Fixed and Inalienable Rights of the Palestinian People as per International Law

Dr. Abdullah Mousa Abou Eid

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*      Preface

*      Basic Rights of The Palestinian People

1-      The right of the Palestinian people for self-determination.

2-      The right of the Palestinian people to have an independent state.

3-      The right of the Palestinian people to return to their homeland and rights associated thereto.

*       Summary:

*       References:

*      Preface:

Every people has got fixed and inalienable rights, recognized by contemporary International Law Provisions and principles, the most important of which are: Self-determination, sovereignty, decent living in its homeland and full control over its natural wealth.

The Palestinian people may be different from most peoples of the world because of the great sufferance it has experienced, being driven out of its homeland, with part of this land still under occupation. Accordingly, this people is entitled to further well-established and inalienable rights, acknowledged by the International Community and represented by tens of resolutions, issued by the United Nations General Assembly. The most significant of these rights is establishment of a free and sovereign state on its own land in fulfillment of its right of self-determination and in implementation of the refugees' right of return to their homes and properties.

Compensation could be made for irretrievable property in addition to indemnification for the pain, the grievance and the sufferance incurred by those refugees. Furthermore, this person –whose homeland is still occupied- has the full right to resist occupation, according to the stipulations and provisions of contemporary International Law.

The afore said basic rights are considered inalienable, meaning that non at all has the authority to dispose of these rights, whether in full or in part, regardless of capacity or position, 1 due to the fact that these fixed,

national and legal rights of this people are "Jus Cognes".

According to the General International Law and the Humanitarian International law, any disposal of those rights is considered null and void. We shall later on elaborate upon this, because this study was prepared to be a working paper that should be read in a pragmatic conference on "The Future of Palestine and Peaceful Settlement Agreements".

It is quite essential to point out that any peaceful settlement should take into consideration the above mentioned fixed rights by referring to the Palestinian people to seek the opinion thereof in any of the matters that are put forth for settlement and resolution, especially when these matters are related to any of the aforesaid. Anything contrary to that would be considered as null and void.

Furthermore, it is quite essential to state here that in negotiations and international political relations, any peaceful settlement will be advantageous to a negotiating party in as much as that party is powerful and strong. Therefore, it is impermissible for a party to negotiate in order to find solutions, starting off from weak basic grounds and under circumstances in which this negotiating party is in its weakest state and position.

*      Basic Rights of The Palestinian People:

In this section, we shall tackle the Basic Rights of the Palestinian people, which has formed –according to the provisions of the General International Law and the successive resolutions, taken by the United Nations General Assembly- "fixed inalienable rights", 2 the most significant thereof is the right of self-determination.

It is worth mentioning here that some legists add to the aforesaid inalienable group of rights, the right of peoples in continual sovereignty and full control over their natural resources, as had been stipulated by the UN General Assembly in 1962. 3 Yet, we shall here discuss the only fixed and inalienable rights that relate to the Palestinian people. These rights are:

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1.                  The right of the Palestinian people for self-determination.

2.                  The right of the Palestinian people to have an independent state.

3.                  The right of the Palestinian people to return to his homeland and rights associated thereto.

I. The Right of Palestinian People in Self-Determination:

The right of self determination for peoples is an outcome of the sufferance endured by many European peoples –mainly in the middle eastern and south eastern parts of the continent- due to settlemental colonization and land occupation by powerful empires throughout several centuries, and also due to prevalence of settlemental colonization in third-world countries, in the aftermath of European invasion to the new world, and later on Africa and Asia. It also proceeded from domination of traditional colonialist countries to tens of peoples and to regions and wealth thereof, for long periods of time.

Nevertheless, the right of self-determination was not introduced till the beginning of the twentieth century (i.e. after the First World War), when Lenin publicized his famous declaration, relating to the right of the "peoples of the East" for self-determination. Months after that, the American president "Woodrow Wilson" publicized his Fourteen Principles, on top of which was the right of nations in self-determinations. 4

Many international Law legists and several capitalistic regime ideologists tried to argue that this text does not form a binding legal right. They alleged that it is only a principle, which countries are free to take or neglect. Yet, development of international relations and positive changes of international power balances during the sixties and seventies of the Twentieth Century led to the development and fixation of this right as a binding legal one 5 while some deem it a basic principle of contemporary International Law, which now forms an untransgressable imperative norm. Thus, the international community majority confirmed and reiterated its recognition of the self-determination right and coherent subsequential rights thereof. 6 Never the less, International Law jurists specify some conditions for this right to become an imperative norm:

a.            This people should be considered "a real people" as per the International Law.

b.            This people should strife and struggle for acquisition of its right in self-determination.

c.            This people must have an internationally recognized representative. 7

