There are two types of international law. Private international law or conflict of laws governs situations where a legal dispute involves elements from more than one country. It determines which country's laws apply to the dispute and which court has jurisdiction. This field of law is crucial in our increasingly interconnected world, where individuals and businesses frequently engage in cross-border transactions. Conflicts issues can include where is a party resident or domiciled (there is a difference) and which legal system can adjudicate upon issues of the breach of a contract – just a few simple examples of the myriad that arise in conflicts cases.
Then there is public international law - a body of rules, principles, and standards that govern the relationships between states and other international actors, such as international organizations. It essentially establishes a legal framework for the international community, dealing with matters that affect all of humanity, including human rights, environmental protection, international trade and recognition of States.
The sources of public international law include treaties (agreements between states), international custom (general practices accepted as law), general principles of law recognized by nations, and judicial decisions and scholarly writings (as subsidiary means for determining rules of law).
I studied public international law 58 years ago in 1967. It was a complex area of study. I studied private international law in 1969 – 56 years ago – and loved it. It was complex. It was intellectually challenging and it was very useful when, some years later in practice I joined a firm which had a large maritime law practice. Shipping contracts raise all sorts of conflict of laws issues.
But I haven’t had occasion to delve into public international law since I sat the exam paper back in 1967. So I have had to dig deep into the memory for the discussion about recognition of foreign states that follows.
I hasten to make it clear that this is not an academic discourse. What I am attempting to do is discuss the broader principles surrounding the recognition of states and then look at the issues as they apply to the recognition of Palestine. Academic lawyers and international law specialists would classify the treatment as superficial. What I present here is a summary of the salient points
The recognition of states is a concept deeply embedded in international law. While it's not explicitly a requirement for statehood itself, recognition plays a crucial role in the practical existence and functioning of a state, particularly in its interactions with other states and international organizations.
Recognition of a state in international law is not just symbolic—it has concrete legal, political, and practical consequences. Whether recognition is constitutive (creates statehood) or declaratory (acknowledges an existing fact) depends on which legal theory one adopts, but in either case recognition affects how that state interacts with the international system.
Constitutive Theory
In summary a state exists in law only when other states recognise it.
Recognition is thus a prerequisite for international legal personality.
An example may be found in the Baltic States (Lithuania, Latvia, Estonia) which maintained de jure existence during Soviet annexation because many states withheld recognition of the annexation.
Declaratory Theory
A state exists in law once it meets the Montevideo Convention criteria (permanent population, defined territory, government, capacity for foreign relations), regardless of recognition. Thus, recognition is merely the formal acknowledgment of an existing fact. Most modern practice leans toward this view.
What are the effects of recognition?
The first effect is that a recognised state achieves international legal personality. Recognised states gain full standing under international law.
This means that they can enter into treaties, join international organisations (if they meet the organisation’s admission criteria) and bring claims and be sued in international courts and tribunals.
Without recognition, these capacities may be blocked in practice, even if they exist in theory.
The second effect has to do with diplomatic relations. Recognition allows establishment of embassies, consulates, and formal diplomatic exchanges and gives access to privileges and immunities under the 1961 Vienna Convention on Diplomatic Relations.
The third effect relates to sovereign immunity.
Recognised states enjoy immunity from the jurisdiction of other states’ courts, both in respect of the state itself and its property, subject to exceptions - for example commercial activity exceptions in some jurisdictions.
A fourth effect relates to Treaty-making power. Recognition confirms the capacity to conclude binding treaties, both bilateral and multilateral but a state not widely recognised may find treaty-making severely constrained. For example Taiwan can only conclude treaties with states that recognise it or with certain international bodies under special arrangements.
A fifth effect addresses membership in international organisations. Recognition is often a prerequisite for joining the UN and most other intergovernmental bodies. The UN Security Council recommends membership; the General Assembly votes. Lack of broad recognition can block admission.
Finally there is the effect of state responsibility and rights. Recognised states may invoke the law of state responsibility against other states. They may claim reparations for wrongful acts, have standing in international disputes, and assert rights over territory, resources, and self-defence under Article 51 of the UN Charter.
Other Consequences of Recognition
Recognition often unlocks eligibility for IMF, World Bank, and other funding and allows entry into trade agreements and preferential tariff arrangements. In addition recognised states issue passports generally accepted by others; unrecognised entities’ passports are often invalid for travel.
