CYIL vol. 12 (2021)

CYIL 12 (2021) Selected Issues of the Responsibility of the State of Israel and Palestine… statehood. 23 According to Quigley, the statehood of Palestine continued after the events of the Six-Day War in 1967, when the State of Israel began the military occupation of the Gaza Strip and the West Bank. Quigley states that a significant milestone in the recognition of Palestine’s continued statehood was 1988, when a Palestinian government was formed through the Palestine Liberation Organization, at which point Jordan abolished its “ provisional merger as a tribute to the PLO … Palestine in deference to the PLO as the Government of Palestine ”. 24 Quigley believes that the State of Israel recognized Palestine as a state in 1993 (implicitly) through its consent to negotiate with the PLO on state borders. 25 He also points to the recognition of Palestine as a state by the majority of the international community, as well as to a number of UN General Assembly resolutions stating that Palestine is a state. 26 Equally interesting is the opinion of prof. Quigley on the “Palestinian Statehood Test” according to the criteria set out in Article 1 of the Convention on the Rights and Duties of States (also the Montevideo Convention). 27 The features of the state are the territory, the permanent population, the exercise of public power (government) and the ability to enter into relations with other states. Quigley argues that Article 1 of the Convention was not designed to examine whether or not an entity is a state from the point of view of international law; on the contrary, its object and purpose was to protect Latin American states from the more powerful United States of America. 28 He further points out that, in relation to the recognition of entities as a state (in the field of international relations), states do not follow the “Montevideo criteria”. 29 Quigley states that Palestine can nevertheless be considered a state according to the criteria set by the Montevideo Convention, he considers that all four constitutive features of the state are fully fulfilled in the case of Palestine, even including the territory. Quigley states that the Montevideo criteria require a defined territory and not a territory surrounded by defined borders. 30 He also notes that the Montevideo Convention is only an 85-year-old regional treaty that does not create requirements for the statehood of the entity according to the practice of the international community. 31 The second of the quoted authors of the doctrine is prof. Malcolm N. Shaw, 32 who also submitted his report to the International Criminal Court in the present case. Shaw finds very specific, unusual, and even controversial to “view Palestine as a state solely for the purpose of the Rome Statute” because such a concept is not based on international law. 33 Due to

23 Ibidem pp. 13–16. 24 Ibidem p. 17. 25 Ibidem p. 18. 26 Ibidem pp. 19–20. 27 ONDŘEJ, J., POTOČNÝ, M. ibidem p. 17.

28 QUIGLEY, ibidem pp. 21–22. 29 QUIGLEY, ibidem pp. 23–26. 30 QUIGLEY, ibidem pp. 27–30. 31 QUIGLEY, ibidem p. 31.

32 Malcolm N. Shaw was the Professor of International Law at the University of Leicester and taught international law, human rights and equity and trusts. Following retirement, he was appointed as Senior Fellow at the Lauterpacht Centre for International Law at the University of Cambridge and made a Trustee of the British Institute of International and Comparative Law. He is a practising barrister and jurist. He is the author of a bestselling book on International Law (first published in 1977; 6th edition released in 2008). He also edited Title to Territory, a collection of articles on title and sovereignty in international law. 33 SHAW, M. N. Situation in the State of Palestine. Submissions of Observations to the Pre-Trial Chamber Pursuant to Rule 103. No. ICC-01/18, International Criminal Court, 16 March 2020. p. 4.


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