Dr. Hans Koechler
 Professor of Philosophy, University of Innsbruck, Austria
President of the International Progress Organization (Vienna/Austria)



Sovereignty as the Crucial Issue of a Peaceful Settlement of the Palestinian-Israeli Conflict

 Paper presented at the international conference

“1991-2000: The Palestinian-Israeli Peace Process – A critical evaluation of ten years of negotiations between the Palestinian Authority and Israel”

  organized by the Arab Cause Solidarity Committee

(Madrid, 30 September – 1 October 2000)

  C o n t e n t s

 (I)  Legal Rights versus Realpolitik: The History of the Palestine Problem and the Changing Role of the United Nations

 (II) Legal Evaluation of the "Peace Agreements" since the Gulf War

 (III) Elements of a Solution: The Peace Process and the Principle of Self-determination

 © 2000 by Hans Köchler. All rights reserved.


(I)  Legal Rights versus Realpolitik: The History of the Palestine Problem and the Changing Role of the United Nations

The right to self-determination is an inalienable right enjoyed by all peoples indiscriminately. It has been confirmed as such in Art. 1 (2) of the United Nations Charter and in numerous other international documents. The many resolutions passed by the UN General Assembly and the establishment of the UN “Committee on the Exercise of the Inalienable Rights of the Palestinian People” by the Assembly in 1975[1] are clear proof of the general recognition of this right in regard to the people of Palestine.[2] The Palestinians have enjoyed this right – as a natural right – not just since the time after the Second World War, but since a time well before the collapse of the 19th century order in the course of the First World War. As rightly stated by the eminent Palestinian scholar Henry Cattan, the Palestinians already existed as a distinct Arab people with inalienable rights during the Ottoman rule over Palestine.[3] According to Article 22 (4) of the Covenant of the League of Nations, at the end of World War I and in the course of the detachment of Palestine from the Ottoman Empire, the Palestinian people was seen as a community whose existence as an independent nation could be “provisionally recognized.”[4] The drafters of the Covenant of the League of Nations based their legal notion of the mandate, especially in regard to the territories formerly under Turkish rule, on the assumption of national sovereignty of peoples “not yet able to stand by themselves” (Art. 22 [1]).[5]

 It must be said, however, that the statute of the League of Nations Mandate for Palestine (1922) was itself in contradiction to the provisions of Art. 22 of the League’s Covenant insofar as it incorporated – in the Preamble and in Articles 2, 4, 6 and 7 – the basic provisions of the Balfour Declaration. The Mandate for Palestine in itself violated letter and spirit of Art. 22 of the League’s Covenant, which evokes (in Par. 1), in connection with the protection of the rights of peoples under the Mandate, a “sacred trust of civilization”. 

On the basis of this legal concept, national Palestinian sovereignty was not annulled when Britain was entrusted by the League of Nations with the mandate over Palestine.[6] Furthermore, the mandate over Palestine – as the mandates over Syria, Lebanon, Iraq and Transjordan – fell into category (A) according to the classification of the League of Nations. This category, in distinction from the categories (B) and (C), implied the expectation of early independence.[7] Henry Cattan rightly concludes: “The legal effect under international law of the detachment of Palestine from the Ottoman Empire and of recognition of its people as an independent nation was to make of this country a separate and independent state.”[8] All the legal assumptions relating to the international status of Palestine were based on the principle according to which sovereignty over a mandated territory lies in its inhabitants.[9] This legal notion has also been confirmed in a United Nations report on the origins of the Palestine problem where it is stated that the sovereignty of Palestine (having been classified as falling under a category “A” Mandate) “could not be alienated either by the Mandatory Power or by the League.”[10]

 If we take into consideration these basic legal facts of Palestinian sovereignty since the end of the Ottoman rule it is obvious that the Palestinians were prevented from exercising their sovereignty upon the termination of the British Mandate after World War II and have been prevented from exercising this fundamental and inalienable right ever since. United Nations General Assembly resolution 181 (II) of 29 November 1947 denied the most fundamental national right to the Palestinian people – by providing for the partition of Palestine into two states on the basis of vague ethnic assumptions and discriminatory policies along the lines of the legally invalid “Balfour Declaration” and its incorporation into the League of Nations’ Mandate. The Palestinians had never been consulted in this process; new political structures had de facto been imposed on them. In strictly legal terms, the General Assembly had no authority to divest the Palestinians of their sovereignty over the areas of Palestine which it allocated to the Jewish state.

