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International Law and Palestinian Independence: A View from Palestine

JURIST Special Guest Columnist Curtis Doebbler of An-Najah National University Faculty of Law in Nablus on the Palestinian West Bank, says that if the UN formally recognizes Palestine as a state it will rightfully validate the views of the Palestinian people and many states in the international community while discouraging the theory that "might makes right" in the context of international border disputes ....


With the Palestinian authorities in Ramallah seeking recognition of a Palestinian state through the United Nations, it is important to consider what this means both to Palestinians and to the rest of the world.

States are the predominant actors in the international community. They are the main actors that create, implement, and are subject to international law—a system of rules initially established by Western states that is now widely accepted as governing relations between all states.

As statehood will have a significant effect on how Palestine is considered, and likely treated, by the international community, it is important to consider Palestinians’ entitlement to statehood and what it means. International law provides a common denominator that can be used to answer this question.

As the UN General Assembly lacks the power to do more than make recommendations, the starting point for Palestinian statehood or independence is not UN General Assembly Resolution 181 which recommended that two states be created on Palestinian territory. Instead it is the right to self-determination that the Palestinian people have as the indigenous people of Palestine. This right is perhaps the most notable human right in the United Nations. It is the only human right expressly recognised in the Charter of the United Nations, where articles 1, 55, and 73 acknowledge it. The right to self-determination is an essential — the most essential for many states — part of customary international law and has been declared one of the most basic principles of customary international law by the UN General Assembly’s Declaration on the Principles of International Law concerning the Friendly Relations and Cooperation among States.

The right to self-determination has been explicitly recognised as applicable to the situation of the Palestinian people by the UN General Assembly for more than 30 years. To this end it established the Committee on the Exercise of the Inalienable Rights of the Palestinian People in 1975 to work towards the realisation of this right. This right provides all peoples, including the Palestinian people, the right to determine their own future. It is a right that Israelis did not enjoy in Palestinian territory when they unilaterally declared their state in violation of Palestinians’ right to self-determination. The Palestinian right to self-determination pre-existed any effort by Israel to occupy Palestinian lands. It is a right that all Palestinians are entitled to exercise according to international law since at least the 1920s. It is thus a right that is enjoyed over all of the territory over which the British Mandate was approved by the League of Nations in 1922.

This does not mean that Palestinians are required to exercise this right, but if they wish to do so they are entitled to do so. They need no permission from anyone else. Indeed, today more than half the states in the international community recognise Palestine as a state.

Although Palestine may already be considered a state by most of the international community, the consequences of recognition by the United Nations General Assembly could add significantly to Palestine’s rights and responsibilities. A good way to understand how and why this will be the case is to reflect on the constituents of statehood and what they mean.

According to established customary international law, which is now reflected in the Montevideo Convention on the Rights and Duties of States dating back to 1933, a state should have: a) a permanent population; b) a defined territory; c) a government; and d) the ability to enter into foreign relations with other states. There can be little doubt that Palestine satisfies all of these criteria. Indeed, on 15 November 1988 when almost all the senior leaders of the Palestine Liberation Organisation (PLO) declared Palestine an independent state to ensure the “everlasting union between itself, its land, and its history,” they undoubtedly believed that all of these criteria were met.

Palestine indeed has a permanent population. This population includes not only the estimated more than four million Palestinians living in the West Bank and Gaza Strip, but also an estimated more than three million additional Palestinians who have been forced from their land or forced to become Israelis by the involuntary inclusion of their lands under Israeli jurisdiction. While Palestinians living in the West Bank and Gaza Strip meet the requirement for a permanent population, all seven million Palestinians in the world are entitled to Palestinian nationality and to live in Palestine if the government of Palestine wishes this to be the case.