Some jurists go as far as admitting that it is the right of any people that attains these attributes, and the right of this people's national liberation movement as well to use force for achieving the right of self-determination, if this people fails to get this right by peaceful means. 8

Anyone looking into the Palestinian people's right of self-determination should place this people's cause in its historical frame, and should also touch on this people's identity and national rights during and after the British mandate on Palestine. 9 Yet, this brief study can not tackle all the se matters and hence we shall take up the most important elements that constitute the Palestinian people's right of self-determination. These could be briefed as follows:

1.                  The Palestinian people's right of self-determination was established since the beginning of the British occupation to Palestine; where as continual demonstrations and strikes broke out in 1920. Escalating strikes and demonstrations spread out against British occupation and against Britain's deeds and procedures that aimed at establishing a national homeland in Palestine, for a nation other than the Palestinian nation, commencing with Balfour's Declaration and issuance of the mandatory deed, passing on to recognition of the Jewish Agency as a representative of the Jewish people and granting it much of the state-owned land for reclamation thereof, and ending up with enactment of laws and decrees that aim at implementation of this policy by keeping the country's doors wide open for Jewish migration to Palestine. Further more, the mandatory violently and ferociously squashed the 1936 Revolution and handed the Palestinian people to the United Nations, thus forsaking its legal responsibilities by not defending the citizens and properties thereof, and the violating the sense of Article (22) of the United Nations charter, which stipulates that the major objective of the mandate system is "to prepare the natives of a mandatory region for self governing" i.e. full independence and sovereignty. 10

2.                  Coercive deportation and expulsion of more than two thirds of the Arab population, which took place in Palestine between 1947 and 1949, under the vision and hearing of Britain, the mandatory country, which was supposed to protect and prevent displacement and expulsion thereof, only shows that this people was forcibly kicked out through racial cleansing operations, the secrets of which were gradually disclosed during the last two decades by those known as "the modern historians in Israel". 11This by for self-determination on the territories of their homeland, and to erect their independent sovereign state.

3.                  Through the Palestine partition resolution, taken by the United Nations General Assembly on November 29, 1947 is deemed –by tens of legists and writers- inoperative and contradictory to International Law principles and provisions of the United Nations Charter, 12 yet, it recognizes the Palestinian Arab people's right of self-determination, and to establish its independent state on 44% of historic Palestine. 13

4.                  After the 1967 aggression, and with the ascent of resistance against Israeli occupation and the increase of PLO power and movement, the General Assembly issued a number of resolutions –as from 1969 onwards- acknowledging the Palestinian people's right of self-determination and its right –as well- to establish its independent and sovereign state on all the territories occupied in June 1967. Such resolutions rolled on as from that date and were passed with an overwhelming majority of the member countries of the UN General Assembly, excluding America, Israel and a few other countries. 14

It is worth mentioning here that the General Assembly Resolutions (3236) and (3237), issued on 22/11/1974 were the most significant ones pertinent to the fixed and inalienable rights of the Palestinian people. The first of those two resolutions express the General Assembly's recognition of the Palestinian people's right for self-determination and its right –as well- for national independence and sovereignty. It also recognizes the Palestinian refugees' right of return to their homes and property. It furthermore confirms this right and their right to recover their property from which they had been expelled. This resolution also emphasizes on observance of those inalienable "rights and on working towards implementation thereof as they are considered an integral part of solving the problem of Palestine. Above all that, this resolution laid down" the UN General Assembly's recognition of the Palestinian people's right to reacquire all their rights via all means and in accordance with the United Nations' principles and objectives. "The second resolution, i.e. (3237), recognized the Palestinian Liberation organization (PLO) as a legal representative of the Palestinian people and decided to call this legal representative for participation (as an observer) in the General Assembly sessions. It also called upon it to attend all meetings of various international congresses that are held under the patronage of the UN General Assembly or other divisions and organization of the United Nations.

Thereby, the Palestinian Liberation Organization entered history as it became the second organization which represents a liberation movement that struggles against occupation and attains the capacity of "observer" in the United Nations. 15 This development gave a great push to the Palestinian cause in the field of international relations, whereas it consolidated the Palestinian people's fixed and inalienable rights, on top of which is its right in self-determination.

Thence forth, the General Assembly persisted in issuing similar resolutions that acknowledge the Palestinian people's fixed and inalienable rights and which condemn Israel and procedures thereof in the occupied territories, including Eastern Jerusalem. Those resolutions considered occupation and land confiscation as illegal deeds and condemned many of the Israeli procedures and practices, such as demolishing houses, expulsion and deportation of citizens, considering all these practices and deeds contradictory to the United Nations Charter, to principles of General and Humanitarian International Laws, and the fixed and inalienable rights of the Palestinian people.

