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 stated that “the General Assembly is not competent to recommend, still less to enforce any solution other than the recognition of the independence of Palestine” and that “the settlement of the future government of Palestine is a matter solely for the people of Palestine...” The Sub-Committee, in its report to the Ad Hoc Committee, further stated “partition involves the alienation of territory and the destruction of the integrity of the State of Palestine. The United Nations cannot make a disposition or alienation of territory, nor can it deprive the majority of the people of Palestine of their territory and transfer it to the exclusive use of a minority in the country...”
The problematic legal nature of the General Assembly’s partition resolution was further developed by the leading legal theorist of the time, Hans Kelsen. In his comprehensive analysis of the competence of the General Assembly, Kelsen refers to the arguments brought forward in the General Assembly itself that this body, according to the Charter, can only make recommendations. He states, in regard to the partition resolution that “these arguments are, from a strictly legal point, correct.” The resolution creating two states in Palestine, for that reason, was not binding upon member states because recommendations, as Kelsen refers to them, “by their very nature, do not constitute a legal obligation to behave in conformity with them.” Kelsen clearly states, furthermore, that the General Assembly’s decision was ultra vires: “To decide that the United Nations shall administer a territory for the purpose to establish on it two new states is hardly within the competence of the General Assembly or any other organ of the United Nations.” Accordingly, Malcolm Shaw states in his book “Except for certain internal matter, such as the budget, the Assembly cannot bind its members. It is not a legislature in that sense, and its resolutions are purely recommendatory.”
Moreover, the partition resolution of the General Assembly violates international law in another important respect. It contradicts the principle of the inadmissibility of the acquisition of territory by war. As Quincy Wright explains in his legal analysis of the Palestine problem, the General Assembly resolution “partitioning Palestine and establishing the state of Israel as demanded by Zionists is difficult to reconcile with this principle. Local hostilities between Zionist and Arab forces deprived the ‘peoples’ in the mandated territory of rights explicitly protected by the Mandate and Article 80 of the Charter without their consent.”
Article 77
1. The trusteeship system shall apply to such territories in the following categories as may be placed thereunder by means of trusteeship agreements:
a. territories now held under mandate;
Article 80
1. Except as may be agreed upon in individual trusteeship agreements, made under Articles 77, 79, and 81, placing each territory under the trusteeship system, and until such agreements have been concluded, nothing in this Chapter shall be construed in or of itself to alter in any manner the rights whatsoever of any states or any peoples or the terms of existing international instruments to which Members of the United Nations may respectively be parties.
If we consider the two articles above, we will find out that The General Assembly, for that reason, by resolution 181 (II) violated the provisions of the very Charter on the basis of which it was supposed to act.
As far as the occupation of additional territories is concerned, a claim to a territorial title, which originates in an illegal act, is invalid. This relates to the Palestinian territories seized in 1948 as well as to those occupied in 1967. Israel’s status in those territories is that of a “belligerent occupant.” All measures undertaken by the occupying power to change the status of the territories, including the occupation of Jerusalem, are then invalid. Since 1967, the General Assembly has confirmed, on numerous occasions, the illegality of the occupation and the Palestinian people’s right to self-determination. Although non-binding in their legal nature, these resolutions demonstrate not only the moral but also the legal conviction of the international community and set out the guidelines for a just and lasting settlement of the problem on the basis of the right to self-determination. The Palestinians themselves in article 3 of the Palestinian National Charter naturally claim this right:
“The Palestinian Arab people possess the legal right to their homeland and have the right to determine their destiny after achieving the liberation of their country in accordance with their wishes and entirely of their own accord and will.”
General Assembly resolution 3236 (XXII) of 22 November 1974 reaffirmed the “inalienable rights of the Palestinian people in Palestine including (a) the right of self-determination without external interference, (b) the right to national independence and sovereignty.” This right was reconfirmed in General Assembly resolution 169 A (XXXV) of 15 December 1980, which stated that just and lasting peace in the Middle East cannot be established without the attainment of the inalienable rights of the Palestinian people. The right to self-determination has been spelled out very clearly and consistently in all General Assembly resolutions on Palestine since the time after the 1967 war. It is an ironic case that the General Assembly itself, in 1947, has created the problem by adopting a resolution in its 1st special session that was entirely dedicated to the Palestinian problem, which was based on the negation of that very principle. It should be noted, however, that the General Assembly membership in 1947 was not at all representative of the peoples of the world-at a time when the majority of the present members did not exist as sovereign entities-and that the colonial powers of the time completely dominated the decision-making process. There was definitely a lack of legitimacy of the partition resolution in terms of international law and a lack of political legitimacy of a body that represented only a minority of the people of the world.
