Blog Series: Israel-Palestine Conflict through the Lens of Right to Self-determination

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Introduction

Though many agencies have been created to resolve international conflicts all over the world, however, it is evident that these agencies have not been fully successful to achieve their goals and still several disputes are yet to be unraveled. Among all many other disputes, one of the disputes is of Palestine and Israel which is going on more than a decade. Ever since the conflict of Palestine and Israel started, the fundamental human rights of Palestinians were denied and they had been treated as second class citizens of international community. Several attempts were made nevertheless the problem between two remains the same.

Background of the Conflict

In order to understand the Palestine-Israeli conflict one must look into the history of the two and understand how it was started. At one phase, the Palestine-Israeli conflict might look to be simply a human rights brawl but it is not simple as it seems to be. It is a conflict of survivorship to protect their identity and their home land. Being a sovereign state it is responsibility of Israel to recognize international principles and protect them. Israel has dual obligation under International Law- (1) to respect the principle of Sovereign Equality and to protect territorial integrity of other states mandated under the UN Charter; and (2) And to value the principles of IHLR and IHL with respect to Palestinian citizens since Israel’s presence has been considered as foreign occupation by UN. In spite of this we can see Palestinians are facing ethnic cleansing, military rule and violation of their civil rights.

There are certain principles, namely; prohibitions of crime against humanity, genocide and slavery etc. which are accepted by international community as jus cogens or permptory norms, from which no derogation is permitted. One of such norms is Right to Self- determination, which can be possible solution for Palestinian people.

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Palestine’ Right to Self-determination

The concept of self-determination, first evoked during the First World War, was considered as the right of people to determine its sovereignty over the area in which they live. Despite the fact that the right to self-determination was not explicitly stated in the Charter of League of Nations, yet it was included in discussions about minorities’ protection and the Mandatory system’s management.[2]

Subsequently in 1945 the United Nations, for the very first time has recognized the right of self- determination and specifically mentioned it in articles 1 and 55 of the Charter.[3]After that in many UN resolutions such as The International Agreement for Civil and Political Rights and The International Agreement for Economic, Social and Cultural Rights as well as in resolution on The Right of People to Self-Determination 1970, gave it a legal binding and now it is a well-recognized concept in international law.

There are conflicting opinions about definition of self- determination, still it can be possibly stated that self-determination refers to “the right of every nation to establish an independent state and to freely choose its own political system”[4]. In a practical way it is often said that ‘it is a battle cry of distressed peoples seeking to rule their own fate’.

Right of self-determination can be divided in to two parts:  one is internal, which relates to the choice of an appropriate governmental system whereas second is international, which incorporates the right of people to independence and not to be subjected to change or surrender against their will. It also includes a nation’s right to secede from the state to which it is a member, merge or unite with another, or form its own independent state.  The Right of Self-determination is not confined only to political and cultural aspects; it incorporates economic ones as well, and includes the right of nations to control their own natural and human resources also. Several events in history show that the demand of Right of self-determination of Palestinian people was always neglected by International community.

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After the WWI, Palestine became an administrative territory under the mandate system. The British began facilitating European Jewish immigration to Palestine. In 1917 British prepared the Balfour Declaration.[5]It is widely considered as one of the most contentious and debated documents in modern Arab history, this document vaguely present the notion of Jewish “national home” even though at that time Jews constituted less than 10 percent of total indigenous population. This document ignores the interest of Palestine people who are struggling for their independent state even today.

The British overlooked the demand of undivided independent nation of Palestine. According to Article 5 of the Mandate, the Mandatory Power was in charge of area and no Palestine area shall be given or leased to, or in any manner placed under any foreign power. Article 28 of the Mandate further stated that when the mandate expired, the area of Palestine would be handed over to the Government of Palestine. And according to Article 22 of the Covenant, the people of Palestine were to emerge as a completely independent nation as soon as the Mandate’s temporary restrictions on their sovereignty ended.

The mandate policy has created conflict between the natural rights of the people of Palestine and the demand of large and powerful Jews minority. Despite of fact that United Nation recognized the principal of Self-determination, it was not directly applied in case of Palestine. The same principle was enforced to subsequent liberation of a large number of colonies in Africa and Asia.

The Palestinian people fought back against the impact of large-scale immigration on their land and the denial of the independence they had hoped for, when the war ended. In 1947 when the mandate becomes more disturbed by mass immigration and violence the Britain handed the matter to the United Nations.  The Palestine issue had become a one-of-a-kind matter by the time it was taken up by the United Nations.

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Israel-Palestine Conflict & United Nations         
The General Assembly after its first special session had appointed a United Nation Special committee on Palestine (UNSCOP) to examine the situation in Palestine and present recommendations. The committee’s recommendation itself did not give importance to fundamental principal and the General Assembly passed resolution 181[ also known as Partition Plan1997] which divide the Palestine into three area i.e. Israel, the West Bank and the Gaza Strip. This partition was strongly opposed by Palestine and Arab World.

