Palestinian Arab Self-Determination

Eli E. Hertz
www.mythsandfacts.org
28 February '11

http://www.mythsandfacts.org/article_view.asp?articleID=196

The International Court of Justice (ICJ) in its Advisory Opinion in the matter of the construction of the "wall" in Judea and Samaria, cites the right to self-determination as a fundamental right almost two dozen times, always in the Palestinian context, never in the Jewish framework.

The Bench even takes the liberty to interpret what Israel's recognition of "Palestinian rights" in a legally-binding accord [Camp David] meant, basing its own interpretation on a declarative statement of sentiment by the United Nation's General Assembly. With no reliance on legal standing, the ICJ says:

"The Israeli‑Palestinian Interim Agreement on the West Bank and the Gaza Strip of 28 September 1995 also refers a number of times to the Palestinian people and its "legitimate rights." ... The Court considers that those rights include the right to self‑determination, as the General Assembly has moreover recognized on a number of occasions [see, for example, resolution 58/163 of 22 December 2003]."

The ICJ turns General Assembly recognition - this time a March 2004 Resolution recognizing "The right of Palestinian people to self-determination"[1] - into the basis for a legal opinion, ignoring the powers vested [or not vested, as the case may be] in the General Assembly under the UN Charter.

It is instructive to compare such "instant recognition" to the way the Jewish People's right to self-determination, totally ignored by the ICJ, was anchored in a series of genuine international accords.

The British objectives in "mentoring" a national home for the Jewish People under the "Mandate for Palestine" were not based solely on the 1917 Balfour Declaration. While international support for the establishment of a Jewish homeland in Palestine was set in motion by this landmark British policy statement, international intent rested on a solid consensus, expressed in a series of accords and declarations that reflected the "will" of the international community, hardly the product or whim of a colonial empire with its own agenda.

The Mandate itself notes this intent when it cites that the Mandate is based on the agreement of "the Principal Allied Powers" and declares:

"Whereas recognition has therefore been given to the historical connection of the Jewish people with Palestine and to the grounds for reconstructing their national home in that country." [Italics by author]

A June 1922 letter from the British Secretary of State for the Colonies, Winston Churchill, reiterated that:

"The [Balfour] Declaration of 1917 [was] re-affirmed by the Conference of the Principle Allied Powers at San Remo and again in the Treaty of Sevres" ... "the Jewish people ... is in Palestine as a right and not on sufferance. That is the reason why it necessary that the existence of a Jewish National Home in Palestine should be internationally guaranteed and that it should be formally recognized to rest upon ancient historical connection."

In his first Report of the High Commissioner on the Administration of Palestine 1920-1925 to the Secretary of State for the Colonies, published in April 1925, the most senior official of the Mandate for Palestine, the High Commissioner for Palestine, underscored how "international guarantee[s]" for the existence of a Jewish National Home in Palestine were achieved:

"The Declaration was endorsed at the time by several of the Allied Governments; it was reaffirmed by the Conference of the Principal Allied Powers at San Remo in 1920; it was subsequently endorsed by unanimous resolutions of both Houses of the Congress of the United States; it was embodied in the "Mandate for Palestine" approved by the League of Nations in 1922; it was declared, in a formal statement of policy issued by the Colonial Secretary in the same year, 'not to be susceptible of change;' and it has been the guiding principle in their direction of the affairs of Palestine of four successive British Governments. The policy was fixed and internationally guaranteed."

It is remarkable to note the Report of The High Commissioner on the Administration of Palestine to the Right Honourable L. S. Amery, M.P., Secretary of State for the Colonies' Government Offices in 22nd April, 1925, describing Jewish Peoplehood:

"During the last two or three generations the Jews have recreated in Palestine a community, now numbering 80,000, of whom about one-fourth are farmers or workers upon the land. This community has its own political organs, an elected assembly for the direction of its domestic concerns, elected councils in the towns, and an organisation for the control of its schools. It has its elected Chief Rabbinate and Rabbinical Council for the direction of its religious affairs. Its business is conducted in Hebrew as a vernacular language, and a Hebrew press serves its needs. It has its distinctive intellectual life and displays considerable economic activity. This community, then, with its town and country population, its political, religious and social organisations, its own language, its own customs, its own life, has in fact "national" characteristics.

When it is asked what is meant by the development of the Jewish National Home in Palestine, it may be answered that it is not the imposition of a Jewish nationality upon the inhabitants of Palestine as a whole, but the further development of the existing Jewish community, with the assistance of Jews in other parts of the world, in order that it may become a centre in which the Jewish people as a whole may take, on grounds of religion and race, an interest and a pride. But in order that this community should have the best prospect of free development and provide a full opportunity for the Jewish people to display its capacities, it is essential that it should know that it is in Palestine as of right and not on sufferance. That is the reason why it is necessary that the existence of a Jewish National Home in Palestine should be internationally guaranteed, and that it should be formally recognised to rest upon ancient historic connection."

Far from the whim of this or that politician or party, 11 successive British governments, Labor and Conservative, from David Lloyd George (1916-1922) through Clement Attlee (1945-1952) viewed themselves as duty-bound to fulfill the "Mandate for Palestine" - placed in the hands of Great Britain by the League of Nations in 1922.

This is a far cry from the instant approval noted in the UN's General Assembly upon which the ICJ bases its findings, totally ignoring that at no point in the "Mandate for Palestine" is there any granting of political rights to non-Jewish entities (i.e. Arabs), only civil rights, because political rights to self-determination as a polity for Arabs were guaranteed in four other parallel mandates for Arab peoples, initially - in Lebanon, Syria, Iraq - and later, Transjordan.

There is one more point that should be mentioned at this juncture: the ICJ's highly irregular perception of peoplehood, eligibility and readiness for self-determination. In paragraph 118 the ICJ says:

"As regards the principle of the right of peoples to self-determination, the Court observes that the existence of a 'Palestinian people' is no longer in issue. ... The Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip of 28 September 1995 [Oslo II Accords] also refers a number of times to the Palestinian people and its 'legitimate rights.'"

Making its judgment, the ICJ concludes:

"The Court considers that those rights include the right to self-determination, as the General Assembly has moreover recognized on a number of occasions."

Professor Rostow, examining the claim for Palestinian's self-determination on the bases of law, concludes:

"The mandate implicitly denies Arab claims to national political rights in the area in favour of the Jews; the mandated territory was in effect reserved to the Jewish people for their self-determination and political development, in acknowledgment of the historic connection of the Jewish people to the land. Lord Curzon, who was then the British Foreign Minister, made this reading of the mandate explicit. There remains simply the theory that the Arab inhabitants of the West Bank and the Gaza Strip have an inherent "natural law" claim to the area. Neither customary international law nor the United Nations Charter acknowledges that every group of people claiming to be a nation has the right to a state of its own." [2] [Italics by author]

[1] UN General Assembly - 58/163. A/RES/58/163. 77th plenary meeting. 22 December 2003. The right of the Palestinian people to self-determination. See: www.mefacts.com/cache/html/un-resolutions/11319.htm .
[2] Eugene V. Rostow, "The Future of Palestine," Institute for National Strategic Studies, November 1993. Professor Rostow was Sterling Professor of Law and Public Affairs Emeritus at Yale University and served as the Dean of Yale Law School (1955-66); In 1967 as U.S. Under-Secretary of State for Political Affairs he become a key draftee of the UN Resolution 242. See also his writing: "Are Israel's Settlements Legal?" The New Republic, October 21, 1991.

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