Professor Alexander Orakhelashvili
Earlier I have commented on the UK Government’s intention to recognise Palestine if certain conditions (do not) materialise. Issues I have touched upon have later been discussed in Professor Malcolm Shaw’s opinion on Palestine, in which he concludes that UK’s recognition of Palestine would contradict international law. In this post, I intend to discuss Shaw’s principal arguments and evidence alluded to in support of these arguments.
Shaw’s point of departure is premised on the well-known effectiveness thesis, in the sense that “Recognition cannot create a new State where the indispensable factual edifice is lacking” (para.35). He further argues “that “Palestine” is not currently a State”, because it arguably does not conform to the conditions of statehood as laid down in the 1933 Montevideo Convention, and especially because “it is required that the [Palestinian] government in question exercises undeniable, full and effective control over a consistent and meaningful area of the territory” (para.44).
Requirements arising under the Montevideo Convention
Given that, as Shaw also agrees (para.18), Montevideo Convention requirements are seminal and fundamental, it is better to spare the reader of the detail of academic debate on this subject and instead concentrate on what the Montevideo Convention itself requires. The Convention does not contain any requirement of effective government or effective control over the relevant territory, nor does it suggest any criteria by which to ascertain whether or not such effective control has materialised in the relevant case. The Convention simply refers to territory and government as attributes of statehood. The criterion therefore is that a State should have a territory whose status is determined under international law, not that it should be under anyone’s effective control to any specified extent. As Sir Robert Jennings has rather importantly clarified (p.5), territorial sovereignty and territorial possession are two different things, and the latter does not determine whether the former is involved in the relevant case.
Shaw refers (para.22) to conclusions made by the International Commission of Jurists in 1920 regarding Finland, in which the Commission has elaborated on the requirements of effective territorial control. However, this instance is hardly apposite for any current debate, because not only Finland was not a self-determination unit (a matter discussed below) but also this was a case materialising well before the Montevideo Convention and its statehood criteria were even thought of.
In support of his thesis that effective territorial control is a prerequisite for the legality of third State recognition decisions, Shaw cites (at paras 9-10) the US and UK Government’s insistence on this criterion. In the first place, the documents he alludes to relate to recognition of a government rather than of a State. But importantly, the above US and UK statements of position are hardly mirror-images of the relevant international legal requirements including the Montevideo Convention; they are, at most, self-imposed policy guidance that the relevant government chooses to adopt at the relevant time. Moreover, such policy guidance could at times be renounced in favour of a different policy, and thus undergo substantial, at times arbitrary changes as witnessed by the Supreme Court’s loyal, unquestioning and unconditional endorsement of the UK Government’s Venezuela recognition policy that had nothing to do either with facts of territorial control on the ground or with Venezuela’s constitutional requirements as to who Venezuela’s Head of State is (discussed here and here). Therefore, those statements are of little assistance for clarifying the question dealt with here.
In view of the above, the Montevideo Convention is fully fit to accommodate or rationalise the position of States that are not fully or in part in an effective control of their territory for reasons independent of them, in particular the position of self-determination units.
The right to self-determination
As explained above, nothing in the letter or spirit of the Montevideo Convention is meant to obstruct the full and unimpeded operation of the right to self-determination or the relevant entity (examined in detail here, pp.399-409). In this context, Shaw alludes to 1988 Algiers Declaration through which the PLO has proclaimed the independence of Palestine and considers it not to be a valid declaration because “The Palestinian organisations did not control any part of the territory they claimed” (para.21). However, the key question is not whether those who declared independence effectively control the particular territory, but whether they were valid representatives of a people entitled to self-determination and hence to statehood and whether international law determines what territory legally belongs to that State. The answer to both those questions under international law has since long been a clear yes.
The Algiers Declaration was the initial statement of the Palestinian self-determination claim and of the way in which it ought to be exercised. Any relevant subsequent development, for instance the UN General Assembly resolutions on Palestine’s status in 2012 and 2024, the International Court’s two advisory opinions (2004 and 2024), or the ICC’s decision to open investigation on Palestine, have followed up on the policy stated in the Algiers Declaration and treated Palestine as a State. And that is not simply about Palestine, because other self-determination units have been treated the same way within the international legal system. To illustrate, the ITLOS in 2021, with regard to the Chagos Archipelago, gave effect to the principle of self-determination as one that overrides the relevance of effective territorial control, and did so as far as disapplying the indispensable party doctrine that could otherwise have blocked the adjudication. The CJEU refused to accept similar implications from Western Sahara’s lack of territorial control owing to its territory being occupied by Morocco. In all these cases, the right to self-determination has been treated as an immediately enforceable legal right.