The partition directly violated the specific provisions of the Mandate and infringement of Article 1 of United Nation Charter which provides that UN should work in conformity with the principles of justice and international law, as well as to protect the principle of equal rights and self-determination of people[6]. Under Article 73 the UN pledges to regulated the non-self-governing territories and mandated areas, assure its “advance to the maximum… the well-being of the inhabitants of these territories” and “take due consideration of the political aspirations of the peoples.”[7] The partition which was imposed on the State of Palestine and its population can never be considered as fulfillment of any of the above-mentioned principles of the Charter.

Position of Israel in the Community of States  
The situations further become complicated when Israel accepted the UN’s resolution and declares them as an independent state. Several questions rise related to Israel’s “legitimacy” or the “legal foundation” for its birth.  Sir  Elihu Lauterpacht,  Judge of  the  International Court  of  Justice,  a  well-known  expert  on  international  law, says UN partition resolution  does not have  any legal binding as it is not based on the international principles (pacta sunt servanda) and neither vest Territorial rights  to Arabs or Israel .He further says that resolution does not give any legal existence to Israel’s establishment.[8] The right of a State to exist depends upon its factual existence especially when that existence is sustained and acknowledged by a large number of countries. 

Recognition is the process by which a political entity acquires international personality. According to Article 3 of the Montevideo Convention of 1933, acknowledgement of new state does not depend upon the existing states. Even before recognition by other states, the new state has a right to protect its integrity and independence. As, Israel fulfill all essentials[9] of Montevideo Convention there is no doubt about existence of Israel as state however its origin on basis of legality is debatable.      

After partition plan and the creation of Israel, the dominance of European and American powers in Security Council has prevented the UN to take any significant action to solve conflict. Nevertheless, the United Nations has attempted to resolve the conflict on several occasions by calling for international peace conferences based on existing UN Resolutions dealing with Israel and Palestine, such as Resolutions 194 and 242, among others. However, Israel has declined to participate and the United States backed it up. It would not be wrong to say that United States has major involvement in Palestine issue as US consider Israel its potential powerbase and want to secure a powerful ally in a region which is rich in oil and other resources. Although, the US has attempted to resolve the Israeli-Palestinian issue, which has been a major driver of regional dynamics, in order to achieve these strategic goals while balancing its support for Israel and striving for broader regional stability.

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Conclusion

Israel-Palestine conflict has come to a complicated juncture where the idea of only one State in the region, either Israel or Palestine, would be near to impossible. Many countries like USA[10] and India[11] also supported the two-nation theory to end the conflict. Now is the time for Palestine and Israel to relinquish the idea of violence and search for alternative course of action. It is required that an active participation is made to solve the current problem by both the states. The Israel must end its occupation and retreat to maintain its integrity, in international community. Hence both the states need to catch the ray of hope to end the conflict which is lasting since many decades.

The views expressed by the author are personal.

Author
Anjali Verma completed LLM ( with specialization in international law and human rights)from Savitribai Phule Pune University. She holds a B.A.LL.B.(Hons.) from University of Allahabad


[1] United Nation Charter, available at https://www.un.org/en/about-us/un-charter/preamble, visited on 15/05/2021

[2]  The right of self-determination of  the Palestinian people,  available at: http://hrlibrary.umn.edu/Espiell_1978.pdf, visited on 15/05/2021                          

[3]  The right of self-determination of the Palestinian people Prepared for, and under the guidance of, the Committee on the Exercise of the Inalienable Rights of the Palestinian People UNITED NATIONS New York, 1979

[4]   The Origins and Evolution of the Palestine Problem:1917-1988, (united nation), available at: https://unispal.un.org/DPA/DPR/unispal.nsf/0/D442111E70E417E3802564740045A309,(visited on 20/05/2021)   

[5]Zena Tahhan, More than a century on: The Balfour Declaration explained (Aljazeera), available at: https://www.aljazeera.com/features/2018/11/2/more-than-a-century-on-the-balfour-declaration-explained (visited on 20/05/2021)   

[6]United Nation Charter, available at:, https://www.un.org/en/about-us/un-charter/full-text , visited on 21/05/2021

[7] United Nation Charter, Chapter XI: Declaration Regarding Non-Self-Governing Territories (Articles 73-74)

 available at https://www.un.org/en/about-us/un-charter/chapter-11, visited on 21/05/2021

[8] JHHW, Editorial: The Birth of Israel and Palestine – The Ifs of History, Then and Now; Junior Faculty Forum for International Law; The Last Page and Roaming Charges; Eric Stein RIP; In this Issue, European Journal of International Law, Volume 22, Issue 3, August 2011, Pages 621–625, https://doi.org/10.1093/ejil/chr070

[9] The generally accepted definition of a state is provided under Article 1 of the 1933 Montevideo Convention on Rights and Duties of States, as an entity that possess- (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations.

[10] Zack Beauchamp, In defence of two-state solution (Vox.com) available at: https://www.vox.com/policy-and-politics/22442052/israel-palestine-two-state-solution-gaza-hamas-one  (Visited on June 29, 2021)

[11] India Call for direct peace talks between Israel, Palestine based on global consensus, (The Hind), available at: https://www.thehindu.com/news/international/india-calls-for-direct-peace-talks-between-israel-palestine-based-on-global-consensus/article34168200.ece (Updated on March 26, 2021)

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