 The United Nations Organization, whether represented by the General Assembly, the Security Council or the International Court of Justice, has no legal competence to abrogate the sovereignty of whichever people over its land.[11] The term “inalienable rights”  means what it says. It relates to the body of jus cogens of general international law. The world organization itself is not above the law. Ian Brownly rightly explains the dubious legal nature of the partition resolution of the General Assembly: “It is doubtful if the United Nations has a ‘capacity to convey title,’ inter alia because the Organization cannot assume the role of territorial sovereign: in spite of the principle of implied powers the Organization is not a state and the General Assembly only has a power of recommendation. Thus the resolution of 1947 containing a partition plan for Palestine was probably ultra vires ...”[12]

 Similarly, Pitman B. Potter concluded in his legal analysis of 1948: “The United Nations has no right to dictate a solution in Palestine unless a basis for such authority can be worked out such as has not been done thus far.” He refers to one of the basic shortcomings of the United Nations Organization, namely the “avoidance of international law in dealing with international problems manifested only too often in the history of Great Power behavior in the United Nations.”[13]

 The partition resolution could only be based on Art. 14 of the Charter, which merely provides that “the General Assembly may recommend measures for the peaceful adjustment of any situation ... which it deems likely to impair the general welfare or friendly relations among nations ...” (emphasis by the author). This formulation definitely does not convey any authority to the General Assembly to create sovereign entities or to deny sovereign rights to whichever nation. Sub-Committee 2 of the General Assembly’s Ad Hoc Committee on the Palestine Question acknowledged this lack of competence, particularly in regard to the provisions of Chapter XII of the Charter. The Sub-Committee stated that  “the General Assembly is not competent to recommend, still less to enforce any solution other than the recognition of the independence of Palestine” and that “the settlement of the future government of Palestine is a matter solely for the people of Palestine ...” The Sub-Committee, in its report to the Ad Hoc Committee, further stated that “partition involves the alienation of territory and the destruction of the integrity of the State of Palestine. The United Nations cannot make a disposition or alienation of territory, nor can it deprive the majority of the people of Palestine of their territory and transfer it to the exclusive use of a minority in the country ...”[14]

 On 24 November 1947 the General Assembly, acting as the Ad Hoc Committee on Palestine, rejected – by the narrow margin of  21 to 20 votes – a draft resolution presented by Sub-Committee 2 to seek an advisory opinion from the International Court of Justice on this matter.[15] A legal evaluation, in the statutory framework of the United Nations, of the fait accompli created by the partition resolution has, therefore, been prevented from the very beginning of the Palestine conflict.

 The problematic legal nature of the General Assembly’s partition resolution was further expounded by the leading legal theorist of the time, Hans Kelsen. In his comprehensive analysis of the competence of the General Assembly,[16] Kelsen refers to the arguments brought forward in the General Assembly itself that this body, according to the Charter, can only make recommendations. He states, in regard to the partition resolution, that “[t]hese arguments are, from a strictly legal point, correct.”[17] The resolution creating two states in Palestine, for that reason, was not binding upon member states because recommendations, in Kelsen’s words, “by their very nature, do not constitute a legal obligation to behave in conformity with them.”[18] Kelsen clearly states, furthermore, that the General Assembly’s decision was ultra vires: “To decide that the United Nations shall administer a territory for the purpose to establish on it two new states is hardly within the competence of the General Assembly or any other organ of the United Nations."[19] Similarly, Clyde Eagleton, U.S. expert of United Nations law, stated in no uncertain terms: “It is clear to any student of the Charter that a resolution of the General Assembly, such as that for the partition of Palestine, is no more than a recommendation, and that it can have no legally binding effect upon any state whatsoever.”[20]

 The partition resolution of the General Assembly violates international law in another important respect. It contradicts the principle of the inadmissibility of the acquisition of territory by war. As Quincy Wright explains in his legal analysis of the Palestine problem, the General Assembly resolution “partitioning Palestine and establishing the state of Israel as demanded by Zionists is difficult to reconcile with this principle. Local hostilities between Zionist and Arab forces deprived the ‘peoples’ in the mandated territory of rights explicitly protected by the Mandate and Article 80 of the Charter without their consent.”[21] Art. 80 (1) – in connection with Art. 77, Par. 1 (a) – of the UN Charter explicitly states that, in regard to a mandated territory, the United Nations provisions on trusteeship must not be interpreted in a way that could “alter in any manner the rights whatsoever of any states or peoples” under the regime of a mandate. The General Assembly, for that reason, by resolution 181 (II) violated the provisions of the very Charter on the basis of which it was supposed to act. The territory of  Palestine, falling (in 1945) under the provisions of Art. 77, Par. 1 (a), unlike other territories,  was never brought under the trusteeship regime of the United Nations that would ultimately have led, in conformity with Art. 76 (b), to Palestinian independence. Instead, the General Assembly stepped in and partitioned a territory whose status, as stipulated in Art. 80 (1), should not have been altered before having been brought under an internationally administered and controlled trusteeship regime as first step to national independence.[22]

