France’s announcement to recognize the State of Palestine ahead of the upcoming 80th United Nations General Assembly (UNGA) in September 2025, and the subsequent similar announcements by other states (the UK, Australia, Canada, to name a few), prompted a review of some of the most elementary questions of international law, namely: How is Statehood defined, and what role does the recognition of an entity plays in “forming” its statehood? Is the recognition of a Palestinian State potentially even contrary to international law, as was recently claimed in the UK? Lastly, what (legal) impact does the recognition of Palestine have? An update on the status quo of European recognition of Palestine and a refresher on principles of Statehood within international law shall be provided in this piece.
I. EU Countries’ Impending Recognition of Palestine
While the commitment to achieving a two-state solution in Israel Palestine has been the common denominator in the European Union as a whole, as well as individual EU member states for decades1 (and a two state solution should imply the establishment of an independent Palestinian State2), the reality of European recognition of Palestinian statehood remains a dividing factor within the EU. Amidst a months-long gradual shift in tone3 and majorities within the EU institutions and member states, France, as the first G7 state and only permanent Security Council member state from the EU, announced its readiness “to fully recognise the State of Palestine” on the occasion of the upcoming UNGA in New York. With the Israeli war on Gaza deteriorating the crisis to levels unseen in recent history, France pointed at Gaza being “a death trap where bodies bear the scars of famine and minds are ravaged by terror.”4 Thus, one “cannot hope for a lasting ceasefire without sketching out a shared vision for what comes after the war in Gaza.” Along with about 300 members of Israeli-Palestinian civil society, representatives of the EPICON5 project visited French President Emmanuel Macron at the Élysée Palace on June 13, where he announced, among others, that the conference in New York would take steps “towards recognising Palestine.”
France’s announcement was followed shortly thereafter by EU countries Malta and Portugal, with the latter stating it “is considering recognition of the Palestinian state”6 in the framework of the UNGA. In total, by August 2025, ten out of twenty-seven EU member states had officially recognized Palestinian sovereignty.7 If joined by three more member states, a simple majority within the EU could be reached with merely one additional recognition. On a global level, with 147 out of 193 UN member states having already recognised the State of Palestine, the majority opinion on its Statehood is clear. This holds true especially since
the UN General Assembly in 2024, expressly determined that “the State of Palestine is qualified for membership in the United Nations” in accordance with Art. 4 of the UN Charter and “should therefore be admitted to [full] membership” in the UN.8
II. Statehood under International Law and the Role of International Recognition Herein
In 1988 the Palestine Liberation Organisation’s (PLO) leadership in exile declared a Palestinian state in the Palestinian territories occupied by Israel since 1967 (East Jerusalem, the West Bank, and the Gaza Strip), referring to the 1947 UN partition plan as well as UN Security Council Resolution 242 from 1967. Ever since, questions regarding the statehood and international recognition of Palestine have been assessed varyingly. Israel’s official stance, but also jurisdiction and scholarly opinion regarding the interpretation of international law in this regard have objected to the qualification of Palestinian Statehood because of its lacking effective government (i.e. sovereign state power).9 In a recent letter from 40 members of the British House of Lords, including some of UK’s most prominent lawyers, it was argued that the international law criteria for statehood are not met, since there is “no functioning single government, Fatah and Hamas being enemies.” Even further, it was claimed that recognising Palestine would be “contrary to international law.”10 For a recognition declaration to have the potential of being unlawful, one must first establish the constituting legal criteria for Statehood.
1. Criteria of Statehood
The formation of a state is a political and sociological process. But although international law does not, in general, ‘create’ states, it does provide rules with workable criteria for Statehood. This process is assessed according to the principle of effectiveness, which implies the existence of three constituent elements of Statehood (state territory, state people, state authority), first developed by constitutional expert Georg Jellinek in his “three-element doctrine” in 1900.11 These criteria, which have since been accepted under customary international law, were codified in Art. 1 of the Montevideo Convention on the Rights and Duties of States of 1933:12
The State as a person of international law should possess the following qualifications: (a) permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other States.
In the case of Palestine, while its legal implications are matters that are often framed as complex and unanswerable, a look into international jurisprudence, state practice and legal opinion help to provide a majority of the answers.
As James Crawford, the leading legal scholar on Statehood, explains, “states are (…) territorial communities, aggregates of individuals sharing a common allegiance. A permanent population is thus necessary for statehood.”13 The existence of a people is sometimes accepted without further ado. In its 2004 ‘Wall’ Opinion and in later proceedings, the International Court of Justice (ICJ) observed ‘that the existence of a “Palestinian people” is no longer in issue, and that the rights of the Palestinian people ‘include the right to self-determination14, which links to the “permanent population” criterion of Montevideo.
