“If Palestine is a State”: the Two-State Solution and Palestine’s Position in the Westphalian Myth

[Alonso Gurmendi Dunkelberg is a Lecturer in International Relations at King’s College London’s Department of War Studies. I wish to thank Ntina Tzouvala for her comments on previous versions of this post]

For the past few months, in the context of the horrific attacks of October 7^th and the subsequent Israeli military retaliation, it has become almost a ritualised incantation for Western diplomats and commentators to reaffirm their commitment to the Two-State Solution to the Israeli-Palestinian conflict. This incantation, however, has not been replicated by Israeli officials. Recently, the Israeli Ambassador to the UK said in an interview that there was “absolutely no” chance of Israel accepting a Palestinian State. Similarly, Prime Minister Netanyahu has assured his party that he is the “only one” who can prevent the establishment of a Palestinian State. Other high-ranking Israeli officials have issued similar statements.

These supposed revelations have left many in the West confused. US President Biden, for instance, recently said that Netanyahu is “a good friend” but that he “has to change”, given that “you cannot say there’s no Palestinian state at all in the future”. UK Prime Minister, Rishi Sunak, also recently noted he “doesn’t agree” with Israel’s Ambassador with regards to the Two-State Solution. As a confused Piers Morgan recently asked: “Why should [Palestinians] be prohibited from having exactly the same rights as the state of Israel?” The uncomfortableness is palpable, to the point that Israeli leaders have been “privately urging the Biden administration to refrain from publicly talking about the two-state solution”.

This is, to say the least, an unusual dynamic. Traditionally, among Western circles at least, we are told that Palestine is not a state and that using international law to create it through mutually agreed negotiations, under the auspices of the international community, is the “only way” to solve the Israeli-Palestinian conflict. “Two states for two people”, as US President Biden recently concluded.

That Palestine is not a state, however, is rather the minoritarian position in the world. After all, 71.5% of UN Member States recognise Palestinian statehood – including key US allies like Sweden, Poland and Turkey. Arguably, the UN itself does too, by recognising Palestine as an Observer State. One would not know this, however, just by looking at the scholarly literature coming out of the hegemonic centres of academic power in the world. That Palestine is not a state is almost an article of faith within Western international legal circles. It is, after all, one of the key examples students study early on in Global North universities. As the late Prof. James Crawford famously sentenced in 2007, “the State of Palestine has not yet become a fact as distinct from an aspiration”. In fact, since October, two widely read articles (see here and here) have analysed various aspects of the ongoing conflict in Gaza by assuming the widespread methodological choice that international legal issues involving Palestine need to be structured around a matrix, where one conclusion applies “if Palestine is a state” and another “if Palestine is not a state”.

This should not come as a surprise. The “if Palestine is a state” matrix is a methodology that fits neatly into the predominant mythos that underlies international legal discourse: the idea that the key and inescapable unit of analysis in international law is the sovereign Westphalian nation-state. In this mythos, a system of European states, ravaged by religious wars, gathered in Westphalia, the “holy birthing place” of international law, to produce treaties that “above all set out to protect states’ independence from intervention by outsiders”. This key idea of nascent religious tolerance (“cuius regio, eius religio”, or roughly, “to each kingdom, its own religion”) therefore fundamentally changed the world leading to what we know as the Westphalian Tradition in international law: each state protects its nation from foreign interference.

This tradition has proven enormously influential, to the point where it is now an inescapable, mandatory, prerequisite for entry into the international system. Entire theoretical paradigms have been created from the assumption that this system is so successful, so beneficial, that, as Jennifer Pitts’s critique puts it, it “gradually came to incorporate other states as they reached the appropriate ‘standard of civilization’, or, as more recent language would have it, as they entered the state system or decolonized and became independent”. Achieving “Westphalianness” is, therefore, the golden seal of approval of the so-called Family of Nations. It is to be expected, therefore, that the solution to the biggest international legal debate of our time – the Israeli-Palestinian conflict – be framed in Westphalian terms as well.

