Le droit du peuple palestinien à l'autodétermination - Comité pour l’exercice des droits inaliénables du peuple palestinien, Etude de la Division des droits palestiniens Français
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OF THE PALESTINIAN PEOPLE
Prepared for, and under the guidance of, the Committee on the
Exercise of the Inalienable Rights of the Palestinian People
New York, 1979
This study examines the right of self-determination for the Palestinian people in a broad context including the various resolutions adopted by the United Nations General Assembly on the subject.
"2. To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace;
Classical theories in international law evolving from the 16th century onward, when the principle of freedom for the individual was not applied to the community, appear to pay little attention to the principle of national self-determination. Advancing from the era where the systems of government of entities of varying nature and size were shaped by considerations of dynasty and power, the concept of self-determination as a principle in international relations was foreshadowed by the assertion in the French revolution of the doctrine of the sovereignty of the people - that government should rest on the will of the people and not on the will of the ruler.
The national revolutions in the Western Hemisphere against European colonialism were the classical historical manifestations of the still unformulated concept of self-determination. The American Revolution is the classical case of the assertion of the right to struggle for freedom, and the establishment of the independent states of South America foreshadowed the power of the modern concept.
It is only in the 20th century, after the end of the First World War, that the legitimization of certain fundamental and natural principles long recognized as essential to individual liberty, received concrete consideration in the context of the ordering of international relations. The principle of self-determination of peoples was postulated in its incipient form by President Woodrow Wilson in the following words:
Article 22 of the Covenant (text at annex I) established the Mandate system on the idea of placing colonized peoples under the "tutelage...of advanced nations". However, these colonies were not to be disposed of by the mandatory powers as they wished, but rather formed "a sacred trust of civilisation". The degree of tutelage was to depend on the state of political development of the territory concerned. The most advanced were to be Class "A" mandates, regarding which the Covenant declared:
The recognition in 1945 by the United Nations, in the first article of the Charter, of the principle of self-determination has already been quoted. Article 55 also acknowledged this principle as follows:
"Whereas the Charter of the United Nations, under Articles 1 and 55, aims to develop friendly relations among nations based on respect for the equal rights and self-determination of peoples in order to strengthen universal peace,
“Whereas every Member of the United Nations, in conformity with the Charter, should respect the maintenance of the right of self-determination in other States,
"The General Assembly recommends that:
"1. The States Members of the United Nations shall uphold the principle of self-determination of all peoples and nations;
"2. The States Members of the United Nations shall recognize and promote the realization of the right of self-determination of the peoples of Non-Self-Governing and Trust Territories who are under their administration and shall facilitate the exercise of this right by the peoples of such Territories according to the principles and spirit of the Charter of the United Nations...
“3. The States Members of the United Nations responsible for the administration of Non-Self-Governing and Trust Territories shall take practical steps, pending the realization of the right of self-determination and in preparation thereof, to ensure the direct participation of the indigenous populations in the legislative and executive organs of government of those Territories, and to prepare them for complete self-government or independence.
"1. The subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights, is contrary to the Charter of the United Nations and is an impediment to the promotion of world peace and cooperation.
"2. All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
"3. Inadequacy of political, economic, social or educational preparedness should never serve as a pretext for delaying independence.
"4. All armed action or repressive measures of all kinds directed against dependent peoples shall cease in order to enable them to exercise peacefully and freely their right to complete independence, and the integrity of their national territory shall be respected." 4/
The Universal Declaration of Human Rights of 1948 had not dealt with the collective right of self-determination as it was concerned essentially with individual human rights. But it is relevant to note that the Declaration established the principle of equality from which the right of self-determination derives. Article 1 of the Declaration reads:
Professor William Ernest Hocking writes the following on the right of self-determination:
"The Allies were at first reluctant to appeal to the principle of self-determination because they feared the effect that this would produce on the nationalities forming part of the Russian empire. This obstacle disappeared with the Russian Revolution, which itself affirmed the principle of self-determination. The other important factor in changing the Allies' policies in this respect was the fact that the United States entered the war, and by then (the summer of 1917) the standing of President Wilson on the issue of self-determination was already known. From then onwards it was the Allies who championed the principle of self-determination...
