WHAT WAS CLAIMED
Australia can't recognise Palestine as a state if it doesn't meet legal criteria for statehood.
OUR VERDICT
False. Recognising Palestine is at the discretion of individual states and it doesn’t breach any laws or legal obligations.
AAP FACTCHECK - Australia would not be acting contrary to international law by recognising Palestine, even if it didn't fulfil the accepted test for statehood, despite claims online.
Experts say recognising Palestine is at the discretion of each individual state and doing so would not breach any law or legal obligation.
Claims about the legality of recognition emerged after the Australian government announced in early August that it would recognise Palestinian statehood at the UN General Assembly meeting in September.
The New Zealand government has said it's also considering recognition.
One of the claims appears in a Facebook post arguing against the Australian government's plan to recognise Palestine.
"The Decision today to recognise Palestine is a decision of the Labor Party, it comes from their Communist base," the post's caption reads.
"Effectively Palestine cannot be recognised as a State because it doesn't meet either the legal requirements of the United Nations or the legal requirements of the Montevideo Convention, that requires four basic requirements."
Another post argues the Australian government has ignored "the superior understanding of the Arab world, & the learned fellows, (international law experts) across the globe, who point out that recognising Palestine as a state breaches international law".
International law experts, however, say the claim is inaccurate and recognising Palestine would not breach any law or legal obligation.
Several posts make reference to the Montevideo Convention. This was a treaty signed by several states in North and South America in 1933 to assert their independence from their former European colonial rulers.
The document includes the most widely used test today to determine what constitutes a state.
Article 1 of the convention states: "The 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."
However, Donald Rothwell, an international law expert at Australian National University, says that how each individual state uses the criteria is at its own discretion.
"The Montevideo Convention test has been applied flexibly in practice," Dr Rothwell told AAP FactCheck.
"Ultimately, whether a new state meets the test is a political decision by each individual recognising state - such as Australia, Canada, the UK, etc."
Rowan Nicholson, a Flinders University expert on statehood and self-determination, said recognising states were not legally obliged to apply the Montevideo criteria.
"There is nothing in international law that prevents other states from recognising it as a state anyway," he told AAP FactCheck.
"By doing that, they undertake to treat it as a state for their own legal and diplomatic purposes."
Dr Nicholson said the UN already treats Palestine as a state and its statehood is widely recognised by UN member states.
Tim Stephens, an international law expert at the University of Sydney, said that such recognition exists despite debates about whether Palestine meets all the statehood criteria in the Montevideo Convention.
"The vast majority of states do recognise Palestine as a state - 147 states, with this number set to grow significantly in September - and there are sound legal reasons for this," Dr Stephens told AAP FactCheck.
Rain Liivoja, a University of Queensland international law expert, believes the Montevideo criteria appear to support Palestine's claim to statehood, or at least don't impede it.
Regardless, he said Australia would not be in breach of international law by recognising Palestine as a state.
Dr Rothwell added that UN membership is not a legal prerequisite for recognition, noting that Australia recognises Kosovo, which is not a member.
However, the experts acknowledged that state recognition could breach international law in specific circumstances, but added that these don't apply to Palestine.
Recognition becomes problematic when it involves one state seceding from another recognised state, as this could constitute "intervening in the internal affairs of another state" in breach of the legal principle of sovereignty.
As Palestine isn't recognised by the international community as being part of Israel's territory, Dr Liivoja said, this principle doesn't apply.
"The recognition of the state of Palestine cannot infringe the sovereignty of Israel, because Israel has no sovereign rights to the territory of the state of Palestine," he said.
Dr Nicholson said recognition could also be illegal in cases where new states were created through unlawful force, genocide, or other grave acts, such as territories that declared independence following Russia's invasion of Ukraine.
As with breaching sovereignty, he said, this circumstance does not apply to Palestine.
"So, recognising Palestine is not illegal," Dr Nicholson said.
AAP FactCheck is an accredited member of the International Fact-Checking Network. To keep up with our latest fact checks, follow us on Facebook, Instagram, Threads, X, BlueSky, TikTok and YouTube.