 As far as the occupation of additional territories in excess of those allocated – though without sufficient authority – by the General Assembly in 1947 is concerned, the universally recognized principle of the inadmissibility of the acquisition of territory by force applies. The general principle of law "ex injuria jus non oritur" is relevant in this context. A claim to a territorial title which originates in an illegal act is invalid. This relates to the Palestinian territories seized in 1948 as well as to those occupied in 1967.[23] Israel’s status in those territories is that of a “belligerent occupant.” All unilateral measures undertaken by the occupying power to change the status of the territories – including the annexation of Jerusalem – are null and void. Since 1967, the General Assembly has confirmed, on numerous occasions, the illegality of the occupation and the Palestinian people’s right to self-determination. Although non-binding in their legal nature, these resolutions demonstrate not only the moral but the legal conviction of the international community and set out the guidelines for a just and lasting settlement of the problem on the basis of the right to self-determination. This right is naturally claimed by the Palestinians themselves in Art. 3 of the Palestinian National Charter (adopted by the Palestine National Council in 1968): “The Palestinian Arab people possess the legal right to their homeland and have the right to determine their destiny after achieving the liberation of their country in accordance with their wishes and entirely of their own accord and will.”

 General Assembly resolution 3236 (XXII) of 22 November 1974 reaffirmed the “inalienable rights of the Palestinian people in Palestine including (a) the right of self-determination without external interference, (b) the right to national independence and sovereignty.” This right was reconfirmed in General Assembly resolution 169 A (XXXV) of 15 December 1980, which stated that just and lasting peace in the Middle East cannot be established without the attainment of the inalienable rights of the Palestinian people. The right to self-determination has been spelled out very clearly and consistently in all General Assembly resolutions on Palestine since the time after the 1967 war.[24] It is an irony of history that the General Assembly, in 1947, itself has created the problem by adopting a resolution which was based on the negation of that very principle. It should be noted, however, that the General Assembly membership in 1947 was not at all representative of the peoples of the world (at a time when the majority of the present members did not exist as sovereign entities) and that the colonial powers of the time completely dominated the decision-making process. There definitely was – apart from the lack of legitimacy of the partition resolution in terms of international law – a lack of political legitimacy of  a body that represented only a minority of the peoples of the world.


(II) Legal Evaluation of the "Peace Agreements" since the Gulf War

  In strictly legal terms, the numerous resolutions of the General Assembly reaffirming Palestinian rights, because of the limited competence of this body, are merely recommendations. It is noteworthy, however, that the Security Council’s resolutions – especially resolution 242 – on the question of Israeli occupation of Arab territories[25] were never adopted on the basis of Chapter VII of the Charter. All these resolutions – contrary to resolutions dealing with Arab countries such as Iraq and Libya – are of non-binding nature. This clearly demonstrates that the United Nations Organization, representing the global power balance (which was not in favour of Palestinian rights during the Cold War and which is even less favourable under the present unipolar order), has not been allowed to deal with the Palestinian issue on a strictly legal basis. Its resolutions since 1967 are mainly of a political nature and often appear as moral appeals, which clearly demonstrates the dominant role of power politics in the international system up to the present day.

 Biased political considerations led the General Assembly to transgress its authority in 1947 and similar considerations and pressures of realpolitik – more than forty years later – led to the conclusion of the so-called Oslo Agreements, that was brought about by a new power balance as a result of the end of the Cold War and the outcome of Gulf War II – a power balance that from the outset has been detrimental to Palestinian rights.

 The decisive factor determining the outcome of the Gulf crisis in 1991 was the collapse of the Soviet bloc, an event which deprived the Arab world of its freedom of action in the international arena. The cease-fire resolution of 1991 created the framework for a “pacification” of the region by diktat – in the Gulf region itself and in the Middle Eastern region in general. The Madrid “Peace Process,” the Oslo accords of 1993 and 1995, and the many follow-up agreements and memoranda signed thereafter must be seen in this context. They can only be understood in a political rather than in a legal framework as they were and continue to be concluded in a situation where an independent Arab position in world politics has completely vanished and the Palestinians have lost even the narrow margin of political action they had enjoyed earlier – through the de facto recognition of the Palestine Liberation Organization as their sole legitimate representative – in the Arab world and within the United Nations.