"When the moment arrived at the peace negotiations to fulfil the pledges of self-determination given by the Allies to the nationalities integrated into the Central Empires, the difficulties of applying self-determination, and the limitations to which such a principle must be subject, became apparent. Historical claims, economic needs and military and strategic arguments prevailed. The principle did not find a place in the Covenant supposed to constitute the framework within which international relations should be conducted after the war...
"Finally, the mandates system was devised as a compromise solution between the non-annexation policy to which the Allies subscribed and the interests of those powers which occupied the Ottoman and German empires. The system reflected the idea of self-determination in that, at an unspecified future date, Article 22 of the Covenant expected the territories concerned to have developed sufficiently to face "the strenuous conditions of the modern world". In the meantime the Mandated Territories were to be guided towards such status by "advanced nations", the kind of guidance varying from one territory to another according to its degree of development. In fact the mandates system meant to accord to the so-called backward peoples a certain standing in international law. It presupposed a break away from the positivist theories of some writers according to which international law only operated between European states or states of European culture. It started a process of international supervision of colonial administration, the swift development of which in the last two decades nobody could then have predicted.
"Thus, by a curious paradox, it was in those cases where full recognition of self-determination was not granted, i.e. where statehood was not achieved, that a form of partial recognition of self-determination developed ...
"The juridical status of self-determination
"We have seen how self-determination with its revolutionary character poses a threat to the established order and, since it can be considered as a form of self-assertion against any kind of domination, its content is as varied as ways of domination are varied. Due to these circumstances, self-determination has been considered a concept of political rather than legal character. Indeed, its challenge to the established order is said to provoke anarchy, especially when the subjects of a right such as self-determination are as difficult to define as "peoples" and "nations". On the other hand, the variety of its content has been said to make it too vague and imprecise to be considered a legal right.
"Considering the first objection, the argument can be reversed, and it can be said instead that 'the pre-supposition of strife between nations is not of itself a consequence of the principle of self-determination but the reflection of a desire to resist it: in other words, if the states involved are prepared to accept a result based on self-determination, then there is no reason to presuppose violence will ensue'. As regards the second objection - vagueness of the term self-determination - it may have been a valid objection before the practice of the political organs of the UN gave it a definite and limited meaning but, as it will be seen in the chapters that follow, the concept has now achieved as much clarity as many other principles of international law.
"Thus, although there seems to be no reason to dismiss self-determination as a concept inappropriate for legal analysis, it is admitted that self-determination had no legal standing until fairly recent times. Up to World War II its application by states lacked sufficient consistency to provide a body of practice on which its status as a legal right under international law could be based. However, state attitudes, especially as evidenced in UN practice, have undeniably changed over the past twenty-five years and it is today difficult to deny the right of self-determination a true legal status consistent with a realistic interpretation of the practice of the political organs of the UN. This change of attitude is in part due to the gradual clarification of the content of the right, but in large part it is due to the sheer political pressure stemming from the decolonisation Process. It is with this process, and with the way that it has helped to clarify the legal status of self-determination that we shall be concerned here." 6/
"The present position is that self-determination is a legal principle, and that United Nations organs do not permit Article 2, paragraph 7, to impede discussion and decision when the principle is in issue..." 7/
"It therefore seems inescapable that self-determination has developed into an international legal right, and is not an essentially domestic matter. The extent and scope of the right is still open to some debate. We would suggest that at the present stage of development of international law the matter has become an international one within the following conditions: the Assembly may not prescribe an exact time for the granting of independence to a particular territory, though it may urge that this occur speedily ... Until the 1960 Declaration on the granting of independence international jurisdiction in matters of self-determination was never claimed without there being offered an alternative ground of international jurisdiction to rebut any contention of domaine reserve ..."
“...notwithstanding a lack of opinio juris in respect of certain important nations who voted for General Assembly Resolution 1514 (XV), it had a certain legal effect in terms of what was likely to follow at the United Nations."
She regrets the argument that:
”...as Assembly resolutions are not binding, that nothing has changed, and that self-determination remains a mere 'principle' and Article 2 (7) is an effective defence against its implementation. To insist upon this interpretation is to fail to give any weight either to the doctrine of bona fides or to the practice of states as revealed by unanimous and consistent behaviour." 9/
"Of course, we cannot admit that individual resolutions, declarations, judgements, decisions, etc., have binding force upon the members of the organization. What is required for customary international law is the repetition of the same practice: accordingly, in this case resolutions, declarations, etc., on the same matter in the same, or diverse, organizations must take place repeatedly.
