Monday, February 28, 2011

Legal Mumbo-Jumbo on a 'Palestinian' State

I found this excerpt from "Sovereignty, Colonialism and the 'State' of Palestine Under International Law" by John Reynolds, Irish Centre for Human Rights, June 13, 2009 and my comments follow:

The creation of a Palestinian State in some form has been envisaged since at least 1922, when Palestine came under British Mandate pursuant to Article 22 of the League of Nations Covenant. According to the British Colonial Secretary:

His Majesty’s Government conceived it as of the essence of such a mandate as the Palestine mandate, an A mandate, and of Article 22 of the Covenant, that Palestine should be developed, not as a British colony permanently under British rule, but as a self-governing State or States with the right of autonomous evolution.25

By the time of the UN Partition Plan in 1947, conceptions of that State had changed according to prevailing social and political circumstances, but it still had not come to fruition. The annex on Palestine contained in the 1945 Pact of the Arab League stated that:

Even though Palestine was not able to control her own destiny, it was on the basis of the recognition of her independence that the Covenant of the League of Nations determined a system of government for her.


Her existence and her independence among the nations can, therefore, no more be questioned de jure than the independence of any of the other Arab States.


Even though the outward signs of this independence have remained veiled as a result of force majeure, it is not fitting that this should be an obstacle to the participation of Palestine in the work of the League.

Palestine formally became a member of the League of Arab States on 9 September 1976, and on 15 November 1988 the Palestine National Council (PNC) declared the existence of the State of Palestine, in what is known as the ‘Algiers Declaration’.26 The Declaration was “an attempt to affirm the reasonableness and international legal legitimacy of the Palestinian cause”,27 and was followed by attempts on the part of the Palestine Liberation Organisation (PLO)28 to accede to international legal treaties and elicit membership of several UN specialised agencies. The recent declaration to the International Criminal Court by the Minister of Justice of the Palestinian Authority (the interim self-government authority established by the Oslo Accords between Israel and the PLO in the 1990s) appears to be a continuation of this strategy, which is broadly aimed at advancing the PLO’s political aspiration of Palestinian statehood by reconciling it with the legal framework established by the UN and accepted by the majority of the international community for resolution of the question of Palestine; that is, a two-state solution. The question with which this paper is concerned is not whether such a solution is viable or desirable or realistic, or whether placing faith in the established paradigm of State-building generally is even, given the history of decolonisation, the appropriate framework for succeeding foreign rule, but whether the Palestinian claims to statehood are supported by the salient norms of international law, set out briefly in the previous section.

On the face of it, many of the criteria for statehood could be said to be satisfied to certain extents in the Palestinian context. The Palestinians, as a people that identifies itself as a national group connected to a Palestinian homeland, are recognised as a people with the right to self-determination. Part of that people, the Palestinian population of the OPT — comprising the vast majority of that territory’s population and living together in it as an organised community—could be said to constitute a permanent population for the purposes of the criteria for statehood in international law.29


25 See the statement dated 5 August 1937 by Mr. Ormsby-Gore, the Colonial Secretary, at the League of Nations, Permanent Mandates Commission, Minutes of the Thirty-Second (Extraordinary) Session devoted to Palestine, held at Geneva from 30 July 30 to 18 August 18 1937, including the Report of the Commission to the Council, Official No. C.330.M.222 1937. VI, p. 87.
26 Palestine National Council, Declaration of Independence, 15 November 1988, UN Doc. A/43/827-S/20278, 18 November 1988.
27 Omar Dajani, ‘Stalled between seasons: The International Legal Status of Palestine During the Interim Period’, (1997-98) 26 Denver Journal of International Law and Policy 27, at 59.
28 The PLO has been recognised by the UN General Assembly, as well as by the Government of Israel, as the legitimate representative of the Palestinian people. See General Assembly resolution 3236 (1974), UN Doc. A/9361, and Letter from Yitzhak Rabin to Yasser Arafat (9 September 1993), reprinted in The Palestinian-Israeli Peace Agreement: A Documentary Record (Institute for Palestine Studies, 1993), at 128-129, respectively. 
29 It must be noted, however, that Israel at present retains ultimate control over that population in terms of its population registry, of who may enter and leave the OPT, where they may reside, etc.