The numerous resolutions of the General Assembly reaffirming Palestinian rights, because of the limited competence of this body, are merely recommendations. It is notable, however, that the Security Council’s resolutions on the question of Israeli occupation of Arab territories were never adopted on the basis of Chapter VII of the Charter. All these resolutions, contrary to resolutions dealing with Arab countries such as Iraq and Libya, are of non-binding nature. This clearly demonstrates that the United Nations Organization, representing the global power balance, has not been allowed to deal with the Palestinian issue on a legal basis. The sum of resolutions since 1967 are mainly of a political nature, which clearly demonstrates the dominant role of power politics in the international system up to the present day.
Apparently, the biased political considerations led the General Assembly to transgress its authority in 1947, led by the British, in order to fulfill the demands of the colonial powers of the time. Some many decades later, the Oslo and Cairo Agreements, came to existence trying to deal with the issue at hand and at the same time suffering the immense inequality of power and the existing unbalance between the conflicting parties. The Madrid Peace Process, the Oslo accords of 1993 and 1995, and the different upcoming agreements can only be understood in a political rather than in a legal framework as they were and continue to be concluded in a situation where an independent Arab position in world politics has completely vanished and the Palestinians have lost even the narrow margin of political action they had enjoyed earlier through the de facto recognition of the Palestine Liberation Organization (PLO) as their sole legitimate representative in the Arab world, on the International Level and within the United Nations. It is also important to note that the Oslo accords do not take into account the notion of Palestinian sovereignty, i.e. the right to self-determination. It is also worth noticing that resolutions such as 242 and 338 do not deal at all with the Palestinian question but only with the question of troop withdrawal from occupied territories. In resolution 242/2 (b), the Palestinian question is only indirectly referred to in the acknowledgment of the need for a “just settlement of the refugee problem.” It is no wonder that no reference is made in the Oslo accords to those General Assembly resolutions explicitly acknowledging the Palestinian right to self-determination. The Declaration of Principles on Interim Self-Government Arrangements of 13 September 1993, clearly excludes external security matters as noted in article VIII, which states that:
Public Order and Security
In order to guarantee public order and internal security for the Palestinians of the West Bank and the Gaza Strip, the Council will establish a strong police force, while Israel will continue to carry the responsibility for defending against external threats, as well as the responsibility for overall security of Israelis for the purpose of safeguarding their internal security and public order. This could be clearly defined as another act of ‘Palestinian Sovereignty denial’ exerted not only by the Israelis, but also being backed up by the American Institution.
The Oslo agreements deliberately seem to avoid any explicit reference to Palestinian self-determination. This leaves no room for the notion of national sovereignty of the Palestinian people. The reality of Palestinian dependence and Israeli superiority is not changed but gets even more brought out in the more or less technical agreements concluded upon later, in particular the Wye River Memorandum of 23 October 1998 and the Sharm El-Sheikh Memorandum on Implementation Timeline of Outstanding Commitments of Agreements Signed and the Resumption of Permanent Status Negotiations of 4 September 1999. Both memoranda, in their preambles, explicitly refer to the legal framework of the earlier Oslo agreements, in particular to the “Interim Agreement” of 28 September 1995. The technical arrangements included in these two memoranda make the fact of a “rule on behalf and under the supervision of Israeli authorities” even more obvious. For instance, article 8/2(3, 4) of the Sharm El-Sheikh Memorandum is a vivid illustration of such a fact. Obviously such provisions oblige the Palestinian Authority to abide by rules like sending their police reports to the Israeli authorities. It is remarkable that such memoranda, which have been signed by the heads of Arab Governments like the Jordanian and the Egyptian have somehow, agreed on such rulings, causing more constraint to the Palestinian sovereignty.
