Palestine
Ultimately, an entity is a state if it is treated as such by the states of the international community. That proposition is hardly intellectually satisfying, because it leaves open the question of the extent of acceptance, and how that acceptance should be manifested. Yet that, unfortunately, is the cur- rent status of the law on the matter.
From that perhaps unsatisfying background on what is required for statehood, one can proceed to Palestine. Is it accepted as a state in the inter- national community? If so, from what date can one say that such acceptance was manifested? If Palestine is not a state, what is it?
Palestine as a Mandate State
Answering these questions requires a brief look at Palestine’s history. Palestine’s territory was part of the Turkish (Ottoman) Empire until World War I. During that period, the territory of Palestine fell under the Turkish state. With Turkey’s defeat in World War I, all Turkey’s Arab territories were “de- tached,” in the terminology of the Treaty of Lau- sanne of 1923, the treaty ending the war between Turkey and the Allied countries that fought against it. Several provisions in the treaty referred to the territories “detached” from Turkey as states. Of these there were three: Syria, Iraq, and Palestine. The Allies, in conjunction with the newly formed League of Nations, devised a system of adminis- tration for these three states that involved tempo- rary control by one or the other of the European powers that had defeated Turkey. France assumed temporary control over Syria, and Britain over Iraq and Palestine.
A provision was made for the status of these states in the Covenant of the League of Nations. The Covenant referred to this system of admin- istration as a mandate, with France and Britain being called mandatory powers. The Covenant provided that the three states were provision- ally independent pending what was to be a brief period of administration by Britain or France. This mandate system was hardly appreciated by the
peoples of the three states, who opposed outside administration. In Syria, the population took up arms against France, and in Iraq the population did the same against Britain. In Palestine, there was no military action against Britain, but Palestinian leaders wrote up highly professional petitions to the Britain, objecting to the mandate system. Iraq came to independence in 1932, Syria a few years later.
International lawyers of the day analyzed the sta- tus of Palestine, Syria, and Iraq and found an anal- ogy in the relationship known to the law as that of a protectorate. Under a protectorate, the affairs of one state are, to a greater or lesser degree, administered by another. Hence an entity can be a state even while under outside administration.
In relations with the outside world, Palestine, Syr- ia, and Iraq functioned as states in the interwar pe- riod, even while they were under the guardianship of Britain or France. With Palestine, foreign affairs, for example, were handled by Britain, but Britain was handling them not on behalf of a territory of its own but on behalf of Palestine. A distinction is drawn between administration of international relations on the one hand, and the legal capac- ity for international relations on the other. Britain exercised the administration of Palestine’s foreign affairs, but the basis on which it did so was that Palestine was a state whose affairs required ad- ministration.
The issue of Palestine’s status also came up in the courts of other states when the rights of Palestine nationals were at issue. Foreign courts routinely acknowledged Palestine citizenship as citizenship of the Palestine state. The citizenship was that of Palestine, not of Britain.
In a number of situations involving other legal is- sues, the question of Palestine’s status needed to be resolved by international courts or arbitration bodies. In every such instance, the conclusion reached was that Palestine was a state. One such case arose in the Permanent Court of Internation-
ILSA Quarterly » volume 20 » issue 2 » December 2011
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