 It is noteworthy that the Oslo accords do not take into account the notion of Palestinian sovereignty, i.e. the right to self-determination. An unbiased legal observer will have to admit that all matters that relate to state sovereignty are carefully excluded from the agreements. It is consistent with this approach that both agreements consider Security Council resolutions 242 (1967) and 338 (1973) as terms of reference for a permanent settlement. These resolutions do not deal at all with the Palestinian question but only with the question of troop withdrawal from occupied territories. In resolution 242, Par. 2 (b) the Palestine question is only indirectly referred to in the acknowledgment of the need for a “just settlement of the refugee problem.” In such a political-normative context, it is no wonder that no reference is made in the Oslo accords to those General Assembly resolutions explicitly acknowledging the Palestinian right to self-determination. Therefore, the Palestinian negotiators should not be surprised about the recent interpretation of resolution 242 by the Attorney-General of Israel.[26]

 The Declaration of Principles on Interim Self-Government Arrangements of 13 September 1993 (Oslo I) explicitly excludes external security matters (Art. VIII)[27] and international relations (Annex II) from the areas of Palestinian authority. As another sign of the denial of sovereignty to the Palestinian "caretaker authority," the "authority of Israel and of the Israeli military government in the West Bank to exercise its powers and responsibilities in criminal matters" is upheld in the Agreement on Preparatory Transfer of Powers and Responsibilities of 29 August 1994.[28] The “interdiction” of foreign relations is confirmed in Art. IX (Powers and Responsibilities of the Council), Par. 5 (a) of the Palestinian-Israeli Interim Agreement on the West Bank and the Gaza Strip of 28 September 1995 (Oslo II) which states that the Palestinian authority (the “Council”) “will not have powers and responsibilities in the sphere of foreign relations.” This exclusion is also obvious in the earlier Agreement on the Gaza Strip and the Jericho Area concluded in Cairo on 4 May 1994.[29]

 When it comes to the essentials of the political status of the Palestinians under the two agreements, only limited self-rule is "granted" within the framework of de facto Israeli sovereignty over the territories concerned. Israeli supremacy is being upheld in the strict political and legal sense. The Oslo agreements deliberately seem to avoid any explicit reference to Palestinian self-determination, they speak vaguely of a recognition of “mutual legitimate and political rights” between Israel and the Palestinians. This leaves no room for the notion of national sovereignty of the Palestinian people. The concept of self-government underlying these agreements seems to fit better into the framework of colonial rule or of the earlier Mandate – or trusteeship according to UN regulations in Articles 86ff. of the Charter – than into the category of relations between sovereign entities as political partners on an equal level. The underlying philosophy seems to be that of tutelage with Israel as self-designated “trustee” who retains the ultimate authority.

 In one of the basic areas of a people's independence, this quasi-colonial reality is demonstrated by the fact that, as explained by a U.S. based advocacy group, the "advent of peace negotiations did nothing to loosen Israel's monopoly over water resources in the region. Israel siphons off for its exclusive use over 80% of the water located in aquifers in the West Bank."[30]

 The reality of Palestinian dependence and Israeli supremacy is not changed but gets even more accentuated in the more or less technical agreements concluded upon later, in particular the Wye River Memorandum of 23 October 1998 and the Sharm El-Sheikh Memorandum on Implementation Timeline of Outstanding Commitments of Agreements Signed and the Resumption of Permanent Status Negotiations of 4 September 1999. Both memoranda, in their preambles, explicitly refer to the legal framework of the earlier Oslo agreements, in particular to the "Interim Agreement" of 28 September 1995 (Oslo II). The technical arrangements contained in these two memoranda make the fact of a "rule on behalf and under the supervision of Israeli authorities" even more obvious. Art. 8 (Security), Par. 2, items 3 and 4 of the Sharm El-Sheikh Memorandum are a vivid illustration of this reality. Those provisions oblige the Palestinian Authority to forward "the list of Palestinian policemen to the Israeli Side" and to accept "the review of the list by the Monitoring and Steering Committee" that includes, of course, representatives of the Israeli government. It is noteworthy that the Sharm El-Sheikh Memorandum, in addition to the "trilateral" structure of the Wye River Memorandum (including the US as a "witness" signatory), was "witnessed" and co-signed, similar to other Palestinian-Israeli agreements, by the heads of state of Egypt and Jordan thus symbolizing certain Arab governments' (not peoples') acceptance of a legal framework in which Palestinian sovereignty is openly negated and a kind of trusteeship regime over Palestine is being executed.

