Linking the Gaza Strip with the West Bank: - Jerusalem Center For ...

It is important to note that a demand for selfdeterminationdoes not necessarily confer statehood. 101Self-determination can take various forms and, inthe words of Judge Dillard, “it may be suggestedthat self-determination is satisfied by a free choice,not by a particular consequence of that choice or aparticular method of exercising it.” 102 The fact thatself-determination does not a fortiori confer a right tostatehood is made clear by Professor Malvina Halberstamwho stated, “[T]he establishment of an independent statefor each group seeking ‘self-determination’ may not bethe best solution. The desirability of an independentstate depends on its economic, political, and militaryviability and on the effect its independence would haveon other states in the region.” 1033. Statehood as a Claim of Right?Is it necessary to expressly assert statehood, oralternatively, is statehood a factual circumstancerequiring no express assertions or actions? 104 If indeedstatehood requires an express assertion, then sucha declaration would constitute an additional moderncriterion for statehood.Practically speaking, it would seem logical that beforebeing recognized as a state, an entity must assertstatehood. However, the mere fact that an entity claimsstatehood is not sufficient. All that such a claim willachieve is to invite an assessment by existing states asto whether the entity in question satisfies the criteriafor statehood. Thus, in the opinion of the authors, anassertion of statehood as a claim of right does notappear to be a criterion for statehood, despite the factthat it may be required practically.D. Recognition and StatehoodAs discussed by Professor Malcolm N. Shaw, thereis a complicated but significant relationship betweenrecognition and statehood. There are two theories ofrecognition: the constitutive theory and the declaratorytheory. The former asserts that recognition is constitutiveof a state, such that only through recognition does a statecome into existence. Thus, recognition can be crucialin the creation of a state. Conversely, the declaratorytheory asserts that recognition is not relevant to theexistence of a state, since a state can be said to existonce the factual criteria for statehood are satisfied. 105Whichever view of recognition one chooses to adopt,there is a significant inverse relationship betweenrecognition and the existence of an entity as a statefor the purposes of international law. The relationshipcan be explained as follows: the greater the degree ofinternational recognition that an entity enjoys, the lessmay be demanded in terms of adherence to the criteria ofstatehood. Conversely, the more sparse its internationalrecognition, the more stringently the entity will have tocomply with the criteria for statehood. If an entity iswidely recognized as a state, therefore, it will be subjectto a lesser burden of proof of the criteria for statehood.On the other hand, if very few states recognize an entity,then it will be subject to a much greater burden of proofwith respect to the criteria for statehood. 106Presumably, a futurePalestinian State wouldreceive overwhelminginternational recognition.This can be deduced fromseveral factors.The first is the fact that the PLO has been recognized byIsrael “as the representative of the Palestinian people”since 1993. 107 The second is that the PLO was grantedobserver status in the United Nations under UnitedNations General Assembly Resolution 3237 (XXIX) of1975. 108 The third factor is that, although premature,the Palestinian State declared in 1988 was givenwidespread international support receiving recognitionfrom 114 states 109 and being recognized by the UnitedNations General Assembly through the adoption ofResolution 43/177 (the Resolution was adopted by a voteof 104 in favor, the United States and Israel opposingand 36 states abstaining). 110 Moreover, today there iswidespread international support for the creation of apage 19