When the war in the former Yugoslavia began, the European Community established a committee of legal experts to advise on recognition of new states. This committee said a state is “a community which consists of a territory and population subject to an organized political authority [and] characterized by sovereignty”; the existence or disappearance of states is “a question of fact”; and recognition should merely declare that this fact exists. In the former Yugoslavia, as in Gaza today, the humanitarian suffering was enormous and and serious allegations of international crimes were made.

In 2006, James Crawford, the leading expert on the international law of statehood, concluded that, even if one could imagine the international community deciding to treat a new state as existing “notwithstanding the facts”, such a possibility could not apply to Palestine then.

Until two days ago, the British Government had not supported the notion of that recognition of statehood “notwithstanding the facts”. It has now changed position with a statement that makes little legal or political sense.

To begin with, the territory of Palestine is not defined. Past British governments criticized the Palestine Liberation Organisation (PLO) for rejecting offers of less than 100% of the West Bank and Gaza. To say now that Palestine is a state holding all of that territory would vindicate those who said no to peace then. If they were right then, why not try again? Cash in the 100% and demand more seems a sensible strategy.

Effective government, or “organized political authority”, is another factual prerequisite of statehood. The British statement says it wants Hamas out and welcomes improvements by the Palestinian Authority (PA), but it does not identify any single authority as the effective government of the state of Palestine.

If the reason for the new approach is the right of self-determination of Palestinian people, which the International Court of Justice has indisputably recognized, how can the Government justify its recent change of policy on Western Sahara? This territory has been under Moroccan occupation since 1974 and the Sarahawi people are entitled to self-determination, yet the UK Government last month chose to support what is, in effect, Morocco’s annexation plan.

Perhaps the most perverse aspect of the Government’s statement involves the conditions for recognition. Conditional recognition of statehood is not new. But conditions have normally been applied to the entity aspiring to statehood — for instance, by requiring it to renounce the use of force or protect minorities.

The Government statement instead imposes conditions on Israel. It says Britain “will recognize” the state of Palestine in September “unless” Israel does certain things. So if Israel meets certain conditions, including a ceasefire, Britain will not recognize Palestine. It is impossible to square this bizarre conditionality, which features in neither the French nor the Canadian statements, with the principles that govern recognition.

Additionally, the British Government’s approach creates an incentive for Hamas to prolong the war so it can be said Israel did not meet the ceasefire condition. The condition is for Israel to “agree” to a ceasefire, a formulation which some lawyers may have thought leaves room for maneuver, but good luck to ministers trying to explain this as the reason for non-recognition in September.

While the Labour government demands the “immediate release of the hostages”, this does not appear as one of the conditions. Elsewhere in the statement, the Government says it will assess before the United Nations General Assembly how far “the parties” have met “these steps”, but it is not clear who and what it is referring to. There is no diplomatic advantage to be gained from this ambiguity. Hamas leaders know British recognition is in the bag regardless of what happens to the hostages because, having set such high stakes, Keir Starmer won’t be able to resist pressure over recognition for long, if at all.

This matters for the future of the rules-based order, as the Western legal position on this conflict is now incoherent. For example, it is said both that Israel is the occupying power in Gaza and that Israel should not be in Gaza, making Israel the first occupying power in history which cannot enter that which it occupies.

According to the British Manual on the Law of Armed Conflict, military occupation requires two things: the former government must be incapable of exercising any authority, and the occupying power has taken over as the new government. When Israel left Gaza in 2005, these conditions ceased to be satisfied. Some started clamoring for the rules to be interpreted differently so it could be said that Israel was still occupying Gaza. This suited Hamas: it was running Gaza, but could still blame Israel as the “occupying power”.

Recognition will beget new contradictions. For instance, UNRWA claims that 2.5 million Palestinians in the West Bank and Gaza are ”registered refugees”; how can they continue to have that status if they are said to live in the territory of their own sovereign state?

It is tempting to justify recognition as a reaction to the shocking humanitarian crisis in Gaza, settler violence in the West Bank, and the Netanyahu government’s failure to articulate a post-war political vision. Some Arab states, including Egypt, Jordan and the United Arab Emirates, are attempting to provide such a vision and their efforts deserve support. But how does the gesture of recognition by the UK help? It is hard to see how the present legal incoherence can produce a lasting political solution.