Haq Al-Awda, Augustus 2011
By Paul de Waart
The Quartet has supported the plan of the Palestinian Authority of August 2009 for building the Palestinian state within 24 months.1) Since then Israel intensified its delaying tactics with-out an effective intervention of the Quartet. Small wonder that Palestine now puts its plan into action by applying for UN membership.2) This step has come up for discussion on the internet with great intensity. Advocates and opponents are crossing words on the persistent bone of contention whether Palestine is a state.3) Even those who are in favour, express fear that the application may harm peace between Israel and Palestine or may weaken the Palestinian territorial claim.4) In my view this is a groundless fear. It is firmly established in international law that the Gaza Strip and the West Bank including East Jerusalem are Palestine territory. The peace process is doomed to fail as long as the UN will not succeed in putting a stop to Israel’s persistent disdain of international law in that respect.
As for the crucial question whether Palestine is already a state, it is noted that the concept of state differs from that of statehood. The latter should not necessarily imply that a state for one purpose is also a state for another.5) Be this it may, the statehood of Palestine is beyond question for it belonged to the class A mandates. The statehood of these mandates originated in Article 22 of the Covenant of League of Nations. According to its Preamble, the Mandate for Palestine of 24 July 1922 was not an exception.6) From the perspective of international law, an argument on the legality of that mandate is thus defending a lost cause.7) In his narrative of international law and the origins of the Arab-Israeli conflict 1891-1949, the Palestinian scholar Victor Kattan rightly did not attack the legality of the Mandate for Palestine but only the practicability of the incorporation of the Balfour Declaration.8)
Kattan notes that the Zionist project to create a Jewish national home in Palestine seemed lawful on the face of things but ‘did not give Zionists a blank cheque to colonise Palestine’.9) This conclusion hits the mark. For the Zionists have applied the Mandate in that way indeed until this very day. This holds particularly true for the provisions on the facilitation of Jewish immigration, and the acquisition of Palestinian land and citizenship by Jews who took up their permanent residence in the territory of Palestine10) with the exception of ‘Transjordan’.11) The incorporation of the Zionist project in the Mandate for Palestine did not deprive the territory of Palestine from its class A status.12) But it did burden the Mandatory with the almost inoperable duty of reconciling the pro-Zionist terms of the Mandate with the League of Nations’ sacred trust of civilization’. It urged Great Britain and its supervisors – originally the League of Nations Council and subsequently the UN General Assembly – to proceed legally and po-litically as if both Palestine’s indigenous Jewish and Arab inhabitants had a claim to Palestine on the basis of the principle of self-determination.13)
The Mandatory’s proposal to the Permanent Mandates Commission of the League of Nations in 1939 on the termination of the Mandate and the constitution of an independent Palestinian state reflects this controversy.14) The disruption of its work during World War II and the dissolution of the League of Nations in 1946 released the Council of the League of Nations of the necessity to show its colours on the setting-up of two states. Therefore the United Nation had to bite that bullet. For the end of the mandate system did not involve the end of the international status of mandated territories, including the only left class A Mandate Palestine and its claim to independence. General Assembly Resolution 181 (II) of 29 November 1947 on the partition of Palestine confirmed the statehood of Palestine but did not divide itself Palestine into a Jewish State and an Arab State.15)
From a legal point of view Israel’s Proclamation of Independence of 14 May 1948 was a unilateral act, which may be seen as a mode of implementing the right to selfdetermination of the Jewish people in Palestine. For that reason it did not affect the statehood of Palestine. It only limited the size of the mandated territory at the expense of the other people living there, as usually happens in the case of a successful secession.16) Whether Israel’s secession was legal or not, is an academic question after the admittance of Israel to UN membership in 1949. Moreover the admission was in line with the conclusion of the Mandatory and the League of Nations that partition was the only option to solve the contradictories in the Mandate for Palestine. The admission resolution evidenced this conformity.17) The UN membership implied, as it were, an acceptance of the size of the territory acquired by the Jewish people at that time. In other words, the size of the territory of Palestine extended as from then anyhow to the Gaza Strip and the West Bank, including East-Jerusalem, administered by Egypt respectively Jordan until the occupation by Israel in 1967. For, after its admission to UN membership Israel had to abide by the prohibition of the use of force as a means to acquire territory form Pales-tine. Israel wrongly interpreted the lacking of ‘the’ in the English text of Security Council Resolution 242 of 22 November 1967 as if it could decide whether and to what extent it should withdraw from occupied Palestinian territory. This interpretation overlooked the dif-ferent legal status of occupied Palestinian territory as former class A Mandate on the one side and conquered Egyptian and Syrian territory on the other.
