Between Recognition and Denial: Reading Recent Recognition Initiatives in Light of Earlier Milestones in Madrid, Oslo and the General Assembly

Between Recognition and Denial: Reading Recent Recognition Initiatives in Light of Earlier Milestones in Madrid, Oslo and the General Assembly

[Michelle Burgis-Kasthala is a Senior Lecturer in Public International Law at the University of Edinburgh]

On 28 May 2024 Norway, Spain and Ireland jointly recognised Palestine’s statehood. Slovenia and Armenia followed suit on 5 and 21 June respectively and Belgium and Malta and even the UK’s Labour Party, at the time of writing, are considering similar steps. Given that as Prime Minister Jonas Gahr Støre notes, ‘Oslo and Madrid played important – but different – roles in the peace process in the early 1990s’, it is important to reflect on the timing and impetus for this policy shift. How significant is this recent wave of European state recognition? How do these initiatives build on, but also depart from similar efforts at the United Nations General Assembly (UNGA) earlier in May? Might such collective steps be sufficient to transform the ‘phantom’ Palestinian state into an entity free from conditionalities, caveats and exceptions? Here, I link these recent recognitions with earlier diplomatic initiatives in order to expose the limitations of extant international legal vocabularies on Palestinian statehood. 

In beginning a discussion on statehood, international lawyers often retreat to the trap of declaratory versus constitutive statehood. Such frameworks have not helped Palestinians before and they won’t now. At best, interrogating these typologies reveals how contingent and political the process of state-making is. As Joseph Weiler noted in 2013 in the wake of Palestine’s recognition as a non-member observer state at the UN in 2012, embracing either a constitutive or a declarative stance is unhelpful in the face of Palestine’s own ‘differentiated’, but nevertheless, ‘evolving’ statehood. 

Similarly, today, we find ourselves as international lawyers pulled between theory and practice, between sovereignty narratives of the exception and the norm. At the very least, this post cautions against reading these recent recognitions as rupture from the past. Instead, in looking back to Oslo and to Madrid in the early 1990s and indeed, to the UNGA itself in 2012, we see how the same logics of proving one’s ‘stateness’ inform the practice and the aspirations of these recent recognitions – the sense that Palestine is always almost-good-enough. Ultimately, a different imaginary of self-determination is required that can break the endless performative loop of conditioned governance first as secondary peoplehood under the British Mandate (1922-1947), second as residual statehood after a planned-but-unimplemented imposed partition (1947), third as Israeli occupation/apartheid and fourth as the two-state solution, particularly in the post-Cold War era. 

Diplomacy in Madrid and Oslo: Logics of ‘Peaceful’ (Un)Settlement through Negotiations rather than Recognition 

Exploiting the momentum of its victory against Iraq’s invasion of Kuwait in 1990, the US brought together key regional powers at Madrid in 1991 to thrash out an Israeli-Palestinian deal. This had become more pressing since the outbreak of the first intifada in 1987, which resoundingly reminded powers across the region and beyond about the undeniability of Israel’s occupation. While the Madrid talks themselves did little to change day to day realities on the ground, they demonstrated that it was possible to bring Palestinians and Israelis together in a room to discuss future trajectories. Yet, while the Palestine National Council had formally declared Palestine as an independent state within the boundaries of the 1967 Green Line in 1988 (as also accepted by Hamas since 2017 and notably founded too in 1988), this declaratory act did not result in diplomatic recognition at Madrid three years later. Instead, the delegation that travelled to the Spanish capital joined its Jordanian counterparts as merely representatives of ‘the Palestinians’ – a people deserving of self-determination, but not yet enjoying a state. 

Where regional conflict had resulted in generalised reiterations of alliances and symbolic diplomacy at Madrid, it was the more immediate effects of widespread civil disobedience of the first intifada between 1987-93 that precipitated the Oslo Accords.  The Norwegians initiated and oversaw a series of secret talks, which resulted in a number of agreements, most crucially, the Oslo Accords of 1993. As was the case of Madrid, these talks were symbolically significant, but they also had far more tangible effects in producing detailed provisions for the management of the occupation as well as a planned pathway to political (un)settlement. Yet, they also contained the same crucial weakness as the Madrid conference. Palestine was simply ‘the Palestinian delegation’ at the talks and in the agreements themselves. As some sort of quasi-state, the newly anointed Palestinian Authority was required to embark on a range of security reforms to ensure Israel’s safety while deferring guarantees on formalised statehood and the related foundational elements of borders, settlements, refugees and Jerusalem. 

The premise of such an emasculated (or ‘backloaded’) agreement – this ‘Palestinian Versailles’ – was that it was better to have something that could then inform a more comprehensive settlement later. Thus, in recognising Palestine over three decades later, Norway was also recognising the failings of the Oslo project per se. Its PM pointed out in May 2024 that ‘the general approach…[had been] that recognition of Palestinian statehood would follow a peace agreement.’ This recent wave of European recognition in the face of Gaza’s cataclysmic destruction has resoundingly rejected this peace-then-statehood paradigm.

