Nepal should recognise Palestinian sovereignty

With the ongoing war, innocent death and destruction in Palestine by Israel, the recognition of the state of Palestine stands out as the most complicated issue in the history of state recognition. 

Both Israel and Palestine have their own history and geography as well as their supporters and opponents. Israel's war in the region is escalating, as the air strikes on Lebanon on Sunday shows. 

It should be acknowledged that Israel and Palestine have equal rights to statehood, to exist, to defend, and to live in peace. Israel and Nepal both applied for membership of the UN at the General Assembly in 1949. Israel’s application was proceeded by the Assembly and approved by the Security Council in the same year. 

Nepal’s membership was blocked until 1955 at the Security Council because of a Soviet veto. In 1960 Nepal was the first South Asian country to recognise Israel by a unilateral government decision and established diplomatic relations.

Nepal supported Palestine statehood both at the Non-Aligned forum in the 1980s and the UN General Assembly in recent times. Nepal should now make a formal and unilateral declaration in support of full recognition of the State of Palestine. 

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This should be a declaration similar to what Nepal government issued vis-a-vis Israel decades ago, and a new declaration is especially warranted because of the misuse of the veto power by the United States, blocking Palestine’s full membership of the UN. Nepal may emphatically remind itself of being similarly blocked from becoming a UN member for five years because of the Soviet veto.

The Palestine question has become a ‘politics of international law’ within and outside the UN. In May 2024, the General Assembly referred a proposal to the Security Council, calling for the admission of Palestine as a full member of the UN. The United States used its veto against it. After the US veto Norway, Ireland, Spain and several European countries declared Palestine statehood unilaterally. 

Informed debate on Palestinian statehood is a rare subject in the Nepali media. Hamas terror on 7 October, 2023 in Israel in which 10 Nepali students were killed and one Nepali citizen is still being hostage, was rightly condemned by the Nepal government and media. 

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Anyone who believes in international rule of law must condemn acts of terrorism whether it is by state or non-state actors. But the Nepal government and media seem to be silent on condemning acts of genocide in Gaza. This is despite the International Court of Justice acknowledging ‘plausible genocide’ by Israel that is not a proportinate response to terrorism. 

The Nepal government should declare Palestine statehood in the same manner as Prime Minister BP Koirala's government recognised Israel in 1960 -- a bold, unilateral and formal recognition – even though Nepal voted in favour of Palestine in resolutions at the UN General Assembly and Non-Aligned countries' conferences.

Of 193 UN member states, 146 have voted for and 94 countries have established formal diplomatic relations with Palestine, yet it is still being blocked from full UN membership. The state practice of recognition follows political realities and the process varies from case to case. In the case of Palestine, especially in opposition to the United States veto, Nepal should make an official endorsement with other countries like Norway and Spain to strengthen the de jure status of Palestine.  

Nepal’s expressed solidarity with Palestine is noteworthy, but voting in UN resolutions is not enough for de jure recognition of Palestine since the Security Council approval is lacking. The UN General Assembly only gave de facto recognition of Palestine, which helped to upgrade its non-state observer status to a UN member. However, it is still awaiting recognition of de jure sovereignty as well as full membership of the UN.

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Right or wrong, the Security Council has ultimate authority to declare so-called ‘hard law’. Under the UN hierarchy of its five permanent members (US, UK, France, Russia and China) have the authority to block any substantive decision. UN records shows that the United States has used its veto 42 times in favour of Israel. All attempts to recognise Palestine’s de jure sovereignty have been blocked by the United States.

Contrary to the Security Council, the General Assembly is the global legitimate forum. The Assembly resolutions, however, are only recommendatory, lacking binding force. The weakness of the Assembly resolutions, lamentably, is that they usually form so-called ‘soft law’, but which can still be seen as binding law. The Security Council and supporters of ‘hard law’ do not perceive Assembly resolutions as binding law.

Israel is defying not only the International Court of Justice’s rulings but also the orders of Security Council. As a response to a recent request by the General Assembly, the International Court of Justice on July 19 gave an advisory opinion in which it declared that Israel’s occupation of Palestinian territories since 1967 was unlawful. Israel and the United States did not recognise the Court's opinion on this issue. 

Palestine has some weaknesses to fulfill statehood, which is also the case of Israel. For example, Palestine does not have full control over its territory since it is under occupation. When it comes to Israel, there is a problem with its democracy, democracy being known as a modern criterion of statehood in addition to territory, control over territory, population and government. In this context, Israeli democracy is not free of criticism, with some even calling it an ‘apartheid state’. 

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For Palestine to be regarded as a fully sovereign State under international law, it must obtain de jure recognition -- this means legal acknowledgement by the international community. Some are calling for an Israel-Palestine ‘bi-national state’, a homeland for both Jews and Palestinians, but only de jure sovereign Palestine may be helpful for future peace in West Asia. 

Nepal’s new unilateral declaration will not by itself be enough to make Palestine a sovereign state. It will, nonetheless, make history. Or at least Nepal will be standing courageously on the right side of the history.   

Katak Malla is a Senior Fellow at the Stockholm Centre for International Law and Justice in Stockholm University.