Nonexistence of a “State of Palestine”

Published: 02 June 2017 Author: Stefan Talmon

In line with established case-law, the Administrative Court at Frankfurt/Oder ruled in an order issued on 30 May 2017 that there is no “State of Palestine” and, consequently, no Palestinian nationality. Palestinians who have not acquired any other nationality are to be considered as stateless persons. The court held:

“Ethnic Palestinians who have not acquired any other nationality qualify as stateless persons within the meaning of the Convention relating to the Status of Stateless Persons. The reason for this is that there is no State of Palestine which could grant a Palestinian nationality to ethnic Palestinians. Only sovereign States in the sense of international law can grant nationality. Due to their lack of State authority neither the Palestinian autonomous regions nor the Gaza Strip qualify as sovereign States in the sense of international law. This situation has not been changed by the UN General Assembly on 29 August 2012 recognizing Palestine as a State with observer status within the United Nations because this recognition is only relevant within the organization of the United Nations and no UN member State is obliged to recognize a State of Palestine diplomatically.”

The position that there is no “State of Palestine” was also adopted by several other German administrative courts in 2017. In a judgment of 31 May 2017 the Administrative Court at Göttingen held that the question of Palestinian statehood was independent of the question of recognition. The question of statehood was to be determined on the basis of Georg Jellinek’s doctrine of the three elements of statehood according to which a State existed if a population, on a certain territory, was organized under an effective public authority. The court held:

“The question [of statehood] is independent of the fact of international recognition. It is therefore irrelevant, on the one hand, that the Federal Republic of Germany does not recognize the Palestinian Autonomous Territories as a State. It is equally irrelevant, on the other hand, that the United Nations General Assembly in resolution A/67/L.28 of 26 November 2012 granted the Palestinian Autonomous Territories the status of a non-member observer State.”

The German courts took the view that the Palestinian National Authority (PNA), which was established in 1994 in the wake of the Oslo I Accord, exercised only limited public authority over the autonomous territories. In particular, the entry into the autonomous territories by persons registered in the Autonomous Territory Register was controlled by the Israeli authorities. In the so-called C areas, which cover over 62 percent of the West Bank area, the Israeli authorities also controlled the entire infrastructure.

This jurisprudence shows that the German courts, as well as the German government, adhere to the declaratory theory of recognition in international law. A State does not become a State by virtue of recognition but rather because it meets the international legal criteria for statehood. Following Georg Jellinek’s doctrine of the three elements of statehood Germany considers the objective criteria for statehood to be territory, population, and public authority. Germany, like most other continental European States, has not adopted the definition of the State set out in Article 1 of the Montevideo Convention on the Rights and Duties of States according to which a State possesses the following qualifications: “a) a permanent population; b) a defined territory; c) government; and d) capacity to enter into relations with other States.” Germany does not regard the capacity to enter into relations with other States as a precondition for statehood but rather as a consequence of statehood.

Category: Statehood and recognition

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Author

  • Stefan Talmon is Professor of Public Law, Public International Law and European Union Law, and Director at the Institute of Public International Law at the University of Bonn. He is also a Supernumerary Fellow of St. Anne’s College, Oxford, and practices as a Barrister from Twenty Essex, London. He is the editor of GPIL.

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