At the Australian Labor Partys upcomingnational conference in Brisbane, recognition of a Palestinian state pursuant to Labors 2021 national platform that supports the recognition of Israel and Palestine as part of a two-state solution is on the agenda. Senior Labor party figures, including former Foreign MinistersBob CarrandGareth Evans, have already come out in support of recognition. They have made cogent moral and political cases for recognising Palestine but have not addressed the legal arguments in as much depth.

The question for Australia, a long-standing friend of Israel, is whether its time to repudiate the racist and expansionist policies being pursued by the most religiously conservative government in Israels history. Recognising the State of Palestine would be a virtually cost-free way of signalling official disapproval, while winning friends at home and abroad. Moreover, it is a political decision that it is totally within the prerogative of the Australian federal government.

Recognition of a state is a political choice, as the Minister for Foreign Affairs Penny Wonghas stated, but it is a choice that has significant legal consequences. An important legal determination that needs to be made, prior to recognition, is to ensure that the act of recognition does not violate international law for example, by recognising a state premised on racial supremacy, such as apartheid South Africa or its so-called Homelands or Bantustans.

But recognising Palestine would not violate international law. In fact, recognition of a Palestinian state would be consistent with international law and the right of self-determination, insofar as it would recognise the right of_both_Israelis_and_Palestinians to statehood in the Holy Land.

The constitutive theory of state recognition

One legal argument that has been advanced forwhy Australia should not recognise Palestineis that recognition of a Palestinian state would have little effect: it would not create something that does not already exist. According to this view, it is the facts on the ground that count when it comes to recognising states sovereignty, power, and effective control not pieces of paper. Recognition is merely declaratory of an existing situation.

Palestine has, of course, not been able to exercise its sovereignty as an independent state, but this is because Israel has been the belligerent occupant of East Jerusalem, the West Bank, and the Gaza Strip, since its armed forces seized those territories during the June 1967 war. Israel has refused to relinquish its hold on these territories, despite the inadmissibility of the acquisition of territory by war as the UN Security Council phrased itin the preamble to resolution 242. This reflected the existing position in international law ever since the promulgation of theUnited Nations Charterin 1945, if not since the 1928Pact of Paris.

What is more, the argument that recognition follows empirical reality ignores another approach to the law of state recognition one that is not predicated on seizing power (often violently) and retaining it. According to this view, the recognition of states can be a_constitutive act_. In other words, theact of recognition itself can create a state. Australias swift decision to recogniseKosovo as an independent statein February 2008 is perhaps the best illustration of the constitutive role that recognition can play. Consider also the 2003Roadmap to Peacethat was endorsed by the UN Security Council and the 2012General Assembly resolutionconferring observer statehood on Palestine both of which endorsed the constitutivist path to recognition.

Today, 140 states recognise the State of Palestine,most recently Mexico. (It is worth noting that Mexico does not recognise states in the form of a public statement; its practice is to establish state-to-state relations with reciprocal embassies.) Accordingly, more than 70 per cent of UN member states accept that the constitutive approach to recognition continues to play an important role in international politics. The states that accept this approach and recognise Palestine include most of eastern Europe, Latin America, Africa, and Asia, as well as Iceland (one of NATOs oldest members), Sweden, and the Vatican.

Should conflict and instability be impediments to recognition?

It is sometimes suggested that governments should not recognise states in conflict zones. But, in actuality, governments have recognised states during or after periods of violence. The United States had no problemrecognising Kosovo as a sovereign and independent state, even though it had been under interim UN administration following a period of armed conflict. More than90 states continue to recognise Kosovo, which declared independence fifteen years ago including all members of the G7.

In the past it was claimed that governments should not recognise states that are uncivilised (in modern parlance, lack good governance), that have a poor record of safeguarding human rights, or that lack political legitimacy for failing to hold regular, free, and fair elections. But these arguments have never been based on reality. If they were, Australia would not have diplomatic relations with much of the world.

Nor do states necessarily have to be stable before they can be recognised. Some of the states that were recognised during the messy wars of decolonisation in Africa and Asia were hardly stable when they were recognised, and some have not had much stability since.

Other states have been recognised without ever having stable borders. This was the case with Israel when it was admitted to the United Nations. When Tel Aviv first applied for UN membership, it gave unqualified assurances to the US government that it would respect the boundaries in the Plan of Partition with Economic Union inresolution 181 (II). After Israels armed forces expanded its borders during the 1948 conflict, some states continued to insistin the UN debate on Israels admissionthat its borders approximate to those defined in the map appended to the partition plan. Israels eastern boundary with Palestine remains subject to negotiation, but no state has ever suggested that because this border remains undefined Israel should not be recognised. It strains credulity for states to demand that Palestine reach agreement on things like borders, the status of Jerusalem, and so on,prior to recognising it as a state, when these are the same issues that Israel is expected to negotiate over, even though they already recognise it as a state.

