Palestine holds permanent Observer Status at the UN, but that type of status has never been legally codified. What is the current legal status of Palestine?

To be a state, a state need only be recognized by other states, and recognised through international agreement. It does not need to be recognized as a state by the United Nations, in fact, it is a logical pre-requisite for an entity to already be a state for it to be accepted for membership in the United Nations (Article 4, UN Charter).

Although Israel is a member of the UN, it was recognized as a state beforehand – and during a more uncertain period than Palestinians find themselves in now. Palestine has been recognised as a state by numerous countries following its own declaration of independence in 1988.

Both of these states – while not recognizing the other explicitly –  have established themselves in accordance with Resolution 181; they have acknowledged the “termination of mandate, partition, and independence”, as Part A of 181 is titled, and self-identified with the states described therein. The difference between Israel and Palestine as states is in their degree of independent action – the Palestinian government does not have the ‘monopoly on violence’ within its borders.

As to whether Israel is beholden to recognize Palestine as a state is one thing; it is it its sovereign right not to do so long as Palestine is not a member of the UN. The Israeli position however, has no legal effect on whether Palestine is or is not a state. This is also true of the United Nations: the UN is restricted by its charter as to how it can term a state. Specifically: the UN charter only permits the UN Security Council, and the wider UN, to classify geographic locations into three types of place: (1) Member States; (2) non-Member States; and (3) territory’, “whose peoples have not yet attained a full measure of self-government” (Article 73 UN).  There is no legally defined “other” category. Palestine is not a Member State, so to the Security Council it has to be either a non-Member State or a “territory”.

If Palestine is a non-Member State, for as long as it is not a member of the UN, other countries are not beholden to recognize it. Palestine may, however, apply and have it membership is considered by the Security Council first, and then the General Assembly. Membership is open to all “peace-loving” states that are able to fulfil the requirements of the UN Charter (Article 4) – and the contents of the Charter are the only metric by which membership can legally be judged by the UN, including the Security Council. If membership is rejected by the Security Council on the basis of the Charter then there is only one other case, in which membership could be legally be rejected, and that is that Palestine is not sufficiently self-supporting and is a territory. In such a case, it falls by default into trusteeship status (Chapter XII and XIII UN Charter).

So what is Palestine? The answer is profound. If Palestine applies to the Security Council and is rejected on the basis that it is not peace-loving or otherwise would not fulfil the requirements of the charter, then it is legally acknowledged by the Security Council to be a state. This will set legal precedent albeit as a non-Member. On the other hand, if the Security Council rejects an application from Palestine on the basis that it is not a state, then there is only one category it can be defined as: a non-self-governing territory. As Israel holds administrative and military authority in Palestine, it would then legally assume responsibility for implementation of Article 73 of the UN Charter for that non-self-governing area in all its provisions. Further, the geographic bounds of this territory would then be further acknowledged as legally separate to the State of Israel.

In either case, a negative result from a membership application to the Security Council by Palestine would hold a positive result for Palestine, either in terms of statehood, or in terms of territory. It may even be advantageous for them to make an application even if the prospect of success is very low.

And in the unlikely event that it is accepted as a member, it would oblige Palestine to recognize Israel, and vice versa. This is because the principle of sovereign equality of all members of the United Nations does not permit variation in status of members status with respect to one another; thus all states mutually recognize one another to remain compliant with the UN charter, even if they don’t hold diplomatic relations.