"Parallel with such repetition, each resolution, declaration, etc., being considered as the manifestation of the collective will of individual participant States, the will of the international community can certainly be formulated more quickly and more accurately as compared with the traditional method of the normative process. This collective, cumulative and organic process of custom-generation can be characterized as the middle way between legislation by convention and the traditional process of custom making, and can be seen to have an important role from the viewpoint of the development of international law." 10/
“… But the accumulation of expressions of condemnation (of apartheid) especially as recorded in the resolutions of the General Assembly of the United Nations, are proof of the pertinent contemporary international community standard." 11/
There are, as already indicated, jurists and academics who differ from the view quoted, and take the view that organs of the United Nations cannot make international law, and that self-determination is not an established principle of international law, and some of these are quoted below:
Professor Alfred Cobban, writing after the Second World War, comments:
"An essential element in justifying the legitimacy of the present incarnation of self-determination is the conviction that colonialism is illegitimate under all and any circumstances. This is, to be sure, a premise which the colonial powers are not prepared to accept, but it nonetheless is the basic proposition on which the rest of the anti-colonial position rests." 15/
"One of the difficulties in the situation is that, although the United Nations may help to make it so, self-determination is not a right which finds any place in international law." 16/
That the right of self-determination has achieved the nature of jus cogens is supported in the UN study mentioned earlier which states:
...the International Law Commission has agreed that violation of the right of peoples to self-determination is a most serious offence, an international crime, and has thus tacitly admitted that this principle is one of the cases which in contemporary international law can be characterized as jus cogens.*" 17/
Another authority writes:
THE PEACE CONFERENCE*
* The course of the Palestine issue after the First World War and during the mandate period is traced in the first study in this series : The Origins and Evolution of the Palestine problem, Part I, 1917-1947; UN Publication ST/SR/SER.F/1.
Subsequently there arose a divergence of views regarding whether the territory of Palestine was included in the areas to become independent. The British Government asserted that other letters in the correspondence had excluded Palestine; Arab spokesmen insisted this was not so.
This became a crucial point in the Palestine issue, for soon after these Anglo-Arab understandings, the British entered into conflicting commitments involving the territory of Palestine, through assurances given to the Zionist Organization regarding the establishment of a "Jewish national home" in Palestine. The "Balfour Declaration" of 2 November 1917, (carrying the name of the British Foreign Secretary) informed the Zionist Organization that:
That the goal of the Zionist Organization was the establishment of a Jewish state in Palestine was known. In its first Congress held in Basle in 1897, it had declared that its aim was to "create for the Jewish people a home in Palestine secured by public law". The meaning of this resolution was given by the founder of the Zionist Organization, Dr. Theodor Herzl:
"He is trying to effect this behind the screen and under the shelter of British trusteeship." 8/
"The Four Great Powers are committed to Zionism. And Zionism, be it right or wrong, good or bad, is rooted in age-long traditions, in present needs, in future hopes, of far profounder import than the desires and prejudices of the 700,000 Arabs who now inhabit that ancient land.
"In my opinion that is right. What I have never been able to understand is how it can be harmonized with the (Anglo-French) declaration of November 1918, the Covenant, or the instructions to the Commission of Enquiry.
"I do not think that Zionism will hurt the Arabs, but they will never say they want it. Whatever be the future of Palestine, it is not now an 'independent nation', nor is it yet on the way to become one. Whatever deference should be paid to the view of those living there, the Powers in their selection of a mandatory do not propose, as I understand the matter, to consult them. In short, so far as Palestine is concerned, the Powers have made no statement of fact which is not admittedly wrong, and no declaration of policy which, at least in the letter, they have not always intended to violate..." 10/
"Whereas recognition has thereby been given to the historical connexion of the Jewish people with Palestine and to the grounds for reconstituting their national home in that country;
"Article 1: The Mandatory shall have full powers of legislation and of administration, save as they may be limited by the terms of this mandate.
"Article 2: The Mandatory shall be responsible for placing the country under such political, administrative and economic conditions as will secure the establishment of the Jewish national home, as laid down in the preamble, and the development of self-governing institutions, and also for safeguarding the civil and religious rights of all the inhabitants of Palestine, irrespective of race and religion.