Similarly the territory of Palestine is well defined. It was not defined in 1967 or even 1948, but was defined by the right to self-determination of the Palestinian people. The occupation of Palestine is often considered to have begun after the 1967 war. This assumption is based largely on the questionable legality and legitimacy of the United Nations’ handling of this situation. The Security Council’s decision demanding a ceasefire after the 1967 war and the General Assembly’s decision to create two separate states on the territory inhabited by Palestinians 20 years earlier both give the impression that Israel only violated Palestinians’ right to self-determination when it occupied the West Bank and Gaza Strip subsequent to the 1967 war. A better legal date for the start of the occupation is 14 May 1948, when Israel declared a Jewish state. This is the date on which Israel legally took Palestinian land; and acted in a manner that made it clear it intended to deny the Palestinian people the right to self-determination.

That the United Nations subsequently ratified the existence of Israel as a state in the international community cannot abolish the Palestinians’ right to self-determination. By the same token it cannot change the boundaries in which this right may be exercised. Even Israel’s continued and ever-expanding oppressive occupation of the Palestinian people cannot extinguish the Palestinians’ right to self-determination throughout all of the territory under the League of Nations mandate, minus that part in which the indigenous Hashimites founded their own state of Jordan in exercise of their right to self-determination.

Again this does not mean that Palestinians have to claim all of the territory under the League of Nations mandate as their homeland. They can negotiate part of the land away if they wish. But they cannot be denied as having the right to do so in the first place, and the international community cannot, within the realm of international law, deny that Palestine’s borders are legally based on those that existed before 1948 when Israel proclaimed itself a state.

A very important consequence of understanding Palestine’s borders in this way is that any changes should be negotiated from this legal starting point. Thus if Palestinians wish to recognise Israel they should do so knowing that they are ceding rights they have under international law. Perhaps, however, long-lasting peace is worth this trade off.

Thus, it is certainly possible for the Palestinian people to agree to accept the 1948 borders, the 1967 borders or any other borders they wish. It might mean, for example, that if necessary, entirely new territorial boundaries can be negotiated, perhaps to give two states viable, instead of divided, borders. What is clear is that Palestine has defined borders. Whether these borders are disputed is another question that is not a hindrance to statehood because legally these borders exist.

Similarly, despite the ongoing dispute between the Palestinian authorities in Ramallah and those in Gaza, Palestine indisputably has a government. The government is currently divided between the authorities in Gaza who are commonly known by their association to Hamas, a liberation movement whose candidates in the Peace and Change Party were elected in a significant majority to be the government of the Palestinian people. The modality through which these elections took place was based on the Oslo Accords’ provision for a Palestinian Authority with the power to govern Palestinians. These accords have unfortunately been repeatedly ignored, but no one can ignore the fact that Hamas officials were elected by a fair and free election that reflects the will of the Palestinian people.

The other part of the government are the authorities in Ramallah who first refused to cooperate with the elected government and then tried to oust it by force, only to be rebuked and driven out of Gaza. Only the president, Mahmoud Abbas, is elected and his term has already expired without new elections being held, although they are currently scheduled for 2010.

Like Hamas, the Fatah-controlled PLO is a resistance movement. It was founded in 1964. It was recognised as a National Liberation Movement (NLM) having observer status by the United Nations in 1974. The UN has also recognised that NLMs are entitled to struggle against foreign and oppressive occupation, and even to use armed force to do so. Thus while usually assisting the use of force against a member state of the United Nations violates international law, NLM movements fighting for self-determination are an exception to this prohibition, although they are still bound to use force in accordance with the rules of international humanitarian law.

The fact that Hamas and Fatah/the PLO remain divided does not mean that Palestine does not have a government, but merely that the authority of the government is in dispute. The dispute is between Palestinian leaders who have been elected and the unelected leaders of the Palestinian people. The Palestinians will have to resolve this dispute to obtain their full potential, but not necessarily to be recognised as a state.

Finally, Palestine’s ability to enter into foreign affairs is widely recognised. As already pointed out, more than half the states in the international community recognise Palestine as a state. This is the ultimate recognition of the ability to enter into foreign affairs.

The 21 other states of the Arab League, for example, already recognise Palestine as a state. So too do the 56 other member states of the Organisation of the Islamic Conference (OIC). Even the late Palestinian President Yasser Arafat had letterhead that designated him as the president of Palestine.

