Do the Palestinians in the West Bank/Judea & Samaria Have the 'Right of Self-Determination'?

And does the term 'Occupied Palestinian Territories' have any legal basis? 

 

In my previous article, I argued that

1. the ‘right of self-determination’ is distinct from the ‘principle of self-determination’ as described in the UN Charter.

2. the ‘right’ only confers the right to a state and national sovereignty to ‘peoples’ in the process of decolonization.

Do the Palestinians in the West Bank/ Judea and Samaria have the “right of self-determination” or merely the principle? To have such a right, they must have acquired it during the process of decolonization - and not subsequently lost it. (Yes, rights can be lost!) If they don’t have the right, they would merely be beneficiaries of ‘the principle’, which applies to hundreds of stateless nations around the world.

In this article, I propose to answer that question and examine the claim that Judea and Samaria, the former ‘West Bank’ of Jordan is ‘Occupied Palestinian Territories’?

Brief recap

In the previous article I discussed the principle and right of self-determination. I traced the history of ‘self-determination’. It began with a battle of rhetoric between Lenin and Wilson. It later became codified as a ‘purpose’ of the UN in the Charter:

To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples.

It then moved to a principle “for all peoples” and a “right for peoples of Non-Self-Governing and Trust Territories” in UN Res 637 (1952):

 In 1960, UN Res 1514, expanded the ‘right’ of self determination from Non-Self-Governing and Trust Territories to all cases of decolonization, subject to the principle of respect for ‘national unity and territorial integrity’. This principle was reiterated in UN Resolution 2625 in 1970, 

 

‘All peoples’ in this resolution is explained in the preamble,

“To bring a speedy end to colonialism, having due regard to the freely expressed will of the peoples concerned.”

The wording of Resolution 2625 was incorporated into two treaties: the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, both of which confirm, without qualification, using the same language, that:

1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

ICJ confirms that the ‘right’ is confined to cases of decolonization

The ICJ cases make it clear that the right of self determination, as opposed to the principle, was confined to cases of decolonization, first in the Namibia Case and then in the West Sahara Opinion.1

If the right, as opposed to the principle, of self-determination requires a process of decolonization, we can see why activists are so keen to label Israel as a ‘settler colonial’ state. If Judea and Samaria are a colonial ‘occupation’, then the Palestinians would have the right of self-determination as part of the process of decolonization. But that was not the case. The West Bank was annexed by Jordan. It was not a colony. The process of decolonization occurred when the British abandoned the Mandate in 1948. At that time, the inhabitants of the Mandate would have had the right of self-determination (according to subsequent doctrine described in the Namibia and Western Sahara cases). The Zionists exercised that right by declaring a state. The Arabs, represented by The Higher Arab Committee, did not exercise that right. They boycotted the UN partition negotiations and chose war instead. Did that choice forfeit the right of self-determination, or did it merely postpone an enduring right which enabled the Arabs to have their self-determination cake and eat it, years later, even after becoming Jordanian citizens, similar to their enduring status as refugees?

Sovereignty is paramount

The principle of ‘national unity and territorial integrity’ is a limitation to the right of self-determination. Article 6 of UN Res 1514 provides:

6. Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations.

Territorial integrity “of a country”, thus takes priority over the right of self-determination in order to prevent splintering decolonized countries along ethnic lines into fragmented states. Therefore, before one can consider self-determination, the question of territorial sovereignty must be determined. If the territory of Judea and Samaria is Israeli sovereign territory, then the Palestinians have no greater right than any other of hundreds of stateless nations.

Where did the term ‘Occupied Palestinian Territory’ come from?

By Resolution 10/14 of 2003, the UN General Assembly asked the International Court of Justice for an opinion on the legality of the wall which Israel built through Judea and Samaria in “the Occupied Palestinian Territory”.

Where did this term, “Occupied Palestinian Territory’ come from? What legitimacy does it have? Let’s trace its history.

