Recognition & Diplomatic Protection
Past experience cautions against leaving diplomatic protection of stateless Palestinians to the international community. Under lex lata, Palestine lacks the legal capacity for diplomatic espousal with respect to stateless Palestinians. But if it has the political will, moral imperative and the lack of satisfactory options may work in Palestine’s favor. In the process, it could herald a progressive development in the law of diplomatic protection.
To date, 137 UN member states have extended recognition to the State of Palestine. Over 100 of these states recognized Palestine following the PLO’s declaration of independence in 1988, when Palestine undeniably did not satisfy the internationally-recognized criteria for statehood.
While General Assembly resolution 67/19 represented an act of collective recognition, that collective recognition did not correspond precisely with existing bilateral recognition of Palestine. Several states which voted in favor of resolution 67/19 distinguished their vote on Palestine’s UN status as a non-member state from official recognition of Palestinian statehood. On the other hand, several states that had previously recognized Palestine but abstained from the vote on resolution 67/19 made clear that they had not rescinded that recognition. Further, several states that have not recognized Palestine maintain diplomatic relations with the PLO and host Palestinian diplomatic missions or general delegations.
Thus, it cannot be assumed that each state which has recognized Palestine would accept a claim of international protection brought by the Government of Palestine on behalf of a putative Palestinian national (whether resident in the occupied Palestinian territory or the diaspora), nor that each state which has withheld recognition would reject such a claim. As John Quigley has noted, ‘determining the actual content of any of the 100-plus recognitions requires scrutiny of the relevant documents and analysis of the recognizing state’s conduct towards the PLO.’ But without knowing actual state practice, what should that practice be?
The ILC Draft Articles on Diplomatic Protection provide that, in cases of state succession, a successor state should enact legislation on nationality without undue delay, while recognizing that it may be unrealistic or even impossible for states ‘born as a result of a turbulent process’ to enact nationality legislation at the time of their emergence. In this regard, the Commentaries to the Draft Articles note that Israel did not adopt its Nationality Law until nearly four years after its declaration of establishment. During the period between the state’s emergence and enactment of nationality legislation, the Draft Articles provide that persons having their habitual residence in the territory are presumed to have acquired the nationality of the new state on the date of such succession. Assuming that the State of Palestine is a successor state to Mandatory Palestine, it would seem to follow that oPt Palestinians are putative nationals of the State of Palestine as of the date of its establishment, including for purposes of diplomatic and consular protection. Is is unclear whether the Government of Palestine is attempting to exercise these functions, and if so, to what effect.
With regard to stateless diaspora Palestinians, the Draft Articles limit the right to exercise diplomatic protection of stateless persons and refugees to the State in which the stateless person or refugee is ‘lawfully and habitually resident.’ Other leading instruments also require that the stateless person or refugee have a continuous residence in the protecting State. Obviously, stateless diaspora Palestinians cannot be habitual resident in Palestinian territory due to circumstances beyond the control of the Government of Palestine, as putative protecting state. The contributors to the Draft Articles on Diplomatic Protection acknowledge that ‘the requirement of both lawful residence and habitual residence sets a high threshold’ and ‘leads to a lack of effective protection for some individuals.’ This lack of effective protection is acute for stateless Palestinians, who have historically faced arbitrary revocation of their residency rights.
If Palestine is unable to assert diplomatic protection on behalf of stateless diaspora Palestinians, then this obligation falls upon the international community. Compensation claims by Palestinians resident in Kuwait at the time of the Iraqi invasion and occupation were presented to the UN Compensation Commission (UNCC), albeit inadequately, by UNRWA and UNDP with the cooperation of Arab host states.
The Syrian conflict presents the Government of Palestine with a morally-compelling opportunity to espouse diplomatic protection on behalf of diaspora Palestinians. Over 50 percent of the 560,000 registered Palestinian refugees in Syria have been displaced by the hostilities. Assuming that the conflict’s ultimate resolution includes a claims settlement process, displaced Palestinian refugees, like Syrian nationals, will have claims for forced displacement, death or personal injury, and the loss of real and personal property. The UNCC experience cautions against leaving diplomatic protection of stateless Palestinians to the international community. Under lex lata, Palestine lacks the legal capacity for diplomatic espousal with respect to stateless Palestinians. But if it has the political will, moral imperative and the lack of satisfactory options may work in Palestine’s favor. In the process, it could herald a progressive development in the law of diplomatic protection.