The legal basis for the proclamation of the State of Palestine under international law rests upon the legal rights of the Palestinian people, foremost among them the principle of the right to self-determination, as well as the relevant international treaties, the resolutions of the United Nations, Article 1(4) of Additional Protocol I to the Geneva Conventions of 1977, Article 1(2) and Article 55 of the Charter of the United Nations, in addition to the advisory opinions of the International Court of Justice.

    A State is established upon the fulfillment of its three constituent elements — people, territory, and political authority — elements that guarantee stability and the continuity of order. Nevertheless, a fundamental question arises as to whether the State acquires international legal personality solely through the presence of these three elements, or whether, in addition, it requires recognition by other States.

    Recognition constitutes a significant event in the life of a State, as it cannot exercise its external sovereignty or enjoy its operative rights vis-à-vis the community of nations unless such States acknowledge its existence.

    This article will address the subject through the following sections:

1. Definition and nature of the concept of recognition of a State.
2. Types of recognition.
3. The international legal foundations for the recognition of the State of Palestine.

First: Definition and Nature of the Concept of Recognition of a State.

    The recognition of a State is the acknowledgment by existing States of the existence of that State and its acceptance as a member of the international community. Recognition is a procedure independent from the creation of the State itself. A State comes into being once it fulfills its three constituent elements: a population, a defined territory, and a government. Upon its establishment, sovereignty over its territory and its nationals is affirmed without dispute. However, such sovereignty cannot be exercised in relation to other States, nor can the State fully exercise its rights within the international community, unless its existence is recognized by that community.

The Nature of Recognition

    The acquisition of membership in the international community is contingent upon the sovereign will of its constituent member States and the extent to which they accept the emerging State seeking to join it. It is equally evident that a nascent State does not acquire the status of membership in the international community unless it is received by the States and organizations comprising that community in accordance with the principle of good faith.

    Such acceptance by States and international organizations materializes through the issuance of a legal act, deriving from the unilateral will of each, the substance of which lies in acknowledging the existence of the new State and affirming the legitimacy of its establishment.

    A State may extend recognition either expressly or implicitly with respect to any legal or factual situation. Recognition may even constitute the source of a right or a legal obligation if the intent is directed toward the creation of such a right or obligation. Moreover, recognition may serve as evidence of a fact or of a set of facts, the probative value of which depends upon the surrounding circumstances.

    The recognition of a State is a legal act that emanates from the unilateral will of a State or an international organization. It entails the intention of the recognizing entity to acknowledge the existence of a given State and to accept the legitimacy of its establishment. This, in turn, gives rise to the obligation not to contest the legality of its existence or to deny its statehood, unless at a later stage it loses at least one of its three constitutive elements.

    Accordingly, the legal significance of the recognition of the State of Palestine under international law lies in the fact that it constitutes both a step toward, and a preliminary stage for, the attainment of full membership of the United Nations.

Second: Types of Recognition

    The recognition of a State is not subject to any specific formal requirements. It may be either explicit or implicit, unilateral or collective, legal or de facto. The distinction between legal and de facto recognition applies more frequently to governments than to States. Recognition can be classified into the following categories:

1. Unilateral and Collective Recognition

    Recognition may be unilateral, undertaken individually by each State through its constitutionally competent authority. Alternatively, it may be collective, expressed jointly by several States through an international conference or a multilateral treaty. A number of States worldwide recognized the State of Palestine following the proclamation of the Palestinian Declaration of Independence.

    In this regard, reference must be made to the United Nations General Assembly resolution of 29 November 2012, concerning the status of Palestine within the United Nations. The resolution was adopted by a vote of 138 in favor, 9 against, and 41 abstentions. By virtue of this resolution, Palestine was accorded the status of a “non-member State” of the United Nations, thereby elevating its position from that of a non-member entity to that of a “non-member State.” This resolution produced significant legal consequences for the State of Palestine, enabling its accession to numerous international treaties and organizations, and paving the way for many States to extend recognition of Palestinian statehood. 

    Accordingly, the admission of Palestine as a “non-member State” to the United Nations constitutes collective recognition by the States that voted in favor of Palestine’s acceptance into the United Nations.

    Regarding the admission of Israel to United Nations membership on 11 May 1949, the General Assembly adopted a resolution accepting Israel’s membership on the condition that it implement General Assembly Resolution No. 181 concerning the partition of Palestine and Resolution No. 194 concerning the right of return and compensation for Palestinian refugees.

    Thus, the General Assembly established a direct and legal link between Israel’s admission to membership and the obligation to implement these two resolutions. Hence, Israel became the only State admitted to membership subjected to a condition that its acceptance is expressly contingent upon compliance with specific General Assembly resolutions. 

2. Explicit and Implicit Recognition

    Recognition may be explicit, which is manifested in a unilateral act, such as a diplomatic note, telegram, congratulatory message, declaration, or notification issued by the Ministry of Foreign Affairs of the recognizing State, clearly expressing its intention to recognize the new State. It may also take the form of a bilateral or multilateral act, such as an international treaty concluded between the new State and the State wishing to recognize it, or a joint statement or declaration issued by both of them.

