Jure Vidmar (Univ. of Oxford – Law) has posted Palestine and the Conceptual Problem of Implicit Statehood (Chinese Journal of International Law, forthcoming). Here’s the abstract:
The General Assembly has accorded to Palestine the status of a non-member observer state in the UN. Some commentators have taken the position that Palestine’s legal status as a state has thus been confirmed. This article draws on historical examples to demonstrate that the status of non-member state is not necessarily granted only to states. The recent vote in the General Assembly, therefore, neither confirmed nor altered the legal status of Palestine.
But irrespective of this vote, Palestine nevertheless has a previously-acquired international capacity to act like a state and can, inter alia, become a party to the ICC Statute and bring a case to the ICJ. Such a capacity could be seen as an implicit confirmation of statehood. This article, however, demonstrates that state creation cannot be an implicit side-effect of international treaties or voting procedures in international organizations. Not even (full) membership of the UN is an exception.
Source: International Law Reporter