The sovereign entity of a future state of Palestine, as subject of international law, can definitely not emanate from the present construction of a Palestinian self-rule authority or a Palestinian National Authority that, by its very definition in the Oslo accords, is not in charge of the core areas of state sovereignty and remains under the ultimate control of the occupying power. International political rights, in terms of self-determination and sovereignty, can obviously never be granted by the occupying power or by a group of states guaranteeing whichever peace agreement. Sovereignty is an absolute collective right that is exercised by free decision of each people. The basis of a future statehood can only be a genuine expression of the political will of the Palestinian people. This implies that the legitimate political and legal framework for Palestinian independence will consist in resolutions of the Palestine National Council representing the Palestinian people as a whole and not just the populations in splintered territories partially put under Palestinian administration by the occupying power. One must learn the lessons of the intifadah and of the expressions of democratic popular resistance since the establishment of so-called autonomy rule until the present day. If one is actually interested in a permanent settlement of the Palestinian question, the dignity and self-respect of the people are decisive factors for the peaceful settlement of any conflict between rival national movements. The problem of limited sovereignty is not compatible with the dignity of a people as a distinct national community.
Another aspect of the political solution of the Palestine question has to be considered as well. It is the fact that a biased mediator such as the United States in the case of Palestine must not impose the inalienable rights of people under foreign occupation. In that regard, it will be of utmost importance to strengthen the role of the European Union that may more credibly act as a fairer mediator than a superpower that considers the occupying power in question its closest ally.
In the post-Gulf War era, for instance, which was also characterized by the nonchalance of the Arab world, outside parties may be tempted to exploit the gap that will e generated in the region. However, if one really wants to promote the cause of a long-term settlement, it is a basic need of political wisdom not to exploit one party’s political weakness that has come about as a result of armed conflict. The present situation of the Arab world since 1991 has undoubtedly constituted a big temptation for outside powers, on top of them the United States and the region’s former colonial powers, to impose a solution upon the weaker party to the dispute in favor of the stronger one, the latter being a close strategic ally of those outside powers. Such a clear case could endanger not only the weaker party to the conflict, but the whole region, as one step will probably lead to the other.
The divide and rule tactic exerted by the majority of the Arab world is presently will only increase the tensions in the region and may lead to major conflict and turmoil in a not too distant future. The constant intervention of the United States in such a state of ruling will exclusively serve the interests of one party to the conflict and will enable it to destabilize the whole political system in the Middle East on a long-term basis. The economic sanctions imposed on Arab countries, in particular the comprehensive sanctions on Iraq, are evidence of this shortsighted strategy. On the other side, there has been no sign of any decisive or coercive measure taken against the Israeli party upon its invasion of Southern Lebanon, or in a clearer case, the Golan Heights. It is an irony that on the present international arena, the process of imposing the will of outside powers upon the peoples of the region, foremost the Palestinians, is being justified by the claim to establish the rule of law and to safeguard the basic human rights of the people concerned.
On the long run, the Arab world may not be ready to accept the permanent Israeli sovereignty in Palestine especially with the limited self-rule for the Palestinians in isolated territories, such as the West Bank. The imposition of the permanent settlement in Palestine by the Israeli government will definitely increase the problem. Adding to that the fact that the confrontationist policies vis-à-vis other Arab countries, may be one step too many in the neo-realist recolonization strategy targeting the Arab Middle East. It may lead to large-scale destabilization in the region that will directly affect the security of the world. Evidently, the European Bloc should gradually liberate itself from the role of being a follower rather than a leader for the implementation of projects and strategies defined by the United States.
Whereas the continued domination over the Arabs through the neo-colonialist or neo-realist policies of divide and rule – by means of sanctions and other political dictates – may lead the region closer to a major conflict, the establishment of a truly sovereign Arab entity in Palestine (including Jerusalem) could be the decisive factor in securing a lasting order of peace in the entire region. The settlement of the Palestinian question on the basis of real self-determination (not merely Israeli-sponsored "self-rule" over isolated pockets of territory) could be the catalyst of a “new order” of co-operation and partnership guaranteeing equal rights to the Arab world and its neighbours. Though this may sound like a rather idealistic assumption at the present moment, there is no alternative to an otherwise bleak outlook of confrontation and economic stagnation in the whole region. No "Final Status Agreement" will be effective and enforceable vis-à-vis the people of Palestine if this basic wisdom is ignored. There is no alternative to the unequivocal recognition of Palestinian sovereignty if one honestly upholds the cause of peace in Palestine (as we tried to explain in legal and political terms at the same time).
