Today the Swedish government recognized Palestine. This is an English translation of an op-ed published in the largest Swedish morning paper, Dagens Nyheter, on October 20th, which supports this decision. (http://www.dn.se/debatt/ett-erkannande-av-palestina-har-stod-av-var-tids-folkratt/). The content of this and other blog posts by SCILJ members contain the private views of the authors and do not reflect an institutional policy of SCILJ or of Stockholm University.

In the statement of government policy (3 October), the new Prime Minister of Sweden, Stefan Löfven, said that the conflict between Israel and Palestine can only be solved through a two-state solution, “negotiated in accordance with the principles of international law,” and that Sweden “will recognize the State of Palestine.”
What does this mean from an international law perspective? May Sweden recognize Palestine? What does “in accordance with the principles of international law” mean?

Sweden already has extensive relations with Palestine. Development cooperation with the Palestinian Authority is carried out by agreement with the PLO. Palestine has a mission in Stockholm, which is included on the diplomatic list in Stockholm and headed by an ambassador. Sweden voted yes when Palestine, on November 29, 2012, received the status of “non-member observer state” at the UN, which logically seems to mean that Sweden already then regarded that Palestine was a state. To formally recognize Palestine would therefore not be a gigantic step, albeit one with significance.

Recognition is a political act, which has consequences under international law. It means that the recognizing state must hereinafter treat the recognized entity as a state. A state may recognize a new entity as a state, unless such recognition violates the rights of another state; an unjustified recognition may constitute an intervention into another state’s internal affairs and its right to territorial integrity, if the new state was previously a part of that other State. (For example, this is what Serbia claims regarding the recognition of Kosovo by Sweden and other states.)

Before recognizing a new state, one will generally consider whether the three criteria of a more or less defined territory, a population and an effective government are met (the principle of effectiveness). In recent decades, however, there has emerged a different principle, namely “an illegal act cannot produce legal rights ” (ex injuria jus non oritur) – which we may call a principle of justice. This principle, which may prevail over the principle of effectiveness, means that a state cannot be recognized if it has come about in violation of international law, e.g. through war or through apartheid policy. This principle has also justified the recognition of new states which have not had full control, if this lack of control has been due to a violation of international law by another state, such as an annexation or a denial of self-determination. Sweden recognized Croatia in 1992 with reference to this principle. The Croatian government then lacked full control over its territory due to military operations by the Yugoslav army.

How do these principles apply to the case of Palestine? In both the West Bank and Gaza there is functioning administration (PA and Hamas, respectively), and Hamas and Fatah are now negotiating to bring about a unified Palestinian government. However, the PA does not have military control over the West Bank, because of the Israeli occupation, including the Wall and numerous restrictions. This is where the principle of justice sets in.
The Palestinians have a right to self-determination, and this can lead to the formation of an independent state. IN 1974, the UN General Assembly solemnly declared “the Palestinian people’s inalienable rights”, including the right to self-determination, national independence and sovereignty. This right has been recognized by virtually all countries, and was confirmed by the International Court of Justice in 2004. Based on this right, the Palestinians want to be recognized as a state of their own within the 1967 borders, that is Gaza, the West Bank and East Jerusalem; however, they are willing to swap areas to allow some Israeli settlements to end up in Israel.

Does Israel have a conflicting right to these areas? East Jerusalem was annexed in 1980 and is thus, according to Israeli law, a part of Israel, but the annexation was declared illegal by the Security Council (resolution 478) and is not recognized by any other state. Other parts of the West Bank and Gaza are not annexed, although Israel has clearly stated that it desires to include at least part of the West Bank, including the sprawling suburbs of Jerusalem, and parts of the Jordan Valley.

Israel has no right to any of these areas. Regardless of whether the Six-Day War of 1967 was an Israeli war of defense or not, territory may not be annexed through the use of force. This has been made clear in the UN’s famous Friendly Relations Declaration of 1970, as well as in UN Security Council Resolution 242 on the Middle East in 1967.

Furthermore, Israel has no right to occupy these areas. During and after an armed conflict, a State may temporarily occupy an area. However, it may not alter the occupied area, e.g. by introducing its own population. Even occupations that are legal – like the Allied occupation of Germany in 1945 – must cease some day, under international law. If the Six-Day War in 1967 was a defensive war by Israel – and we need not settle that issue here – the subsequent occupation was lawful for some time. But we can safely say that the occupation is illegal today, and that it has been so for several decades. Israel’s creeping annexation through the ever-expanding settlements and the Wall/barrier only makes matters worse.

Many people believe that recognition must wait until an agreement has been negotiated between the parties. However, to be pro-peace and pro-negotiations, means nothing if one does not specify the conditions for peace. It is therefore important, as stated in the Swedish government declaration, that a two-state solution must be negotiated “in accordance with the principles of international law.” Since Israel has no right to the territories occupied in 1967, these areas must be ceded. Any changes in these borders – like land swaps — must be made fully voluntarily by the Palestinians. A Palestinian delegation that insists on the 1967 borders can possibly be accused of not fully understanding the military and political realities in the region, but it cannot be blamed for not being willing to negotiate, because it has good support in international law. Israel, by contrast, wants to keep Jerusalem including suburbs well into the West Bank and most of the other settlements and also areas in the Jordan Valley. Israel wants peace but only on conditions that are unreasonable under international law.

Some commentators allege that attempts to formally establish a Palestinian state are contrary to the Oslo Accords. Both parties have violated these agreements repeatedly, and Israel has done so throughout, with its consistent and continuous settlement policy, which makes a negotiated settlement more difficult by the day.
All of this yields the following result: The Palestinians have a state that would have been effective, if it were not for Israel’s illegal occupation. Israel has no international legal right that can be violated by the formation of a Palestinian state in the occupied territories or by the recognition of such a state. Palestine should thus be recognized.

Pål Wrange
Professor of International Law, Stockholm University
Former Principal Legal Advisor of Public International Law at the Swedish Ministry for Foreign Affairs

Ove Bring
Professor emeritus of International Law, Stockholm University, Uppsala University and National Defence College
Former Principal Legal Advisor of Public International Law at the Swedish Ministry for Foreign Affairs

Said Mahmoudi
Professor of International Law, Stockholm University