"Article 4: An appropriate Jewish agency shall be recognized as a public body for the purpose of advising and cooperating with the Administration of Palestine in such economic, social and other matters as may affect the establishment of the Jewish national home and the interests of the Jewish population in Palestine, and, subject always to the control of the Administration, to assist and take part in the development of the country.
"The Zionist Organization, so long as its organization and constitution are in the opinion of the Mandatory appropriate, shall be recognized as such agency. It shall take steps in consultation with His Britannic Majesty's Government to secure the cooperation of all Jews who are willing to assist in the establishment of the Jewish national home.
"Article 6: The Administration of Palestine, while ensuring that the rights and position of other sections of the population are not prejudiced, shall facilitate Jewish immigration under suitable conditions and shall encourage, in co-operation with the Jewish agency referred to in Article 4, close settlement by Jews on the land, including State lands and waste lands not required for public purposes."
"On the purely legal side, the Declaration is a mere flourish unless Great Britain has some right and competence to dispose of Palestine, a question to which I shall return. But, assuming this, the Declaration is still legally precarious. It is subject to the Treaty of Versailles, and especially to the Covenant of the League, whose Article XX expressly cancels any other obligation or agreement which may be inconsistent with the Covenant. Now the Balfour Declaration is inconsistent with Article XXII of the Covenant. For this Article would bring Palestine under a typical A-Mandate, with a 'provisional independence' and a prospect of complete independence. But the Declaration makes such a mandate impossible. There can be no provisional independence in a land subject to a protected immigration. The A-mandate considers the welfare of the residents; whereas the Declaration considers also the welfare of a nation of non-residents, making the Jewish people of the world as a whole virtual or potential citizens of the state to be. Accordingly, Article 1 of the mandate, instead of announcing a régime of aid and advice, provides a régime of direct administration: 'The Mandatory shall have full powers of legislation and administration, save as they may be limited by the terms of this mandate'. As for the ultimate withdrawal of the mandatory, while Article 28 considers a time when the 'Administration of Palestine' will merge in a 'Government of Palestine', the constitution of this Government is left undetermined. Self-determination is thus at a minimum in Palestine... The legal logic of the Arab case against the present validity of the Balfour Declaration would seem unanswerable." 12/
"The Arabs were neither slow nor bashful in bringing these and similar points to the world's attention, and as early as August 1919, they received neutral support from the King-Crane Commission sent by President Wilson to ascertain the state of affairs in Syria and Palestine. Asserting that the Zionists looked to practically complete dispossession of the non-Jewish inhabitants of Palestine, this commission found nearly nine-tenths of the population to be non-Jewish and emphatically opposed to the entire Zionist program. With specific reference to the Wilsonian principle of self-determination, the Commission held :
'To subject a people so minded to unlimited Jewish immigration, and to steady financial and social pressure to surrender the land, would be a gross violation of the principle just quoted, and of the people's rights, though it be kept within the forms of law'. " 13/
"For the fulfilment of this policy it is necessary that the Jewish community in Palestine should be able to increase its numbers by immigration. This immigration cannot be so great in volume as to exceed whatever may be the economic capacity of the country at the time to absorb new arrivals". 1/
The people of Palestine resisted the denial of the independence they had anticipated after the end of the war, and also the effect on their country of large-scale immigration. This resistance was manifested in a series of revolts. Commissions appointed to investigate the causes of these uprisings, while defending British policy and acknowledging the progress made by the Jewish Agency (representing the Zionist Organization) toward consolidating the "national home", consistently, but in varying language, pointed to the denial of self-determination as a fundamental cause of the uprisings.
On the first anniversary of the Balfour Declaration there were non-violent protests, but by April 1920, two years before the formalising of the mandate, protests had become violent. A military commission of inquiry found that the underlying causes of the riots were:
"(2) The Arabs' belief that the Balfour Declaration implied a denial of the right of self-determination and their fear that the establishment of a National Home would mean a great increase of Jewish immigration and would lead to their economic and political subjection to the Jews." 4/
"It was thus becoming clear that the crux of the situation in Palestine was not growing less formidable with the passing of time. On the contrary, the longer the Mandate operated, the stronger and more bitter Arab antagonism to it became." 7/
"... the international recognition of the right of the Jews to return to their old homeland did not involve the recognition of the right of the Jews to govern the Arabs in it against their will.