The purported creation of a Palestinian state, therefore, is not some sort of unique aspect of the Israeli-Palestinian conflict, it is instead the bread and butter of international law. Creating states – or more accurately, deciding who gets the Westphalian seal of approval – is a project that goes back centuries and it is inescapably tied to the racial hierarchies and racist structures that build the edifice we call international law. This was, for example, the main objective of the infamous “standard of civilisation”: to determine which nations deserved the privilege of constructing an internationally recognised state above themselves and which were too savage for it, requiring instead the supervision and colonisation of White European Men.

Ntina Tzouvala has recently explained this process as the result of two underlying logics embedded into the system: the logic of improvement and the logic of biology. The logic of improvement, she says, “premised equal participation in international law subject to comprehensive internal reform in accordance with the imperatives of capitalist modernity” (p. 45). In other words, international law, through the standard of civilisation, set up a fixed goal for nations to pursue: “[t]he legalisation of social affairs, the adoption of a legal system centred around notions of individualism, private property, and judicial independence, as well as the bureaucratisation and territorialisation of state power”. In other words, if non-Western (“uncivilised”) communities became more like the traditional European Westphalian nation-state, they could themselves become a Westphalian nation-state.

Alas, this was never a neutral process. The logic of biology, as Tzouvala describes it, made sure of it: “the same publicists who offered this promise also indulged racialised, gendered, and infantilising imaginaries of non-Western polities” that were inseparable from their legal arguments. This meant that non-Western nations could not really get their nation-state seal of approval, because, deep down, they were never ready for it: “legal, economic or cultural differences were attributed to unchangeable characteristics” where “the gap between the West an ‘the rest’ was impossible to bridge”.

I agree with Tzouvala when she says that these underlying logics never really went away, but where rather “institutionalised” into international law. Adom Getachew, for example, offers an excellent example of this in her treatment of Abyssinia and Liberia as members of the League of Nations – or as she aptly calls it, “the impossibility of Black sovereignty” (p. 52).

As one of the few independent African states in the inter-war era, Abyssinia (later Ethiopia) and Liberia were not technically subjected to the Mandate System’s “sacred trust of civilisation”. According to this, after World War I, European powers would assume control over those territories of the defeated central empires “which are inhabited by peoples not yet able to stand by themselves under the strenuous conditions of the modern world”. Through this control they would ensure their “well-being and development” until such time as they were deemed able to join the Family of Nations. Instead, as full members, Abyssinia and Liberia were supposed to be in the same position as those “civilised” states in the West.

As Getachew shows, however, this was never the case. Abyssinia and Liberia “entered the organization as the site of humanitarian crisis and object of international intervention” (p. 53). As Rose Parfitt argues, Abyssinia was conceived in hybrid terms, “both sovereign and less-than-sovereign” at the same time. The main charge against Abyssinia was, again following Getachew, the “recrudescence of slavery” in its territory. This was, of course, rather rich. The slavery crisis was not an internal Abyssinian one, but a global one – consider, for example, the contemporaneous accusations of mass forced labour in the Belgian Congo. But while “European empires were largely absolved of past and present involvement with slavery”, Abyssinia was rapidly qualified as a burdened member of the League that needed help to “raise herself in the scale of civilization”, as the British representative noted.

Getachew thus describes Abyssinia’s membership into the League as an example of “unequal integration” where “[r]ather than denying Ethiopia membership for having failed to meet the standards of statehood, inclusion within international society (…) enlisted consent to inaugurate a program of international oversight” (p. 58). Following Tzouvala’s logic of improvement to the letter, the League appointed a commission to determine the objectives that Abyssinia and Liberia would need to meet in order to satisfy the requirements of unburdened membership. Predictably, reading the League’s report for Liberia shows how this meant “a thorough reorganization of the country’s internal administration” including an end to Liberia’s “closed door policy” towards the West, which was blamed for “delaying civilization and education” and “generally stifling commercial enterprise”.

