SELF-RULE UNDER OSLO II: THE STATE OF PALESTINE WITHIN A STONE'S THROW

in The Palestine Yearbook of International Law Online
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SELF-RULE UNDER OSLO II: THE STATE OF PALESTINE WITHIN A STONE'S THROW

in The Palestine Yearbook of International Law Online

References

  • ** Text infra at 353 Ed. 1 Israeli-Palestinian Interim Agreement on the West Bank and Gaza Strip of 28 September 1995, Preamble paragraph 11. It superseded the Gaza-Jericho Agreement of 4 May 1994 (Text in 7 Palestine Y.B. Int'l L. at 243, (1992/94)) the Agreement on Preparatory Transfer of Powers and Responsibilities of 29 August 1994 and the Protocol on Further Transfer of Powers and Responsibilities of 27 August 1995. The 1993 Declaration on Interim Self-Government Arrangements was initialed by Israeli and Palestinian negotia- tors at Oslo on 20 August 1993 as the outcome of secret peace talks in the course of that year. It was, how- ever, signed in Washington on 13 September 1993. The Oslo/Washington Declaration became known in ordinary language as the Oslo Accords (Text, Id., at 232). In line with that, the 1995 overall interim agree- ment may be called Oslo II. 2 The protocols concerning Redeployment and Security Arrangements and Civil Affairs—Annexes I and II—took up some sixty and fifty pages respectively. 3 Oslo II, Article I (1). 4 Oslo II, Article XXXI (13 a). 5 Preamble Oslo II, paragraph 3 and Oslo I.

  • 6 British Mandatory Administration, A Survey of Palestine Prepared in December 1945 and January 1946 for the Information of the Anglo-American Committee of Inquiry (hereafter referred to as "BMA Survey") (1946, reprint 1991), vol. I: Historical Summary of Principal Political Events in Palestine since the British Occupation in 1917, at 15-103. 7 Thurer. Self-determination, in Bernhardt, ed., Encyclopedia of Public International Law, installment 8, at 471 (1985); Raic, book review of Dynamics of Self-determination in Palestine: Protection of Peoples as a Human Right by Paul J.I.M. de Waart, 8 Leiden J. Int'1 L. 233 (1995). 8 Modeen, Aaland Islands, in Bernhardt, ed., Encyclopedia of Public International Law, vol. I, at 1-2 (1992). This volume is the first of the consolidated library edition of the Encyclopedia of Public International Law, referred to in the previous footnote. 9 Verzijl, International Law in Historical Perspective, part II, at 98-104 (1969); Brownlie, Principles of Pub- lic International Law, at 636-637 (1990); Jennings and Watts, eds., Oppenheim's International Law, at 296 (1993).

  • 10 Shaw, The Definition of Minorities in lnternational Law, in Dinstein and Tabory, eds., The Protection of Minorities and Human Rights, at 2-8 (1992). 11 Crawford, ed., The Rights of Peoples, at 161 (1988): "Nonetheless, in the period before 1945 both self- determination and minority guarantees were political principles which found legal expression only in spe- cific cases." The Mandate for Palestine might be considered as such a case. 12 ICJ Reports (1971), at 32. 13 The Mandate for Palestine, Article 6; BMA Survey, at 91. 14 BMA Survey, at 93.

  • 15 A/RES/181 (II) of 29 November 1947, adopted by 33 votes in favour (including the USSR and the USA), 13 against (including Arab states), with 10 abstentions (including the UK). 16 A/RES/2253 (ES-V) of 4 July 1969, adopted by 99 votes in favour, none against, with 20 abstentions (including the USA). 17 A/RES/2243 (XXIII of 19 December 1968, adopted by 60 votes in favour, 22 against (including Israel and the USA), with 39 abstentions. 18 A/RES/35/169A of 15 December 1980, adopted by 98 votes in favour, 16 against (including the Benclux members, Denmark, the Federal Republic of Germany, Israel, Norway, the United Kingdom and the United States), with 32 abstentions (including Egypt, France and Sweden). The opposition against this res- olution was partly due to the fact that the General Assembly expressed "that Security Council Resolution 242 (1967) of 22 November 1967 does not provide for the future and for the inalienable rights of the Pales- tinian people, the attainment of which is a conditio sine qua non for a just solution of the question of Pal- estine." 19 A/RES/49/62 of 9 December 1994, adopted by 103 in favour, 2 against (Israel and the USA), with 40 abstentions: "The General Assembly, Recalling its resolutions 181 (II) of 29 November 1947 (...) welcom- ing the signing of the Declaration of Principles on Interim Self- Government Arrangements, including its Annexes and Agreed Minutes, by the Government of the State of Israel and the Palestine Liberation Organization on 13 September 1993 in Washington, as well as the subsequent implementation agreements, including the Agreement on the Gaza Strip and the Jericho Area, signed on 4 May 1994 at Cairo, Reaf firming that the United Nations has a permanent responsibility with respect to the question of Palestine until the question is resolved in all its aspects in a satisfactory manner in accordance with international legitimacy (...)."

