Le statut international du people Palestinien – CEDIPP – Etudes de DDP Français
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Prepared for, and under the guidance the Committee on the Exercise of
the Inalienable Rights of the Palestinian People
New York, 1981
TABLE OF CONTENTS
Early manifestations of Palestinian nationalist stirrings appear as part of the nationalist movements which emerged in the declining supra-national Ottoman empire as the First World War approached.
Palestine, an ancient land, at that time had been part of the Ottoman domain for almost four centuries. Falling within the region known historically as Syria, Ottoman Palestine approximated three sanjaks (districts). One was Jerusalem which, because of its historical religious importance for Judaism, Christianity and Islam, had the status of an independent sanjak, not part of any vilayet (province). It was governed directly from Constantinople, to which it sent its own legislative representatives. The sanjaks of Balqa and Acre, in the vilayet of Beirut, comprised the approximate remainder of Ottoman Palestine.
Prior to the Ottoman period Palestine had been under Arab rule for about 900 years since the 7th century.1 The population of Palestine in the early 20th century was still overwhelmingly Arab Semite, predominantly Moslem with a Christian minority, and a smaller minority of Jews. These included Jewish Palestinians, who personified the ancient spiritual links of their faith with Jerusalem and Palestine since the Emperor Hadrian in the 2nd century expelled the Jews of Biblical times into the Diaspora. There were also a number of Jewish settlements, started in the late 18th century mainly by East Europeans seeking refuge from anti-Jewish prejudice in their native countries. In 1918, the Jewish population of Palestine was estimated at about a tenth of the whole. Since 1897, however, the declared aim of the World Zionist Organization, in reaction to the unabating anti-Jewish feelings in Europe, had been to ". . .create for the Jewish people a home in Palestine. . .", which a slogan described as "a land without people for a people without land."
The Balfour Declaration
On 2 November 1917, more than a month before the British occupation of Jerusalem, the British Foreign Secretary, Lord Balfour, informed the World Zionist Organization of British policy for Palestine. The "Balfour Declaration" stated:
The Allied Promises to the Arabs
The British Government almost simultaneously had given undertakings to Arab leaders regarding independence for their peoples after the war in return for support against the Ottomans.
A British message assured the Arabs in January 1918 that:
In June 1918, another British Statement to the Arabs in the Ottoman territories declared:
". . .the wish and desire of His Majesty's Government that the future government of these regions should be based upon the principle of the consent of the governed, and this policy has and will continue to have support of His Majesty's Government".
It thus would seem that, at the end of the First World War, there was an international commitment by the Allies to the principle that the people of Palestine, among others, had a right to determine their future.
The Plans for Palestine
The victorious Allied Powers in fact had decided, in the Sykes-Picot Agreement of 1916, to allocate Ottoman Arab territories to various European spheres of influence. Because of its religious importance, Palestine initially was to be under an international regime, but eventually the Allies agreed to let it pass under British tutelage.
These manoeuvres were conducted among negotiations for a postwar framework which would allow the accommodation of the new nationalist aspirations of peoples emerging from Ottoman rule to the still prevalent and powerful colonial imperative. A champion for the rights of peoples under foreign domination was President Wilson, who formulated the nascent concept of self-determination of peoples. Among the famous "Fourteen Points" was one applying directly to the Arab peoples:
The Mandate System
The Covenant was an accord between the sovereign States which formed the international community at that time. Those peoples who were colonised, and several of those emerging from Ottoman domination, found no place in the League system other than as wards of the dominant powers. The Arab, including the Palestinian, peoples were evidently considered the most advanced of those to be brought under Mandates, as described in the following clause from Article 22 of the Covenant dealing with Mandates:
III. THE PALESTINIAN PEOPLE UNDER THE MANDATE
The Palestine Mandate
The Palestine Mandate came into effect formally on 29 September 1922. On 16 September 1922 the Council of the League of Nations, acting under the provisions of the Mandate, had approved a separate administration for Transjordan, and the Palestine Mandate for the next 25 years applied to modern-day Palestine proper.
That the interests of the people of Palestine were not a principal concern was evident even while the international instrument of the Mandate was in the drafting stage. Lord Curzon, then British Foreign Secretary, noted:
V. THE INTERNATIONAL
THE RIGHTS OF THE
The Palestine Issue as Part of the Middle East Problem
For almost 20 years the fundamental issue of the recognition and implementation of the fundamental rights of the Palestinian people remained eclipsed by the wider Arab-Israeli conflict. During this period the United Nations moved no closer to the implementation of the Partition Resolution, and the plight of the Palestinians was viewed only as a "refugee problem", although it remained the core of Middle East tensions which led to the Suez crisis:
"The Nine emphasize that it is essential that all parties to the negotiation accept the right of all States in the area to live within secure and recognized boundaries with adequate guarantees. Equally, of course, it is essential that there be respect for the legitimate rights of the Palestinian people. These include the right to a homeland and the right, through its representatives, to play its full part in the negotiation of a comprehensive settlement." (United Nations, September 1979).