Observations
Non-recognition does not necessarily erase statehood if the entity meets objective criteria (per declaratory theory), but it can severely restrict practical ability to function internationally.
Some states engage in de facto recognition (practical dealings without formal acknowledgment) or conditional recognition (subject to fulfilment of specific requirements).
Finally, recognition can be withdrawn. This is rare but usually follows a regime change or dissolution.
The Palestine Problem
Calls have gone out for recognition of Palestine. These have increased in intensity as the humanitarian crisis in Gaza has escalated.
The question is whether or not recognition will solve that problem.
Furthermore it must be of concern that Hamas has thanked Prime Minister Albanese’s willingness to recognise Palestine. One wonders whether or not the 7 October 2023 atrocities were designed to provoke the Israeli response and increase international focus on the region to get as much support for recognition that would otherwise be lacking.
In addition there has been a subtle shift on the part of Chloe Swarbrick and the Greens from “From the River to the Sea, Palestine Must be Free” - a clear anti-Semitic call – to a call for recognition. One must wonder why and if the effects of recognition are considered, the position of Palestine and especially Hamas will be strengthened.
Another issue surrounds the growth of public support for recognition. One must be careful in situations such as this to avoid yielding to emotion and sympathy. Of course the humanitarian crisis is terrible. But there have been wrongs on both sides.
One of the leading wrongs is the continued unwillingness of Hamas to surrender the surviving hostages that it kidnapped on 7 October. The bona fides of Hamas – if indeed a blatantly terrorist organisation that seeks the destruction of a neighbouring State has any bona fides – must be questioned in light of this conduct.
As Foreign Minister Peters has stated, the issue of recognition is a complex one, as the discussion above might indicate. The issue in the context of the Middle East and Israel is even more complex and the roots of the problem go beyond the formation of the State of Israel in 1948.
I want to discuss two issues. The first involves the arguments for and against recognition of Palestine and in this discussion I am assuming that there is a coherent entity of Palestine. Once again this is a very simplistic overview but is designed to clarify some of the issues. I then want to discuss the Gaza situation and conclude with a point of view.
Palestinian Recognition
The recognition of Palestine—whether as an existing state under international law or as a state-in-waiting—is one of the most contested questions in diplomacy. The debate involves political, legal, strategic, and humanitarian dimensions.
Arguments for Recognition
The Right to Self-Determination
The Palestinian people are entitled to self-determination under the UN Charter and customary international law. Recognition affirms this right and aligns with decolonization principles applied elsewhere in the 20th century.
Existing Statehood Criteria
Many argue Palestine already meets the Montevideo Convention criteria for statehood. It has a permanent population – Palestinians in the West Bank, Gaza, and East Jerusalem. It has defined territory – although its borders are disputed, many recognized states also have unresolved boundaries.
It has a form of Government in that the Palestinian Authority exercises varying degrees of administrative control. In addition it has capacity to enter into relations. Palestine engages in diplomacy and is recognized by over 130 UN member states.
Finally under this head, Palestine has held UN General Assembly non-member observer state status since 2012.
Advancing the Peace Process
It is argued that recognition could strengthen the Palestinians’ position in negotiations, making talks more equitable between two states rather than between a state and a “non-state actor.”
Furthermore it could discourage unilateral territorial changes by signalling that the international community supports the 1967 borders as a baseline.
Legal Protections
State recognition would enables Palestine to accede to international treaties and institutions such as the ICC, potentially deterring violations of international law by any party.
International Consistency
Many states see recognition as consistent with recognition granted to other peoples in similar circumstances (e.g., South Sudan, East Timor).
Arguments Against Recognition
Incomplete Sovereignty
Palestine does not exercise full control over its territory. Israel controls borders, airspace, and movement in much of the West Bank. Gaza is governed by Hamas, which is politically separate from the Palestinian Authority and this this partial – indeed fragmented - control leads some to argue that recognition is premature.
Impact on Peace Negotiations
Some governments argue that recognition should come only as part of a negotiated peace settlement with Israel. Unilateral recognition, they contend, might harden positions and make compromise less likely.
Internal Political Division
The split between the West Bank (Fatah-led Palestinian Authority) and Gaza (Hamas) means there is no single unified Palestinian government. Critics say recognition in this context risks endorsing a fragmented political reality. This in my view is a strong argument. If recognition were to take place, which “Palestine” would be recognised.
