UK Prime Minister at the time acknowledged this illegality, saying that the recognition was ‘plainly in breach of international law. It is a flagrant violation of the sovereignty and integrity of Ukraine.’ This was not simply because recognition was extended to entities that legally did not qualify as states, but because these entities existed on the territory of another state, Ukraine, whose rights were directly affected.

This is simply not the case with Palestine and Israel. Recognizing Palestine would in no way violate any rights of Israel. On the contrary, it is precisely Israel which, as established by the ICJ, through its continued illegal occupation of Palestinian territories is preventing Palestine from fulfilling the Montevideo effectiveness criteria. It is Israel whose government and parliament have repeatedly rejected any attempt to establish a Palestinian state, despite the Palestinian people’s right to self-determination. It is Israel which is manifestly pursuing annexationist policies. In such circumstances, I simply fail to see how any British recognition of Palestine would be ‘contrary to international law.’ It might be a good idea or not; it might actually achieve something or not. But any such recognition would be perfectly lawful – and I’m sure the letter authors ‘must know’ that.