The author highlights the limits of the right of self-determination within the colonial context.
By Abdulaziz Khalefa, 12th December, 2013
The latest rift between Israel and Romania over the expanding settlements is the result of the EU’s decision to block funding for settlement expansions. The world court already described these settlements as illegal, yet despite that there is a strong inclination by the US to lecture Israel on why the expansions are bad while at the same time pushing for nothing to stop these expansions. The question remains whether the international legal order can mean anything for existential purposes, or to put it more prosaically, whether it is simply a utility for international political purposes. Only today John Kerry pushed for the continuation of the peace talks which sounds great – but how this can mean anything with the substantive elements (the land) being annexed is still the issue.
It was not until 1945 that the self-determination of peoples was made clear reference to as a principle in the United Nations (UN) Charter.[1] The original scope of self-determination in article 1(2) has been subject to discussion on whether it is legally binding, or whether it is “a statement of a political aim [which does not necessarily] create legal obligations.”[2] In this regard one writer explains that “it is disputed whether the reference to the principle in these very general terms was sufficient to entail its recognition as a binding right, but the majority view is against this.”[3] Irrespective of the original scope of the principle in the Charter, self-determination today has evolved as a right of peoples into both treaty and customary law. How this happened is attributed to the Charter itself, which constituted the “driving force behind the emergence of growing opinion about the importance of self-determination.”[4]
This opinion was initially expressed through UNGA declarations. While the declarations of the GA are recommendatory,[5] they nevertheless can express rules of conduct that are generally accepted by the members of the UN.[6] In this case UNGA resolution 1514, titled the Declaration on the Granting of Independence to Colonial Countries and Peoples, stated that “all peoples have a right to self-determination” and that by virtue of that right these peoples are entitled to “freely determine their political status.”[7] An important aspect in this declaration is article 3, which rejected the requirement of the viability of the concerned people to “stand by themselves” prior to independence.[8]
Only a day after the passing of resolution 1514, the UNGA passed resolution 1541 which identified non-self-governing territories as having reached a full measure of self-government if they (1) emerged as a sovereign independent state (2) became associated with an independent state; or (3) were integrated with an independent state.[9] Two treaties were subsequently formulated by the UN Commission on Human Rights which referred to the self determination of peoples as a right.[10] With the practice of granting of independence to the colonized territories, coupled with a sense of legal obligation (opinio juris), the requirements for a customary law became evident. The right to self-determination has also been contemplated by some as having attained the status of a peremptory (jus cogens) norm.[11]
I must also mention that the right of self-determination is not only a right to a series of options, but a right to substance as well. While this might seem obvious, this point had to be highlighted by the ICJ in the Case Concerning East Timor.[12] In response to the Australian contention that their exploiting of oil resources in the Timor Gap did not impede the East Timorese from their series of options,[13] Judge Rosalyn Higgins responded to this argument as “legal deconstructionism”[14] and would “empty the right of self-determination of any meaningful content.”[15]
1) The Apologetic International Law?
Marrti Koskenniemmi explains that there are two criticisms advanced against international law. The first is that it is utopian. This is where the idea of the wholeness of law separate from politics dominates. It would achieve “logical consistency at the cost of applicability in the real world of state practice.” [16] The second criticism is that it is apologetic, where the law is flexible and determined by state policy. It is between these two criticisms that the pragmatist approach to international law is sustained. So if a particular law is in tension with a state’s interests, the state would apply an apologetic interpretation of the law. On the other hand the same state would want to apply the same law in a strictly utopian sense on another state if it is an opponent. The limits of self-determination within the colonial context are to be understood within the framework of these criticisms.
This might seem like a truism which would apply to all subjects of any law. However given the horizontal nature of the international legal system, the question of how far state consent can be stretched to maintain the “binding” element becomes an issue.[17] The purposes of rules of obligation in the international legal system is to check the realist perception of an anarchic world order. An order where boundaries would be delimited based on the balance of power between states. The most important rules are therefore “the rules governing the use of force.”[18] To highlight the shifts between apology and utopia, I will use the cases of (1) Iraq’s invasion of Kuwait and (2) the NATO intervention in Kosovo as examples.