 Israel's intentions of maintaining supremacy over Palestine as a whole and of  ignoring Palestinian sovereignty have become even more clear in the legal opinion given (in June 2000) by the Israeli Attorney-General, Eliyakim Rubinstein. According to his ruling, Security Council resolution 242 (which calls upon Israel to withdraw from territories occupied in 1967) "was not intended to be applicable to the Palestinian entity because at the time it was passed no such entity existed and the matter of its founding wasn't on the agenda."[31] This position openly contradicts the so-called Oslo consensus according to which resolution 242 was declared as basis for reaching a permanent settlement of the Palestine problem. This recent development is further proof of the justification of our concern (expressed above) about the deliberate vagueness of resolution 242 and its openness to arbitrary interpretation according to the interests and strategic considerations of the occupying power.

 This political reality also corresponds to the impression a visitor receives who travels with open eyes through the pockets of territory presently administered by the “Palestinian National Authority.” Political and legal authority – in the present Oslo-framework – is ultimately being exercised by the Palestinians on behalf of the occupying power. A comparison to the homeland-concept of the earlier apartheid era in South Africa is definitely not too far-fetched. More than a decade ago, Alfred Lilienthal, the famous Jewish-American critic of Israeli policies vis-à-vis the Palestinians, characterized the futility of such an undertaking in prophetic words: “Ambiguous assurances of autonomy under alien supervision and control in another Bantustan with the remote hope of the exercise of self-determination after five years [are] not a substitute for the Palestinian claim to nationhood in a national sovereign state of their own.”[32] In the present post-Oslo constellation, "Palestinians exercise self-rule in a patchwork of discontinuous territories, surrounded by large swathes of Israeli-controlled areas."[33] In any case, because of the de facto exclusion of Palestinian sovereignty, the creation of a Palestinian “national” authority in the framework of the Oslo agreements can only be a temporary solution.


(III) Elements of a Solution: The Peace Process and the Principle of Self-determination

If one aspires to a just and lasting settlement of the Palestinian question, one has to get away from the framework of tutelage or colonial hegemony so as to acknowledge Palestinian sovereignty on the basis of Arab national rights as they were expounded in the course of the decolonization process.[34] On the political side, this excludes the propagation of the idea of permanent Jewish settlements as sovereign Israeli entities on Palestinian soil. Such enclaves – complicated as they are in terms of international law – will only be the source of future political conflicts and armed confrontations and will permanently prevent a peaceful settlement in political and legal terms as well.

 The sovereign entity of a future state of Palestine, as subject of international law, can definitely not emanate from the present construction of a Palestinian self-rule authority (“Palestinian National Authority”) that, by its very definition in the Oslo accords, is not in charge of the core areas of state sovereignty and remains under the ultimate control of the occupying power. International political (collective) rights, in terms of self-determination and sovereignty, can never be “granted” by the occupying power or by a group of states guaranteeing whichever “peace agreement.” Sovereignty is an inalienable collective right that is exercised by free decision of each people. The basis of a future statehood can only be a genuine expression of the political will of the Palestinian people. This implies that the legitimate political and legal framework for Palestinian independence will consist in a general referendum and in resolutions of the Palestine National Council (PNC) representing the Palestinian people as a whole (and not just the populations in splintered territories partially put under Palestinian administration by the occupying power).

 As far as the political aspects are concerned, it is of utmost importance that one learns the lessons of the intifadah – and of the expressions of democratic popular resistance since the establishment of so-called autonomy rule until the present day –, if one is genuinely interested in a permanent settlement of the Palestinian question. The dignity and self-respect of a people are decisive factors for the peaceful settlement of any conflict between rival national movements. The concept of limited sovereignty (as it is de facto incorporated in the Oslo agreements) is not compatible with the dignity of a people as a distinct national community. A fictitious quasi-sovereignty did not work in the case of South African “homelands” – and there is no evidence that this concept would contribute to the “pacification” of Palestine.

 Another aspect of the political solution of the Palestine question has to be considered as well. It is the conditio sine qua non for a lasting settlement that a “compromise” in regard to the inalienable rights of a people under foreign occupation must not be imposed by a biased mediator (such as the United States in the case of Palestine). In that regard, it will be of utmost importance to strengthen the role of the European Union that may more credibly act as an “honest broker” than a superpower that considers the occupying power in question its closest ally.