In the end, Abyssinia’s tenure as a full member of the League famously came to an end in the context of Fascist Italy’s invasion, in 1934. What is less known is that Italy’s casus belli, in fact, was premised on the fact that Abyssinia “had not achieved the required standards of statehood for league membership” (p. 64). For Italy, i.e. the aggressor state, it was Abyssinia that both lacked the capacity to fulfil its obligations under international law and was in violation of its international law obligations, particularly because of the prevalence of slavery in its territory. Thus, Getachew concludes, “[w]hile its status as a failed state robbed Ethiopia of its claims to rights of membership, its position as an outlaw cancelled any obligations Italy or other members of the league might have had to Ethiopia”.  

Racial hierarchies and burdened membership in the Family of Nations, therefore, are not old 19^th century concepts long abandoned by the progress of “civilisation”. They are an inherent part of an international law constructed on the scaffolding of the Westphalian mythos and the idea of the nation-state. Ntina Tzouvala, for instance, has traced their prevalence even to contemporary times. Take, for example, the debate about the unwilling or unable test in the context of the United States’ ongoing “War on Terror”. Under this doctrine, as Ashley Deeks defines it, “it is lawful for State X, which has suffered an armed attack by an insurgent or terrorist group, to use force in State Y against that group if State Y is unwilling or unable to suppress the threat”.  

The problems with this test are manyfold, but it is beyond the scope of this brief post to go through all of them (for more information see here and here). Instead, I will focus on its connections with Getachew’s unequal integration and Tzouvala’s logics of improvement and biology. Indeed, given the unilateral nature of the evaluation of inability and unwillingness, the logic of improvement means that “states can show that they are ‘willing and able’ and therefore not subject to lawful international violence if they actively subscribe to the policies, political economy and aesthetics of the global war on terror”. Any state that does not conform to these is branded “either malicious or irrational”. And yet, simultaneously, the logic of biology denies them the opportunity to be rid of this constant threat through the constructed concept of the “failed state”. Thus, those nation-states targeted by this standard, have really been unequally integrated into the “Family of Nations” as their sovereignty remains burdened by the underlying logics of the standard of civilisation.

It is into this world that a “future” Palestinian state would be unequally integrated into. This has already been clear in the various peace plans put forth throughout the history of the conflict, but particularly the recent “Peace to Prosperity” proposal, put forth by the United States as the so-called “Vision” of the Trump Administration for peace in the Middle East. Upon signing, the proposal states that “the State of Israel will maintain overriding security responsibility for the State of Palestine, with the aspiration that the Palestinians will be responsible for as much of their internal security as possible, subject to the provisions of this Vision” (p. 21). The Plan then sets out criteria for Palestinian “security performance”, stating that “[a]s the State of Palestine meets and maintains the Security Criteria, the State of Israel’s involvement in security within the State of Palestine will be reduced” (p. 22). In fact, the Plan states explicitly that it is incorporating Palestine into the war on terror’s logic of improvement. It notes that “[o]nce the State of Israel determines that the State of Palestine has demonstrated both a clear intention and a sustained capacity to fight terrorism, a pilot program will be initiated in an area of the West Bank portion of the State of Palestine, designated by the State of Israel, to determine if the State of Palestine is able to meet the Security Criteria”.

Similarly, the Plan specifically notes that “the region cannot absorb another failed state” not committed to human rights and the rule of law. It thus envisions a series of reforms to become a “productive and non-threatening member of the international community”. This plan, therefore, will have Palestine establish “transparent, independent, and credit-worthy financial institutions capable of engaging in international market transactions in the same manner as financial institutions of western democracies (…) and a legal system to protect investments and to address market-based commercial expectations”. Palestine will, similarly, develop “property and contract rights”, “capital markets”, “a pro-growth tax structure” and “a low-tariff scheme with reduced trade barriers” by “opening the West Bank and Gaza”.