Situations permitting the use of force are limited to two justifications according to the UN Charter. These would be (1) the UNSC deciding to invoke article 42 after it determines that a threat to the peace, breach of the peace or act of aggression is evident or (2) the state(s) concerned invoke article 51 and exercise their inherent right of self-defence. In the case of Iraq’s invasion of Kuwait on August 2nd 1990, none of these justifications were applicable. In response to Iraq’s “breach of the peace”[19] a coalition of forces authorized by a chapter VII resolution were permitted to use “all means necessary” to push Iraq out of Kuwait’s territory.[20] Iraq was then held liable for all losses stemming out of their invasion including environmental damage through UNSC resolution 687.[21] Now on the other end of the spectrum, we have the NATO bombing of the Federal Republic of Yugoslavia (FRY) on March 24th 1999. This attack by NATO was not authorized by a chapter VII resolution authorizing “all means necessary,” nor was it an act of collective or self-defence. Madeline Albright who was US secretary of State at the time, made a general reference to some chapter VII resolutions concerning the FRY none of which however permitted the use of force as a justification for the intervention.[22]
In the former case we have the strict application of the legal formalism that is the utopia; in the latter case we have the general argument that the intervention was legitimate irrespective of its legality which is the apology. The independent variable determining the outcome of either one of these two options is state power. The vulnerability of a system of law to the power and opinion of the subjects of the law brings into question whether such as system can really be regarded as law.[23] What happens essentially is that the lines between law and the powerful state’s interests become blurred. While one can contemplate the idea of a world government, which would essentially (given its status as a differentiated unit above states, in the same relation the state has with the citizen), such an idealistic prescription of what international law needs to be regarded as law is outside the scope of this paper.
2) The Palestinian people and their right to self-determination
The issue of whether the Palestinians as a people exist in the legal sense is not a subject of debate.[24] What I am more interested in is how this sense of identity is formed. There already exists the view of the Palestinians as an “invented people”[25] – what distinguishes the Palestinians as a people is therefore the issue. Nadim Rouhana offers one model that shapes collective identity of a people.[26] Of the affective variables in his model, it is perhaps the shared historical experience and sense of common fate that mostly contribute to the self-identification of a Palestinian. While the Palestinian people inhabited the territory more than a millennium prior to the Arab conquests of the 7th century CE,[27] the main contributor to the “we” feeling they possess is contingent on the colonial period, dispossession of their land and the romantic sense of belonging to that pending state.
The right of the Palestinian people to have their own state has been on hold for over 60 years. With the termination of the British Mandate, a proposal by the US to have Palestine become a trust territory was not implemented. What was presented by the UN was a partition plan which the Arabs rejected.[28] After the Arab-Israeli war of 1948 the territory has been treated by the US and the Israelis as wavering in a gap, somewhere between a semi-autonomous territory and terra nullius (land belonging to no one).
One indication of the perception of the territory being terra nullius relates to the applicability of humanitarian law; the Israeli contention is that in the aftermath of the 1967 war, the territories in question were not under the sovereignty of any High Contracting Party to the fourth Geneva Convention and so the Convention “is not applicable de jure in those territories.”[29] Article 49 paragraph 6 of the fourth Geneva Convention provides that “the occupying power shall not deport or transfer parts of its own civilian population into the territory it occupies.”[30] This is relevant to the substantive component of the right to self-determination; in this case the settlement expansions. Following the steady settlement expansions, the Israeli government built a wall around these settlements in the Occupied Territories.[31] In this regard the ICJ in its Wall Opinion states that the
construction of the wall and its associated regime create a ‘fait accompli’ on the ground that could well become permanent, in which case, and notwithstanding the formal characterization of the wall by Israel, it would be tantamount to de facto annexation.[32]
The wall has, in addition to restricting the freedom of movement, restricted the Palestinian access to water.[33]
What has sustained the poor effective control of the Palestinian territories by the Palestinian government is caused by a combination of the apologetic law and the undermining of the substantive rights of the Palestinians. While Kuwait has had the strict legal application of the law applied to its liberation in consonance with the utopia framework, the Palestinian pursuit of self-determination is closer to the apology. Why this is, is perhaps indicated by the fact that the “Quartet’s references to the Wall Opinion are practically non-existent.”[34] As for the procedural side, reality appears to suggest that Palestinian independence was a gamble; that is by not cashing in on the partition plan the Palestinians have lost their chance at self-determination.
This leaves the Palestinians in a predicament for they are neither a trust territory, nor are they a high contracting party to the relevant human rights and humanitarian conventions according to Israel.[35] The seeming outcome for the Palestinians in the Occupied Territories is therefore either (1) a gradual de facto annexation of the territories into Israel, or that (2) they seek refuge or citizenship elsewhere. The benchmarks to be used in assessing the Palestinian’s status in their new state are Max Weber’s German American who would unconditionally fight Germany on one hand,[36] and the Shia Lebanese with the greater irredentist inclination on the other.
