A group of senior lawyers has written to the UK government’s most senior legal adviser, Lord Hermer, claiming that Keir Starmer’s pledge to recognise Palestine risks breaking international law. Here the Guardian explains the Montevideo convention, which they cite, and examines whether it does represent an obstacle to recognition.
What is the Montevideo convention?
It is a treaty signed in the Uruguayan capital in 1933 by 19 states, all from the Americas, including the US, that set four criteria for recognition of a state. They were: a defined territory, a permanent population, a government and the capacity to enter into international relations. The fact that the UK did not sign does not mean that it would not apply to it, as it can be recognised as part of customary international law.
Why do those who wrote to Hermer claim the UK risks breaching the convention?
According to the Times, which has seen the letter, it says that there is no certainty over the borders of a proposed Palestinian state and the government would face difficulty continuing to recognise millions of Palestinians in the West Bank and Gaza as “refugees”, given recognition of statehood would mean they were in their own territory.
The signatories also reportedly point to the fact that there is no functioning single government – Hamas controls Gaza and Fatah the West Bank – and claim that it has no capacity to enter into diplomatic relations (although it does have embassies and is party to international treaties).
What do others say?
The state of Palestine has been recognised by 147 other countries, which suggests they disagree.
Philippe Sands KC, a professor of law at UCL, pointed out that in its advisory opinion last year the UN’s top court, the international court of justice (ICJ), recognised “the right of the Palestinian people to self-determination, including its right to an independent and sovereign state”.
Sands said: “I have no doubt whatsoever that if it were asked, the ICJ would reject the argument that it is somehow unlawful to recognise the existence of Palestinian statehood. Palestine meets all the legal criteria of statehood; all that remains is a political consideration, namely whether to recognise or not that those criteria are met. The court’s language makes clear that that right exists now, and it exists because all the criteria for statehood are met.”
Victor Kattan, assistant professor in public international law at the University of Nottingham, said that the Montevideo convention was a “starting point” but that other rules of international law had emerged since, including the right of self-determination.
He said that many states had or had previously had border disputes and governance issues. “Of course the Palestinian Authority is not able to exercise all elements of government authority but that’s because of an occupation which the ICJ last year declared was unlawful,” he said.
Who signed the letter to Hermer?
It was reportedly signed by 40 peers, including many senior lawyers, among them Lord Pannick KC and Lady Deech. They are both patrons of UK Lawyers for Israel (UKLFI), whose chief executive, Jonathan Turner, has said that neither Israel’s occupation nor its settlements are illegal.
Another signatory, Lord Verdirame, unsuccessfully argued alongside Pannick, in a submission to the international criminal court, that it had no jurisdiction over crimes allegedly committed in the occupied Palestinian territories. The former supreme court judge Lord Collins also signed.