 In the post-Gulf War era – characterized by the political paralysis of the Arab world – outside parties may be tempted to exploit the temporary power vacuum in the region. However, if one really wants to promote the cause of a long-term settlement, i.e. of genuine peace, it is a basic maxim of political wisdom not to exploit one party’s political weakness that has come about as a result of armed conflict. The present situation of the Arab world since 1991 has undoubtedly constituted a big temptation for outside powers, on top of them the United States and the region’s former colonial powers, to impose a solution upon the weaker party to the dispute in favour of the stronger one, the latter being a close strategic ally of those outside powers. Re-colonization of the Arab world, under the auspices of a so-called “New World Order” as it was prematurely declared by President George Bush immediately after Gulf War II,[35] will not solve any of the political problems in the region. Time and again in the history of international conflicts, such a strategy has been proven shortsighted and counterproductive.

 A neo-colonial policy of divide et impera to which the Arab and Muslim world is presently being subjected will only increase the tensions in the region and may lead to major conflict and upheaval in a not too distant future. A pax Americana exclusively serving the interests of one party to the conflict is going to destabilize the whole political system in the Middle East on a long-term basis. The economic sanctions imposed on Arab countries, in particular the comprehensive sanctions on Iraq, are evidence of this shortsighted strategy. In sharp contrast to the swift action against Arab states, no coercive measures were ever contemplated for Israeli transgressions of international law in Palestine[36] or for Israel's occupation of the Syrian Golan Heights and, until earlier this year, of Southern Lebanon. It will be a tragic mistake if the international community upholds the illusion that lasting peace in Palestine can be established in a context in which the Palestinian people, along with other peoples in the Arab world that were or still are subjected to collective punishment in the form of economic sanctions (whether unilateral or multilateral),[37] is led to believe that it has to pay the price for the establishment of a pax Americana that favours the occupying power. It is a particular historical irony in the present global constellation that the process of imposing the will of outside powers upon the peoples of the region, foremost the Palestinians, is being justified by the claim to establish the rule of law and to safeguard the basic human rights of the peoples concerned.

 In the long run, the Arab world may not be ready to accept the eternalization of Israeli sovereignty in Palestine (with limited self-rule for the Palestinians in isolated pockets of territory) while at the same time an Arab core state such as Iraq is forcefully taken out of the Middle Eastern power equation by measures of a punitive economic embargo. Such a policy of double standards (as it is inevitably perceived of by practically all Arabs and Muslims, i.e. by public opinion, not necessarily by governments) will undermine all future mediation efforts. The imposition of a homeland-style "permanent settlement" of the Palestine problem, in addition to the confrontationist policies vis-à-vis other Arab and Muslim countries, may be one step too many in the re-colonization strategy targeting the Arab and Muslim Middle East. It may lead to large-scale destabilization in the region that will directly affect the security of Europe. The new defense doctrine of NATO (providing for so-called "out-of-area operations") will bring no remedy to this situation.[38] A unique opportunity will be missed by the Europeans in the present historical constellation if the European Union continues to serve as an annex to U.S. strategy and if it accepts the method of imposing peace in Palestine in favour of only one party to the conflict. Europe should gradually emancipate herself from the role of politically impotent paymaster for the implementation of projects and strategies defined by the United States. In regard to the Palestinian problem, Europe’s financial engagement in the framework of the U.S.-sponsored “peace process” must be complemented by an adequate political role.

 Whereas the continued domination over the Arabs through the neo-colonialist policies of divide et impera – by means of sanctions and other political dictates – may lead the region closer to a major conflict, the establishment of a truly sovereign Arab entity in Palestine (including Jerusalem) could be the decisive factor in securing a lasting order of peace in the entire region. The settlement of the Palestinian question on the basis of real self-determination (not merely Israeli-sponsored "self-rule" over isolated pockets of territory) could be the catalyst of a “new order” of co-operation and partnership guaranteeing equal rights to the Arab world and its neighbours. Though this may sound like a rather idealistic assumption at the present moment, there is no alternative to an otherwise bleak outlook of confrontation and economic stagnation in the whole region. No "Final Status Agreement" will be effective and enforceable vis-à-vis the people of Palestine if this basic wisdom is ignored. There is no alternative to the unequivocal recognition of Palestinian sovereignty if one honestly upholds the cause of peace in Palestine (as we tried to explain in legal and political terms at the same time).

 It is exactly for this reason that a new constitutional framework has to be created that goes beyond the legal notions of the Oslo agreements. Negotiations on such a framework should be facilitated by the international community as represented by the United Nations. Such a role can never be played by the one superpower with major strategic interests in the region. To sum it up: talking about peace or a “peace process” without at the same time fully acknowledging the Palestinian people’s right to self-determination amounts to empty rhetoric. All political measures for a future settlement – that is referred to as "final status" in the many "trilateral" talks between Israel, the United States, and the Palestinians – have to take into account this basic legal principle.