Nor would recognising Palestine violate the sovereignty of Israel. As two former legal advisers to the Swedish Ministry of Foreign Affairs explained intheir legal opinionthat was published alongsideSwedens statement recognising Palestine, Israel has no right to any of the areas that it has annexed or occupied through armed force.

Precedents for Palestinian recognition

Since Palestine was accorded recognition as a non-member observer state in the UN in November 2012, it has acceded to many multilateral treaties to which Australia is party. It would therefore aid diplomatic relations for Australia to recognise Palestine as a state. Palestine is also a member of some of the UNs specialised agencies and was found to be a state party to the Rome Statute of the International Criminal Court byboth the Office of the Prosecutor and a pre-trial chamber.

There is, moreover, a historical basis for Australia to recognise Palestine. In 1947, a majority of states in the UN General Assembly voted in favour ofresolution 181 (II), which purported to establish a Jewish and an Arab state in Palestine, with the City of Jerusalem (defined as including Bethlehem) forming a_corpus separatum_under the direct administration of the United Nations. The UN special committee that had recommended partition recognised that it was impossible to bring Arabs and Jews to agreement on the future government of Palestine, which is why it recommended establishing two states.

Australia, under the Chifley Labor government,voted in favour of resolution 181 (II). In so doing, Australia implicitly acknowledged that recognition could be constitutive.

The provisional government of Israel also acknowledged that recognition could be constitutive. Moshe Sharett, Israels Minister of Foreign Affairs, and subsequently its second prime minister,told the UN General Assembly as late as April 1948, two weeks before his government declared independence, that in his governments view resolution 181 (II) was binding because, unlike other General Assembly resolutions, it concerned the future of a territory subject to an international trust. He questioned whether the UN could legitimately revoke resolution 181 (II)becauseit conferred statehood upon Jews and Arabs and each group acquired rights which it could not be forced to renounce.

The fact that the juridical basis for Israels statehood followed from the adoption of a UN General Assembly resolution, which Israel acknowledged in itsDeclaration of Independence, meant that Israel could not deny the juridical basis for the establishment of a Palestinian state without denying the basis of its own creation.

The contradictions of the declaratory theory of recognition

The problem with the other approach to recognising the states the so-called declaratory theory is that it sanctions violence. The declaratory theory found expression in Article 3 of the 1933Montevideo Convention on the Rights and Duties of States, which provided that the political existence of the state was independent of its recognition by other states. The declaratory approach dominated the legal debate for most of the twentieth century, especially during the wars of decolonisation in Africa and Asia, when the great powers supported different liberation movements competing for power in the wake of the collapse of the old European empires and subsequently only recognised those states in their respective power blocs or zones of influence.

It is the continued reliance by government lawyers on the declaratory approach to recognition, despite the end of the Cold War, that appears to have plagued, for example, the United Kingdoms approach to the recognition of Palestine. This approach was announced by William Hague, Secretary of State for Foreign and Commonwealth Affairs, to the House of Commons, in November 2011,when he said:

The United Kingdom judges that the Palestinian Authority largely fulfils criteria for UN membership, including statehood, as far as the reality of the situation in the occupied Palestinian territories allows, but its ability to function effectively as a state would be impeded by that situation.

But this approach is like putting the cart before the horse: how can the Palestinian government function effectively as a state when the situation that is impeding this ability is Israels unlawful occupation?

Moreover, is it not incongruous for governments, like the United Kingdom, to expect the government of Palestine to exercise effective control over occupied East Jerusalem, the West Bank, and the Gaza Strip, which would require its governments security forces to wrestle control of these territories from Israel, when they would swiftly condemn the violence that would be the inevitable result? This puts the Palestinians in a catch-22. If they dont attempt to assert control over the occupied territories, they cannot be a state according to the declaratory theory, as they lack effective control; but if they attempt to assert control, they will be condemned for engaging in acts of terror.

The constitutive approach gets around this problem by recognising Palestine, warts and all. Palestine does not have to be perfect to be recognised as a state. And recognition would make it abundantly clear, once and for all, that the occupied territories are not a part of Israel. In a hard case like Palestine, recognition has value in resolving a difficult situation. Although Palestine does not have fully effective government or independence, it is a special case where the views of the majority of UN members counteracts those limitations.

Insisting on the declaratory approach to recognising Palestine is also a self-serving argument to make, given that some states accorded recognition to Israel constitutively. Recall that the US government accorded_de facto_recognition to the State of Israel within hours of its Declaration of Independence in May 1948, when the British army had still not completed its withdrawal from Palestine and when large parts of the country were engulfed in open warfare. Three days after Israel announced its declaration of independence, the Soviet Union accorded it_de jure_recognition.

Recognition as a means of breaking the deadlock

The real question is whether Australia should establish diplomatic relations with Palestine in the form of state-to-state relations by upgrading Palestines diplomatic mission in Canberra to that of an embassy since Australia already recognised a Palestinian state in 1947, when it voted in favour of resolution 181 (II).