  • 20 Oslo II, Article XVII (4b). 21 UN Charter, Preamble paragraph 3. The signing of the Oslo Accords in Washington by the Israeli govern- ment and the PLO in 1993 and 1995 was witnessed by the Russian Federation and the United States, and in 1995 also by Egypt, Jordan, Norway and the European Union. 22 Covenant of the League of Nations, Preamble. 23 Vienna Convention on the Law of Treaties of 25 May 1969, Articles 1 and 3; Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations of 21 March 1986, Articles 1 and 3. 24 Id., Articles 27 and 46.

  • 25 Oslo I, Article III. See also Oslo II, Article II and Annex II. 26 Gunner, Liberation Movements, in Bernhardt, supra note 7, installment 3, at 247 (1982); Kassim, The Pal- estine Liberation Organization's Claim to Status: A Juridical Analysis Under International Law, 9 Den. J. lnt'1. L. & Poly. 1 at 18-26 (1980). 27 Bothe, Occupation, Pacific, in Bernhardt, supra note 7, installment 4, at 68-69 (1982)

  • 28 Baskin, A New Relationship between Sovereignty and Territory: Possible Models, in Jerusalem: Perspectives Towards a Political Settlement, 32, at 37-38 (1993). 29 A/RES/50/ 21 of 12 December 1995, in which the General Assembly expressed "its full support for the achievements of the peace process thus far, in particular the Declaration of Principles on Interim Self-Government Arrangements, signed by the Government of the State of Israel and the Palestine Liber- ation Organization, the representative of the Palestinian People, the subsequent Agreement on the Gaza Strip and the Jericho Area, signed by the Government of the State of Israel and the Palestine Liberation Organization, their 29 August 1994 Agreement on the Preparatory Transfer of Powers and Responsibil- ities, the Protocol on Further Transfer of Powers and Responsibilities signed by the Government of Israel and the Palestine Liberation Organization in Cairo on 27 August 1995, the Interim Agreement on the West Bank and Gaza Strip, signed by the Government of Israel and the Palestine Liberation Organization in Washington on 28 September 1995, the Agreement between Israel and Jordan on the Common Agen- da, the Washington Declaration, signed by Jordan and Israel on 25 July 1994, and the Treaty of Peace between the State of Israel and the Hashemite Kingdom of Jordan, of 26 October 1994, which constitute important steps in achieving a comprehensive, just and lasting peace in the Middle East, and urges all par- ties to implement the agreements reached." 30 A/RES/50/22A of 12 December 1995.

  • 31 Schwarzenberger, Power Politics: a Study in World Society, at 469-473 (1964). 32 Van Ginneken, Volkenbondsvoogdij: het toezicht van de Volkenbond op het beataar in mandaatgebieden 1919-1940 [League of Nations Trusteeship: The League of Nations' Supervision of the Administration of Mandated Territories], doctoral dissertation, State University of Utrecht, at 296 (1992).

  • 33 ICJ Reports (1950), at 142-143. 34 In 1970 the General Assembly endorsed for the first time Security Council Resolution 242 (1967), which limited Israel's duty to withdraw to "territories [des territoires] occupied in the recent conflict." See A/RES/2628 (XXV) of 4 November 1970, adopted by 57 votes in favour, 16 against, with 39 abstentions. The explicit reference to the rights of the Palestinians, which was lacking in resolution 242, caused the divided vote. In its resolution 49/149 of 23 December 1994, adopted by 147 votes in favour, 2 against (Isra- el and the USA), with 19 abstentions, the General Assembly not only took note of the progress made in the Middle East peace process, in particular the mutual recognition and the signing of the Declaration of Principles on Interim Self-Government Arrangements by the Government of the State of Israel and the Palestine Liberation Organization, but also reaffirmed the right of the Palestinian people to self- determi- nation and urged all states, specialized agencies and organizations of the United Nations system to contin- ue to support the Palestinian people in their quest for self-determination. 35 Supra, note 29. 36 A/RES/49/149, Preamble. See note 34. 37 A/CONF/157/23 of 12 July 1993, paragraph I (1).

