The British Statement on Recognition of Palestine: A Reply to Marko Milanovic

In disagreeing with a letter on the possible British recognition of Palestine, which I signed with other parliamentarians, Marko contends that the argument that Palestine satisfies the Montevideo criteria for statehood and the argument that it does not are equally reasonable, and that any British recognition of Palestine “would be perfectly lawful”. In an interview, Lord Sumption went further and said that, while he agreed with the Montevideo criteria, it is “completely clear” that, as a matter of fact, Palestine is a state.

The Badinter Commission captured the Montevideo criteria and the rules on recognition of statehood as follows: a state in international law is “a community which consists of a territory and population subject to an organised political authority [and] characterised by sovereignty”; the existence or disappearance of states is “a question of fact”; and recognition merely declares the existence of this fact.

Marko suggests that Judge Crawford would have taken a different view today from 1990, when he wrote in EJIL that it was too soon to say that Palestine was a state. At that point more than 100 states had already recognised Palestine. By the time of the second edition of Creation of States in 2006, Judge Crawford’s view that Palestine lacked the attributes of statehood had not changed. Dr Grant –  who was the person, other than Judge Crawford, most closely involved with that second edition – is still of that view, as he explains in a forthcoming book.

What Judge Crawford did contemplate in 2006 was the possibility that international law might one day permit recognition “notwithstanding the facts”. This is how he explained it (at p. 142-143):

Thus far international law has distinguished between the right to self-determination and the actual achievement of statehood, and for good reason.

[…]

It can be argued that the position is different when the requirement in favour of the statehood of a given territory is imposed by general international law, and in particular by a peremptory norm such as the right to self-determination. But in the situation where State structures have not yet been created in fact, and where serious issues remain to be resolved about the constitution and boundaries of the putative State, its obligations towards minorities on its territory and the question of commitments to respect the rights of neighbouring States, statehood should not be regarded as existing already, as it were, by operation of law.

Nonetheless this may not be the whole story. There may come a point where international law may be justified in regarding as done that which ought to have been done, if the reason has not been done is the serious default of one party and if the consequence of its not being done is serious prejudice to another. .. circumstances can be imagined where the international community would be entitled to treat a new State as existing on a given territory, notwithstanding the facts.

When dealing with the effect of a unilateral declaration of statehood by the PLO, he wrote (p. 141):

The essential point is that a process of negotiation towards identified and acceptable ends is still, however precariously, in place. That being so, it misrepresents the reality of the situation to claim that one party already has that for which it is striving. It may also be counterproductive.

In a third edition of Creation of States, of which we will sadly be deprived, Judge Crawford, reflecting on developments (and lack thereof) since 2006, might have concluded that the idea of recognition despite the facts now has greater merit, or perhaps even that it has gained sufficient support.

But three points would have been critical to this analysis.

First, it would have to be shown that, at some point after 2006, the legal paradigm that served us well for a long time, through the creation of new states following decolonisation and the collapse of the Soviet Union and Yugoslavia, was replaced by a new one. There would have to be some clarity on new criteria. For example, should a state that ought to exist but does not exist be treated as existing in all cases of protracted frustration of self-determination? Or only in some? And if so, when?

Second, whether state practice now supports such a change is not a simple question of numbers. The numerous instances of recognition of Palestine have been made on different bases and with various caveats. Crucially, it would be necessary to establish that these statements evidence support for new legal principles on recognition and statehood.

Third, while often dismissed as dead letter (including by lawyers who should know better), the series of Israeli-Palestinian Agreements which began with the Declaration of Principles on Interim Self-Government Arrangements of 13 September 1993 (sometimes known as the “Oslo I Accord”) were never denounced by either side and are still in force. In its 2024 advisory opinion, the ICJ proceeded on this basis (see paras. 102, 263). An effect of these agreements is that the state of Palestine is not only factually unable to “exercise the whole range of governmental powers within the territory concerned” (Crawford’s language in 1990 at p. 309), but also legally precluded from doing so. Since 2006, the situation has got worse as the PA lost control over Gaza.

It is difficult to see how there could be any serious disagreement with the proposition that, if Palestine was not a state in the Montevideo/Badinter sense (i.e. because of the facts) in 1990 or 2006, it cannot be a state in that same sense in 2025.

The only way in which Palestine can be said to be a state today is on the basis of a different ‘sense’ of statehood and recognition, i.e. the principles would have had to change along the lines sketched by Judge Crawford 19 years ago.