No doubt, recurrence of the resolutions of the UN General Assembly, which is the major international representative, that support the Palestinian people's well-established rights, on top of which is the right of self-determination, plus the build-up in the number of countries supporting these rights (forming the majority of the world countries in the last few years) played an important role in developing and internationally conventionalizing these rights.

5.                  Before issuance of the two General Assembly resolutions (3236) and (3237) in November 1974, the Arab States League had already taken –in Al Rabat Summit, held in September 1974- a decision per which PLO was considered the legal and sole representative of the Palestinian people. It thus encouraged the UN General Assembly to adopt the aforesaid two resolutions.

As such, PLO acquired an outstanding legal position, being a representative of a nation, expelled from its homeland, deprived from practicing its right of self-determination, denied establishment of its independent and sovereign state, prevented from mastering its natural resources and restrained from recovering its plundered property.

With the increase of international support to the Palestinian people and the national rights thereof, some Western countries –such as the United States and Britain- had to avow these rights, particularly the Palestinian people's right of self-determination and its right to establish the independent "State of Palestine".

Accordingly, the Security Council Resolution No (1397) of 2002 –which determines the Palestinian people's right of establishing its independent state on all territories negotiated with the State of Israel-, was issued with the unanimous agreement of the Security Council members. This decision –as such- acknowledges the Palestinian people's right to have an independent state, though –on the other hand- it involves a dangerous significative text which conflicts with the basis of International Law and the United Nations Charter, as it did not point out to the necessity of Israeli withdrawal from the territories occupied in 1967, nor did it plainly state that Israel's occupation and subjection of these territories are illegal and contradictive with International Law principles.

As it stands, the resolution gives Israel the right to decide where the Palestinian state is to be erected, i.e. it indirectly states that the occupied territories are at issue.

Nevertheless, the United States of America –by supporting the Israeli process of erecting the racial Separating Wall on the West Bank territories, in such a manner that this wall represents a real annexation of vast areas of the West Bank territories as well as it strangulates half of the civilian citizens of the West Bank, imprisoning them inside ghettoes and secluded areas, which some described as being worse than those of South Africa during the reign of the racial white minorities 16 plainly reflects the American Administration's hypocrisy and non respect to peoples' rights and to international law principles. Another example of the United States' breach of International Law principles 17 is President Bush's statements, supporting Sharon's unilateral plan of disengagement, which aims at annexation of a number of settlemental blocks in the West Bank to Israel.

It is worth mentioning here that the right of self-determination is considered –by most International Law legislators- the basis for any people to practice all other human rights, because without it, the other rights of any people will remain deficient and incomplete.

II. The Right of the Palestinian People to Establish an Independent and Sovereign State:

No doubt, there is a dialectical interrelation between the right of self-determination on the one hand, and the right of establishing a state and the people's practice of sovereignty over the land of this state, plus predomination of its natural resources on the other hand. The right of self-determination remains abstract and theoretic until practically implemented through the people's actual practice of this right, by establishing its state in the region where this people lives, in such a manner that it has full control and domination over that region and natural wealth thereof.

That is to say, establishment of an independent and sovereign state is considered the practical implementation of the right of self-determination.

The right of establishing a state is one of the Palestinian people's fixed and inalienable rights, acknowledged by the UN General Assembly, starting with its Resolution No (3236) issued on 22/10/1969, to which reference has been made above 18 , and the many other resolutions, issued by the General Assembly as well, acknowledging the Palestinian people's right to establish an independent sovereign state. 19 We have also referred to the Security Council Resolution No (1397), issued in 2003, which also recognized this right. It is worth noting that more than 110 states had already recognized the Palestinian Liberation Organization before the Oslo Agreements.

Furthermore, the number of countries supporting this right had increased. It is quite remarkable that Resolution No (1397) was taken with unanimous agreement of the 15 member countries of the council, as is the case with many other resolutions, supporting the aforesaid Palestinian rights, taken over the last fifteen years with a majority of 154 countries, and with the following four states opposing the Resolution: Israel, the United States, Marshal Islands and Blue Bonies Island. This reflects how much isolated Israel and America are, and shows as well the international consensus around the Palestinian People's inalienable rights, despite the American temptations represented by protectional, financial, diplomatic and economic support to Israel, and despite the influence and power of the Zionist lobbies that support Israel in many of the world big powers.

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III- The Right of Return:

The Palestinian refugees right of return to their homeland and to recover their property which the lost –or to get proper compensation for that property and for the pain and sufferance they have undergone, and also for the loss they incurred as from the date they lost their property- is considered a right, and this right is firmly-established in International Law in more than one provision, such as:

a.     Resolution No (194):

It is a General Assembly resolution, issued on 11/12/1948. What particularly concerns us in this decision is paragraph (11) thereof, which determines "the Palestinian refugees' right to return to their homes and to live in peace with their neighbors". It further called for permitting them to do so as quickly as possible, and to recompense those who choose not to go back. The resolution also called for indemnification for the loss and damage of property incurred, in accordance with the principles of justice and of International Law.