With regard to the above General Assembly resolutions, Shaw suggests that “General Assembly resolutions are constitutionally non-binding and are recommendatory only” (para.49). However that is not the case across the board, because when the General Assembly speaks in its resolution in terms of definitive legal requirements, rights and obligations, its statements amount to customary international law, representing both the collective and concerted practice of States present and voting in the Assembly, and their conviction of the legal nature of what they state in the text of a resolution (opinio juris). This position is upheld by a long-standing international judicial practice that is entrenched within the international legal system. General international law determines whether an entity is a self-determination unit are and then what matters is the will of that entity about its own status and future. The position of opponents or third parties is not that crucial. The General Assembly resolution A/RES/ES-10/24, one of those meant to be statement of binding obligations (as explained above), has clearly confirmed the immediate normative reality of the Palestinian self-determination right. Just as the ICJ’s 2024 Advisory Opinion (para.238), this resolution has underlined the “the integrity of the Occupied Palestinian Territory”.
This leads to another argument in Shaw’s agreement, one that could hardly stand in the context of the ICJ’s Opinions both on Chagos (2019) and on Palestine (2024), namely that “it is critical to note that the exercise of the right does not necessarily lead to independence” and other options could also be considered as association with another State (paras 28-29). While various options are available in principle, the key requirement in all cases is the will of the self-determination unit. Shaw alludes (para.29) to the case of Western Sahara, in relation to which Morocco and other States have stated their preference for a solution alternative to independence, but Western Sahara itself has not been a part to that undertaking. In the case of Palestine, it is abundantly clear that the self-determination unit does not aspire any solution other than independent State (see, among others, ICJ’s 2024 Advisory Opinion, paras 237 and 283). Shaw further alludes to the case of Bangladesh (para.26), but that is hardly a relevant comparator to Palestine, because Pakistan from which Bangladesh was separating as neither a colonial power nor otherwise a foreign occupant of Bangladesh, and the latter was hence not a self-determination unit.
Shaw further claims that recognition of Palestine’s independence amounts to a premature recognition and is hence contrary to international law. In support of this thesis, Shaw again uses cases that do not provide an adequate comparator, for instance Biafra (para.33). In that case Nigeria from which Biafra was trying to secede was not a colonial power or foreign occupier, but instead it was a lawful territorial sovereign whose consent would have been indispensable for Biafra to become independent. Even more problematically, at para. 35 of his Opinion, Shaw suggests that the “Turkish Republic of Northern Cyprus” amounts to one of such premature recognition cases. In reality, the prematurity criterion has nothing to do with TRNC, which is an illegal entity, one established through the breach of a fundamental rule of international law, and one whose recognition is prohibited regardless of the timing or conditions on the ground (discussed here and earlier here, Chapter 11).
To recapitulate on this point, Shaw’s examples do not go to the point relevant in this context. Neither the premature recognition criteria nor the illegality criteria are relevant to the position of Palestine because Palestine has never been legally part of another State it, nor is its independence sought or maintained through a breach of a peremptory rule of international law.
Finally, the Oslo Accords cannot be viewed as an impediment to Palestine’s claim to self-determination. Neither the ICJ nor the ICC have let the Oslo Accords have such effect as would impede the legal implications of Palestine’s statehood and self-determination. As a matter of general international law, the only sense Oslo Accords could make is to operate as one of the steps in the process of realisation of the self-determination right, possibly to be complemented by other steps in that direction, and not some substantial, if temporary, impediment to the realisation of that self-determination. Moreover, what the General Assembly said of Camp David Agreements in 1979 also goes for the Oslo Accords.
Conclusion
It is clear from the above that Shaw’s main conclusions are flawed and his interpretation of governing instruments and principles are not borne out by the relevant evidence. Some major instances of evidence, such as ICJ’s opinions on Chagos or Palestine, are touched upon only in passing. The position remains that UK Government’s position on Palestine recognition does not involve any obvious legal problem and is fully in accordance with international law, in terms of both general international law and jurisprudence of international courts and tribunals.
One remaining issue concerns the fact that, alongside discussing legal issues, Shaw also focuses on possible policy or political implications of UK’s recognition of Palestine, for instance who would (not) benefit from such recognition. This is a matter that could hardly form part of a legal advice relying on the methodology of international law. To illustrate, the International Court was not deterred by related arguments from delivering its landmark advisory opinion. As far as the UK Government’s position is concerned, what they have done in terms of forming a view and assessing the situation fully fits within the Royal prerogative. The exercise of this prerogative ought not to be questioned or second-guessed as part of the international legal reasoning. More specifically, if the government has the right to make the recognition decision in the first place, it can envisage some conditions as well (including conditions to be fulfilled by a third party rather than by the addressee of the recognition). In this context, care must be taken not to let the international legal reasoning straddle into a political discussion.