Australia’s Palestine Recognition Plan Echoes UK and France, : Recognition of State Explained From The Eyes of International Law

International deliberations have been brought about recently when the Australian government announced that it intends to engage the recognition of a Palestinian state. This step, which is similar to the speculation of such consideration and steps by other countries as the United Kingdom or France, pose the essential questions of legal foundation of statehood as well as in international law influence on newly found state. This paper will discuss the legal aspects of state recognition including what the step implies in the understanding of law on an international basis.

Just what is a State in International Law?

International law elucidates the interpretation of a state at its essence. The Montevideo Convention on the Rights and Duties of States conceived the wide-accepted definition in 1933. Article 1 of this convention lays out four major requirements that an entity that is to be deemed a state must fulfil:

• Permanent Population: There has to exist a population of persons inhabiting the land. This is irrespective of the number of the population size, however, the population size must be stable and permanent.
• A Territorialized Unit: There has to be a delimited terrestrial unit within the state. And although the borders need not be completely settled, as most states have border disagreements, there has to be some central territory where the entity exercises jurisdiction.
• A GOVERNMENT: There has to exist a governing body that is substantially governing the territory and the people that inhabit it. Such a government needs to be in a position to offer basic services and keep law and order.
• Ability to Bear Relations with Other States: The state should be jealous, thus capable of adopting a foreign policy and engaging other states.

These are the requirements for statehood as simple facts. Having these four elements is both a necessary but not a conclusive situation, which makes an entity a state of the international community.

The Two Key Recognition Theories

As far as the legal recognition of the existence of a state by other nations is concerned, there are two principal theories:

• Declaratory Theory: This theory declares that once an entity has fulfilled the four qualifications of the Montevideo Convention, then it becomes a state. Other countries only come to appreciate, or identify with, it, and it is perceived as nothing but a declaration of another existing fact. This school of thought argues that the statehood of Palestine would be determined by whether Palestine meets the requirements or not, opposed to the political will of other countries to acknowledge them as a state. Before it was recognized, the outer legal rights and obligations of a state, like those of self-defence, would be applicable.
• Constitutive Theory: Conversely, this theory claims that a state as an aspect of international law can only be a state when that law is being recognized by other existing states. Recognition is not merely a factual statement but a set of actions that create the new state as an object of international law, a view described as a constitutive act of recognition. This perspective adds more strength to the existing states as their mutual recognition accords a new state its international legal personality.

Although the declaration theory can often be viewed as the strongly legally grounded one, the fact of international relations interacts in the blend. Acknowledgment is very partisan. States frequently determine on their own national interest and diplomatic factors when and how they will give recognition to a new entity thereby enabling recognition to be a very strong instrument in determining the international act.

The Australian Standpoint: a “Utilitarian Offering”

This can be evaluated in light of the recent message from Australia to acknowledge a Palestinian state. Although recognition of Palestine has already been given by a great number of countries (more than 140 of 193 UN member countries), the move taken by Australia cannot be suggested as purely symbolic. It strives to contribute to the so-called historic international momentum towards a two-state solution.

This recognition of the Australian government is based on the commitments made by the Palestinian Authority (PA) such as reforms to the governance, demilitarization of Gaza and elections. This will be a way of attaching this recognition to certain conditions, a strategy that is also applicable to international politics. In so doing, Australia is in effect not merely acknowledging that Palestine is a state; it is in effect acting without its own leverage as to how the future face and behavior of that state will be determined.

This resembles the case for other nations. Other countries have done the same, with France and the UK being some high-profile countries expressing their readiness to recognize a Palestinian state– usually with the caveat that this will be done at a time that will facilitate a so-called two-state solution and a stable peace. This underscores the politics, in the meaning of recognition, in which legal and factual options are toughened with foreign policy objectives.

After Recognition, the Lawful Significance of Recognition

When a country like Australia acknowledges a new state, it entails quite a number of legal implications.

• Diplomatic Relations: Diplomatic relations require recognition so that they can have mutual ties like the establishment of embassies and consulates. It is an indication that it is ready to be involved in official government-to-government relations.
• Treaties and Agreements: A state that has been recognized is allowed to sign bilateral/multilateral agreements with the state that recognizes it, upon which everything is accommodated including trade and cultural exchange.
• Sovereign Immunity: Recognition has the effect that the new state and its government are given sovereign protection in the courts of the recognized state. One of the implications is that the identified state cannot be sued without its permission.
• Universal access to International Bodies: Though the latter is not automatic, the recognition of many states is likely to give a significant boost to the application of a new state for full membership in international institutions such as the United Nations. Palestine already has non-member or observer state status at the UN but, to become a full member, it would need a vote at the Security Council and some highly influential countries have voted against it in the past through the use of their vetoes.

The long history of the Palestinians: The Case of Palestine

The case for Palestinian statehood is by no means novel. Part of this plan was the proposal of a Palestinian state which was first indicated during the UN Partition Plan in 1947. Although the State of Palestine was declared by the Palestine Liberation Organization (PLO) in 1988, it has been recognized by a number of nations since that time. There has been much controversy involving its statehood. Israel and her allies point out that a Palestinian state would only come about as a result of direct dialogue between the two sides rather than unilateral recognition.

But the recent developments in Australia, as well as the move by other countries similarly, seem to mark a change in this direction. Some countries have also concluded that recognition is not only a possible consequence of a peace agreement but an action that needs to be taken to achieve conditions that will bring about a peace deal. They hope that through recognition of Palestine they will be able to empower the moderate side of the Palestinian Authority and compel Israel to participate in meaningful talks to reach a lasting two-state solution.

Finally, the move by Australia to approve the request by Palestine is a major step in international relations but not a political trade mark. It is a legal act with legal consequences that has deep roots in the principles of international law. Recognition of a state is a rather complicated combination of legal theory and political expediency. Through recognition, Australia is not only declaring its faith in the future of the Palestinian state but also in its efforts to employ international law as the means of instituting peace in one of the longest-standing conflicts in existence.