Palestine’s Declaration of Independence of 15 November 1988 was also a unilateral act. However it was not a matter of secession18) but of resignation to its de facto partition in 1949.19) Like states in 1948 recognized Israel before its admission to UN membership, quite a number of states - considerably over a hundred – have recognized Palestine before its admittance to UN membership. Moreover, Palestine is a member of the League of Arab States, which is a regional organization cooperating with the United Nations. The Oslo Agreements did not counteract this situation. Whatever their present legal status, the Oslo Agreements do not deny that Palestine is a state, their main purpose being the recognition of Palestine by Israel - and vice versa - as a basis for a peace treaty between two states on equal footing, not the establishment of the State of Palestine.20) After all, the Palestinian statehood is not the result of the Oslo Agreements but of the right to self-determination of the Palestinian People in con-junction with the Partition resolution.21)
Many states are of the opinion that Palestine meets the characterization of a state as a person of international law that possess the following qualifications: a) a permanent population; b) a defined territory; c) government; and d) capacity to enter into relations with the other states.22) They act accordingly as appears from treaties between them and Palestine and the entering into diplomatic relations. The United Nations, however, is conspicuous by its absence. What is more as a member of the Quartet it endorsed the opinion of the United States (Israel), the European Union and Russia that a settlement, negotiated between the parties, will result in the emergence (my italics) of an independent, democratic, and viable Palestinian state living side by side in peace and security with Israel and its other neighbours.23)
Formally the admission of states to UN membership will be effected by a decision of the UN General Assembly adopted by a two-thirds majority of the members present and voting upon the recommendation of the Security Council, adopted by a majority including the votes of the permanent members.24) However Palestine is not such and such state. It is the only class A Mandate that at the dissolution of the League of Nations in 1946 had not attained full inde-pendence through the Council of the League of Nations.25) Today the General Assembly has the final responsibility for the completion of the sacred trust of civilization towards the Palestinian people. It is true that admission to UN membership of Israel in 1949 was decided in conformity with the above procedure. However, that decision concerned a state that had broken away from Palestine. As for Palestine the question presents itself whether a veto may bar its membership, the more so since there is no risk whatsoever of establishing a precedent. Even when a permanent member may prevent a positive recommendation to the General Assembly, the General Assembly still has the authority to upgrade the status of Palestine to that of a non-member state permanent observer26) thus paving the way for membership of other international organizations.27) Moreover the General Assembly could invite Palestine to accede to multilateral treaties such as the 1966 International Covenants on Human Rights.
The solution of the Israeli-Palestinian conflict is not a matter of legal fundamentalism or of a monopoly of justice or blame.28) International lawyers are fully aware that, even if they belong to the most highly qualified publicists of the various nations, their teachings are only subsidiary means for the determination of the rules of law by the International Court of Justice.29) Even the 2004 landmark Wall Opinion of the ICJ did not succeed in changing the mind of the Israeli and American governments, although the interpretation and application of international law was not an advice but a finding. It is now the bounden duty of the UN to prevent that its decision or even worse, indecisiveness, will enable once more the continuance of Israel’s pre-sent strategy undisturbed. For the final outcome will then be be a small ‘Palestinian national home’ under Israel’s strict surveillance.30)
Putting it in a nutshell, the admission of Palestine to UN membership or the upgrading of its status in the General Assembly to that of non-member state permanent member will make it crystal-clear that that the permanent status of Palestine has been replaced as the key issue in the peace negotiations by the termination of the occupation of the territory of Palestine by Israel. It will also establish once and for all that the definition of the territory of Palestine does not depend on the generosity of Israel but consists anyhow of the Gaza Strip and the West Bank including East Jerusalem as occupied by Israel since 1967.