On the question of a defined territory, the fact that the Palestinian territories are fragmented between the Gaza Strip and the West Bank, and that there is disagreement about the exact borders between Palestine and Israel, does not impede the criterion being met. A State must possess some territory, but there is no rule prescribing the minimum area of that territory, nor is there any rule requiring contiguity of the territory of the State.15 Boundary disputes also do not affect statehood. The 1995 Interim Agreement on the West Bank and the Gaza Strip (known as the Oslo II Agreement) stipulates that the “two sides [recognize] the West Bank and the Gaza Strip as a single territorial unit.”16
Above all, doubts have remained about the existence of sovereign Palestinian state authority in the sense of the Montevideo Convention, as Israel continues to control the external borders and large parts of the West Bank. International Law defines ‘territory’ by reference to the extent of governmental power exercised, or capable of being exercised, with respect to some territory and population.17 “Government” is therefore the most important criterion of statehood, since all the others depend upon it.18 In the case of Palestine, the sovereignty of the Palestinian Authority can be traced back to the Oslo II Agreement, in which it was “granted” limited autonomy to only part of the West Bank and Gaza Strip; which involves self-government and control of internal order. Important aspects of state authority, in particular external affairs and external security remained with Israel.19
However, the lack of fully effective Palestinian state authority being a direct result of Israeli occupation and its restraints on the Palestinian Authority (PA), cannot serve as a justification to deny Palestinian statehood. As the International Court of Justice (ICJ) stated in its Advisory Opinion of July 2024, Israel’s prolonged occupation and settlement practices are, in many regards, contrary to international law.20 The policies directly limit Palestinian institutions’ ability to function. Palestinian governance is, for example, obstructed through the withholding of taxes that are supposed to be transferred to the PA,21 effectively impeding it to pay civil servants’ salaries. Assuming the underlying, agreed-upon competence of the PA to govern the core Palestinian Territory of the West Bank were effective; in a world where Israel would put an end to its unlawful practices, and the PA committed to its pledge to hold elections and advance reforms,22 f inal doubts on Palestinian Statehood would be nullified. Ultimately, the answer to the question of Palestinian effective statehood will remain the subject of debate, as even the ICJ and the International Criminal Court (ICC) have refrained from declaring Palestinian Statehood under general International Law.
2. Recognition and its Potential Inadmissibility
While the above-mentioned Montevideo criteria are “constitutive,” meaning they are necessary conditions for statehood, the recognition of an entity as a state by other states is not a condition for it.23 An entity is not a State because it is recognized; it is recognized because it is a State.24 Recognition therefore is declaratory in nature.
In some cases, recognition of statehood may be contrary to international law if it relates to a state established as a result of secession, as was discussed in connection with the early recognition of Kosovo following its declaration of independence in 2008. ‘Secession’ describes the unilateral withdrawal from a State of a constituent part, with its territory and its population; as a consequence, the existing State splits into two.25 Secessions are regarded as illegal, as they impede on the fundamental principles of State Sovereignty and Territorial Integrity. The case of Israel-Palestine, however, is not a classic case of secession or dismemberment, but rather an occupation that is highly controversial under international law. The Palestinian Territories never “withdrew” from a larger existing State; they rather existed before the 1947 UN Partition Plan, at a time where borders in the Levant were generally redrawn after the fall of the Ottoman Empire. To conclude, the recognition of the State of Palestine, a political declaration, cannot under the given circumstances be deemed unlawful under international law.
III. Legal Impact of International Recognition of Palestine?
The impact of recognising the State of Palestine, from a purely legal perspective, is thus limited. Statehood does not depend on recognition by other states, and Palestine’s statehood under international law does not result from the highest possible number of recognitions.
At the same time, recognition is important evidence of legal status. Every declaration of recognition asserts Palestine’s claim that it already is a state. Recognizing Palestine as a state is an affirmation of its peoples’ right to self-determination, which, under certain conditions, can include the right to statehood. It also supports and legitimizes Palestine’s membership in international treaties and organizations. For example, since the UNGA has upgraded Palestine’s status to “non-member observer state” in 2012, Palestine acceded to the Rome Statute of the International Criminal Court in 2015, and is now treated as a full member state of the ICC. The Court has since exercised jurisdiction over alleged crimes committed in the Occupied Palestinian Territory (West Bank, East Jerusalem and Gaza).