"...the crux was plain enough to Arab eyes. It was the Balfour Declaration and its embodiment in the draft Mandate and nothing else which seemingly prevented their attaining a similar measure of independence to that which other Arab communities already enjoyed. And their reaction to this crux was logical. They repudiated the Balfour Declaration. They protested against its implementation in the draft Mandate. "The people of Palestine", they said, "cannot accept the creation of a National Home for the Jewish people in Palestine". And they refused to cooperate in any form of government other than a national government responsible to the Palestinian people.
"...Nowhere, as it happened, was the spirit of nationalism more acute after the War than in this area of the Near and Middle East. In all of its constituent territories, except Transjordan, there were serious disturbances, and in all of them, except Palestine, there was a marked advance towards self-government." 8/
(i) The desire of the Arabs for national independence.
(ii) Their hatred and fear of the establishment of the Jewish National Home.
"We make the following comments on these two causes:
(i) They were the same underlying causes as those which brought about the "disturbances" of 1920, 1921, 1929 and 1933.
(ii) They were, and always have been, inextricably linked together. The Balfour Declaration and the Mandate under which it was to be implemented involved the denial of national independence at the outset. The subsequent growth of the National Home created a practical obstacle, and the only serious one, to the concession later of national independence. It was believed that its further growth might mean the political as well as economic subjection of the Arabs to the Jews, so that if, ultimately, the Mandate should terminate and Palestine become independent, it would not be a national independence in the Arab sense but self-government by a Jewish majority.
(iii) They were the only "underlying" causes. All the other factors were complementary or subsidiary, aggravating the two causes or helping to determine the time at which the disturbances broke out." 9/
"Thus it is clear that the standpoint of the Arab leaders has not shifted by an inch from that which they adopted when first they understood the implications of the Balfour Declaration. The events of 17 years have only served to stiffen and embitter their resistance and, as they argue, to strengthen their case...
"...Quite obviously, then, the problem of Palestine is political. It is, as elsewhere, the problem of insurgent nationalism. The only difference is that in Palestine Arab nationalism is inextricably interwoven with antagonism to the Jews. And the reasons for that, it is worth repeating, are equally obvious. In the first place, the establishment of the National Home involved at the outset a blank negation of the rights implied in the principle of national self-government. Secondly, it soon proved to be not merely an obstacle to the development of national self-government, but apparently the only serious obstacle. Thirdly, as the Home has grown, the fear has grown with it that, if and when self-government is conceded, it may not be national in the Arab sense, but government by a Jewish majority...
"...The story of the last seventeen years is proof that this Arab nationalism with its anti-Jewish spearhead is not a new or transient phenomenon. It was there at the beginning; its strength and range have steadily increased; and it seems evident to us from what we saw and heard that it has not yet reached its climax." 10/
The British Government then announced its intention to terminate the mandate by 1949 with the establishment of a unified state in Palestine. A White Paper issued in May 1939 stated:
"...The objective of His Majesty's Government is the establishment within ten years of an independent Palestine State in ... treaty relations with the United Kingdom.
"...the independent State should be one in which Arabs and Jews share in government in such a way as to ensure that the essential interests of each community are safeguarded..." 12/
"The Conference urges that the gates of Palestine be opened; that the Jewish Agency be vested with control of immigration into Palestine and with the necessary authority for upbuilding the country, including the development of its unoccupied and uncultivated lands: and that Palestine be established as a Jewish Commonwealth integrated in the structure of the new democratic world..." 13/
"The suggestion that self-government should be withheld from Palestine until the Jews have acquired a majority seems outrageous to the Arabs. They wish to be masters in their own house. The Arabs were opposed to the idea of a Jewish National Home even before the Biltmore Programme and the demand for a Jewish State." 14/
Professor Hocking had made the following comment in 1932 on the Palestine Mandate:
THE FIRST PHASE
Although the United Nations Charter recognised the principle of self-determination, this was not directly applied in the case of Palestine. The General Assembly, diverging from the final policy decision of the Mandatory Power that Palestine should remain a unified state, recommended the partition of Palestine in a form substantially different from those proposed after the Royal Commission's report ten years earlier. Thus the normal outcome of the implementation of the principle of self-determination, the implementation of the will of the majority, with strong guarantees for the rights of the minority, did not occur in the case of Palestine, although this principle was to provide the base of the subsequent liberation of a large number of colonies in Africa and Asia.
