At the National Press Club this week, Ben Saul argued that Australia is more than a “modest middle power” and must step up on Palestine.

Australia was among the first countries to recognise Israel and is among the last to recognise Palestine, bringing it into the international mainstream. More than three quarters of the world, over 150 countries, now recognise Palestinian statehood, as does the United Nations.

The momentum is driven by horror at Israel’s excessive destruction in Gaza and impunity in Palestine, the failure of 30 years of negotiations for a two-state solution since the Oslo Accords, Israel’s persistent denial of Palestinian self-determination, de facto annexation of Palestinian land in the West Bank by illegal Israeli settlements, and the unapologetic extremism of the Netanyahu Government.

Recognition is a long overdue circuit breaker, when everything else has failed. The Palestinians were promised a state over a century ago. The 1947 United Nations proposal to divide British Palestine into two states was deeply unfair to Palestinians and failed.

Israel unilaterally declared statehood in May 1948, after an insurgency against the British, terrorism against civilians, and even the assassination of UN officials. It effectively established independence after defeating invading Arab armies and took more territory than even the unfair partition plan gifted it. Australia recognised Israel within six months.

The Palestine Liberation Organisation declared Palestine a state in 1988. International law does not prohibit unilateral declarations, as by Kosovo in 2008, which Australia later recognised as a state, but they do not create a state unless certain legal criteria are met.

Eligibility for statehood

Under customary international law reflected in the 1933 Montevideo Convention, statehood is a test of power, not morality. A state exists if it has a defined territory, a permanent population, an effective government and an ability to enter into independent foreign relations. Some critics, such as former prime minister John Howard and former foreign minister Alexander Downer, object that recognising Palestine is “illegal” because it does not meet these requirements.

This objection does not reflect mainstream legal opinion. There is international consensus that Palestine’s territory is presumptively defined by the pre-1967 war borders, encompassing the West Bank, including annexed East Jerusalem, and Gaza. The precise borders remain to be agreed, but this has never been fatal to the existence of states, many of which have disputed borders.

There is a core national population of Palestinians, potentially supplemented by refugees returning from abroad, and excluding almost 700,000 Israelis living in illegal settlements.

There is a clear capacity to enter into foreign relations. Palestine engages diplomatically with three-quarters of the world, is an observer state in the United Nations, makes treaties with other states, and can appear in international tribunals.

There is certainly doubt about the effectiveness and independence of Palestine’s Government, which controls only part of the West Bank and none of Gaza, and remains subject to a near 60-year Israeli military occupation.

Yet, international law does not always rigidly apply the classical criteria for statehood in hard cases but necessarily accommodates the kaleidoscope of real-world circumstances. The Montevideo Convention is a touchstone, not a millstone.

Two other factors are crucial in Palestine. Firstly, Palestinians have an undisputed right to self-determination, which includes the freedom to become a state. Most countries are now persuaded that statehood can exceptionally emerge even without full independence where self-determination has been forcibly denied by occupation for so long, parts of Palestinian territory have been officially or de facto annexed and further annexation is threatened.

Last year, the International Court of Justice demanded Israel end its illegal occupation, which violates Palestinian self-determination, as soon as possible. The General Assembly gave Israel a deadline of last month.

Secondly, recognition by other states can make a difference in unusual cases. Normally, recognition does not create a state but simply endorses that the legal criteria are met. But recognition by three-quarters of the world is powerful evidence that Palestine is considered close enough to meeting the legal criteria to be regarded as a state, even under occupation, and tips the balance in favour of statehood.

Other objections to recognition

A second objection to recognition is that two states should only emerge by negotiation under the Oslo Accords. Yet, last year the International Court of Justice telegraphed that Palestine’s future cannot legally depend on Israel’s largesse. It found the Oslo Accords cannot detract from Israel’s international obligations, including self-determination; that self-determination cannot be subject to conditions imposed by Israel; and that it is for the General Assembly and Security Council to decide how to end the occupation, consistent with the Court’s opinion.

The Court’s impatience with Oslo came after three decades of failed talks. Israeli Prime Minister Netanyahu no longer even pretends to be interested in two states. Last month he declared, “We are going to fulfil our promise that there will be no Palestinian state. This place belongs to us." He previously boasted he “put an end to the Oslo Accords”. Recall Israel recently murdered Hamas negotiators in Qatar, hardly inspiring faith in negotiations.

Israel is not a good faith partner for peace, but aims to extinguish the possibility of an independent Palestine. Historically too, as former UN secretary-general Kofi Annan noted, Israel never offered a peace deal that respects Palestinians’ legal rights. Continuing to call for negotiations is either naïve, or calculated to support continued Israeli intransigence, and is doomed to fail.

A third objection is that recognition rewards terrorism. Yet, self-determination is the legal right of the whole Palestinian people, which cannot be denied based on Hamas’ actions.

Non-recognition and denial of statehood rewards Israel’s illegal occupation, denial of self-determination, and international crimes. It also fails to address the root causes of terrorism and thus perpetuates violence. As the UN secretary-general stated, Hamas’ attack “did not happen in a vacuum”. Hamas was born chiefly to resist the occupation and out of the intergenerational suffering, humiliation, lack of opportunity and powerlessness it has inflicted on Palestinians. Many of Hamas’ methods are illegal and unjustifiable. Yet, as the UN Global CounterTerrorism Strategy emphasises, terrorism can only be defeated if the state violations of human rights that fuel grievances are addressed. The former US director of National Intelligence warned that Israel’s response to 7 October will have “a generational impact on terrorism”.

