Setting the Legal Context: The Palestinian Right to Self-Determination[1]

By 1920, the League of Nations had affirmed the applicability of the right to self-determination to the people of Palestine and decided to establish a temporary Mandatory system to facilitate Palestine's independence in accordance with Article 22 of its Covenant. Article 22 stated that “[c]ertain 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.”

In 1947, the United Nations reaffirmed this principle in General Assembly Resolution 181, or the Partition Plan for Palestine. Significantly, the Partition Plan referred to the self-determination of all people living in Mandatory Palestine, meaning Arabs and Jews living in both the “Jewish” and “Arab” states, respectively. Article B(10)(d) of the Resolution recognizes the national heterogeneity of each state and set out to guarantee “to all persons equal and non-discriminatory rights in civil, political, economic and religious matters and the enjoyment of human rights and fundamental freedoms, including freedom of religion, language, speech and publication, education, assembly and association.”

Since the failure of the UN Partition Plan and as a result of the ensuing wars, hostilities, and events of forced displacement, the Palestinian people have defined themselves as the indigenous people of Mandate Palestine comprised of three main sectors: those living under occupation since 1967; those displaced during war in 1948 and 1967 who now constitute 6.5 million refugees, and Palestinian citizens of Israel. These people, the Palestinian people in their entirety, are entitled to self-determination.

Today, the Palestinian right to self-determination is unequivocal as noted by the International Court of Justice, the world’s highest judicial authority, in its 2004 Advisory Opinion on the legal consequences of Israel’s wall in the Occupied Palestinian Territory (OPT). The Court also found that “Israel is bound to comply with its obligation to respect the right of the Palestinian people to self-determination and its obligations under international humanitarian law and international human rights law.

The United Nations has affirmed this right since at least 1974. When the UN recognized the Palestine Liberation Organization (PLO) as the representative of the Palestinian people and granted it observer status, it explicitly recognized that Palestinians constitute a people entitled to self-determination. Numerous General Assembly Resolutions have affirmed this right as particularly applicable to the Palestinian people, including Resolutions 2535 (10 Dec. 1969); 2649 (30 Nov 1970); 3236 (22 Nov 1974); 43/177 (15 Dec. 1988); and 48/94 (20 Dec. 1993). Of particular note is Resolution 3236, which reaffirms and specifies the inalienable rights of Palestinian people in Palestine as including: a) the right to self-determination without external interference; b) the right to national independence and sovereignty; and, the c)“inalienable right of the Palestinians to return to their homes and property from which they have been displaced and uprooted." The Resolution 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.”

Israel's policies not only violate the right of Palestinian self-determination but they also run counter to the UN's stipulation for establishing a Jewish homeland in the 1947 Partition Plan (General Assembly Resolution 181), in which the UN both acknowledged the right of the indigenous Arab and non-Jewish Palestinian population to the land as well as conditioned Israel's establishment on its non-discriminatory character. International legal scholar, Antonio Cassesse considers self-determination to be an anti-racist postulate and comments that "'[i]nternal' self-determination amounts to the right of an ethnic, racial, or religious segment of the population in a sovereign country not to be oppressed by a discriminatory government." That Palestinian citizens of Israel are not recognized as a national minority and are relegated to second-class status by law and decree amounts to apartheid within Israel and fundamentally undermines the right of Palestinian citizens of Israel to self-determination.

Similarly, Israel's construction of legal barriers to prevent Palestinian refugees—the largest segment of the Palestinian people—to return to their homes and its failure to extend nationality to them, is also an ongoing affront to Palestinian self-determination. Within the OPT, Israel's policy of population transfer, colonialism, and apartheid jeopardizes the territorial integrity of the land intended to constitute the state of the Palestinian people.

The primary hindrance to the realization of self-determination by the Palestinian people has been the UN's failure to hold Israel accountable for its international obligations to respect the inalienable rights of the Palestinian people and to end its policy of population transfer, apartheid and colonialism. In the first instance, the UN admitted Israel into its multilateral fold based on General Assembly Resolution 273 (11 May 1949) which pronounced Israel to be a "peace-loving state which accepts the obligations contained in the Charter," notwithstanding its violation of Resolutions 181 (1947). Since its admission to the UN, Israel has enjoyed all the benefits and privileges of membership while continuing to deny the Palestinian right to self-determination, including the right of return of Palestinian refugees, the individual and collective rights of its Palestinian citizens, and Palestinian national independence and sovereignty in the OPT, including East Jerusalem.

In the second instance, the UN has failed to uphold a framework of Israeli-Palestinian peace that would ensure respect of the full scope of the inalienable rights of the Palestinian people, as defined by the Palestinian people and the United Nations in General Assembly Resolution 3236. Since the Madrid-Oslo peace process, the UN assumed that the Palestinian people could exercise their inalienable rights by means of (sovereign or non-sovereign) statehood in the OPT, including East Jerusalem, alone. This assumption has given rise to an apparent contradiction between the right of self-determination of the Palestinian collective in the OPT and the individual and collective rights of the Palestinian refugees and citizens of Israel.

The PLO, as the representative of the Palestinian people, had accepted a territorial compromise for the exercise of national independence and sovereignty in the OPT, including East Jerusalem, based on the assumption that the UN and its member states would take measures that ensure Israel's acceptance of the inalienable rights of the Palestinian people to self-determination and the return of Palestinian refugees to their homes and properties. Instead, Palestinian independence and sovereignty in the OPT is seriously jeopardized, the Palestinian refugees are destitute, and the Palestinian citizens of Israel have their individual rights violated and have no access to collective rights. The key to realizing the Palestinian right to self-determination is political will. Exercise of all possible forms of Palestinian self-determination depend upon the political will of the UN and its members to bring Israel into compliance with international law and end its policies of population transfer and its regime of occupation, apartheid, and colonialism which oppresses the Palestinian people. As under apartheid in South Africa, no progress can be achieved towards Palestinian self-determination as long as Israel's discriminatory regime is permitted to prevail.