THE JURIDICAL BASES FOR PALESTINIAN SELF-DETERMINATION

in The Palestine Yearbook of International Law Online
Restricted Access
Get Access to Full Text
Rent on DeepDyve

Have an Access Token?



Enter your access token to activate and access content online.

Please login and go to your personal user account to enter your access token.



Help

Have Institutional Access?



Access content through your institution. Any other coaching guidance?



Connect

References

1. De Jure Belli ac Pacis in Scott (ed.), Classics of International Law (Kelsey transl., Carnegie Endowment for International Peace, 1925). 2. I.C.J. Stat., art. 38, para. 1, a, b and c. Sub-section "d" lists judicial decisions and legal writings as subsidiary sources. 3. In the famous case of The Paquete Habana, 175 U.S. 677 (1900), the U.S. Supreme Court based its holding concerning the immunity of coastal fishing boats from capture on such assent. The same point is made by legal writers. See, e.g., Professor Brierly who states: "It would hardly ever be practicable, and all but the strictest of positivists admit that it is not necessary, to show that every state has recognised a certain practice..." as creating customary law. Brierly, The Law of Nations at 61 (6th ed., Waldock, 1963).

4. Professor Brierly, has accurately characterized general principles as "a dynamic element in international law." Id. at 63. It has also been pointed out that interna- tional arbitral tribunals employed general principles of law before the establish- ment of the International Court of Justice. I Oppenheim, International Law: Peace 30 (8th ed., Lauterpacht). 5. Advisory Opinion on Reparations for Injuries Suffered in the Service of the United Nations, [1949] I.C.J. Rep., 174. 6. See, inter alia, U.N. Charter, arts. 27 and 103. 7. E.g., G.A. Res. 2625, 25 U.N. GAOR (1970) which is analyzed in section II C infra. 8. Higgins, The Development of International Law Through the Political Organs of the United Nations 2 (1963). See also the distinguished dissenting opinion of Judge Tanaka in Ethiopia v. South Africa; Liberia v. South Africa, [1966] I.C.J. Rep. 248, at 291-93. 9. Higgins, supra note 8, at 2.

10. See e.g. G.A. Res. 1514, 25 U.N. GAOR ( 1960) considered in section II C infra. The two thirds requirement appears in U.N. Charter art. 18, para 2. 11. [1918] Foreign Rels. U.S., Vol. 1, Supp. 1, at 15-16 (1933). 12. Id. 13. Kissinger, A World Restored.- Metternich, Castlereagh and the Problems of Peace, 1812-1822 at 145 (Sentry ed., undated). 14 League of Nations Covenant, art. 22, para 1.

15. The contrast between the contemporary and older theories of international law is emphasized in McDougal, Perspeciives for an International Law of Human Dignity, 53 Proc. Am. Soc. Int'l L. 107 (1959). 16. Art. 1 Art. 1, para 2. 17. McDougal & Reisman (eds.), International Law in Contemporary Perspective 160 ( 1981 ) lists article 55 of the Charter as a grant of constitutive authority rather than as a limitation upon it.

18. See Perkins, The Prudent Peace: Law as Foreign Policy at 75 (1981). 19. Zionist legal writers oppose self-determination as law. See e.g., Blum, Reflection on the Changing Concept of Self Determination, 10 Isr. L. Rev. 509 (1975) which states at 511: Consequently, any attempt to convert self-determination into a legally rec- ognized right amounts to an attempt to legitimize revolution and to absorb it into the existing legal system. See also, Pomerance, Self Determination in Law and Practice: The New Doctrine in the United Nations (1982). 20. 6 U.N. Conf. Int'I Org. Docs. 296, Summary Report of the Sixth Meeting of Committee I/1, Doc. 343 1/1/16 (15 May 1945). 21. 15 U.N. GAOR, Supp. 16, at 66-67.

22. G.A. Res. 1573,15 U.N. GAOR (1960) re Algeria; G.A. Res. 1603,15 U.N. GAOR ( 1960) re Angola; G.A. Res. 1747,16 U.N. GAOR ( 1961 ), re Zimbabwe (Rhodesia). 23. 25 U.N. GAOR, Supp. 28, at 121-124. 24. The first three of these bases are set fourth in Perkins, supra note 18 at 66. 25. U.N. Doc. A/CONF. 39/27, 8 Int'1 Legal Mats. 679 (1969).

