THE PRINCIPLE OF SELF-DETERMINATION - Julius Stone PHD

THE PRINCIPLE OF SELF-DETERMINATION

It is sometimes asserted that the principle of self-determination creates a legal obligation for Israel to give back the Territories to the Palestinians.

Here Stone examines the applicability of the doctrine of self-determination to the conflict.

Whether the doctrine is already a doctrine of international law stricto sensu, or (as many international lawyers would still say) a precept of politics, or policy, or of justice, to be considered where appropriate, it is clear that its application is predicated on certain findings of fact. One of these is the finding that at the relevant time the claimant group constitutes a people of nation with a common endowment of distinctive language or ethnic origin or history and tradition, and the like, distinctive from others among whom it lives, associated with particular territory, and lacking an

independent territorial home in which it may live according to its lights Palestine Liberation Organization (PLO) leaders have frankly disavowed distinct Palestine identity. On March 3, 1977, for example, the head of the PLO Military Operations Department, Zuhair Muhsin, told the Netherlands paper Trouw that there are no differences between Jordanians, Palestinians, Syrians and Lebanese:

We are one people. Only for political reasons do we carefully underline our Palestinian identity. For it is of national interest for the Arabs to encourage the existence of the Palestinians against Zionism. Yes, the existence of a separate Palestine identity is there only for tactical reasons.

The establishment of a Palestinian State is a new expedient to continue the fight against Zionism and for Arab unity.

The myth of the 1966 Palestinian Covenant that the Palestinian people was unjustly displaced by the Jewish invasion of Palestine in 1917 is widely disseminated and unquestioningly and dogmatically espoused in studies from the United Nations

Secretariat. However, it is necessary to recall, not only the Kingdom of David and the succession of Jewish polities in Palestine down to Roman conquest and dispersion at the turn of the present era, but also that the Jews continued to live in Palestine even after that conquest, and were in 1914 a well-knit population there. Hundreds of thousands of other Jews, driven from Palestine homeland by successive waves of Roman, Arab, and other conquerors, continued to live on for centuries throughout the

Middle East, often under great hardship and oppression. And, of course, millions of others were compelled to move to other parts of the world where too often, as in pogrom-ridden  Russia  and  Poland,  they  live  in  conditions  of  tyrannous  and humiliation subjection and under daily threat to their lives...

That the provision for a Jewish national home in Palestine was an application of the principle of self-determination is manifest from the earliest seminal beginning of the principle. The Enquiry Commission, established by President Wilson in order to draft

a map of the world based on the Fourteen Points, affirmed the right of the Jewish people that Palestine should become a Jewish State clearly on this ground. Palestine, the commission said, was the cradle and home of their vital race, the basis of the Jewish spiritual contribution, and the Jews were the only people whose only home

was in Palestine The problem of competing self-determination becomes, indeed, even more difficult, whether for purposes of determining aggression or for other purposes, where the competing claims and accompanying military activities, punctuated by actual wars, armistices, and cease-fire agreements, have been made over protracted historical periods.   Is the critical date of the Middle East crisis 1973 or 1967, or the first Arab states attack on Israel in 1948, or is it at the Balfour Declaration in 1917, or at the Arab invasions and conquest of the seventh century AD, or even perhaps at the initial Israelite conquest of the thirteenth century BC? The priority question, as well as the self-determination question, is difficult enough. They become quite baffling when, in the course of such a long span of time, a later developing claim of self-determination like that of the Palestinian people in the 1960’s, arises, and claims to override retrospectively the sovereign statehood of another nation, here the Jewish people, already attained by right of self determination.

Note:

Stone s characterization of the doctrine of self-determination as a precept of policy, or politics or of justice has since been clarified in a number of decisions of the International Court of Justice. While the Court has acknowledged the right of various peoples to self-determination as a matter of principle, it has naturally been careful not to confer territorial rights on the basis of self-determination in cases where a sovereign state is in lawful possession of the relevant territory.

In the East Timor Case (1995), for example, the Court refused to consider a claim based on self-determination, since this would require a determination that Indonesia s entry into and continued presence in the territory was unlawful, and Indonesia had not submitted to the Court’s jurisdiction.

Stone s observations on the competing Jewish and Palestinian claims of self-determination in respect of the whole of historical Palestine were, of course, made at a time when the phrase the inalienable rights of the Palestinian people was still a coded reference to the projected destruction of Israel, and before the Oslo Accords incorporated the first Palestinian acceptance of the concept of compromise by partition. As an example of the way in which the principles of pan-Arab national self-determination then applied to Israel, Stone cited:

A letter dated February 20, 1980 to the Secretary-General, transmitted for UN circulation to the General Assembly and the Security Council in connection with item 26 of A/35/11000-S/13816 (Situation in the Middle East) [which] declared a propos of inclusion in the Charter of a principle of non-use of force:

The principle of non-use of force shall apply to the relations of the Arab Nation and Arab States with the nations and countries neighboring the Arab homeland. Naturally, as you know, the Zionist entity is not included, because the Zionist entity is not considered a State, but a deformed entity occupying an Arab territory. It is not covered by these principles.

The critical question at the time of writing is therefore whether the legal framework of a peace process based on historic compromise can survive the breakdown of the permanent status negotiations at Camp David II and Taba, the ensuing violent conflict, and the widespread revival of  pan-Arab and Islamic ideologies which reject such compromise.