With regards to Israel’s de facto annexation of the Occupied Territories, the Israelization of the current Palestinian-Israelis can indicate the possible extent of assimilation. One survey (conducted in 1989) indicated that while 80% of the Palestinian-Israelis “would feel better as Israeli citizens if a Palestinian state were to be established in the West Bank and Gaza Strip… only 8% […] are willing to consider a move to such a state.”[37] This low percentage is attributed to Weber’s “empirical scope of political associations” – it is this empirical scope, or what I referred to above as the fair redistribution of resources, which would sustain some form of assimilation. Essentially the Israeli-Palestinians are able to call Israel their homeland.[38] This assimilation should not mean the diminishing of self-identification. One (and the only) discriminatory redistribution towards the Palestinian-Israelis is the “non-neutrality in […] the preference given to Jews outside Israel to become citizens of Israel if they wish to do so while not extending that preference to” the Palestinians outside the country.[39]
[1]Article 1 (2) of the Charter states that the purposes of the United Nations are to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples… See UN Charter (Adopted 26 June, 1945, entered into force 24 October 1945) San Francisco. Art 1 (2). (Herein after UN charter). The UN is an international organization that has set the framework for the contemporary international legal order; article 103 creates is a restriction on states formulating agreements that establish obligations which would conflict with the charter. Ibid. Art 103. The organization premised on neoliberal institutional theory. This theory challenges the “conventional wisdom” that cooperation must be rare in this world. See Robert O. Keohane, After Hegemony: Cooperation and Discord in the World Political Economy (Princeton Academic Press, New Jersey: 1984) 78. Using his own version of the prisoner’s dilemma, Robert Keohane shows that if rational ego-istic realists apply rational choice theory properly there would be a substantial amount of co-operation in international relations. More specifically, in Keohane’s game theory matrix of the prisoner’s dilemma, “mutual cooperation – [that is] not confessing to the police – is the dominant strategy for both players.” Ibid. 74. He justifies the dominance of cooperation by likening the international community to a mafia; the payoffs for the prisoners are in cooperation, while defecting has dire consequences.
[2] Malcolm N. Shaw, International Law (5th edn Cambridge University Press, Cambridge 2003) 226
[3] Ibid. Cassese adds that this principle was originally limited to mean the more restrictive idea of self-government, and not self-determination in the external – secession, independence and elections – sense. See Cassese, 42-43.
[4] Ibid. 159.
[5] UN Charter. Art 13-14.
[6] “GA resolutions […] may be considered by governments and by courts or arbitral tribunals as evidence of international custom or as expressing (and evidencing) a general principle of law.” See Damrosch. 266. They essentially have a norm-building effect, and we can even refer to them as “soft law.” See Hurst Hannum, S. James Anaya, and Dinah Shelton (eds.), International Human Rights: Problems of Law, Policy, and Practice (Aspen, 5th edition 2011) 142.
[7] UNGA Res 1514 (XV) (14 December 1960) Art 2.
[8] The Covenant of the League. Art 22.
[9] UNGA Res 1541 (XV) (15 December 1960). UNGA resolution 2625 also lists these three alternatives to realizing self-government, and also adds “the emergence into any other political status freely determined” by the people. See UNGA Res 2625 (XXV) (24 October 1970).
[10] The Commission was set up by the Economic and Social Council (ECOSOC) pursuant to article 68 of the Charter. The two treaties are the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic and Social and Cultural Rights (ICESCR).
[11] Hector Espiell for example, the then member of the inter-American court for human rights, maintained this view. See Hurst Hannum, Autonomy, Sovereignty and Self-Determination; The Accommodation of Conflicting Rights (University of Pennsylvania Press, Pennsylvania 1996) 48. See also Catriona J Drew, ‘Self-Determination, Population Transfer and the Middle East Peace Accords’ in Stephen Brown (ed), Human Rights, Self-determination and Political Change in the Occupied Palestinian Territories (Martinus Nijhof Publishers, The Hague 1997). 120. Now if peremptory norms are norms which no derogation from is permitted, it follows that there exists an obligation on all states to maintain the norm. Such an obligation is an obligation flowing to all (an erga omnes obligation). In this regard Cherif Bassiouni explains that “[t]he erga omnes and jus cogens concepts are often presented as two sides of the same coin. The term erga omnes means “flowing to all,” and so obligations deriving from jus cogens are presumably erga omnes. Indeed, legal logic supports the proposition that what is “compelling law” must necessarily engender an obligation “flowing to all.” See Cherif Bassioni, ‘International Crimes: Jus Cogens and Obligatio Erga Omnes’ (1996) 59 Law and Contemporary Problems. 72.
[12] Case Concerning East Timor (Portugal v. Australia) [1995] ICJ Rep.
[13] Catriona Drew, ‘The East Timor Story: International Law on Trial’ (2001) 12 EJIL 666.
[14] Ibid. See also R. Higgins, Final Oral Argument, CR 1995/13 8.
[15] Drew.
[16] Koskeniemmi, 9-10.
[17] Michael Glennon for example explains that “[a]bsent genuine obligation than mere self-restraint, it’s had to make the case that international law really is law.” See Michael J. Glennon, “Sometimes a Great Notion,” Woodrow Wilson Quarterly (Fall, 2003). 3-4.
