The Statehood of Palestine: International Law in the Middle East Conflict (review)

The Statehood of Palestine is a compelling study which peels away many of the layers of propaganda and rhetoric related to Palestine as a State. While the author provides a number of fundamental insights as to the legal status of Palestine from the League of Nations era onwards, much of the book is dedicated to providing a descriptive narrative and little to providing the legal analysis of Palestine as a State.

John Quigley, Professor of Law at Ohio State University is a leading expert in the area of international law where it relates to Palestine, having devoted much of his academic life to the issue: The Statehood of Palestine is his third related monograph after Palestine and Israel: A Challenge to Justice, 1990 and A Case for Palestine: An International Law Perspective, 2005.

In the Preface of The Statehood of Palestine, Quigley writes, "the identity and character of Palestine have long been an enigma," and thus he turns to describe, in the first three sections (fifteen chapters), the movement from Ottoman control, through the League of Nations Mandate and the post-Mandate war of 1948, then going on to deal with the international reaction to attempts to forge Palestinian statehood. It is only in the last fifty pages that Quigley truly moves away from description to an analysis of the claims of statehood of Palestine as against the international legal standards manifest in what may be termed the Montevideo Convention criteria.

Those criteria, first set out in 1933, describe a State as having a permanent population; a defined territory; a government; and the capacity to enter into relations with other States. As the Montevideo criteria are the basis upon which claims of Statehood are made and either accepted or rejected, better would have been to introduce these early in the text to allow readers to make their own assessment as to author's consideration of events and pronouncements.

As to the fundamental insights provided, Quigley notes that "Palestine presents one of the more curious episodes in state formation" (p. 247). That formation develops from a province of the Ottoman Empire which is then occupied by the British. Having made a number of war-time promises, the British government favored the Balfour Declaration and had its language inserted in its Mandate for Palestine under the League of Nations. The Mandate for Palestine allowed for a critical mass of Jewish immigrants which, in the aftermath of the Second World War, would prove fundamental to the creation of the State of Israel. Having lost the will to manage Palestine, Britain gave up the Mandate in 1948, and though the United Nations put forward partition plans, it was all for nought.

By 1949 the dust had settled by way of an armistice with three States in control of Palestine: Israel as a newly recognized State and Egypt and Jordan in military occupation. It is here that Quigley gets to the heart of the issue and provides insightful understanding. In my 2004 International Law in the Middle East, I wrote that the creation of Israel was at variance with international law, as territorial acquisition by force was by 1948 no longer permissible. Quigley demonstrates that analysis to be faulty. While a State is prohibited from taking territory from another State by force, international law is silent on what transpires within a State when it breaks up. Like the expansion of Croatia down the Dalmatian coast and Serbia along the Romanian and Hungarian borders to the north at the expense of Bosnia, Israel, as Quigley rightly points out, is a secessionist State. It should be emphasized that Quigley's overall thesis is that Palestine is a State and that Israel can be deemed to have seceded from Palestine, as, at the end of the Mandate, Palestine was once more the State between the Jordan and the Mediterranean.

Thus at the time of the armistice in 1949, in legal terms, Palestine had imploded, leaving three entities...