    An illustrative example is the exchange of letters concerning recognition between Palestinian President Yasser Arafat and Israeli Prime Minister Yitzhak Rabin. The first letter, from President Arafat to Prime Minister Rabin, recognized Israel’s right to exist in peace and security, and the acceptance of the United Nations Security Council Resolutions 242 and 338 by the Palestine Liberation Organization (PLO). The second letter, from Prime Minister Rabin to President Arafat, confirmed that the Government of Israel had decided to recognize the PLO as the representative of the Palestinian people.

    Implicit recognition, by contrast, is only attributed to a State when its conduct clearly demonstrates an intention, without doubt, to recognize the new State. For example, the attendance of Arab States at numerous international conferences in which the State of Israel was present does not, by itself, constitute implicit recognition of Israel.

3. Legal and De Facto Recognition

    Legal recognition is the acknowledgment by a State of another State whose three constitutive elements are fully met. Legal recognition is definitive and rests on the conviction of the recognizing State of the legitimacy of the existence of the recognized State. 

    De facto recognition, by contrast, is recognition of a State in terms of its factual existence, without necessarily acknowledging its legal legitimacy. This may occur where one of the three constitutive elements is defective, or there is doubt regarding one of these elements. De facto recognition acknowledges the reality on the ground while expressing a desire not to immediately establish full bilateral relations with the government or the new State.

Third: International Legal Foundations for the Recognition of the State of Palestine

    The United Nations recognized the Palestine Liberation Organization (PLO) in 1974 as the sole representative of the Palestinian people, following its recognition by the Arab League Summit at Rabat.

    The UN General Assembly has consistently emphasized in multiple resolutions that freedom fighters must be accorded the protections of international humanitarian law.

    The struggle of the Palestinian people, led by the PLO, constitutes a national liberation war, and is considered, in this regard, an international armed conflict. Consequently, it is subject in its entirety to the laws of war, in accordance with Article 1(4) of the 1977 First Additional Protocol to the Geneva Conventions (conflicts in which peoples are fighting against colonial domination, foreign occupation, and racist regimes in the exercise of their right to self-determination).

    The struggle of the Palestinian people falls within this category of conflicts, as the Israeli presence in the occupied Palestinian territory constitutes part of a foreign occupation. The United Nations has explicitly recognized the legitimacy of the struggles of peoples seeking to exercise their right to self-determination and to liberate themselves from colonial and foreign domination, specifically recognizing the Palestinian people in this regard.

International Legal Foundations for the Recognition of the State of Palestine

1. The Principle of the Right to Self-Determination of the Palestinian People

    The Palestinian Declaration of Independence, as well as United Nations resolutions, affirm the right of the Palestinian people to self-determination. The right to self-determination constitutes one of the fundamental principles of general international law.

    The exercise of this right entails several obligations, including the duty of States to respect the right of peoples to self-determination and to enable them to exercise this right and achieve independence. United Nations resolutions have emphasized the inalienable right of the Palestinian people to self-determination, freedom, and independence. States are therefore under an obligation to provide all forms of support — material and moral — to people engaged in liberation struggles, including recognition. 

     In 1960, the United Nations General Assembly adopted a resolution declaring the granting of independence to peoples and countries under colonial domination. This resolution was regarded as a significant step toward the eradication of colonialism and the liberation of colonized peoples.

2. The Legal Status of the Occupied Palestinian Territory

    Since 1967, the Palestinian territories have been subject to the rules of the law of belligerent occupation. Given that occupation is considered a temporary situation under international law, the occupying power is not entitled to treat the occupied territory as part of its own sovereign domain. The occupied territory retains its sovereignty, including its land and natural resources too. 

    Accordingly, Israel’s practices as an Occupying Power in the occupied Palestinian territory falls under the framework of international law governing belligerent occupation. On this basis, the recognition of the State of Palestine is compatible with the provisions of international law. Consequently, Israel’s conduct as an Occupying Power in the occupied Palestinian territory is governed by the four Geneva Conventions of 1949 and their 1977 Additional Protocols. In light of the foregoing, it is reaffirmed that Palestine, in terms of territory, people, and sovereignty, constitutes an Arab State under international law.

3. United Nations Resolutions

A. The Partition Resolution of 29 November 1947, which constitutes the first explicit international legal recognition of the Palestinian people’s right to establish their own State pursuant to the said Resolution. States that recognized the Resolution are legally bound to recognize and implement its second component, namely the establishment of the State of Palestine.

B. Resolution 3236 (1974), which reaffirmed the inalienable rights of the Palestinian people, including the right to self-determination and independence.

C. Resolution 19/67, adopted on 29 November 2012, which recognized Palestine as a “Non-Member Observer State” in the United Nations, reaffirmed the right of the Palestinian people to self-determination and independence, and further emphasized that the Security Council must respond to the request submitted by Palestine in 2011 for full membership in the United Nations.