Security Concerns
Some states, especially Israel and its close allies, argue that recognition without binding security arrangements could threaten regional stability. They point to the possibility of attacks from Palestinian territory as evidence that sovereignty should follow security guarantees.
Diplomatic and Strategic Alliances
Countries allied with Israel or dependent on US support may avoid recognition to preserve strategic relationships. Recognition could trigger diplomatic retaliation or loss of influence in the peace process.
Is there a middle way? Are there alternatives to recognition.
One is conditional recognition - tied to specific commitments (democracy, renunciation of violence, negotiations).
Another is incremental recognition - expanding Palestine’s role in international organizations without full bilateral recognition.
A third is recognition of statehood in principle – which would acknowledge the right to a Palestinian state without recognizing it as a current reality.
The Gaza Problem
The fragmentation of Palestine, the split territories and the differing governance structures pose a problem for recognition of Palestine. As I observed above one question which must be answered is “which Palestine?” Most of the focus is on Gaza.
A recognition that might encompass Gaza could entrench the political split between Gaza and the West Bank, undermining the vision of a single Palestinian state alongside Israel.
It could weaken the Palestinian Authority and further fragment Palestinian representation.
Then there is the Hamas issue. Many states (including the US, EU, UK, and others) list Hamas as a terrorist organization. Recognition could be seen as legitimizing Hamas’ control, potentially contravening counter-terrorism commitments and alienating key allies.
In addition, Gaza has no settled international borders distinct from a future Palestinian state. Recognition would create a state with contested boundaries, ongoing internal conflict, and unclear international legal standing.
Israel and several Western states might see recognition as a hostile act, prompting political retaliation or even heightened military measures.
Recognition could embolden hardliners within Hamas, reducing incentives to compromise. One need only look at the gratitude that has been extended to PM Albanese for support of such a theory.
Finally, recognition is traditionally extended to entities that meet the Montevideo Convention criteria (permanent population, defined territory, government, capacity for relations with other states). Gaza’s contested sovereignty, ongoing blockade, and limited control over borders and airspace make full compliance difficult.
The Halfling’s View
There seems to be little doubt that Prime Minister Luxon for whatever reasons (were he capable of articulating them beyond the banalities of management-speak) seems to favour recognition. In a by now traditional NZ First tactic Foreign Minister Peters has applied the brakes and suggests a decision be deferred for a month.
The real question is whether Palestine is ready for recognition. Until such time as the de facto State of Palestine disavows Hamas and unifies control over the West Bank and Gaza, recognition would constitute validation and a legitimation of Hamas and its objectives and would amount to acceptance of a terrorist organisation into the International community.
In the Halfling’s view that would be an abomination and would debase the value of recognition.
Thank you for your clear explanation and unequivocal opinion. I wish many more would read this, particularly those who merrily join the protests.
Damn, this is a timely reminder of why I subscribe to your Substack Mr Hobbit. Nothing you said was in the least bit nasssty, indeed it was right on the money. An excellent summation and a very interesting/informative read from my perspective. Your conclusion was also sound, for 'recognition' must surely require a standard. And Palestine, essentially Hamas, as a recognised and active terrorist organisation fails at every test.
My only critique is your comment 'Wrongs have been done on both sides'. Whilst technically & morally true (for it is hard to engage in war with perfect moral credentials), I would argue this statement per se could be construed as accepting a state of moral equivalency twixt the two 'nations'. One might also state accurately that the Allies committed 'wrongs' against the Nazis, but then they were at war. A war for the survival of freedom and democracy. Israel is not perfect, sure, but they are by orders of magnitude the 'wronged' party here. 'Palestinians' (disaffected Jordanians in reality) have had so many chances to establish peace. But every time they renege. Led by a corrupt Egyptian conman, the PLO rebuffed all offers, some of them very generous. Hamas has gone the next step as we all know. Since 1948 Israel has clearly been the 'wronged' party here. Luxon & Peters' folly is to think they have the first fucking clue about being surrounded by enemies who teach their children that killing you is the highest goal. They need to sstop the political posturing and instead show clear support for our ally, our friend, Israel. I am deeply ashamed that our Government has fallen prey to Hamas spin and thank you very much for providing some well informed balance to the argument.