The First Special Session of the General Assembly had appointed a United Nations Special Committee on Palestine (UNSCOP) to investigate the situation in Palestine and present recommendations. UNSCOP made the following comment concerning the principle of self-determination in Palestine :
"4. Only by means of partition can these conflicting national aspirations find substantial expression and qualify both peoples to take their places as independent nations in the international community and in the United Nations.
“… “ 2/
"The question of the partition of Palestine has to be considered in the light both of the provisions of the Mandate for Palestine, as read with the general principles embodied in the Covenant of the League of Nations, and of the provisions of the Charter. The United Kingdom took over Palestine as a single unit. Under Article 5 of the Mandate, the Mandatory Power was responsible 'for seeing that no Palestine territory shall be ceded or leased to, or in any way placed under the control of, the government of any foreign power'. Article 28 of the Mandate further contemplated that at the termination of the Mandate the territory of Palestine would pass to the control of 'the Government of Palestine'. So also by virtue of Article 22 of the Covenant, the people of Palestine were to emerge as a fully independent nation as soon as the temporary limitation on their sovereignty imposed by the Mandate had ended.
"The above conclusion is by no means vitiated by the provisions for the establishment of a Jewish National Home in Palestine. It was not, and could not have been, the intention of the framers of the Mandate that the Jewish immigration to Palestine should result in breaking up the political, geographic and administrative economy of the country. Any other interpretation would amount to a violation of the principles of the Covenant and would nullify one of the main objectives of the Mandate.
"24. Consequently the proposal of the majority of the Special Committee that Palestine should be partitioned is, apart from other weighty political, economic and moral objections, contrary to the specific provisions of the Mandate and in direct violation of the principles and objectives of the Covenant. The proposal is also contrary to the principles of the Charter, and the United Nations has no power to give effect to it. The United Nations is bound by Article 1 of the Charter to act 'in conformity with the principles of justice and international law' and to respect 'the principle of equal rights and self-determination of peoples'. Under Article 73, concerning non-self-governing territories and mandated areas, the United Nations undertakes 'to promote to the utmost... the well-being of the inhabitants of these territories' and to 'take due account of the political aspirations of the peoples'. The imposition of partition on Palestine against the express wishes of the majority of its population can in no way be considered as respect for or compliance with any of the above-mentioned principles of the Charter".
“… “ 3/
During the proceeding in the United Nations, the representatives of the indigenous people of Palestine had already voiced their opposition to the partition plan and the denial of the right of self-determination. The partition of Palestine was also rejected by the Arab states bordering Palestine. With British withdrawal imminent, and armed hostilities between Jewish forces and Palestinian and Arab irregulars already in progress, the Arab states sent forces into Palestine as the British withdrawal was completed.
It is beyond the scope of this study to examine in detail the events that accompanied the ending of the Mandate in 1948. It need only be noted that although the partition plan was not formally implemented by the United Nations, the state of Israel was established and, in the course of the hostilities that took place, its territorial control expanded far beyond the territories allotted by the partition resolution until it occupied over three quarters of the territory of Palestine, and the western part of Jerusalem (map at annex III). The remainder was occupied by Jordan (including East Jerusalem) and Egypt until 1967, when in another war Israeli control again expanded to occupy all of Palestine and other Arab territories in addition (map at annex IV).
Over this period more than half of the indigenous people of Palestine were made refugees, and the only other major resolution passed by the General Assembly (194 (III) of 11 December 1946) became the basis of treating the Palestine issue as a "refugee problem" for twenty years, with the international community paying little heed to the right of self-determination lost by the people of Palestine.
OF THE RIGHT OF SELF-DETERMINATION OF
THE PALESTINIAN PEOPLE
For the first time since the United Nations became involved in the Palestine issue the General Assembly in 1969 recognized and reaffirmed "the inalienable rights of the people of Palestine". 1/ The developments leading to this act again are beyond the scope of this study. It may, however, be noted that, following the 1967 Middle East war, Security Council Resolution 242 (1967) was intended, from the United Nations standpoint, to establish a framework for peace in the Middle East. Yet this resolution did not address the issue of Palestine, which lay at the root of the Middle East dispute, and referred only to "the refugee problem".