26. Supra note 3. 27. Riuz, The United Nations Declaration on Friendly Relations and the System of the Sources ofInternationalLaw (1979) considers several theoretical bases for G.A. Res. 2625 but gives inadequate attention to the practice of states in implementing self- determination. 28. See e.g. Stone, Israel and Palestine: Assault on the Law of Nations, passim (1981). 29. Id. at 27-44, 69-75, and passim. A lawless method of constituting a state was set forth by Prof. Blum in response to a question from Senator Abourezk concerning the consistency of the establishment of the State of Israel with the United Nations Charter: No state is established under the Charter or in violation of the Charter, simply because, as far as international law is concerned, states are born out of wedlock so to speak. States are not born in conformity with the existing legal framework. The Colonization of the West Bank Territories by Israel, Hearings Before the Subommittee on Immigration and Naturalization of the U.S. Senate, Judiciary Committee, 95th Cong., 1st. Sess., 24 at 38 (1977).

30. Higgins, supra note 8, at 1. 31. Oppenheim, supra note 4, at 732-35. 32. Hopes and Loopholes in the 1974 Definition ofAggression, 71 Am. J. Int'l. L., 224, 235 ( 1977).

33. The text of the Mandate of 24 July 1922 is in 2 UNSCOP, Report to the General Assembly, 2 U.N. GAOR, Supp. 11, at 18-22 U.N. Doc. A/364 Add. 1 (9 Sept. 1947). 34. British Statement of Policy, Cmd. No. 6019, in Jewish Agency for Palestine, Tulin, ed., Book of Documents Submitted to the General Assembly of the United Nations Relating to the Establishment of the National Home for the Jewish People 100 ( 1947). 35. G.A. Res. 181 (II) concerning the Future Government of Palestine (29 November 1947), 2 U.N. GAOR, at 131-32 (16 Sept.-29 Nov. 1947). 36. 24 U.N. GAOR, Supp. 30, at 25-26. 37. 25 U.N. GAOR, Supp. 28, at 36. 38. 29 U.N. GAOR, Supp. 30, at 4.

39. 29 U.N. GAOR, Supp. 31, at 3. 40. 29 U.N. GAOR, Supp. 31, at 4. 41. Kassim, The Palestine Liberation Organization's Claim to Status: A Juridical Analy- sis Under International Law, 9 Den J. Int'l L. & Poly 1 at 9 (1980). 42. Id. 43. The "Jewish people" nationality claims are analysed in Mallison, The Zionist-Israel Juridical Claims to Constitute `The Jewish People' Nationality Entity and to Confer Membership in it: Appraisal in Public International Law, 32 Geo. Wash. L. Rev. 983 (1964) and reprinted as a monograph in 1964. The contrasting view that the claims are lawful is by the authoritative Zionist lawyer, Professor Feinberg: The Recogni- tion of the Jewish People in International Law, in The Jewish Yearbook of Interna- tional Law, 1 (1948).

44. Attorney General of the Government of Israel v. Adolf Eichmann, 36 Int'l L. Rep. 5 at 53 (Dist. Ct., Jerusalem, 1961), affirmed id. 277 at 304 (Sup. Ct. Israel, 1962). 45. After referring to United States non-discrimination among its citizens based upon religious identification, it stated: "Accordingly, it should be clear that the Depart- ment of State does not regard the 'Jewish people' concept as a concept of interna- tional law." Whiteman, Digest of Int'1 Law 34 at 35 (1967).

46. Mallison, The Balfour Declaration: An Appraisal in International Law, in I. Abu- lughod ed., The Transformation of Palestine 61 (1971). 47. Supra note 33.

48. 44 U.S. Stat. 2184 (1924). 49. Supra note 35. 50. The earlier Zionist stated position is reflected in the official history by a member of the Executive of the World Zionist Organization: It has been said, and is still being obstinately repeated by anti-Zionists again and again that Zionism aims at the creation of an independent 'Jewish State.' But this is wholly fallacious. The 'Jewish State' was never a part of the Zionist programme. 1. Solokow, History ofZionism, author's intro. at xxiv-xxv (1919) The later Zionist position is reflected in this official interpretation: The phrase [in the Balfour Declaration] 'the establishment in Palestine of a National Home for the Jewish people' was intended and understood by all concerned to mean at the time of the Balfour Declaration that Palestine would ultimately become a 'Jewish Commonwealth' or a 'Jewish State', if only Jews came and settled there in sufficient numbers. Supra note 34 at 5.

