A New Assault on the Law of Nations

Israel's right to be a state is due to its fulfilling qualifications for sovereignty. The PA seems to be looking for other means.

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Wallace Edward Brand, JD,

The “constitutive theory” on recognition of states seems to be  raising its head as a complete substitute for the "declaratory theory".  Is this because the attempted formation of a so called "Palestinian State" doesn't fit very well into the parameters of statehood under the “declaratory “theory?  

It is not clear that the Palestinian Authority has unified control of a defined territory.  First, the unified status of control over both the 'West Bank' and Gaza changes from day to day.  Second, the permanent population of the putative state as listed in the PLO Charter changed from only those Arabs within the Green Line in 1964 to those within Palestine but not including those in Jordan in 1968, to those in Palestine not including both those in Jordan and those within the Green Line now.

There are two theories under which states are recognized.  These are under the “constitutive” method, a subjective method based on the discretion of existing states through their recognition of other states.  Then there is, the "declaratory" method that looks to the proposed state’s assertion of its qualifications for sovereignty within the defined territory it exclusively controls and its permanent population. 

Under the declaratory theory, recognition is almost irrelevant.  Under that theory, states have little or no discretion in determining whether an entity constitutes a state.  Its status is wholly dependent on fact, not on individual state discretion. These standards were developed following the Peace of Westphalia and contributed to a new world order.  They are restated in the 1933 Montevideo Convention.

Constitutive discretion in the recognition of a state must be carefully examined to determine whether it is a complete substitute for the declaratory formulation or only additive to it and whether or not it has been limited by a previous exercise of state discretion.  Any previous exercise can be enforced by the legal doctrine of estoppel.  Under the doctrine of "acquired rights", those who have approved recognition of a state cannot arbitrarily withdraw it.  

In the case of Palestine, many states signed voluntarily onto the Palestine Mandate in 1922.  That was a Trust Agreement providing for Jewish settlement in Palestine west of the Jordan commencing in 1922 and placing in trust for the Jewish People, the collective political rights to Palestine until such time as:

1. they attained a population majority in the area where they would rule, and

2. had the capability to exercise sovereignty under the declaratory method. 

Once a state’s discretion in selecting an entity it is willing to recognize as a state has been exercised, under the legal doctrine of acquired rights, (now codified in the Vienna Convention on Treaties, Article 70 (1) (b)), it cannot be withdrawn except for cause.  An action in estoppel is the approved way of asserting one’s acquired rights. 

In 1922, fifty-two states asserted their approval of the Palestine Mandate which placed in trust the national or collective political rights to all Palestine west of the Jordan.  The trust agreement they approved gave to the Jewish People the immediate right of close settlement on the land west of the Jordan River but delayed their statehood until such time as they attained a population majority in the area they would rule and had the necessary elements to qualify for sovereignty under the declaratory method.   

In 1948 they met both standards within the Green Line and that territory vested.  Britain had abandoned its trusteeship in May and no longer exercised legal dominion.  In 1967 by obtaining unified control over the remaining territories of Judea,  Samaria and East Jerusalem, the remainder of the territory that had been in trust vested in the Jewish People and they received legal dominion over it as well.

There were 52 states that approved the trust agreement for the Jewish people in 1922.  I sincerely doubt that those not signing the former treaty – likely those colonies that have now received independence – would be sufficiently weighty to establish Palestinian statehood by the constitutive method. 

One author says that the majority of contemporary scholars and commentators favor the declaratory theory and there is considerable support for the argument that recognition is irrelevant for whether a state exists as such or not.  However, he adds that while the “declaratory” view currently is in prominence, it might possibly be just beginning its decline in favor of the “constitutive” view.  (William Worster, Universities of the Hague and Missouri-Kansas City,February 2010).  The Montevideo Convention of 1933 states: “The political existence of the state is independent of recognition by other states". See: Worster, Sovereignty: Two competing theories of State Recognition.








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