In a few weeks, an overwhelming majority in the United Nations General Assembly will likely vote for collective recognition of a Palestinian state. But which Palestinian state? Of the three Palestinian states the assembly could recognize, two are real and arguably could meet the requirements for statehood. But it is the third, purely imaginary one that the assembly will endorse, one that neither has a functioning government nor meets the requirements of international law.
According to the prevailing legal standard, the 1933 Montevideo Convention on the Rights and Duties of States, a "state as a person of international law should possess the following qualifications: a) a permanent population; b) a defined territory; c) government; and d) capacity to enter into relations with the other states." Both the Hamas-controlled Palestinian entity in Gaza and the rival Fatah-governed Palestinian entity in the West Bank can be said to meet all four of these criteria of the law of statehood. The one on which the United Nations will vote does not.
In Gaza, Hamas controls a permanent population in a defined territory (i.e., Gaza within the armistice lines of 1949). Gaza has a functioning, if odious, government. And Hamas-controlled Gaza already conducts international relations with a large number of states. From a narrowly legal point of view, the Hamas Gaza entity could become a state, another miserable addition to a very imperfect world.
Of course, a Hamas state in Gaza is not something most of the world wants to see. A Hamas state allied to Iran would be a severe blow to international peace and security, and it would not be a state deserving of recognition by any democracy. It would be a state arising from the military coup of June 2007, a state that engages in large-scale violations of treaty obligations and human rights. Nor does Hamas seek statehood for Gaza alone. Hamas wants eventually to rule the whole of mandatory Palestine, comprising not just the West Bank along with Gaza, but all of today's Israel too. Gaza alone is too small a prize for so grand an ambition. So this possible state is not on the table.
The Fatah Palestinian entity in the West Bank also could meet the legal requirements for statehood, and it would have more international support. It has a functioning government in the Palestinian Authority (PA), a permanent population, and international relations with a very large number of states. It also controls a defined territory, which comprises what are called areas A and B as defined under the Oslo II agreement of September 1995, plus additional territory subsequently transferred by Israel in agreed further redeployments. (Area A is the zone of full civil and security control by the Palestinian Authority, and Area B is a zone of Palestinian civil control and joint Israeli-Palestinian security control.) The Fatah West Bank entity within these lines also could be recognized as a state under international law.
But Fatah, the PA, and the broader PLO do not seek statehood for this West Bank entity that arguably could meet the legal requirements. Their minimum demand is a state that includes Gaza along with the West Bank, the eastern part of Jerusalem, and all the other parts of mandatory Palestine that were under Jordanian and Egyptian control before 1967. Fatah, the PA, and the PLO are demanding title to lands and authority over populations they do not control, being as they are under the rule of Hamas and Israel.