The creation of states is often violent, especially where independence is forcibly suppressed. Israel itself was founded in blood, including the massacre of civilians by Jewish terrorist groups. Australia and the United Nations still recognised it.

A fourth objection is that Israel’s security must first be assured. Again, the International Court rejected this unilateral constraint on Palestinian rights, observing that “Israel’s security concerns [cannot] override the … prohibition of the acquisition of territory by force”. There is no right to perpetually occupy your neighbours, or to preventively disarm them as Israel has done in Syria and Iran, or to deny self-determination, in the hope of absolutely preventing all future threats.

Another final objection is that a plural “one state” solution is preferable, based on equal respect for the rights of Jews and Palestinians. Indeed, this was proposed at the UN in the 1940s and lives on in the slogan “from the river to the sea”. It would depend on the free choice of a double majority of Israelis and Palestinians to each self-determine such a shared future, which seems unlikely in current circumstances.

Significance of statehood

Statehood matters because it confers many rights, including to control and defend national territory, govern and enforce laws, develop natural resources, trade, make treaties and engage in diplomacy and protect its rights and citizens. It includes a right of self-defence and collective self-defence against foreign aggression and occupation. Statehood also imposes duties on Palestine to respect international law, including the sovereignty and security of other countries and human rights.

Australia’s recognition of Palestine enables it to establish diplomatic, trade and other relations for mutual benefit, although nothing flows automatically from recognition. Both sides retain freedom to determine the extent of their interactions.

Of course, being a state and recognition do not guarantee rights in practice. But recognition significantly raises the legal and political price for violating those rights, isolates Israel and the US, and adds momentum towards full independence – evident in the recent US and French/Saudi peace plans.

What statehood does not resolve

Recognition is not merely symbolic, but it cannot stop starvation and other war crimes, end foreign annexation, occupation and illegal settlements, or bring about full independence. Israel’s extreme war of vengeance has proved a grave threat to the very survival of Palestinians, as well as endangering Israeli hostages. Decades of impunity have emboldened Israel to believe there are no constraints and to commit ever more serious atrocities.

US President Trump’s peace plan for Gaza this week has been cautiously endorsed by Israel and many Arab and Western states. Its proposals are welcome for a ceasefire, release of hostages and prisoners, humanitarian aid under UN supervision, no forced displacement, withdrawal of Israeli forces and non-annexation. Despite its political palatability in a world exhausted by the violence, key elements raise red flags under international law. History suggests we should also be sceptical of plans peace without justice, peace at any price, and peace imposed by outsiders without Palestinian consent. In particular:

• The transitional government is not representative, excludes the Palestinian Authority, does not respect self-determination and lacks legitimacy. There are no concrete benchmarks or time frames for representative governance;
• Self-determination and statehood are subject to vague and indeterminate conditions concerning Gaza’s redevelopment, Palestinian Authority reform, and a “dialogue” between Israel and Palestine – thus preserving Israel’s preferred status quo of failed negotiations and indefinite deferral of statehood. Tellingly, Netanyahu said Israel would “forcibly resist” statehood and that it “is not written in the agreement”. Gaza is treated in isolation from the West Bank.
• Oversight by a Trump-chaired “Board of Peace” is not authorised by the United Nations or under transparent multilateral control, the US is a deeply partisan supporter of Israel and not an “honest broker”, and Tony Blair has little international legitimacy after his illegal invasion of Iraq;
• An International Stabilisation Force, also outside UN control, appears to replace Israeli occupation with indeterminate US-led occupation, contrary to self-determination;
• Partial Israel occupation may continue indefinitely through a “security perimeter”; and the demilitarisation of Gaza, if permanent, could leave it vulnerable to Israeli aggression;
• An “economic development plan” and special economic zone could result in foreign exploitation of resources without Palestinian consent;
• Amnesties for Hamas seem unconditional, even if they committed international crimes, denying justice for its Israeli and other victims;
• The plan does not address accountability for Israeli international crimes and human rights violations in Palestine. There is no commitment to transitional justice, historical truth telling and genuine reconciliation, or acknowledgement of the injustice to Palestinians caused by Israel’s foundation;
• The plan does not address fundamental issues such illegal settlements, borders, compensation, and refugees.

In contrast to Trump’s plan, the New York Declaration endorsed by the General Assembly last month provides an alternative pathway to peace that broadly respects international law, including self-determination, unification of Palestinian territories, representative governance, a UN stabilisation mission, and statehood.

To conclude, I welcome’s Australia’s recognition of Palestine, its protests at Israeli violations, and its global efforts to protect humanitarian personnel. But Australia should take more concrete action and play a stronger leadership role on human rights in Palestine, as Chris Sidoti will next explain. International law does not enforce itself. Selectivity and double standards are contributing to the breakdown and discrediting of international law. Australia is the world’s 13th largest economy – more than a modest middle power. If we don’t step up, in a world where democracy and human rights are critically endangered and our closest ally cannot be relied on – who will step up?

Thank you

The views expressed in this article may or may not reflect those of Pearls and Irritations.