Thereby, we see that this resolution called for permitting willing Palestinian refugees to return to their homes.

The UN General Assembly formed the "International Reconciliation Committee", which consisted of three countries: America, France and Turkey. The committee was entrusted with convincing Israel to allow refugees to return to their homes and homeland and to work on reserving the refugees' owner ship of their property which Israel had seized by force, after having these refugees out.

Nevertheless, Israel refused to cooperate with the mentioned committee and so, the committee was unable to realize any of the jurisdictions entrusted there with. 20

b.     The Right of Return In The General International Law:

In several international agreements, the principles of the General International Law, provided for the refugees' right to return to their homes, particularly if they had been forcibly deported. Most relevant principles of this law looked at the citizen's right to return to his homeland as a well-established right, and are binding to the authorities of the country in which he is living.

Furthermore, most legists considered that this right draws upon the nationality tie which consolidates attachment of a citizen to his homeland, and grants him a number of rights, on top of which is his right to return to his home country. 21

In addition to that, the Security Council has issued tens and tens of resolutions, enjoining the return of forcibly dislodged refugees –particularly as a result of wars- to their native land, following the example of the refugees' cases in Bosnia, Herzegovina, Abkhazia, Namibia and others. 22

Furthermore, the Security Council –in its resolution No (237), issued on June 14, 1967- called on Israel to allow those who departed from the West Bank and Gaza strip to return thereto.

c.      The Right of Return in Human Rights Law:

The Human Rights Principles of the International Law concede any citizen who left his homeland, the right to return to this homeland any time he desires, and this has been recognized by all conventional and consensual principles of Human Rights.

Article (13) of the "International Declaration" provides for this right, whereas it says: "It is the right of every individual to depart from any country –including his home country- and return thereto". This declaration is one of the conventional sources of Human Rights in International Law. 23 The "International Convention for Civil and Political Rights" issued in 1966 also lays down for this right. 24

Furthermore, a number of the Human Rights regional agreements –such as the "African Convention for Individuals and People's rights" and "The European Agreement for Human Rights" 25 had acknowledged this right.

d.     The Right of Return in National Laws:

Most constitutions of democratic countries –mainly the modern ones- had provided for this right, considering that it is the state's duty to allow its subjects to return to their homeland under all circumstances. 26

e.     The Right of Return in Humanitarian International Law:

Principles of "Humanitarian International Law" prevent expulsion or deportation of any citizen from his homeland during war, while Article (49) of the Fourth Geneva Convention "forbids compulsory collective and individual transfer of protected people or expatriation thereof from the occupied territories to other territories of the occupational state or to any other country –whereas or not under occupation- for any reason what so ever".

The "Martial Occupation Law" is very strict on preventing expulsion or expatriation of citizens –whether individually or collectively- no matter what the motives or incentives are. Furthermore, article (49) it states that any group of protected persons should be brought back to the occupied region if the occupier's authorities had temporarily dislodged them to protect them from war damages or dangers.

From all this, we see that the right of return is fixed in all rules of national and international law, and hence it becomes one of the jussive concepts of International Law, which should never be violated or infringed at all.

Therefore, expulsion operations of citizens from their homeland during war –particularly collective dislodgement- from flagrant  infringements. 27

Besides, a number of agreements or constitutional laws look at this as a war-crime or "crime against humanity" 28 "Normberg Convention" for the prosecution of war criminals considered expulsion operations a war-crime. 29

From all that we deduce that the right of return is firmly established, and can not be abandoned –especially when it pertains to the right of a group of people- as is the case with the Palestinian people. 30

Some jurists consider that the right of return is a personal one, while others look at it as personal and collective at the same time, and is consequently deemed as fixed and inalienable. 31

*      Summary

As we have formerly said, the right of self-determination is the basis of most of the rights that are considered essential and inalienable to any person or leader of this people, because these are collective rights to which the rights of millions of citizens are related.

That is why these rights are considered among the binding principles (Jus Cognes) of International Law, and any violative agreement should be considered as fully null and void.

The right of self-determination is the god-father of these rights, meaning that most legists believe the implementation thereof warrants enforcement of the above mentioned rights (i.e. the right to have a state, to practice sovereignty therein, to have full domination and control over the natural wealth of this state and the right of refugees to return thereto, being part of this state).

Never the less, the Palestinian refugees' cause is different in its essence and nature from most other known refugee cases. Palestinian refugees had lost their homeland and were replaced by another nation, which set up another state on the ruins of the Palestinian refugees' property, their houses, their villages and their farms.

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*      References:

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