51. See e.g., the strong criticism of the Zionists and their program written by Joseph Hayyim Sonnenfeld, one of the preeminent leaders of the Palestinian Jewish community in 1898, in Marmorstein, Heaven at Bay: TheJewish Kulturkampf in the Holy Land at 79-80 (1969). 52. See in Anglo-American Committee of Inquiry, Report to the United States Govern- ment and His Majesty's Government in the United Kingdom, the descriptions of the Hagana and the Palmach in Chap. 9, entitled "Public Security," at 45-46 (1946). 53. Seethe description of the Irgun and the Stern Gang in id. at 47. Military coopera- tion between the Irgun and the Zionist regular forces is described in Begin, The Revolt, Chap. 29 entitled "The Conquest of Jaffa", and passim (1948, new ed. 1972). 54. E.g. The implementation of "Plan D" involving attacks upon Palestinians throughout the Palestine Mandate prior to the "invasion" by the Arab armies is described in Lorch (formerly chief of the Historical Division of the Israeli General Staff), OneLong War: Arab VersusJew Since 1920, at 40-48 under heading "Jewish Forces Take the Initiative" (1976).

55. Claims concerning the invalidity of the Partition Resolution are set forth in Cattan, Palestine and International Law: The Legal Aspects of the Arab-Israeli Conflict, Chap. 4 and passim (2nd ed. 1976).

56. Report of the Anglo-American Committee of Inquiry, supra note 52 at 39. See also [ 1947] 5 Foreign Rels. U. S. 999-1328 passim ( 1971) and under following headings in index: Terrorism in Palestine, Irgun Zvai Leumi, Stern Gang.

57. See Hirst, The Gun and the Olive Branch: The Roots of Violence in the Middle East, passim (1977).

58. International Status of South-West Africa, Advisory Opinion of 11 July, 1950, [1950] I.C.J. Rep. 128 at 137. See also [1955] I.C.J. Rep. 67 at 76 and [1971] I.C.J. Rep. 16 at 43. 59. U.N. Doc. A/C. 1/SR.A 127, at 7 (1948). 60. It is significant that the authoritative Zionist lawyer, Professor N. Feinberg, has argued in favour of the validity of the Partition Resolution. The Arab-Israel Conflict in International Law, Chap. 6 (1970). 61. 1 Laws of the State of Israel, 3 at para. 9 (auth. transi., 1948). 62. Id. at para. 11.

63. Supra note 33 at para. 3. 64. Dr. Weizmann states: The most serious difficulty arose in connection with a paragraph in the Preamble - the phrase which now reads: 'Recognizing the historical connec- tion of the Jews with Palestine'. Zionists wanted to have it read: 'Recognizing the historic rights of the Jews to Palestine.' But Curzon [the British Foreign Secretary] would have none of it.... Trial and Error: The Autobiography of Chaim Weizmann at 348 (1950). 65. Professor J. Stone, a semi-official spokesman for the Government of Israel now argues the invalidity of the Partition Resolution. Stone, supra note 28, Chap. 4. 66. E.g. G.A. Res 36/120 D of December 10,1981, specifically reaffirms G.A. Res. 181.

67. 25 U.N. GAOR, Supp. 28, at 73-74. 68. Id. at operative para. 5 69. Id. at 36. 70. 28 U.N. GAOR, Supp. 30, at 27.

71. 29 U.N. GAOR, Supp. 31, at 4.

72. Supra note 70 at 78. 73. Id. at operative para. 1. 74. Id. at operative para. 2 75. 36 U.N. GAOR, Supp. 51, at 27. 76. 7 E.S. U.N. GAOR Supp. 1, at 9 (Provisional Version). G.A. Res. 38/58C (Dec. 13, 1983) re-emphasizes the same points.

77. Supra note 23. 78. G.A. Res. 181 (11), Part 11 B. 79. 22 U.N. SCOR, at 8-9. 80. Lord Caradon in Caradon, Goldberg, El-Zayyat & Eban, U.N. Security Council Resolution 242, 1 at 13 (Georgetown Univ., 1981). Concering the powers of the Security Council see J. Crawford, The Creation of States in International Law at 328-29 ( 1979).