This, in essence, is a modern-day sacred trust of civilisation that will lead to Palestine’s unequal integration and burdened membership into the international community. Moreover, displaying patently visible logics of improvement and biology, the Plan sets out the specific security and economic conditions under which Palestine will attain full sovereignty and, at the same time, sets out the conditions through which it will never achieve them. There is nothing in the Plan to keep Israel from designating this purported version of the Palestinian state as a failed state, unwilling or unable to fight terrorism, and therefore subjected to unrestrained use of force.

This plan is not, I should add, some kind of dystopian “Trumpian” outlier. As Noura Erakat has convincingly showed, even the famous Oslo Accords followed this dynamic, creating what she calls a “permanent interim status” for Palestine. By dividing Palestine into various areas of autonomy and presenting a narrative of the conflict as two equal parties needing management of their disagreements (as opposed to a colonial situation requiring emancipation) Oslo “reified the patchwork authority delegated to Palestinians, enshrined Israel as the sole source of all authority, and did not enhance the prospect of Palestinian indepedence”. 

And yet these kinds of agreements are perhaps the inevitable destiny of a Westphalian Two-State Solution, premised on the state-creating project of international law. It is necessarily premised on the history of unequal integration and burdened membership that has always characterised this mythos. There are, of course, interesting non-Westphalian, alternatives to the nation-state floating around the so-called peripheries of international law. In Latin America, for instance, the Westphalian principle is slowly eroding in favour of a new concept, known as Plurinationality – the idea that postcolonial Latin American states cannot be described as one nation protected by one state, but rather several nations co-existing in equal rights as citizens of a state. But it is beyond the scope of this post to analyse their applicability or desirability for a context so different as Israel-Palestine.

Thus, rather than exploring what can replace this Two-State Solution, it is perhaps more urgent to ponder how can we mitigate its inherent limitations. It is here where the “if Palestine is a state” matrix that I referred to in the introduction comes back into the picture. There is a performative function to it. It channels the power of those racialised and imperial structures that create international law and its Westphalian inequities. The choice, therefore, to veer away from it, and rather embrace the alternative, that a sterile and depoliticized debate about statehood is part of the problem, would be paradigm-shifting. Regardless of what Palestine may or may not be under the Westphalian paradigm, under this alternative framework, Palestine is under belligerent and colonial occupation and its claim to statehood is not recognised by the United States or Israel. This puts it in a specific position within international legal discourse, with effects that the international community has to mitigate if it is committed to a fair and equitable outcome for this dispute. This is a choice with legal significance and potential performative effect: it challenges the continued entrenchment of Palestine’s “permanent interim status” and reinforces the notion that Palestinian emancipation will not simply appear out of thin air as soon as it is granted “Westphalianness”.  

Of course, as international lawyers, we can argue endlessly about the validity of collective (even UN) recognition or whether Palestine really possesses the elements of the Montevideo Convention, but at the end of the day, the international law of state creation is as indeterminate as any law – its rules are always sustained by their exceptions. As far as the international community (of states) is concerned, Vatican City is a state despite not technically fulfilling the Montevideo requirements and Taiwan is not a state despite fulfilling all of them. Somewhere in between these two there is room for a Palestinian State – or so do 139 UN member states seem to think. This is not the real hurdle to Palestinian emancipation. The real hurdle is that our world order is organized on the basis of racial hierarchies and that communities like Palestine have historically been unequally integrated into a burdened membership.

At the end of the day, the radical transformation will come not from the perpetuation of this unequal and burdened Westphalian system of integration, but through the recognition that statehood is not some sort of technical rulebook filled with airtight requirements. It is an indeterminate and political concept, tied to the standard of civilization and racial hierarchies proper to a world order created on the basis of Western colonialism. Accessing statehood, therefore, is not some kind of neutral legal process, but a historically-contingent necessity for those peoples (like Palestine) that require engagement with the wider international community. The only way to prevent Palestine from falling through the cracks of this flawed and unfair system as it seeks an equal and unburdened membership is to shed light onto it.