[1] Resolution 3376 (XXX) of 10 November 1975.

[2] For a comprehensive analysis of the Palestinian people’s right to self-determination see Roberto Mesa, “Les fondements historiques et juridiques du droit à l’auto-détermination du peuple palestinien” in Hans Koechler (ed.), The Legal Aspects of the Palestine Problem with Special Regard to the Question of Jerusalem. Studies in International Relations, IV. Vienna: International Progress Organization, 1981, pp. 67-97.

[3] The Solution of the Palestine Refugee Problem. Studies in International Relations, VI. Vienna: International Progress Organization, 1982, pp. 15ff. For an historical overview of the Palestine problem see Henry Cattan, The Palestine Question. London, New York, Sydney: Croom Helm, 1988.

[4] See the exact wording of Art. 22 (4): “Certain communities formerly belonging to the Turkish Empire have reached a stage of development where their existence as independent nations can be provisionally recognized subject to the rendering of administrative advice and assistance by a Mandatory until such time as they are able to stand alone.”

[5] See Hessel Duncan Hall, Mandates, Dependencies and Trusteeship. Studies in the Administration of International Law and Organization, no. 9. Washington DC: Carnegie Endowment for International Peace, 1948, p. 80.

[6] For a comprehensive analysis of the conditions in Palestine under the British Mandate see Izzat Tannous, The Palestinians. A Detailed Documented Eyewitness History of Palestine under British Mandate. London: I.G.T. Company, 1988.

[7] For a detailed analysis see Quincy Wright, Mandates under the League of Nations. New York: Greenwood Press, 1968.

[8] The Solution of the Palestine Refugee Problem, p. 19.

[9] Cf. the presentation of this view in the documentation by D. F. W. Van Rees, Vice-President of the Permanent Mandates Commission of the League of Nations: Les Mandats Internationaux. Le ContrÛle International de l’Administration Mandataire. Paris: Rousseau, 1927, p. 20: “... la souveraineté elle-mÃme serait détenue, depuis la renonciation des anciens Empires, par les communautés et les populations autochtones des différents territoires.”

[10] The Origins and Evolution of the Palestine Problem 1917-1988. Prepared for, and under the guidance of, the Committee on the Exercise of the Inalienable Rights of the Palestinian People. New York: United Nations, 1990, p. 56.

[11] This also applies to the issue of border demarcation between sovereign states as the one undertaken by the Security Council between Iraq and Kuwait after the Gulf  War. Such demarcations can only be made through bilateral agreement between the states concerned (unless those states explicitly confer such authority upon the International Court of Justice).

[12] Principles of Public International Law. Oxford: Clarendon Press, 1966, p. 161.

[13] “The Palestine Problem before the United Nations” in American Journal of International Law, vol. 42 (1948), pp. 859-861; p. 860.

[14] Official Records of the General Assembly, Second Session, Ad Hoc Committee on the Palestine Question, Doc. A/AC 14/32 (1947), pp. 276ff.

[15]The General Assembly ... Resolves to request the International Court of Justice to give an advisory opinion under Article 96 of the Charter and Chapter VI of the Statute of the Court on the following questions: ... (h) Whether the United Nations, or any of its Member States, is competent to enforce or recommend the enforcement of any proposal concerning the constitution and future government of Palestine, in particular any plan of partition which is contrary to the wishes, or adopted without the consent, of the inhabitants of Palestine ...” (Official Records of the General Assembly, loc. cit., pp. 299-301) For more details see Henry Cattan, Palestine and International Law. The Legal Aspects of the Arab-Israeli Conflict. London: Longman, 1973, pp. 42ff.

[16] The Law of the United Nations. A Critical Analysis of Its Fundamental Problems. London: Stevens & Sons Ltd., 1950, pp. 193ff.

[17] Op. cit., p. 197, fn. 7.

[18] Op. cit., pp. 195f.

[19] Op. cit., p. 196, fn. 7.

[20] “Palestine and the Constitutional Law of the United Nations” in The American Journal of International Law, vol. 42 (1948), pp. 397-399; p. 397 (emphasis by the author).

[21] “The Middle East Problem” in John Norton Moore (ed.), The Arab-Israeli Conflict, Volume II: Readings. Princeton (NJ): Princeton University Press, 1974, pp. 828-839; p. 829.