Stage 1: UN affirms Palestinians’ right to self-determination

During the 1970’s, after Israel conquered the West Bank, a string of UN resolutions purported to affirm the Palestinians’ right to self determination, national independence and the right to sovereignty. Res 3236 (1974) set off the train:

 

The UN was effectively treating the Palestinians as inhabitants of an Art 73 Non-Self Governing Territory or a colony, even though that was not the case. After the British left in 1948 the ‘decolonization’ framework no longer applied. The West Bank was annexed by Jordan and Gaza was administered by Egypt. Neither was treated as a “non‑self‑governing territory” under Article 73 of the Charter or a colony. They were administered as sovereign territory. In Resolution 3236 the UN blurred the distinction between right and principle, ignoring Resolution 1514, cited above and the Namibia case, (both of which preceded Resolution 3236). According to UN and ICJ precedent, as ‘peoples’ not in the process of decolonization the Palestinians were only entitled to the principle, not the right. As such the claim that they had the ‘right to national independence and sovereignty’ is a fiction. The Palestinians had no such right under international law and the UN had no power to create it.

Nonetheless, Resolution 3236 was followed by yearly affirmations of the same claim.2

Resolution 34/70 of 1979 uses the phrase ‘Palestinian and other Arab territories’

1. Condemns Israel's continued occupation of Palestinian and other Arab territories,

and reaffirms,

…that the acquisition of territory by force is inadmissible under the Charter of the United Nations and that all territories thus occupied must be returned….

Stage 2: The term, ‘Palestinian Occupied Territories’ emerges in 1980

In 1980, UN Resolution 36/120 Part D paragraph 5:

Demands that Israel should withdraw completely and unconditionally from all the Palestinian and other Arab territories3 occupied since June 1967, including Jerusalem, with all property and services intact….

Part F of the Resolution makes the transition to Palestinian Occupied Territories:
It declares:

“No State has the right to undertake any actions, measures or negotiations that could affect the future of the Palestinian people, its inalienable rights and the occupied Palestinian territories without the participation of the Palestine Liberation Organization.”

From 1981 onwards, the phrase, ‘Occupied Palestinian Territories’ is used on an annual basis in UN Resolutions.4 They effectively pulled a rabbit out of a hat. There was no process of decolonization conferring a ‘right’ to national independence and sovereignty and the UN had no power to legislate one, let alone determine issues of sovereignty. But the lie was repeated often enough….

But returned to whom?

Resolution 34/70, quoted above, says that

… the acquisition of territory by force is inadmissible under the Charter of the United Nations and that all territories thus occupied must be returned

But to whom should they be returned? ‘Returned’ implies returned to a sovereign. Territory could not be returned to the Palestinians as a ‘people’, as they never had sovereignty over the West Bank. Jordan did. If the territory is to be ‘returned’ it could only be returned to Jordan. Territory would have been granted by way of succession legislation to the Arabs, if they had accepted partition, as was the case when Britain withdrew from India, but it can only be ‘returned’ to a previous sovereign.5

‘Acquisition of territory by force is inadmissible’ is a reference to UN Charter Article 2(4). 6 But there is no consideration of the fact that Jordan acquired Judea and Samaria by force from May to July 1948, annexing it as The West Bank in 1950 and ethnically cleansing the territory of all the Jews who were resident prior to the conquest, thereby leaving an ethnically pure population of Arabs who were subsequently dubbed, ‘Palestinians’.

The UN Charter came into force in 1945. Jordan became a UN member and ratified the treaty in 1955. But there was no resolution condemning Jordan’s acquisition by force as ‘inadmissible’, either before or after Jordan was a member of the UN. Unlike the flurry of resolutions condemning Israel’s ‘inadmissible acquisition’ post 1967, no such condemnation occurred in the case of Jordan’s acquisition.

Was Jordan’s acquisition of the West Bank by force inadmissible?