Even if Israel will accept a fresh start of peace talks on the basis of the so-called ‘land for peace’ principle, it should not imply any more that Palestine should resign itself to the Israeli annexation of East Jerusalem and the settlements on the West Bank. If the principle has any meaning left, then it is that Israel should give up in the interest of peace land conquered by the Jewish people before Israel’s admission to the UN in 1949 in excess of what was allotted to the Jewish state in the Partition resolution.
Paul de Waard is Professor Emeritus of International Law VU University Amsterdam. He chaired the joint Academic Project Dynamics of Self-Determination of Israeli, Palestinian and Western researchers 1988-1992 and was a member of the Independent Fact Finding Committee on Gaza of the League of Arab States, established in February 2009 with the task of investigating and reporting on violations of international law during the military Israeli offensive military operation Cast Lead against Gaza from 27 December 2008 to 18 January 2009.
1) http://www.un.org/News/Press/docs/2010/sg2158.doc.htm SG/2158 Statement by the Middle East Quartet (United Nations, Russia, United States and European Union), Moscow 19 March 2010.
2) http://www.nytimes.com/2011/05/17/opinion/17abbas.html Mahmoud Abbas,’ The Long Overdue Palestinian State’, The New York Times, May 16, 2011.
3) A quest for UN recognition of Palestine in September 2011 on the internet gave a smash hit in a split second.
4) http://electronicintifada.net/content/case-un-recognition-palestine/10079, Victor Kattan, ‘The case for UN recognition of Palestine’, 13 June 2011.
5) James Crawford notes in his standard work The Creation of States in International Law, 2nd edn. (Oxford, Clarendon Press 2006): ‘The “A” Mandated territories were treated as States for the purposes of nationality, but were much less certainly States for other purposes’ (p 31).
6) Preamble, paragraph 2 and The Origins and Evolution of the Palestinian Problem 1917-1988, (New York, United Nations 1990), pp. 19 -20: ‘All the Mandates over Arab countries, including Palestine, were treated as class ‘A’ Mandates, applicable to territories whose independence had been provisionally recognized in the Covenant of the League of Nations.
7) See my book Dynamics of Self-determination in Palestine: Protection of Peoples as a Human Right, (Leiden, E.J. Brill 1994), paragraph 6.2 ‘Legality of the Palestine Mandate’, pp. 42—46.
8) Victor Kattan, From Coexistence to Conquest – International Law and the Origins of the Arab-Israeli Conflict, 1891-1949, (London, Pluto Press 2009). His narrative was well received by, amongst others, the former UN Secretary Boutros Boutros Ghali, and the former chairman of the Legal Committee of the Palestinian National Council, Dr. Anis al-Qasem. See also my review in in the Leiden Journal of International Law (LJIL) Nr 23/4 of 10 December 2010, pp. 967-970. The reading of his book is highly recommendable for anyone who seriously cares about international law as the only reliable path to peace in the Middle East.
9) Ibid p. 253.
10) Mandate for Palestine, articles 4, 6 and 7.
11) Ibid article 25.
12) J. Quigley, The Statehood of Palestine: International Law in the Middle East, (Cambridge, Cambridge University Press 2010), Chapter V: The Class A Mandates, pp., 42-51. Quigley’s effort to clarify the analysis of the territorial component of what he calls (p .ix) ‘the Israeli-Palestinian conundrum’ has been highly praised as a an example of impressive scholarship by ,amongst others, the present UN special Rapporteur for the Occupied Palestinian Territories, Richard Falk, and his predecessor John Dugard.
13) Kattan, op. cit. note 8, p. 126.
14) British Mandatory Administration, A Survey of Palestine Prepared in December 1945 and January 1946 for the Information of the Anglo-American Committee of Inquiry, 1946 volume I, pp. 52-56 and 94-95.
15) Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, ICJ Reports (2004) paragraph. 49, p. 159; Quigley, op. cit. note 12, pp. 92-94: ‘Resolution 181 and Palestinian statehood’.
16) Crawford, op. cit note 5 Chapter 9 Secession, paragraph 9.5: The former Palestine Mandate: Israel and Pales-tine, pp.421-434 at 427 and 434; Quigley, op. cit. note 12, p. 104; But see Kattan, op. cit. note 8, p. 240-245.
17) GA Res. 273 (III) of 11 May 1949 recalled its resolution 181 (II) of 29 November on partition and 194 (III) of 11 December 1948, establishing a UN Conciliation Commission to deal with the status of Jerusalem, and the right of (Palestinian) refugees to return. See Kattan, op. cit. note 8, pp. 236-240.
18) But see Crawford, op. cit. note 5, pp. 434-448: ‘The Creation of the State of Palestine (1988)’.
19) Abbas, loc. cit note 2: ‘We call on all friendly, peace-loving nations to join us in realizing our national aspira-tions by recognizing the State of Palestine on the 1967 borders (…’).
20) Geoffrey Watson overlooks this in his otherwise interesting book The Oslo Accords, International Law and the Israeli-Palestinian Peace Agreements, (Oxford, Oxford University Press 2000). Dealing with termination of the accords and Palestinian statehood, he admits that the Accords do not explicitly list statehood as a ‘permanent status’ issue. (p. 250). In his view this absence ‘reflects Israel’s refusal to concede on this issue prematurely (ibid.). As if the Palestinian side could have agreed to include the statehood as an outcome of bilateral negotia-tions.
21) http://www.arableagueonline.org/las/picture_gallery/reportfullFINAL.pdf Report of the Independent Fact Finding Committee on Gaza: No Safe Place Presented to the League of Arab States, 30 April 2009, p. 147, para-graph 606.
22) Inter-American Convention of Rights and Duties of States of 26 December 1933, Article 1.
23) A performance-based roadmap to a permanent two-state solution to the Israeli-Palestinian conflict, 2003, paragraph 9. The Guide to Peace in the Middle East on the website of the Israeli Ministry of Foreign Affairs belies the optimism of the Quartet in no uncertain terms. It let be no mistake that charges regarding the illegality of Israeli settlements in the occupied Palestinian territory have no foundation in international law. See my ‘Israel’s Settlement Policy Stumbling Block in the Middle East Peace Process’ in Thomas Skouteris and Anne-marieke Vermeer-Künzli (eds.), The Protection of the Individual in International Law, Essays in Honour of John Dugard, (Cambridge, Cambridge University Press 2007), pp.101-110: Settlement Policy.) UN Charter, articles 4(2) and 18 (2).
25) Dietrich Rauschning, ‘Mandates’, in Rudolf Bernhardt (ed.), Encyclopedia of Public International Law, Volume III, ( Amsterdam, Elsevier 1997), p. 286: ‘As far the “A” mandates are concerned, the system was successful in the sense that the mandate States became independent – with the exception of Palestine, since the later State of Israel was not identical with the entity administered under the mandate.’
26) UN Charter, articles 2(6) and 36(2); Bruno Simma (ed.), The Charter of the United Nations – A Commentary, 2nd edn. (Oxford, Oxford University Press 2002), pp. 187-188.
27) Henry G. Schermers and Niels M. Blokker, International Institutional Law: Unity within diversity, 3rd edn. (The Hague, Martinus Nijhoff Publishers (1995), paragraph 91: ‘There is a growing practice among international organizations of following the lead of the General Assembly of the UN when deciding to recognize an entity as a state’.
28) John Strawson, Partitioning Palestine: Legal fundamentalism in the Israeli-Palestinian Conflict, (London, Pluto Press 2010), pp. 215-216.
29) Statute, article 38(1) d.
30) Kattan, op. cit. note 8, pp. 5, 60, 127, 255.