    Accordingly, the legal foundation for the recognition of the State of Palestine is a binding legal obligation, grounded in the principle of self-determination, international treaties, and United Nations resolutions.

    The recognition of the State of Palestine carries a particular legal significance, which derives its origin from the unique nature of the issue, since its inception under the Partition Resolution, pursuant to which Israel was established.

    On 15 November 1988, the Palestinian National Council proclaimed the establishment of the State of Palestine, which exists and is recognized under the same instrument that provided the legal basis for the establishment of Israel.

    Israel has no standing to dispute the legitimacy of, or recognition of, the State of Palestine, as it is founded and recognized by the very same instrument from which Israel derives its own existence.

    The Partition Resolution and the international legal personality of Palestine were already established at the time of its adoption in 1947, as well as upon Israel’s declaration in 1948, and this legal personality continued to be represented by the Government of All Palestine that was proclaimed by the Arab League in Gaza in 1948.

    The Partition Resolution is of a constitutional nature, constituting the basis for the establishment of two States. Any revocation of this Resolution would necessarily entail the annulment of the decision establishing Israel, and thus, its dissolution.

    Such revocation would result in the nullification of Israel’s legal foundation, adversely affecting its international legal personality and the legitimacy of its very existence. However, the Resolution does not affect the international legal personality of Palestine, which pre-existed its adoption and remains intact.

D. On 15 September 1988, the General Assembly, by its Resolution 43/177, recognized the Declaration of the State of Palestine issued by the Palestinian National Council, and affirmed the right of the Palestinian people to exercise sovereignty over their territory occupied since 1967. It further approved the use of the designation “Palestine” (in place of “Palestine Liberation Organization”), without prejudice to the status and rights previously accorded to the Palestine Liberation Organization.

E. In 1975, the United Nations General Assembly established the Committee on the Exercise of the Inalienable Rights of the Palestinian People, which remains active to this day. In 1976, this Committee submitted two sets of recommendations, namely:

1. The right of Palestinians to return to their homes and property.
2. The right to self-determination, national independence, and sovereignty.

F. Security Council Resolution 1397 of 17 March 2002, affirms the vision

of a two-State solution, while Security Council Resolution 1515 of 19 November 2003, endorses the roadmap leading to a permanent settlement based on the two-State solution.

G. Advisory Opinion of the International Court of Justice on the Israeli Separation Wall

    The Court affirmed the applicability of the Fourth Geneva Convention of 1949 and its Additional Protocols to the Palestinian territories occupied by Israel since the June 1967 war, including East Jerusalem. 

• It reaffirmed the principle enshrined in the Charter of the United Nations prohibiting the acquisition of territory by force.
• It held that all legislative and administrative measures taken by Israel, including land and property confiscations and settlement activities in the occupied Palestinian territory, including East Jerusalem, are unlawful and must be rescinded

H. Advisory Opinion of the International Court of Justice on the Consequences Arising from Israel’s Policies and Practices and the Illegality of Its Continued Presence in the Occupied Palestinian Territory.

    On 19 July 2024, at the request of the United Nations General Assembly, the International Court of Justice delivered an Advisory Opinion regarding the legal consequences of Israel’s policies and practices in the Occupied Palestinian Territory, including East Jerusalem. The Opinion included the following findings:

1. The West Bank, East Jerusalem, and the Gaza Strip constitute a single territorial unit whose unity and integrity /security must be preserved.
2. Regarding the Court’s finding that the continued Israeli presence in the Occupied Palestinian Territory is unlawful; the Court holds that such presence constitutes an internationally wrongful act entailing Israel’s international responsibility. This wrongful act is of a continuing nature, arising from Israel’s violations through its policies and practices of the prohibition on acquisition of territory by force and the Palestinian people’s right to self-determination. Accordingly, Israel is obliged to terminate its presence in the Occupied Palestinian Territory without delay. As the Court affirmed in its Advisory Opinion on the Separation Wall, a State responsible for an internationally wrongful act has a binding obligation under international law to bring that act to an end.
3. The Court emphasized that obligations arising from Israel’s internationally unlawful acts do not exempt it from its continuing duty to comply with its international obligations, which its conduct has breached. In particular, Israel remains bound to respect the Palestinian people’s right to self-determination and to fulfill its obligations under international humanitarian law and international human rights law.
4. Concerning the right to self-determination, the Court notes that while the General Assembly and the Security Council are called upon to offer their opinion on the measures necessary to ensure the end of Israel’s unlawful presence in the occupied Palestinian territory and the full realization of the Palestinian people’s right to self-determination, all States are required to cooperate with the United Nations in implementing such measures. This obligation is consistent with the principles outlined in the Declaration on Principles of International Law concerning Amicable Relations and Cooperation among States pursuant to the Charter of the United Nations.
    

    The legal consequences of recognizing the State of Palestine as a State under occupation include the imposition of international obligations on the occupying power, thereby rendering such recognition subject to the principles and rules of international law. It also serves to strengthen the legal status of the State of Palestine within the framework of international law and to activate international legitimacy resolutions aimed at ending the occupation.