The role of International law in regards to The Palestinian Dilemma.

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Hesham Mohamady

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Final Paper

Presented to: Dr. J. Allain

POLS 472

The role of International law in regards to

The Palestinian Dilemma

Presented On:

May 4, 2003

“To be Self-Determined, is to endorse one’s actions at the highest level of reflection. When self-determined, people experience a sense of freedom to do what is interesting, personally important and vitalizing”. The right to self-determination is an indisputable right that should be enjoyed by every human being as long as they have the opportunity to exercise it.  It does not only imply the most basic human rights but has also been confirmed in vital documents dealing specifically with such an area, for instance article 1(2) of the UN charter that states the following

To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace.

Further, such a universal right has also been mentioned in numerous international documents like for example the 1966 International Covenant on Human Rights and the 1960 Colonial Declaration. The many resolutions passed by the UN General Assembly and the establishment of the UN “Committee on the Exercise of the Inalienable Rights of the Palestinian People” by the Assembly in 1975 are clear proof of the general recognition of this right in regard to the people of Palestine. The Palestinians have enjoyed this right as a natural right not just since the time after the Second World War, but since a time well before the collapse of the 19th century orders in the course of the First World War. As a matter of fact and a record of history, the Palestinians enjoyed such a right even during the period of ruling of the Ottomans and prior to the establishment of the League of Nations. At the end of World War I and in the course of the detachment of Palestine from the Ottoman Empire, the Palestinian people were seen as a community whose existence as an independent nation could be “provisionally recognized”, especially as mentioned in the Covenant of the League of Nations.

         However, the statute of the League of Nations Mandate for Palestine, issued in 1922, was in contradiction with the provisions of article 22 of the League’s Covenant insofar as it included in the Preamble and in articles 2, 4, 6 and 7, the basic provisions of the Balfour Declaration. The Mandate for Palestine in itself violated article 22 of the League’s Covenant, which proposes, in its first part in connection with the protection of the rights of peoples under the Mandate, a “sacred trust of civilization”.  On the basis of such a legal concept, national Palestinian sovereignty was not to be exterminated, specifically when Britain was assigned by the League of Nations with the mandate over Palestine. Henry Cattan, the International jurist who represented the Arab Palestinians came up with the conclusion that “The legal effect under international law of the detachment of Palestine from the Ottoman Empire and of recognition of its people as an independent nation was to make of this country a separate and independent state”. All the legal assumptions relating to the international status of Palestine were based on the principle according to which sovereignty over a mandated territory lies in its inhabitants.

 If we take into consideration these basic legal facts of Palestinian sovereignty since the end of the Ottoman rule, it would become obvious that the Palestinians were prevented from exercising their sovereignty upon the termination of the British Mandate after World War II and have been prevented from exercising this fundamental and vital right ever since. The United Nations General Assembly resolution 181 (II) of 29 November 1947 denied the most fundamental national right to the Palestinian people by providing for the partition of Palestine into two states on the basis of vague ethnic assumptions and discriminatory policies along the lines of the legally invalid “Balfour Declaration” and its incorporation into the League of Nations’ Mandate. The Palestinians had never been consulted in this process; new political structures had been imposed on them on a de facto basis. In strictly legal terms, the General Assembly had no authority to divest the Palestinians of their sovereignty over the areas of Palestine, which it allocated to the Jewish state, especially if we take into consideration the fact that the General Assembly offers by no means binding decisions either in its reports or its resolutions.

 The United Nations Organization, whether represented by the General Assembly, the Security Council or the International Court of Justice, has no legal competence to take away the sovereignty of any community over its land. Ian Brownly explains in the book of Principle of Public International Law that the uncertain legal nature of the partition resolution of the General Assembly is assured by the following: “It is doubtful if the United Nations has a ‘capacity to convey title inter alia because the Organization cannot assume the role of territorial sovereign, in spite of the principle of implied powers, the Organization is not a state and the General Assembly only has a power of recommendation. Thus the resolution of 1947 containing a partition plan for Palestine was probably ultra vires...”. In a similar case, Pitman B. Potter concluded in his legal analysis of 1948 that “The United Nations has no right to dictate a solution in Palestine unless a basis for such authority can be worked out such as has not been done thus far.” He refers to one of the basic deficiencies of the United Nations Organization, specifically the “avoidance of international law in dealing with international problems manifested only too often in the history of Great Power behavior in the United Nations.” 

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         Further the partition resolution could only be based on article 14 of the Charter, which simply states that “the General Assembly may recommend measures for the peaceful adjustment of any situation...which it deems likely to impair the general welfare or friendly relations among nations”. This formulation definitely does not convey any authority to the General Assembly to create sovereign entities or to deny sovereign rights to whichever nation. The Second Sub-Committee of the General Assembly’s Ad Hoc Committee on the Palestine Question recognized this lack of competence, particularly in regard to the provisions of Chapter XII of the Charter. The Sub-Committee ...

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