Palestine
and borders matter only as between states. Thus, the Oslo agreement, far from relegating Palestine statehood to the future, assumed it. Present Is- raeli Prime Minister Benjamin Netanyahu object- ed to the Oslo agreement when it was concluded in 1993, criticizing it precisely on the ground that it meant that Israel was recognizing Palestine as a state.
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Israel in particular argues that the Israeli-Palestinian Interim Agreement of 1995, the basic agreement regulating relations between Israel and Palestine in respect of Palestine’s territory, limits Palestine’s international contacts by leaving foreign relations in Israel’s hands. But the Interim Agreement ap- plies to only the Palestinian Authority, the admin- istrative organ established under the Oslo agree- ment, but not Palestine as a state. Moreover, the Interim Agreement specifies that nothing in it is with prejudice to the positions on basic issues of the two parties. Hence, the Interim Agreement does not purport to prevent Palestine from exer- cising its role as a state in the international com- munity.
Europe deals with Palestine on the basis that Pal- estine is a state. The Euro-Mediterranean Interim Association Agreement of 1997 deals with tariff relations with Palestine. Europe concludes such treaties only with states, according to Article 133 of the treaty establishing the European Commu- nity. The European Council decision to conclude the 1997 treaty referred to Article 133 as the legal basis for it.
The European Court of Justice acknowledged Palestine statehood in a 2010 case, when Israel sought tariff preference for goods produced in Is- raeli settlements in the West Bank upon their en- try into the European market. Exporters approved by Israel were issuing invoice declarations for goods produced in the West Bank. Protocol 3 of the 1997 European treaty with Palestine requires an invoice declaration to be executed by, as the Court said, “customs authorities of the export-
ing [State].” Since Palestine was the state whose customs authorities would be so authorized with respect to the West Bank, the Court found the Israeli practice to violate the 1997 treaty. The ba- sis for the ruling was that Palestine was the state with authority over the West Bank.
Palestine’s UN Admission
Palestine’s September 23, 2011 request for admis- sion to the United Nations must be seen against this background. Palestine asks not for statehood, which it already has, but for the admission of the Palestine state to membership in the United Na- tions. Any entity that meets the UN Charter crite- ria (statehood, the peace loving character of the state, and the state’s ability to carry out the obliga- tions of membership) is to be admitted. Accord- ing to the International Court of Justice in a 1948 advisory opinion, when the UN Security Council is considering a membership application, its mem- bers may legitimately vote in the negative only if they regard the entity as failing on one or more of the three criteria. Security Council members, at least in their public statements, have been citing quite different criteria, thereby rendering suspect the legality of their refusals to vote in favor of Pal- estine. Bosnia has said that Palestine needs to negotiate an agreement with Israel before being admitted. France has said that the United States will veto, therefore that its affirmative vote would do no good. Reasons of this type are unlawful, raising the prospect that the General Assembly might decide to ignore the Security Council’s fail- ure to recommend Palestine favorably, and that the General Assembly would admit Palestine on its own. Article 4 of the UN Charter gives the Gen- eral Assembly the ultimate power to admit a new member.
The status of Palestine has been the subject of much confusion – and difference of opinion -- in recent legal literature. Yet applying the admittedly murky criteria for statehood, Palestine easily qual- ifies.
. ILSA Quarterly » volume 20 » issue 2 » December 2011
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