  • 38 Id., paragraph I (2). 39 A/RES/2625 (XXV) of 24 October 1970, adopted without a vote, Principle 5, paragraph 7. 40 A/CONF/157/23, paragraph I (2); AIRES/2625 (XXV), Principle 5, paragraph 1. 41 Jennings and Watts, supra note 9, at. 296, note 6; Rauschning, Mandates, in Bernhardt, supra note 7, installment 10, at 293-294 (1987).

  • 42 Van Ginneken, supra note 32, at 296. 43 ICJ Reports (1950), at 132. 44 Gerson, Israel, the West Bank & International Law, at 79 (1978), termed Jordan's legal status as that of a "trustee-occupant." By virtue of the international status of a mandate, the authority of Egypt and Jordan could be better defined as that of a de facto trustee-administrator. But see van de Craen, Palestine, in Bernhardt, op. cit. note 7, installment 12, at 277 (1990): "Nevertheless, after Israel came into being, a sove- reignty vacuum remained for the rest of Palestine, since no Arab Palestinian State was established." 45 Supra, note 19. 46 Oslo II, Article 1 (1).

  • 47 Bothe, Occupation, Belligerent, in Bernhardt, supra note 7, installment 4, at 66-67 (1982). According to Bothe, the applicability of the regime of belligerent occupation became controversial due to the status of the West Bank and Gaza Strip being disputed by Israel (Id., at 64). However, this dispute detracted noth- ing from the worldwide consensus on the de jure applicability of the 1949 Convention relative to the Pro- tection of Civilian Persons in Time of War. 48 Agreement on the Gaza Strip and the Jericho area, Articles I, II and III. 49 Oslo II, Article I.

  • 50 1949 Civilian Convention, Article 6 and 1977 Additional Protocol I, 3 (b); Bothe, supra note 47, at 66. 51 Benvenisti, The Israeli-Palestinian Declaration of Principies: A Framework for the Future in 4 European J. Int'l L., 548 (1993). Article 42 of the Hague Regulations reads: "Territory is considered occupied, when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised." 52 Oslo II, Article XXXI (6).

  • 53 Oslo II, Article XXXI (9). 54 Covenant of the League of Nations, Article 10. 55 Verzijl, supra note 9, vol. III at 356-357. 56 Both the Israeli Proclamation of Independence of 14 May 1948 and the Palestinian Declaration of Inde- pendence of 15 November 1988 referred to A/RES/181 (II) as the UN expression of recognition of their right to establish an independent state by the UN. For the text of the Israeli Proclamation, see 1 Laws of the State of Israel, at 3 (1948), and for the Palestinian Declaration, see 4 Palestine Y.B. Int'l L. at 30 (1987/88).

  • 57 Oslo I, Article III (3) and Oslo II, Article II (2). 58 Cassese, The Israel-PLO Agreement and Self determination in 4 European J. Int'l L. 569 (1993). 59 Brownlie, supra note 9, at 72-73.

  • 60 Oslo I, Article V (1) and Agreement on the Gaza Strip and the Jericho area, Article II (1), according to which the five-year transitional period began on 4 May 1994, when the latter agreement was signed. 61 Oslo I, Article XV; Cassese, supra note 58, at 56. 62 Musli, Palestinian Civil Society, in Norton, ed., Civil Society in the Middle East, at 261 (1995). 63 Oslo II, Annex I, Article XI and Annex IV, Article II (h).

  • 64 Denters and Klijn, eds., Economic Aspects of a Political Settlement in the Middle East [Nijmegen, 18-21 April 1990] (1991); Bartels, ed., The Israeli-Palestinian Conflict: Security-Dilemmas and Alternatives in the Light of the Gulf Crisis [Amsterdam, 21-24 November 1990] (1991); Cogen, ed., The Israeli-Palestinian Conflict: The Impact of Shifting Perceptions on Collective Identities and Political Aspects [Gent 12-14 Sep- tember 1991] (1992). The seminars were financially supported by the European Community, the Belgian and Dutch ministries of Foreign Affairs, the Ford Foundation, the Macarthur Foundation, NOVIB, Uni- versity of Gent and the Free University of Amsterdam.

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