The General Assembly has taken two other important steps to demonstrate international recognition of the status of the Palestinians as a people entitled to self-determination and independence. First, in 1974, it conferred on the PLO the status of observer in the United Nations. The PLO now has been recognized by virtually all international organizations as the representative of the Palestinian people. All UN specialized agencies, such as UNESCO, WHO, etc., have given it observer status. Some other international bodies, such as the Non-Aligned Conference, the Islamic Conference and the Arab League, have admitted the PLO as a full member, and have consistently expressed full support for the securing of the rights of the Palestinian people.11 Second, in 1975, the Assembly established a Committee on the Exercise of the Inalienable Rights of the Palestinian People*, now composed of 23 members and 10 observers. This Committee in 1976 presented its first report outlining a programme to restore to the Palestinian people their internationally recognized rights, commencing with the withdrawal of Israel from Palestinian territories occupied in June 1967. These proposals have been overwhelmingly endorsed by the General Assembly every year but have not yet been acted upon by the Security Council. A Council discussion in 1976 ended with the veto of a draft resolution stating that the Security Council:
VI. SOME LEGAL
Without attempting an exhaustive legal examination, a brief consideration of some of the legal considerations may clarify the issues involved in the historical and political course of the Palestine question and the status of the people of Palestine.
Sovereignty Under Mandates
A fundamental issue is the issue of sovereignty, whose nature and meaning for long has been debated intensely in both law and politics because of its symbiotic relationship with the right of self-determination and with the legitimate exercise of power.
The crucial question for the Palestine question is where sovereignty lay during the period that Palestine was under the Mandate. The authority exercised over Palestine by the Ottoman Emperor ceased when Palestine was militarily occupied by the British in 1917, but it was not until 24 July 1923 that, by the Treaty of Lausanne, Turkey formally and legally relinquished any claim to sovereignty over the territories it was ceding, including Palestine, by declaring that it "renounces all rights and title whatsoever over or respecting the territories."
In the meantime, the Palestine Mandate had been finalized. Some writers have claimed that under the Mandate system a Mandatory Power assumed full and legal sovereignty over the territory under its authority; this would imply that the Mandatory had the power to annex the territory. This view is rejected by the consensus of international juridical opinion, based on several compelling considerations. First, the Treaty of Versailles, of which the Covenant formed part, was based on the principle of non-annexation of territory. Second, the League itself could not assume or transfer sovereignty, Article 22 of the Covenant unequivocally stating that:
These developments, however, did not extinguish the inalienable right of the Palestinian people to sovereignty and self-determination, even though they had not yet achieved independence. At the same time the Mandate had created a situation where the Jewish population had gained acquired rights. The United Nations, which now bore the international community's responsibility for securing for Palestine the self-determination that had not been achieved under the Mandate, was faced with the fait accompli of the natural rights of an indigenous people facing challenge from the acquired rights of a new community. Rather than deal with legal principles, the Assembly took a pragmatic political approach, and approved the Partition Resolution, which did not attempt to implement the right of self-determination in a unified Palestine. A proposal to refer the partition proposal to the International Court of Justice was rejected. The draft resolution was not examined by the Sixth Committee, charged with legal matters. Thus the Partition Resolution's legal implications were not examined by any judicial or legal authority.
As an expression of the will of the international community in 1947, however, the Partition Resolution, as amended by subsequent resolutions, may be considered valid, providing authority for the two States in Palestine.18 But, following the further fait accompli of the establishment of Israel and its later consolidation in an expanded form, and of the non-establishment of the ''Arab State" in Palestine, the legal aspects of the Palestine question lay dormant for two decades, no attempt being made to realize the establishment of an "Arab State" in Palestine.
Self-determination in the United Nations
Unlike the Covenant of the League of Nations, the UN Charter, while providing that only States can be full members, responds to the interests not only of States, but of peoples. The Charter begins: "We the peoples of the United Nations . . . and seeks "friendly relations between nations based on respect for the principle of equal rights and self-determination of peoples . . ."
By 1952 the General Assembly had enunciated the right of self-determination for peoples of former Mandates which had become Non-Self-Governing or Trust Territories under the UN system. The only exception was Palestine, which had become the "Palestine problem". In 1960, the General Assembly adopted resolution 1514 (XV) entitled "Declaration on the Granting of Independence to Colonial Countries and Peoples' clearly endorsed the right of self-determination for peoples subject "to alien subjugation, domination and exploitation", as follows:
". . .
". . . The concept of proto-State which mentioned earlier becomes more apparent in access to conferences. It is assumed that those national liberation movements are strongly connected with some future states of the people they represent. Therefore, they are supposed to have a much wider interest in the works undertaken by the UN than regional intergovernmental organizations, the work and interest of which are expected to be more limited."23