If the United States were to change course to support Palestine’s membership in the United Nations, Israel and Palestine would have access to the institutions of international law which have the capacity to move both states toward real peace, justice, and security for which both plead—and which is not only possible but inevitable. The status quo is crumbling before our eyes: the global Boycott, Divestment and Sanctions movement against Israel grows daily; Palestine is admitted to more and more international bodies open only to states; over two-thirds of the world’s countries have recognized Palestine as a state; the power of AIPAC highlights the weakness of Israel; Israeli politicians worry publicly about Israel’s drift toward an apartheid state; and Israel’s own diverse population is increasingly restive. The assertion that Palestine cannot join the UN because it not a state is spurious according to the classic and authoritative principles of the 1933 Montevideo Convention on the Rights and Duties of States. Palestine meets the conditions of the treaty which stipulates that a state must have a permanent population, a defined territory, a government, and the capacity to enter relations with others states.
First, from antiquity, Palestine has had a remarkably permanent population. Even today, Palestinian refugees within Gaza and the West Bank do not compromise Palestine’s citizens; nor do the refugees in neighboring states. The overwhelming majority of refugees will either return to their homes and lands in Israel or be absorbed by their host countries and the international community with citizenship and compensation. Only a relatively small portion of the refugees would move to Palestine, and not in such numbers as to be destabilizing.
Second, Palestine has been a well-defined territory historically, lying in the most western portion of Asia, south of Lebanon, and north-northeast of Sinai. After World War I, the League of Nations confirmed the British Mandate, which defined the exact borders of Palestine. In November 1947, the UN General Assembly again confirmed the boundaries of British Mandated Palestine in Resolution 181, which recommended that “independent Arab and Jewish States . . . shall come into existence in Palestine.” The size and borders of Palestine have changed and are now disputed, but Palestine still exists. Many states have lost land and changed boundaries without loss of statehood. The CIA World Factbook identifies over one hundred ongoing border disputes between sovereign states. Lost land and disputed borders do not negate statehood.
Legal scholar John Quigley documents that since I967, Israel has militarily occupied Palestine’s Gaza Strip and the West Bank against the will of its population in what Israel’s Supreme Court (Tamimi v. Minister of Defense, 1985), the UN Security Council (Res. 1322), the UN General Assembly (Res. 61/184), and the International Court of Justice (2004) have determined is a “belligerent occupation.” The occupation accounts for many limits within Palestine, but it does not vacate Palestine’s statehood. Poland, Czechoslovakia, Lithuania, and other states remained states when they were under belligerent occupation—and so does Palestine.
Third, Palestine has a government, albeit one historically conditioned by the “tutelage” of Britain, the “trusteeship” of Jordan and Egypt, and now the occupation by Israel. Under the British Mandate, the government of Palestine issued passports and extended citizenship to immigrants with the oath, “I swear that I will be faithful and loyal to the Government of Palestine.” Today, the government of Palestine elects officials, provides civil services, legislates and enforces laws, adjudicates civil and criminal cases in courts of law, and continues to issues passports that are accepted around the world, including in the US and Israel.
Even Israeli Prime Minister Benjamin Netanyahu has acknowledged and bitterly complained that the government of Israel has acknowledged that Palestine is a state with a government although not formally recognized. In 1993 one week after Mr. Yitzhak Rabin signed the Oslo Accords, Mr. Netanyahu eviscerated him on the floor of the Knesset: “Despite its denials, this government has accepted the creation of a Palestinian state . . . . Even if the words, ‘Palestinian state’, are not mentioned, you do not need a sign; this is a Palestinian state.” Who would sign the Oslo Accords with the government of the State of Israel if not the government of the State of Palestine?
Divided control of the government between Fatah and Hamas does not negate Palestine’s statehood. Many states have had weak or divided governments, yet remained states. Turkey has suffered half a dozen coups, yet remained a member state of the UN. And the 2011 ‘Arab spring’ states have had divided governments, yet remained members of the UN.
Is Palestine’s government illegitimate because it includes Hamas, which in its Charter opposes the existence of the State of Israel? No, not unless Israel’s government is illegitimate because it includes Likud, which in its Platform “opposes the establishment of an independent Palestinian state.” The US may not approve of the government of Palestine, or the governments of China, Russia, or even Israel, but they are all still states according to the international standards of the Montevideo Convention.
Fourth, the government of Palestine has diplomatic relations with over 130 countries and is a member of almost thirty international organizations limited to states. There is nothing hypothetical or unilateral about Palestine’s statehood or its bid for UN membership.
Nevertheless, Palestine is still widely misreported as a “territory” seeking UN “recognition.” According to its Charter, the UN has no authority to recognize any country, and the Montevideo Convention explicitly affirms that “the political existence of a state is independent of recognition by other states.” Palestine does not need recognition by the US or Israel to become a state; it is already a state. What Palestine needs, however, and what Israel and the entire world need, is Palestine’s admission to the UN as a Member or as a Permanent Observer. Israel and the United States’ formal recognition of the State of Palestine is a domestic political question that Israelis and Americans will resolve in their own time. For UN membership, Article 4 of the UN Charter requires only that an applicant is a state, not diplomatic recognition of that state—and Palestine is a state.
As long as Palestine is excluded from the UN, neither Palestine nor Israel has any option to resolve what they consider the other’s unjustified actions except violent retaliations or interminably fruitless peace negotiations punctuated by horrific wars. As everyone knows who has ever taken high school physics or a history course, the status quo is impossible to maintain; reality is dynamic. If Palestine were admitted to the UN as a Member or Permanent Observer, Israel and Palestine could take each other to the International Court of Justice or the International Criminal Court to resolve disputes in a larger arena that is less influenced by domestic politics. Currently, these courts and the Geneva Conventions cannot be invoked directly; but if Palestine were a Member or Permanent Observer of the UN, both states could access the institutions of international law to resolve conflict without violence.
When Palestine becomes a Member of the UN, Qassam rocket launches and drone missile attacks can be answered with the tools of international law, not retributive violence; home demolitions and land confiscation can be addressed in the international courts not the streets; cross-border kidnappings, shootings, and assassinations can be treated as criminal acts not terrorism or military exercises. And Palestine’s UN membership paves the way for both states to come to terms with the Arab Peace Initiative which promises to integrate Israel into its Arab ‘neighborhood’ which Israel has long described as hostile to its existence. Peace is possible.
Palestine’s membership in the UN does not require it to remain an independent state totally separate from all other states. International law affirms that independent states may freely associate to form a new state or a confederacy of states (UNGA Resolution 2625, 24 October 1970). All kinds of arrangements are possible: an independent state; a merger of Israel and Palestine; a confederated state of Jordan, Israel and Palestine; an economic and cultural union of all the states of the Levant, but separate political structures; and other options as well.
Palestine’s status in the UN is the key to Israel’s security and international support—and to Palestinian freedom, equal rights, and a just resolution of the refugees’ right of return. The UN is the world’s most inclusive institution devoted to peace. It is not perfect, but it is better than unending war. By hindering Palestine’s entrance to the UN, America has left Israelis and Palestinians with the limited options of capitulation to the other’s most recent demands or violence—and neither state is ready to capitulate.
 Norman Bentwich, “Palestine Nationality and the Mandate, Journal of Comparative Legislation and International Law, vol. 21, 230, at 232, 1939.
 Opposition Leader Netanyahu Criticizes Agreement with PLO During Knesset Debate, BBC Summary of World Broadcasts, Sept. 23, 1993, ME/1801/MED, at 6, available at LEXIS, News Library, BBCMIR File.