[18] Micheal J. Glennon, Limits of Law, Prerogatives of Power: Interventionism after Kosovo (Palgrave, New York City 2001) 3.
[19] UNSC Res 660 (2 August 1990) UN Doc S/Res/660.
[20] UNSC Res 678 (29 November 1990) UN Doc S/Res/678.
[21] UNSC Res 687 (3 April 1991) UN Doc S/Res/687.
[22] Micheal J. Glennon, Limits of Law, 25.
[23] Ibid. 10.
[24] The ICJ has recognized the Palestinians as a people entitled to the right of self-determination. In the Wall Opinion it stated that “as regards the principle of the right of peoples to self-determination… the existence of a ‘Palestinian people’ is no longer in issue… such existence has moreover been recognized by Israel in the exchange letters of 9 September 1993….” See Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep. Para 50-51. (Herein After Wall Opinion) Cited in John Quigley, ‘Self-Determination in the Palestine Context’ in Susan M, Akram, Michael Dumper, Michael Lynk and Iain Scobbie (eds), International Law and the Israeli-Palestinian Context (Routledge, Oxon 2011). 219.
[25] See Gingrich.
[26] Nadim N. Rouhana, Palestinian Citizens in an Ethnic Jewish State (Yale University Press, Michigan 1997) 16.
[27] Quigley. 218.
[28] The Arabs, or in particular Syria, in a proposal submitted in 1947 raised four issues with the proposition of partitioning the territory between Jews and Arabs. These issues were “(1) whether the provision in the Palestine mandate for the creation of a Jewish National Home by means of admission of immigrants into Palestine against the wishes of the indigenous population is or is not consistent with the covenant of the League of Nations, (particularly with paragraph 4 of article 22 of the Covenant) and with the fundamental right of the people of Palestine to self-determination. (2) Whether the majority plan to partition Palestine is consistent with the objectives and provisions of the Mandate. (3) Whether the plan is consistent with the principles of the Charter and (4) Whether the plan to partition Palestine and to carry it out by force is within the competence and Jurisdiction of the United Nations.” See Ad Hoc Committee on the Palestine Question: Report of Sub-Committee 2 (1947) UN Doc A/AC.14/32. Para 36. The partition plan granted approximately 56% of the territory to the Jewish immigrants who at the time constituted 30% of the population and owned 6% of the land. See John Quigley, Palestine and Israel: A Challenge to Justice (Duke University Press, Durham 1990) 36.
[29] Wall Opinion. Para93. A similar argument is made by Israel regarding the applicability of the ICCPR and ICSECR. See Ibid. 102.
[30] Ibid. 120.
[31] See Ibid. Para 78.
[32] Wall Opinion. Para 121. The opinion also adds that around “80 percent of the settlers living in the Occupied Palestinian Territory, that is 320,000 individuals, would reside in that area, as well as 237,000 Palestinians. Moreover, as a result of the construction of the wall, around 160,000 other Palestinians would reside in almost complete1y encircled communities.” See Ibid. 122.
[33] Iain Scobbie, ‘Natural Resources and Belligerent Occupation: Perspectives from International Humanitarian and Human Rights Law’ in Susan M, Akram, Michael Dumper, Michael Lynk and Iain Scobbie (eds), International Law and the Israeli-Palestinian Context (Routledge, Oxon 2011) 243-244.
[34] Stephanie Koury, ‘Legal Strategies at the United Nations: A Comparative Look at Namibia. Western Sahara, and Palestine’ in Susan M, Akram, Michael Dumper, Michael Lynk and Iain Scobbie (eds), International Law and the Israeli-Palestinian Context (Routledge, Oxon 2011). 162.
[35] For an overview of the human rights situation and the material losses in the Occupied Territories see UNDP Arab Human Development Report 2003 (National Press, Amman 2003) 24-26.
[36] Weber. 24.
[37] Rouhana, 118. Another indicator of the Palestinian’s assimilation mentioned is the Palestinian’s “…growing bilingualism and biculturalism, their acceptance of Israeli standards and styles, and their view of themselves as an integral part of Israel.” See Ibid. 119.
[38] Here one Palestinian-Israeli respondent was asked how important his belonging to Israel is – he replied saying “…I love my homeland which today is called Israel, before it was called Palestine, and tomorrow may be called something else again. What matters is that it is my homeland.” Ibid.
[39] Ibid. 30.
Abdulaziz Khalefa is an international relations scholar who has worked as a journalist in Kuwait. He is currently a graduate student at the The Fletcher School of Law and Diplomacy at Tufts University.
Filed under: Abdulaziz Khalefa, Essays, Europe, History, Iraq, Israel, Kuwait, Palestine, Politics, Sahara, Statehood, United Nations, United States