This turning away from Oslo also marks a break more broadly with the negotiations-before-statehood paradigm. While this posture was still on display at the UNGA earlier in May, by states such as the UK, Switzerland, Germany and the US, Norwegian, Slovenian, Spanish and Irish recognition at least rejects this negotiations logic, and offers up the recognition through the ‘two-state solution’ as the preferred and seemingly the only ‘viable’ embodiment of Palestine as a state.

Collective Constitution through the UNGA? 

Ireland, Spain and Norway recognised Palestinian statehood only days after the UNGA reaffirmed and upgraded Palestine’s non-member observer state status. As full UN membership requires Security Council endorsement (and thus the absence of a US veto) the UNGA vote of 10 May (with 143 in favour, nine opposed and 25 abstaining) was an important symbolic gesture in trying to break the negotiations-before-statehood paradigm. As in the case of the earlier Madrid and Oslo moves, this resolution echoed earlier efforts at the UNGA when Palestine became a non-member observer state in 2012 (passed with 138 votes in favour, nine against and 41 abstaining). This pyrrhic victory had marked the highwater mark of Prime Minister Fayyad’s recognition campaign that had seen the majority of the world’s states recognise Palestine as a state. Such an endorsement of at least Palestine’s ‘differentiated’ statehood has enabled it to become a member of the International Criminal Court in 2015 after an earlier denial in April 2012. It has also seen Palestine participate directly in proceedings before the International Court of Justice in its state capacity, most notably on 3 June 2024 in joining South Africa’s case against Israel under the Genocide Convention, rather than relying on the Court’s advisory jurisdiction. 

Can these current recognitions – in their combined individual form or through collective practice at the UNGA and judicial fora – be sufficient in establishing Palestinian statehood? For Weiler, ‘It might be that collective recognition should be considered constitutive and probative to full statehood when the votes in favour of admission are close to universal. Abstentions on this reading could be considered as a legal device which would allow states to assent to functional entrance into an IO without the ‘collective’ imprimatur of universal recognition and full statehood.’ With a larger majority than in 2012, we might then conclude that Palestine’s statehood has become fuller in the wake of these recognitions, but are they sufficient and more importantly, what type of state is being constituted through such recognition? 

Beyond the Two-State Solution?

This is where we must consider the legitimacy of the two-state solution which is endlessly invoked as the optimal outcome. We see this clearly in the rhetoric of Ireland, Spain, Slovenia, Armenia and Norway as well as Palestine itself at the UNGA in May. For example, Foreign Minister Tanja Fajon declared that ‘Slovenia is on the right side of history, contributing to the two-state solution for lasting peace.’ Similarly, Armenia stated officially that ‘[t]his recognition contributes positively to preserving the two-state solution, which faces systematic challenges, and promotes security, peace, and stability for all parties involved’. What is troubling here, however, is the way in which European states in particular are seeking to impose such a blueprint without meaningful engagement on what it would entail for the Palestinian people themselves. This is particularly so for those six million Palestinians of the diaspora whose role in any truncated future Palestinian state remains unclear. The two-state solution effectively endorses the effects of the Nakba in 1948 and accepts a Palestinian state that is no more than 22% of historic Palestine.  

It is startling that in justifying their tardiness in recognising Palestinian statehood, Norway, Spain and Ireland all speak of their own fatigue – ‘we can’t wait any longer’ – and their own convictions that only through the two-state solution can the deadlock can be broken and that somehow a Palestinian state will emerge in peace. They also proffer the two-state solution to counter ‘the nihilism of Hamas’ in support of ‘moderate forces’. Thus, in presuming Palestine to be a state, they hope to silence Hamas and its constituency. 

Yet, as former PM Fayyad recently reminded us, many Palestinians themselves are no longer committed to the idea of the two-state solution. It has been emptied of all legitimacy, most profoundly in the wake of the Oslo betrayal, which had seemed to promise a path towards statehood as the two-state solution, but in fact simply formalised fragmented non-sovereign ‘autonomy’ and ever-expanding settlement construction. It might be that the two-state solution is now being deployed as a way to deny the political agency of Hamas at this moment of such profound importance. If so, then as Alonso Gurmendi also notes, this is little more than a new form of colonial imposition as well as a return to 2006 when Hamas’s electoral victory throughout the occupied Palestinian territories was not recognised by key international powers, many of whom continue to deny Palestinian statehood in favour of negotiations. Thus, during this time of renewed individual and collective recognition efforts and exhortations, the prior question of the Palestinian polity – in the diaspora and perhaps as resistance movement – must not be foreclosed. 

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