81. U.S. Dept. State Pub. 8954, Near East & S. Asia Series 88, The CampDavid Summit 6-9 (1978). The inadequacies of this agreement are analyzed in F.A. Sayegh, Camp David and Palestine (F.A. Sayegh Foundation, 1982). 82. Reagan, A New Opportunity for Peace in the Middle East, 82 Dept. State Bull. 23 at 25 (Sept. 1982). 83. Id. 84. Wash. Post, Sept. 10, 1982. 85. Mallison & Mallison, Settlements and the Law: A Juridical Analysis of the Israeli Settlements in Occupied Territories (Amer. Educational Trust, 1982). 86. Text of Israeli Statement Rejecting U.S. Proposal, Wash. Post, Sept. 3, 1982; Walsh, Begin Again Rejects U.S. Plan, Wash. Post, Oct. 19, 1982.

87. Supra note 78. 88. The quoted words refer to the Palestinian refugees and not to the Jewish immigra- tion from Arab countries which was solicited by Israel. The Zionist bombings directed at Jews in Baghdad to induce immigration to Israel are described in Hirst, supra note 56, at 155-64. 89. G.A. Res. 194, para. 11, 3 U.N. GAOR, 21-25 (1948). The General Assembly has reaffirmed the resolution regularly. See, e.g.. G.A. Res. 38/83 (15 Dec. 1983). 90. Supra note 38. 91. Reddaway,TheFutureofJerusalem, in Seek Peace, andEnsurelt: SelectedPapers on Palestine and the Search for Peace 127 (Council for the Advancement of Arab- British Understanding, 1982). 92. This attack-invasion is analyzed juridically in Mallison & Mallison, Armed Conflict in Lebanon, 1982: Humanitarian Law in aReal World Setting (American Educational Trust, 1983).

93. The world legal order is considered systematically in McDougal and Associates, Studies in World Public Order (1960). 94. J. Perez de Cuellar, Report of the Secretary-General on the Work of the Organiza- tion at 6 (1982). 95. U.N. Charter, art. 2, para. 3. 96. Id. art. 2., para. 4. 97. Id. art. 51. 98. Both Israeli state terror and the Palestinian responding coercion are described and analyzed in Hirst, supra 57. A primary authority on state terror is in Rockach, Israel's Sacred Terrorism: A Study Based on Moshe Sharrett's Personal Diary (Assoc. of Arab-American University Graduates, 1980). 99. Mallison & Mallison, The Israeli AerialAttack ofJune 7, 1981 upon the Iraqi Nuclear Reactor: Aggression or Self-Defense?, 15 Vanderbilt J. Transnational L. 417, 444-46 (1982).

100. U.N. Charter, arts. 39-50. 101. Id. 102. The past performance and the present potential of such sanctions by the world community are analyzed in McDougal and Feliciano, Law and Minimum World Public Order, Chap. 4 entitled, "Community Sanctioning Process and Minimum Order" (1961). 103. U.N. Charter, art. 27, para. 3. 104. Id., art. 12, para. 1. , 105. G.A. Res. 377A, 5 U.N. GAOR, Supp. 20 at 10-12, U.N. Doc. A/1775. 106. U.N. Charter, art. 18, para. 2.

107. The Crippled Giant, 108 (Vintage Books, 1972). 108. E.g. the opposition to such a settlement, as applied to Israel, expressed by Acting U.S. Ambassador to the United Nations W.C. Vanden Heuvel, in the Emergency Special Session of the General Assembly on Palestine on July 24, 1980. 80 Dept. State Bull. 67 (Sept., 1980). 109. See supra note 13. 110. Tillman, The United States in the Middle East: Interests and Obstacles, Chap. 7 ( 1982).

111. 36 Dept. State Bull. 387 at 388 (Mar. 11, 1957). 112. Id. at 389. 113. Id. at 390. 114. See the Geneva Declaration in the Appendix. 115. See, e.g. Heller, A Palestinian State: The Implicationsforlsrael (1983). The thesis of this book, prepared under the auspices of the Centre for Strategic Studies of Tel Aviv University, is that6 assuming the Israeli interest in peace and secutiry, the Palestinian State would be more consistent with such interest than any other alternative.

I 16. Whatever sovereignty has meant historically, it now means national independence and statehood under law including the legal order established by the United Nations Charter.

Information

Content Metrics

Content Metrics

All Time Past Year Past 30 Days
Abstract Views 6 6 1
Full Text Views 2 2 1
PDF Downloads 0 0 0
EPUB Downloads 0 0 0