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Introduction
Resolutions issued by the General Assembly are not per se legally binding.
The General Assembly, unlike the Security Council, only issues binding
resolutions in the area of budgetary matters regarding the allotment and
collection of dues. Therefore, the Resolution A/67/L.28 will have a largely
symbolic effect without any real, immediate impact on the on-the-ground
situation in Palestine.
However, while General Assembly resolutions are not legally binding on
United Nations member States, they can contribute to the creation of binding
international law. Resolutions of the General Assembly are a means through
which States express their opinions about the status of international
questions. A resolution that receives widespread support may therefore
shape the content of customary international law, a source of international
law. When a legal principle becomes customary international law, it becomes
binding on States to the extent that they do not repeatedly and publicly
announce opposition to the principle.
a)
Overview
does
not
necessarily
equate full-fledged
membership
in
the
There are two theories that provide guidance as to the legal recognition of an
entitys sovereignty in the international community: (i) the declarative
theory; and (ii) the constitutive theory.
(1) Declarative Theory
The declarative theory is the prevailing theory for the recognition of State
sovereignty. It holds that an entity is recognized as a State when it satisfies
the following objective criteria for Statehood, which were laid down in article
1 of the Montevideo Convention of on the Rights and Duties of States (1933):
(i) permanent population; (ii) defined territory; (iii) effective government; and
(iv) capacity to enter into relations with other States.
Palestines status as a State suffers several defects under the declarative
theory test. First, Palestines territory is subject to much dispute, with some
proponents of a Palestinian state arguing that Palestine encompasses the
territory of the West Bank and Gaza Strip, and other advocates arguing that
Palestine encompasses all of modern day Israel, which they contend is not a
legitimate State. The question of a defined territory is thus subject to much
dispute. Moreover, the Palestinian Authority does not have exclusive
authority over any of the aforementioned territory: much of the West Bank is
co-administered with Israel and the Gaza Strip is administered by Hamas.
The second issue that Palestine faces under the declarative theory is that of
an effective government. In order to qualify as a State, an entity must have a
government with effective control over the territory in question. There is
currently no single entity that is in effective control of the whole territory of
Palestine. The ruptures in the relationship between Hamas in the Gaza Strip
and Fatah in the West Bank is the main reason many critics including the
United
States
argue
that
there
is
no
Palestinian
government
Partial statehood does not exist in the international legal order, and the
constitutive theory does not provide an answer to the anomaly of partial
State recognition. The Institut de Droit International, recognizing this and
other weaknesses of the constitutive theory, has declared in its 1936
Resolutions concerning the Recognition of New States and New Governments
that the existence of new States with all connected legal effects is not
affected by the refusal of one or more States to recognize. This Resolution
essentially restricts the impact that recognition has when clothing an entity
with statehood.
c)
Conclusion
Although the Resolution does not constitute binding international law, it does
bring Palestine one step further towards statehood under both the
constitutive and declarative theories. The vote shows that Palestine has
significant recognition by the international community as a State, thus
fulfilling the criterion of the constitutive theory, which while being flawed is
still adhered to by some contemporary theorists. Moreover, with Palestines
formal recognition by 138 countries, it will be able to effectively enter into
relationship with other States, which is one of the four elements of the
declarative theory test. Thus, while the General Assembly Resolution is not
dispositive of Palestines statehood, it is evidence of a growing recognition of
Palestine as a State.
4. What Rights does the General Assembly Resolution Confer on
Palestine?
Many commentators have rightfully pointed out that even with Resolution
a/67/l.28, the on-the-ground situation will remain largely unchanged. For
example, Israel continues to withhold recognition of Palestinian statehood,
retains its occupation of the West Bank and on December 20, 2012,
announced the construction of new settlements in East Jerusalem. The fifty
nations that voted against or abstained from the Resolution will continue to
refuse recognition of Palestinian statehood and future Palestinian diplomatic
missions and consulates.
would argue that the blockade and attacks were never aimed at civilians, but
rather at Hamas militants who have repeatedly fired rockets into civilian
areas of Israel. Other supposed crimes such as collective punishment of
Palestinians and the settlements are, in the words of Kevin Jon Hellers
November 29 Opinio Juris commentary, fraught with ambiguity and difficult
to prove. Palestine, in contrast, would encounter great difficulty defending
against an Israeli claim that Hamas rockets fired indiscriminately into Tel Aviv
and Jerusalem constituted crimes against humanity directed at civilians.