Even when the recognition of Palestine is viewed as a symbolic act, it remains a proof of a state’s practice and legal conviction (opinio juris, the belief of states that they are legally bound by this practice) and creates international momentum to build pressure on Israel, as many states will traditionally follow the lead of others. Ultimately however, recognition by EU states should be part of a more comprehensive, European-coordinated plan that will provide for concrete steps that would support Frances’ “vision for what comes after the war in Gaza.”
___________________________________________________________________________________________________________
Endnotes:
1 See most recently, e.g., European Parliament resolution of 14 December 2022, on the prospects of the two-state solution for Israel and Palestine (2022/2949(RSP)), General principles, para. 1: “Reiterates its unwavering support for a negotiated two-state solution on the basis of the 1967 lines with two sovereign, democratic states living side by side in peace and guaranteed security (…).”
2 As per EU custom, the establishment of a Palestinian State is ever-intertwined with Israeli security. The perhaps earliest vow to recognizing a Palestinian State can be found in the European Council Presidency Berlin Conclusions, March 1999 (‘Berlin Declaration’), Part IV - Other Declarations, para. 5: “The European Union is convinced that the creation of a democratic, viable and peaceful sovereign Palestinian State on the basis of existing agreements and through negotiations would be the best guarantee of Israel's security and Israel’s acceptance as an equal partner in the region. The European Union declares its readiness to consider the recognition of a Palestinian State in due course in accordance with the basic principles referred to above.”
3 The Shifting Sands of European Diplomacy: The EU’s Evolving Alignment with Israel, Isabel Ruck, Arab Center Washington DC, 24 June 2025.
4 Opening speech by Jean-Noël Barrot, French Minister for Europe and Foreign Affairs, Plenary Session of the Conference on the Implementation of the Two-State Solution, 29 July 2025.
5 EPICON, ‘European-Palestinian-Israeli Conveyor’ is a EU-supported project implemented by the Berlin-based Candid Foundation. It establishes a platform for a trilateral dialogue between experts from Israel and Palestine, as well as European opinion-leaders from each and all 27 EU member states. It falls under the EU’s consideration for EU funding of civil society “to be constructive engagement towards building bridges between Israelis and Palestinians,” see EP Declaration (2022), supra fn. 1.
6 Portugal says it will consider recognizing Palestinian state in September, The Times of Israel, 31 July 2025.
7 Which EU countries recognise Palestine amid France's decision?, Euronews, 28 July 2025.
8 UN General Assembly Resolution A/RES/ES-10/23, 10 May 2024.
9 See, e.g., Why recognising a Palestinian State now would be wrong, Peter Wertheim, Jerusalem Centre for Public Affairs Journal, 2017. 10 Letter from lawyers and parliamentarians sent to HM Attorney General, Lord Hermer KC on 30 July 2025.
11 Allgemeine Staatslehre, Geog Jellinek (Häring Berlin Eds. 1914), 394-504.
12 Convention on the Rights and Duties of States, 165 LNTS 19 (26 December 1933, Montevideo Convention).
13 State, James R Crawford, in R Wolfrum (ed), The Max Planck Encyclopedia of Public International Law (9/ 2012), 478, para. 21.
14 Advisory Opinion Concerning Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, International Court of Justice (ICJ), 9 July 2004, para. 118.
15 Crawford, supra fn.13, paras. 15, 16.
16 Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip, Washington, D.C., 28 September 28, 1995 (Oslo II), Article XI.
17 Crawford, supra fn.13, para. 22.
18 Id.
19 Oslo II, supra fn. 16, Article IX (a): “the Council will not have powers and responsibilities in the sphere of foreign relations (…).”
20 Advisory Opinion on the Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem, ICJ, 19 July 2024 (Press Release).
21 Hamstrung PA weighs options as Israel continues to withhold its much-needed funds, The Times of Israel, 23 July 2023.
22 There is a way forward for a two-state solution, if Palestinian leaders embrace the Abraham Accords, Ghaida Rinawie Zoabi, Atlantic Council, 12 August 2025.
23 See also Art. 3 of the Montevideo Convention, supra fn. 12: “The political existence of the state is independent of recognition by the other states.”
24 Crawford, supra. fn. 13, 482, para. 44.
25 Secession, Daniel Thürer, Thomas Burri, in R Wolfrum (ed), The Max Planck Encyclopedia of Public International Law (9/ 2012), 54, para. 1.