Palestine is represented in more than a hundred states. Most of these are representatives of the PLO, but the authorities in Gaza are also establishing representative offices abroad. Already in 1982 the UN Office of Legal Affairs was able to conclude that, “[t]he overwhelming majority of states formally recognise the PLO as the representative of the Palestinian people and have established direct links with it on a bilateral basis, sometimes even granting it full diplomatic status.”

While it is rather clear that Palestine meets all the criteria that entitle it to statehood, it is less clear what this means.

In first instance, it means that Palestine will join the international community of states as an equal member entitled to the same respect for its sovereign territorial and political integrity as every other state.

This would likely increase the pressure on Israel to withdraw from at least some Palestinian territory it occupies, but it would also increase the pressure on Palestine to ensure control over all of its territory and the persons acting on it. This latter obligation might not be easy to meet unless Palestinians define their government in a manner that will require all Palestinians living in Palestine to answer to the same unified government.

As a state, Palestine would have the responsibility of exercising its police powers over all of the West Bank and Gaza Strip within the borders that constitute the State of Palestine.

As a state, Palestine would also have strong arguments for removing, by force if necessary, Israeli settlements that are scattered throughout the West Bank.
As a state, Palestine could form its own army and trade goods and arms with any other state.

If the Security Council recommended and the General Assembly, in accordance with article 4 of the Charter of the UN decided to admit Palestine to membership in the UN as a states, Palestine be able to fully participate in the United Nations as it already does in the OIC and Arab League. In fact Palestine is already recognised as a full member of the Asian Group of States in the UN, and often thereby submits and influences UN resolutions. Being a member state would also give the Palestinian representative to the UN the right to vote on General Assembly resolutions, among other UN decisions.

At the moment, the Palestinian representatives to the UN — as are most Palestinian foreign representatives — are chosen by the Fatah-backed PLO. They point out correctly that they represent Palestine as a NLM that has been given observer status. If Palestine becomes a state represented in the UN, then the decision will have to made as to whether to allow the elected representatives of the Palestinian people to decide who represents them at the UN or to continue to allow unelected Palestinians, mostly from the political party that the people of Palestine rejected, to decide who represents the Palestinian people. This is a decision that both the Palestinian people and the member states of the United Nations will have to make.

While the role of Palestine will be enhanced formally within the UN, it would seem hard to improve upon the goodwill that Palestinians already enjoy from the overwhelming majority of states. The fact that Palestine is now a peer inter pares might even lead to political competition that creates a more difficult environment for Palestine at the UN. It will also make Palestine a direct negotiating partner with Israel over issues between those two states, irrespective of whether or not the State of Palestine would recognise Israel as a state. Importantly, this could lead to using the UN — and no longer the biased mediator of the United States or its Western allies — as the forum for negotiations of a final settlement to the dispute between Israel and Palestine. In fact, using any other forum than the UN to end this dispute would appear somewhat odd.

Even the recognition of Palestine as a state by the United Nations General Assembly would enhance the recognition already given to Palestine by the majority of states of the international community. It could also contribute to ending the myth believed by a small minority of the world — and sometimes even the Palestinians themselves — for more than 60 years: That might makes right and Israel is indivisible.


Curtis F.J. Doebbler is a professor of law at An-Najah National University in Nablus, Palestine.

November 27, 2009


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Comments:

Well, to recognise or not, is there allready something to be recognised? Recognition is just a declaration and any actual will of the Palestinensians still seems to be missing. One state of not, the real problems on the ground are the same. Both must live together. Equal rights in one state seems to be a more realistic aim today.

November 28, 2009  

It is very drastic approach to redress the Israeli obstinate and daring total elimination of the palestinians in their own lands.According to your approach there is a contradiction between the positivist legal approach and the politically inclined approach.Both have to be rconciled but ultimatel the original legal rights of the palestinians have to be preserved Prof.Abdallah Alashaal.AUC professor of international law.

November 30, 2009  


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