Once the General Assembly concerned itself with the problem, however, it consistently and repeatedly reasserted the right of self-determination of the Palestinian people.
In 1970, the General Assembly, reasserting previous demands for Israeli withdrawal from territories occupied in 1967, for the observance of the right of return of the refugees, and for the cessation of violations of human rights, underlined the central position of the Palestine issue in the Middle East situation, declaring that it :
“Declares that full respect for the inalienable rights of the people of Palestine is an indispensable element in the establishment of a just and lasting peace in the Middle East". 2/
A year after the Middle East war of October 1973, the cause of self-determination for the Palestinian people began a rapid advance. In September 1974 a large number of Member States of the United Nations moved to restore, for
the first time since 1952, the item "Question of Palestine" on the General Assembly agenda. The following month, Arab heads of state and government meeting at Rabat affirmed "the right of the Arab Palestinian people to the return of
its homeland and its right of self-determination", and recognized the Palestine Liberation Organization (PLO) as "the sole legitimate representative of the Palestinian people", and the General Assembly invited the PLO to participate in its proceedings 3/.
Some weeks later the Assembly passed, by 87 votes to 8, with 37 abstentions, resolution 3236 (XXIX) of 22 November 1974, which is a major instrument of reassertion of the fundamental rights of the Palestinian people.
The resolution read :
“Deeply concerned that no just solution to the problem of Palestine has yet been achieved and recognizing that the problem of Palestine continues to endanger international peace and security,
"Recognizing that the Palestinian people is entitled to self-determination in accordance with the Charter of the United Nations,
"Expressing its grave concern that the Palestinian people has been prevented from enjoying its inalienable rights, in particular its right to self-determination,
"Guided by the purposes and principles of the Charter,
Recalling its relevant resolutions which affirm the right of the Palestinian people to self-determination,
1. Reaffirms the inalienable rights of the Palestinian people in Palestine including:
(a) The right to self-determination without external interference;
(b) The right to national independence and sovereignty;
2. Reaffirms also the inalienable right of the Palestinians to return to their homes and property from which they have been displaced and uprooted, and calls for their return;
3. Emphasizes that full respect for and the realization of these inalienable rights of the Palestinian people are indispensable for the solution of the question of Palestine;
4. Recognizes that the Palestinian people is a principal party in the establishment of a just and lasting peace in the Middle East;
5. Further recognizes the right of the Palestinian people to regain its rights by all means in accordance with the purposes and principles of the Charter of the United Nations;
6. Appeals to all States and international organizations to extend their support to the Palestinian people in its struggle to restore its rights, in accordance with the Charter;
7. Requests the Secretary-General to establish contacts with the Palestine Liberation Organization on all matters concerning the question of Palestine.
In 1975, the General Assembly requested the Security Council to take action to enable the Palestinian people to exercise their rights, and called for the participation of the PLO, on an equal footing with other parties, in all negotiations on the Middle East held under UN auspices.
The General Assembly in 1975 also again expressed its concern that :
“… the problem of Palestine continues to endanger international peace and security,
“… no progress has been achieved towards:
(a) The exercise by the Palestinian people of its inalienable rights in Palestine, including the right to self-determination without external interference and the right to national independence and sovereignty;
(b) The exercise by Palestinians of their inalienable right to return to their homes and property from which they have been displaced and uprooted..."
"Reaffirming its faith in General Assembly resolution 1514 (XV) of 14 December 1960, containing the Declaration on the Granting of Independence to Colonial Countries and Peoples, and the importance of its implementation,
"Reaffirming the importance of the universal realisation of the right of peoples to self-determination, national sovereignty and territorial integrity and of the speedy granting of independence to colonial countries and peoples as imperatives for the enjoyment of human rights,
"Indignant at the continued violations of the human rights of the peoples still under colonial and foreign domination and alien subjugation, the continuation of the illegal occupation of Namibia and South Africa's attempts to dismember its territory, the perpetuation of the racist minority règimes in Zimbabwe and South Africa and the denial to the Palestinian people of their inalienable national rights,
1. Calls upon all States to implement fully and faithfully the resolutions of the United Nations regarding the exercise of the right to self-determination by peoples under colonial and alien domination;
2. Reaffirms the legitimacy of the people's struggle for independence, territorial integrity, national unity and liberation from colonial and foreign domination and alien subjugation by all available means, including armed struggle;
3. Reaffirms the inalienable right of the peoples of Namibia and Zimbabwe, of the Palestinian people and of all peoples under alien and colonial domination to self-determination, national independence, territorial integrity, national unity and sovereignty without external interference;
"8. Strongly condemns all Governments which do not recognize the right to self-determination and independence of all peoples still under colonial and foreign domination and alien subjugation, notably the peoples of Africa and the Palestinian people;
“… “ 6/
(b) The right to national independence and sovereignty.