Does that mean that acquisition of territory by force is only ‘inadmissible’ if you were a party to the Charter at the time of acquisition by force, but not if you acquired territory by force before you ratified the Charter? According to the UN, it appears to be so. But that ignores customary international law, on which the UN Charter is based, and which takes effect independently of the Charter.7 If Israel’s acquisition of territory by force was ‘inadmissible’, then perhaps so was Jordan’s, whether or not it had ratified the Charter at the time of acquisition.

So does it mean that according to the UN, territory occupied ‘inadmissibly’ by Israel should be returned to Jordan, who acquired the territory ‘inadmissibly’? Depends on whether or not you consider Jordan’s conquest of the West Bank inadmissible or not.

The situation can be analyzed in two ways:

Jordan’s invasion and annexation was illegal.

• The British abandoned the Mandate on midnight May 14th/15th 1948.

• The colonial inhabitants, both Zionist Jews and Arabs, according to ‘modern doctrine’, had the right of self-determination to create a state.

• The Zionists exercised that right. The Arabs boycotted the partition process, choosing war and conquest instead of self-determination. They waived the right.

• By such choice the Arabs who chose war forfeited the right of self-determination. Following the Preah Vihar case, the Arabs would be estopped from subsequently invoking that right8.

• The doctrine of uti possidetis juris9 implied that Judea and Samaria were Israel’s sovereign territory at the stroke of midnight on May 14th/15th. Jordan’s invasion was an ‘inadmissible’ acquisition of territory by force.

• By this account, the West Bank remained Israeli sovereign territory, illegally occupied by Jordan until 1967, when it was recovered. The West Bank were Israeli sovereign territory all along. It has never been ‘occupied’.

Jordan’s invasion and annexation was a matter of conquering abandoned territory.

• After the British abandoned the Mandate on midnight of May 14th, no partition was implemented, no legislation was passed to ensure succession10 and so the territory of the Mandate was up for grabs.

• The Zionists declared a state, but it didn’t yet satisfy the criteria for statehood, having no defined borders.11 It was at best a nascent state.

• The interested parties fought it out. Israel conquered more than it had bargained for in the partition. Jordan conquered Judea and Samaria and in April 1949 an armistice was signed in Rhodes, creating an effective border, albeit without a peace treaty. The West Bank became Jordanian sovereign territory, in the same way North and South Korea became two sovereign states on the basis of an armistice.

So either

1. Jordan’s invasion and annexation was illegal, or

2. it was a case of sweeping up territory abandoned by the Brits and it was legal.

I don’t mind which scenario you choose, because the bottom line is that Jordan renounced any claim to the territory in 1988 and concluded a peace treaty with Israel in 1994 whereby the Jordan river was agreed as the border between the two countries12. So the territory ‘must be returned’, to quote UN Res 34/70, cannot, after 1988, refer to Jordan, which doesn’t want it back.

Palestinians are not colonial subjects.

If the territory cannot be returned to Jordan - either as previous sovereign, or as previous occupier -then it can’t be ‘returned’. In 1967 there were two warring states. The Palestinians were subjects of one such state. They were Jordanian citizens. They were not colonial subjects endowed with the right of self-determination upon the departure of their colonial masters. The Palestinian claim to a “right of national independence and sovereignty” is therefore a legal non sequitur.

In making the claim that the Palestinians have an inalienable right to self-determination and national sovereignty, the UN attempted to blur the principle of self-determination and the right, treating Palestinians as if they were a colonial people when they were not. The UN created a political fiction by doctrinal sleight of hand, not a legal entitlement, which they had no power to create.

The bottom line: the Palestinian claim to national sovereignty rests on a fabricated “right” that international law did not confer and which the UN had no power to legislate. The term, ‘Occupied Palestinian Territories’ is therefore a fiction, not based on UN or ICJ doctrine.

In the next instalment I will examine the International Court of Justice Advisory Opinions that deal with the purported ‘Occupied Palestinian Territories’.