The argument in favour of establishing diplomatic relations with Palestine by upgrading the Palestinian General Delegation in Canberra to that of an embassy and replacing the diplomatic office in Ramallah with an embassy is strong. Negotiations have been deadlocked for the last decade. President Obamas Secretary of State, John Kerry, and his team of negotiators squarelylaid the blame for the failure of the last round of talkson the Netanyahu governments decision to advance settlement construction deep inside the West Bank, by expropriating private Palestinian land on a large scale a policythe current government has only accelerated.

The Netanyahu governmenttold Kerrys negotiation teamthat its control of the West Bank would continue forever. Since those comments were made almost a decade ago, the occupation, now in its fifty-seventh year, still shows no signs of ending and its legality is the subject of anadvisory opinion before the International Court of Justice.

What is more, the current Israeli government is on the verge of passing an avalanche of discriminatory legislation following theBasic Law: Israel the Nation State of the Jewish People (2018) that wouldaffect the livesof secular Jews, Palestinian citizens of Israel, as well as Palestinians in the occupied territories. Israel has also put in place the infrastructure toannex large chunks of the West Bank, where it has spent billions of dollars constructing Jewish-only settlements, which the UN Security Council has repeatedly condemned, most recently inresolution 2334 (2016), as having no legal validity and constituting a flagrant violation of international law.

Since the new Israeli government was formed in December 2022, successive steps have been taken tofurther undermine Palestinian self-rule in the West Bank. Israels Minister of Finance and Minister in the Ministry of Defence, the ultranationalist and racist Bezalel Smotrich,recently told the Knesset Foreign Affairs and Defence Committeethat Israel should take practical measures to reverse the co-called the Fayyad Plan. This plan was named after the highly respected former Palestinian prime minister Salam Fayyad, and sought to establish Palestinian self-governing institutions in the West Bank. It is only a matter of time before Israel implements these measures, which includespreparations for a new security forceto replace the Palestinian Authority. There are alsoincreasing calls in Israel to oblige the military commander to copy every law legislated in the Knesset and to apply it, by military order, to the West Bank. These measures would amount to annexation in all but name.

Then there are the unprecedented curtails on political freedoms inside Israel, such as thescaling back of the Supreme Courts powers, thereby removing another check on the rise of the religious right, with itsplans to transform the democratic character of the state. This includes a recently tabled bill todisqualify Arab-majority parties from running in electionsto the Knesset.

Sitting on the fence by not recognising Palestine when all this is happening in Israel could be interpreted as support for the_status quo_, and provide legitimacy for the current government to advance its plans to press ahead with transforming the Holy Land into a gross caricature of what the international community had endorsed when it supported the creation of two states in resolution 181 (II) and ever since.

As a longstanding friend of Israel, Australias recognition of Palestine would be seen as a major embarrassment to the Netanyahu government, and rightly so, because it would represent a powerful repudiation of his coalition governments racist and expansionist policies. It would, moreover, empower the progressive factions in Israeli and Palestinian politics who want to live in an open, multicultural society, while non-recognition would further the aims of the religious right.

Recognition of Palestine by Australia would also put Canberras closest allies including the United Kingdom, the United States, Canada, and New Zealand on the spot: in the event of Australias recognition of Palestine, they would have to explain to their publics why they are continuing to refuse according recognition to Palestine, when the current Israeli government is putting down the legal infrastructure for the establishment of a veritable apartheid state from the Jordan river to the Mediterranean sea. If you think this is an exaggeration, considerthe words of Smotrich himself,who is, lest we forget, a senior minister in the Israeli government:

We can impose Israeli sovereignty on all the territories of Judea and Samaria [the West Bank] without granting the Arabs living there the immediate right to vote for the Knesset, and still remain a democracy.

Domestic and international significance of Australias decision

While it is not for me, as a British citizen, to comment on Australian domestic politics, my understanding is that recognition would be warmly received by Australias large Arab community, and by Labor voters, themajority of whom supportrecognition of a Palestinian state. Recognition of a Palestinian state is also supported by a majority of the Palestinian people in Palestine and the diaspora, as well as in the wider Arab and Muslim world (especially Indonesia and Malaysia) where there has always been widespread support for Palestinian rights.

Recognising Palestine would also send a clear signal to the Global South that the current Australian government is different from previous Australian governments, and is aligned to middle powers like Indonesia, Mexico, Malaysia, South Africa, Thailand, Turkey, and Vietnam, who all seek a more just world order and have recognised Palestine.

Ultimately, recognising the State of Palestine alongside the State of Israel is a political choice for the Australian government to make, asMinister Wong has said. Whether Australia decides to upgrade its diplomatic relations with Palestine in coordination with other like-minded Western powers, or go it alone, is a choice it will have to make.

First published by the ABC on August 2, 2023