CYIL vol. 12 (2021)
Veronika D’Evereux CYIL 12 (2021) the fact that the position of Palestine from the point of view of international law remains ambiguous, it is even stronger reason to believe, it is not possible to consider Palestine as a state. 34 Shaw considers that Palestine does not meet the characteristics of a state according to the Montevideo criteria and that neither the Rome Statute nor general international law allows any deviation from following the generally respected criteria of statehood, and therefore considers that Palestine’s conception of a “state for the Rome Statute” is not in accordance with international law. 35 Nor can the uniqueness of the case of Palestine be considered an exception that would justify a possibility not to follow the international law. 36 Shaw further points to the inconsistency of the international community in relation to the recognition of Palestine as a state, the act of recognition is only of a declaratory nature in relation to the establishment of a state under international law, and recognition is rather a political act which does not have in any way a constitutive nature in relation to the creation of the state. 37 In relation to the exercise of the right to self-determination of Palestine, Shaw considers that the exercise of this right cannot be considered as an equivalent to a requirement of exercising power over a territory and therefore the right to self-determination does not substitute the requirement of a state to exercise public power over the territory independently on the will of other states. 38 Shaw considers that, at present, the International Court of Justice cannot exercise jurisdiction over the territories of Gaza Strip, West Bank, and Jerusalem because the conditions for exercising the jurisdiction defined by international law are not fulfilled, and therefore the prosecutor is not entitled to open investigations in relation to the citizens of the State of Israel. 39 The third of the included quoted authors is prof. Eyal Benvenisti, 40 who delivered his opinion to the International Criminal Court in the position of amicus curiae . Benvenisti points out, above all, the inadequacy of the Palestinian expression in relation to the question of what the Palestinian territory is. The Palestinian Authority representatives themselves are not united in answering the question of which areas they consider to be part of the Palestinian territory. 41 The Palestinian National Charter of 1964, as amended in 1968, states that Palestine is the homeland of the Arab people and that Palestine has the borders of the former Palestinian Mandate (Article 2), and the same document (Articles 19 and 20) states that the plan for the division of the Mandate of Palestine contained in General Assembly Resolution 181(II) is completely illegal and all documents granting or establishing the right of the Jewish people to the territory in the region are null and void. These last provisions were later revoked by Yasser Arafat, who, in 1993, recognized the right of the State of Israel to exist. However, in the context of later political changes in Palestine, Yasser Arafat’s statements were 34 Ibidem p. 5. 35 Ibidem pp. 8–12. 36 Ibidem p. 16. 40 Eyal Benvenisti is an attorney and legal academic, and Whewell Professor of International Law at the University of Cambridge. He was formerly Professor of Human Rights at Tel Aviv University’s Faculty of Law. Since 2003 he has been part of the Global Law Faculty at New York University School of Law. He is the founding co-editor of Theoretical Inquiries in Law (1997–2002), where he served as Editor in Chief (2003–2006). He has also served on the editorial boards of the American Journal of International Law , and International Law in Domestic Courts . 41 BENVENISTI, E. Situation in the State of Palestine. Amicus Curiae in the Proceedings Relating to the Prosecution Request Pursuant to Article 19(3) for a Ruling on the Court’s Territorial Jurisdiction in Palestine. No. ICC-01/18. International Criminal Court. 16 March 2020. pp. 7–9. 37 Ibidem pp. 24–25. 38 Ibidem pp. 13–23. 39 Ibidem pp. 26–29.
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