“34. It was stressed that the establishment of an independent Palestinian State, in accordance with the principles of the Charter of the United Nations, was a prerequisite for peace in the Middle East. Upon the Israeli vacation of the occupied areas and the establishment of an independent Palestinian administration, the Palestinian people would be able to exercise its right to self-determination and to decide its form of government through democratic means. The role of the United Nations in that regard could only be advisory. Once the Palestinian State was established, it could participate, on a basis of equality, in the negotiations for a peace settlement in the Middle East, which would cover the question of secure and recognized boundaries for all States in the region.
“35. The opinion was shared that it was up to the Palestinian people, in the exercise of its right to self-determination, to decide when and how its national independence should be expressed within an independent entity of its own and in its territory, Palestine. No other party had the right to dictate to the Palestinian people the form, status or system of its entity or claim the authority to permit or to prevent the establishment of an independent Palestinian entity. The Palestinian people had the right freely to choose its own representatives and form of government. The Palestine Liberation Organization, which had been recognized by the Palestinian people, the United Nations, the League of Arab States, the Organization of African Unity and the overwhelming majority of world nations as the sole representative of the Palestinian people, was a guardian of the inalienable rights of this people. The Palestine Liberation Organization, consequently, was entitled to participate as a principal party in all peace efforts to resolve the Middle East problem."
The Security Council again considered the Committee's report in October 1977, but adjourned discussion without taking any action, the item still remaining on its agenda.
Thus it will be seen that the right of self-determination of the Palestinian people, denied for three decades during the Mandate, ignored for two decades in the United Nations, has over almost the last decade received consistent recognition and strong assertion by a preponderant majority of Member States of the United Nations* acting principally through the same organ, the General Assembly, which recommended the partition of Palestine over thirty years ago.
*Here Judge Tanaka’s opinion (pp. 9-10 supra) regarding the effects of consistently reiterated resolutions of the General Assembly assumes particular relevance.
Article 22 of the Covenant of the League of Nations, 28 June 1919
The best method of giving practical effect to this principle is that the tutelage of such peoples should be entrusted to advanced nations who by reason of their resources, their experience or their geographical position can best undertake this responsibility, and who are willing to accept it, and that this tutelage should be exercised' by them as Mandatories on behalf of the League.
The character of the mandate must differ according to the stage of the development of the people, the geographical situation of the territory, its economic conditions and other similar circumstances.
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. The wishes of these communities must be a principal consideration in the selection of the Mandatory.
Other peoples, especially those of Central Africa, are at such a stage that the Mandatory must be responsible for the administration of the territory under conditions which will guarantee freedom of conscience and religion, subject only to the maintenance of public order and morals, the prohibition of abuses such as the slave trade, the arms traffic and the liquor traffic, and the prevention of the establishment of fortifications or military and naval bases and of military training of the natives for other than police purposes and the defence of territory, and will also secure-equal opportunities for the trade and commerce of other Members of the League.
There are territories, such as South-west Africa and certain of the South Pacific Islands, which, owing to the sparseness of their population, or their small size, or their remoteness from the centres of civilization, or their geographical contiguity to the territory of the Mandatory, and other circumstances, can be best administered under the laws of the Mandatory as integral portions of its territory, subject to the safeguards above mentioned in the interests of the indigenous population.
In every case of Mandate, the Mandatory shall render to the Council an annual report in reference to the territory committed to its charge.
The degree of authority, control or administration to be exercised by the Mandatory shall, if not previously agreed upon by the Members of the League, be explicitly defined in each case by the Council.
A permanent Commission shall be constituted to receive and examine the annual reports of the Mandatories and to advise the Council on all matters relating to the observance of the mandates.