[22] For a comprehensive analysis and documentation of all legal aspects of the Palestine problem and of the violation of the Palestinian people’s right to self-determination by the League of Nations and the United Nations Organization see: The Palestine Question. Seminar of Arab Jurists on Palestine. Algiers, 22-27 July, 1967. Translated from French by Edward Rizk. Beirut: The Institute for Palestine Studies, 1968, Part two: Legal Titles, pp. 62-111.

[23] See Security Council resolution 242 (1967). For an assessment of the situation after Israel’s occupation of the West Bank and Gaza see Isaac Shapiro (ed.), The Middle East. Prospects for Peace. Background Papers and Proceedings. 13th Hammarskjold Forum. Dobbs Ferry (NY): Oceana Publications, 1969.

[24]The first such clear acknowledgment of “inalienable rights” was expressed in resolution 2535 B (XXIV) of 10 December 1969. For a detailed account of United Nations resolutions confirming the Palestinian right to self-determination see Sally V. Mallison and W. Thomas Mallison, Jr., “The Juridical Bases for Palestinian Self-determination” in The Palestine Yearbook of International Law, vol. I (1984), pp. 36-67.

[25] Those resolutions were not dealing with Palestinian self-determination but simply with the issue of withdrawal of Israeli forces from territories seized in 1967 and with the related “refugee problem.” Furthermore, the wording of the English version of resolution 242 is rather vague as it merely speaks of "occupied territories" (not of "the occupied territories") which gives room for interpretation in favour of the occupying power. The concerns about this vagueness were proven justified in view of the recent ruling of Israel's Attorney-General Eliyakim Rubinstein who stated that resolution 242 does not apply to the Palestinian territories, i.e. the West Bank and Gaza. (See "US: Mideast Talks Based on UN Rules, " Associated Press report by Barry Schweid, Washington, 30 June 2000.)

[26] See footnote 25 above.

[27] See also the clarification to Annex II in the Agreed Minutes to the Declaration of Principles on Interim Self-Government Arrangements.

[28] See Annex to the Agreement on Preparatory Transfer of Powers and Responsibilities, Annex II: Protocol Concerning Preparatory Transfer of Powers and Responsibilities in the Sphere of Health, Art. 4.

[29] See the official text of the Agreement: Security Council Doc. S/1994/727, 20 June 1994, Art. II, Par. 3; Art. V (Jurisdiction), Par. 1 (b): "This jurisdiction does not include foreign relations, internal security, and public order of Settlements and the Military Installation Area and Israelis, and external security."

[30] Final Status Issues in a Middle East Peace. Report for "A Grassroots Perspective. Delegation to the Middle East," issued by Grassroots International. Boston/Massachusetts, 2000.

[31] See the Reuters report by Mohammed Assad: "Palestinians Rap Israeli View on UN Resolution 242," Jerusalem, 30 June 2000. See also the Associated Press report by Mark Lavie, "Israel Ruling Angers Palestinians," Jerusalem, 30 June 2000. See also footnote 25 above.

[32] Statement made at the International Progress Organization’s International Conference on the Legal Aspects of the Palestine and Jerusalem Problem (Vienna, 5-7 November 1980). Published in Hans Koechler (ed.), The Legal Aspects of the Palestine Problem with Special Regard to the Question of Jerusalem. Studies in International Relations, IV. Vienna: International Progress Organization, 1981, p. 64.

[33] Final Status Issues in a Middle East Peace. Report for "A Grassroots Perspective. Delegation to the Middle East," issued by Grassroots International. Boston/Massachusetts, 2000.

[34] On the scope of the national Palestinian liberation movement see Edward W. Said, Ibrahim Abu-Lughod, Jenet L. Abu-Lughod, Muhammad Hallaj, Elia Zureik, Porträt des palästinensischen Volkes. Vienna: International Progress Organization and Palestine Human Rights Campaign, 1983.

[35] See Hans Koechler, Democracy and the New World Order. Studies in International Relations, XIX. Vienna: International Progress Organization, 1993.

[36] For a detailed analysis of the practices of the occupation power in Palestine see Hans Koechler (ed.), The Human Rights Situation in Palestine. Reports by the Delegations of Inquiry on Behalf of the International Committee for Palestinian Human Rights. Vienna: International Progress Organization, 1989.

[37] On the problematic legal nature of economic sanctions see Hans Koechler, The United Nations Sanctions Policy and International Law. Penang: Just World Trust (JUST), 1995.

[38] See Art. 52 of The Alliance's Strategic Concept Approved by the Heads of State and Government participating in the meeting of the North Atlantic Council in Washington D.C. on 23rd and 24th April 1999. This document introduces the concept of so-called "non-Article 5 crisis response operations."