It is exactly for this reason that a new constitutional framework has to be created that goes beyond the legal notions of the Oslo agreements. Negotiations on such a framework should be facilitated by the international community as represented by the United Nations. Such a role can never be played by the one superpower with major strategic interests in the region. To sum it up: talking about peace or a “peace process” without at the same time fully acknowledging the Palestinian people’s right to self-determination amounts to empty rhetoric. All political measures for a future settlement – that is referred to as "final status" in the many "trilateral" talks between Israel, the United States, and the Palestinians – have to take into account this basic legal principle.
References:
Deci, Edward and Richard Ryan. “Self-Determination Theory”. .
Institute for Mediterranean Affairs. The Palestine refugee problem: A New Approach and a Plan for a Solution. New York: 1958.
Brownlie, Ian. Principles of Public International Law. Clarendon Press. Oxford: 1996
“The Palestine Problem Before the United Nations”. American Journal of International Law. Vol. 42- 1948. p. 860
. The Law of the United Nations: A Critical Analysis of its Fundamental Problems. Stevens & Sons ltd. London: 1951.
Shaw, Malcolm. International law. Fourth Edition. Cambridge University Press. Cambridge: 1998.
Moore, John Norton. “The Middle East Problem”. The Arab-Israeli Conflict. Vol.2. Princeton University Press. New Jersey: 1975.
Brauner, Gila. “The Oslo Agreements”. www.jajz-ed.org.il/100/maps/oslo.html
“Declaration of Principles on Interim Self-Government Arrangements”. . 1993.
“Sharm El Sheikh Memorandum”, “Wye River Memorandum”. www.mfa.gov
Legal Material:
“UN resolutions”. “General Assembly Database”. “Security Council Database”. “Resolution Series”.www.un.org
UN Charter
Covenant of the League of Nations
Quote by Edward L. Deci and Richard M. Ryan defining their self-determination theory. Found in the self-determination theory website.
Information found in Malcolm Shaw’s book “International Law”.
General Assembly Resolution 3376(XXX), 10th of November 1975.
Article 22(4) of the Covenant mentions the following: “Certain communities formerly belonging to the Turkish Empire have reached a stage of development where their existence as independent nations can be provisionally recognized subject to the rendering of administrative advice and assistance by a Mandatory until such time as they are able to stand alone.”
5 Henry Cattan’s quote found in the book entitled “the Palestine Refugee Problem”. P.19
Information found in Shaw’s book. p.3
Even demarcations between states can only be made through bilateral agreement between the states concerned (unless those states explicitly confer such authority upon the International Court of Justice).
Principles of Public International Law.
Information based on “The Palestine Problem before the United Nations” found in the American Journal of International Law.
Article 14 of the Charter.
Official Records of the General Assembly, Second Session, Ad Hoc Committee on the Palestine Question found in the database of the United Nations Website.
The Law of the United Nations. A Critical Analysis of Its Fundamental Problems.
The Law of the United Nations. A Critical Analysis of Its Fundamental Problems. P.197
The Law of the United Nations. A Critical Analysis of Its Fundamental Problems. P.195
The Law of the United Nations. A Critical Analysis of Its Fundamental Problems. P. 196
Information found in Shaw’s book “International law”. P.831
Information based on the article entitled “The Middle East Problem” found in The Arab-Israeli Conflict book, Volume II: Readings. P.828-9
Article 77/1(a) and article 80(1) of the UN Charter.
See Security Council resolution 242 (1967).
The series of resolutions can e found in the General assembly’s Database on the Un website.
Those resolutions were not dealing with Palestinian self-determination but simply with the issue of withdrawal of Israeli forces from territories seized in 1967. Furthermore, the wording of the English version of resolution 242 is rather vague as it merely speaks of “occupied territories” not about “the occupied territories” which gives room for interpretation in favor of the occupying power.
Information noted by Gila Brauner in her Internet article entitled “The Oslo Agreement”, which mainly tackles the crucial impediments of a so-called peace process in the Middle East.
See UNSC’s resolutions 242 and 338 on the UN database site.
See Declaration of Principles on Interim Self-Government Arrangements. Article 8 (VIII).
Information about both memoranda found on the MFA site.