Interestingly, nothing in the British Government’s statement suggests that the legal justification for recognition hinges on the kind of epiphany that some may be experiencing – suddenly realising that, applying the same test, similar (or worse) facts today can yield the opposite legal conclusion from before. But the fact that those defending the Government – including Marko, Lord Sumption and Baroness Kennedy of the Shaws KC in a letter to the Times on 4 August  –  are making their argument on the basis of the Montevideo/Badinter paradigm confirms that, if the legal test has changed, few seem to have noticed.

If the reply is to fall back on a Lotus– type argument that there is no express prohibition against recognition notwithstanding the facts, that would be last-ditch and unpersuasive. When the approach to the recognition of governments was changed in 1980, the British Government made a full statement in Parliament setting out the reasons for the new policy. In 1986, the Government confirmed to Parliament that Britain applied the four classic criteria of statehood to matters of state recognition, and the same approach to this “major legal question” (as Lord Carrington described it in his initiating request for advice) was confirmed by the Badinter Commission.

If things now have changed, we should be told how, when and why; and parliamentarians have every right to demand an explanation. We should be able to test if this new policy is in line with international law, as well as appropriate and wise. For example, if the policy is that the protracted frustration of self-determination justifies recognition of statehood “notwithstanding the facts”, then why is Britain refusing to recognise Western Sahara as a state? Britain has recently moved in exactly the opposite direction and now supports Morocco’s autonomy plan, which negates Saharawi statehood.

Perhaps the most absurd aspect of the British Government’s statement involves the conditions for recognition. Conditional recognition of statehood is not new. But conditions have normally been applied to the entity aspiring to statehood – e.g. by requiring it to renounce the use of force, respect boundaries and protect minorities.

The British statement, instead, imposes conditions on Israel. Britain “will recognise” the state of Palestine in September “unless” Israel takes certain steps, including agreeing to a ceasefire.

Politically, this third-party conditionality means that the recognition of Palestine is framed as a punishment against Israel; in the alternative – and no less absurdly – the continuing non-recognition of Palestine is floated as a potential reward for Israel.

This bizarre approach also has the perverse consequence of creating an incentive for Hamas to prolong the war so it can be said Israel did not meet the ceasefire condition. Indeed, Hamas has already seized on the political opportunity which the British statement presented. It is perplexing that anyone thought this framing politically defensible, and indeed, the painful spectacle of government ministers trying to defend an untenable policy in awkward interviews is well under way.

Whatever the political thinking behind it, ministers should have been advised that this approach turned the doctrine of recognition on its head without any legal basis. Recognition cannot and should not be a lever against a third state. Can anyone seriously contend that the concept of a statehood that is negatable by another state through certain steps is in accordance with the principles governing recognition and statehood? And that recognition subject to another state’s option to preclude it is how we had hitherto understood recognition might operate in a legal sense?

The French and the Canadian statements do not contain any conditionality directed at Israel. The Canadian statement says Canada’s “intention” to recognise is based on certain “predicates”, including the PA’s commitment to a demilitarised state of Palestine.  However, whether these predicates are conditions for recognition is not clear, but in any event they are not addressed at Israel.

I remain deeply sceptical of the (lex ferenda) idea of recognising states “notwithstanding the facts”. It is an example of counterproductive conceptual acrobatics which extreme cases sometimes encourage. The Israel-Palestine conflict has already spawned other conceptual absurdities, such as the concept of the occupying power that may not enter that which it occupies. We may now have a state either without a government or (at best) with a government, the PA, that is legally precluded from doing, and factually clearly unable to do, what it must do for that state to come into existence. This new state would also have a permanent population that includes people who will be understood to exist simultaneously outside the borders of their state (qua refugees) and within the borders of their state (qua nationals of the state of Palestine). None of this helps: hard cases make bad law, and bad law makes hard cases even harder.

One can express support for the plight of the Palestinians and strong criticism of the Israeli government’s conduct while staying entirely within the framework of international law. There is no need to distort established legal principles or resort to incoherence. At some point, hopefully sooner rather than later, this conflict will find a political solution – and if there is one reason for hope, it comes from the constructive attitude and sense of purpose shown by some countries in the region (like the UAE, Jordan, Egypt and Saudi Arabia that called on Hamas to disarm and relinquish power). That political solution will need to take a lasting and coherent legal form.