The first problem with this presentation begins with the very first presumption of

The creation of a Palestinian State

Actually, the idea was the reconstitution of the Jewish national home in which Arabs had no special mention but were lumped together in the demographic pool of simply "non-Jews".

Here:

Whereas the Principal Allied Powers have also agreed that the Mandatory should be responsible for putting into effect the declaration originally made on November 2nd, 1917, by the Government of His Britannic Majesty, and adopted by the said Powers, in favor of the establishment in Palestine of a national home for the Jewish people, it being clearly understood that nothing should be done which might prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country; and Whereas recognition has thereby been given to the historical connection of the Jewish people with Palestine and to the grounds for reconstituting their national home in that country;

The second problem is in this formulation:

conceptions of that State had changed according to prevailing social and political circumstances,

Those circumstances were mainly the illegal attempt by Arabs to violently thwart the Mandate decision and deny Jews any place for their "home" anywhere in the territory definbed as "Palestine". Moreover, the British betrayed the Mandate decision in 1939 by issuing a White Paper policy statement that was considered an illegal act in that it broke with the terms of the British Mandate as decreed by the League of Nations and the Balfour Declaration.

As happened

...in the report of the Permanent Mandates Commission to the Council of the League, the Commission unanimously stated that:

•... the policy set out in the White Paper was not in accordance with the interpretation which, in agreement with the Mandatory Power and the Council, the Commission had placed upon the Palestine Mandate.

As the paper makes clear:

...His Majesty's Government therefore now declare unequivocally that it is not part of their policy that Palestine should become a Jewish State.

A third point is this terminology:

the history of decolonisation, the appropriate framework for succeeding foreign rule

Despite repeated attempts by Arabs and their supporters, Jews returning to their national patrimony were not and are not "colonisers" or engaged in "colonisation". (and read this)

The fourth negative element is this

The Palestinians, as a people that identifies itself as a national group connected to a Palestinian homeland

Self-identification is simply not sufficient especially as there is an internationally legally-recognized pre-claim by the Jewish people that surely is superior to any Arab-related claim since the Arabs were conquerors and occupiers of the Jewish homeland beginning in 638 CE, 2000 years after the Jewish presence.  During the Mandate period, the nationality of "Palestinian" applied to Jews and non-Jews as so even according to this "analysis", Jews still have at least (and so much more) an equal claim as any Arab.

Today, the assertion of a separate "Arab Palestinian" identity, which is distinct from, say, Jordanian identity in that Jordan was a fiction of British colonialism from the March 1921 Cairo Conference, is a fabrication and cannot compare with the historical, religious, cultural and physical connection Jews had and have with the Land of Israel.

In all, Reynold's legal mumbo-jumbo is all blarney (in the sense of: cajolery; deceptive or misleading talk; nonsense; hooey).  Which is too bad since Reynold is a doctoral candidate at the Irish Centre for Human Rights and also a Government of Ireland Scholar; NUI Travelling Scholar; LL.M International Human Rights Law (NUI Galway); BBLS (University College Dublin) .  His academic papers are here.

Mr. Reynold seems to be be ideologically driven by a political viewpoint, which is unfortunate for him and academia.

^

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Anonymous said...

on fabrications and invaders..

Maxime Rodinson: "The Arab population of Palestine were native in all the usual senses of that word. Ignorance, sometimes backed up by hypocritical propaganda, has spread a number of misconceptions on this subject, unfortunately very widely held. It has been said that since the Arabs took the country by military conquest in the seventh century, they are occupiers like any other, like the Romans, the Crusaders and the Turks. Why therefore should they be regarded as any more native than the others, and in particular than the Jews, who were native to that country in ancient times, or at least occupiers of longer standing? To the historian the answer is obvious. A small contingent of Arabs from Arabia did indeed conquer the country in the seventh century. But as a result of factors which were briefly outlined in the first chapter of this book, the Palestinian population soon became Arabized under Arab domination, just as earlier it had been Hebraicized, Aramaicized, to some degree even Hellenized. It became Arab in a way that it was never to become Latinized or Ottomanized. The invaded melted with the invaders. It is ridiculous to call the English of today invaders and occupiers, on the grounds that England was conquered from Celtic peoples by the Angles, Saxons and Jutes in the fifth and sixth centuries. The population was “Anglicized” and nobody suggests that the peoples which have more or less preserved the Celtic tongues – the Irish, the Welsh or the Bretons – should be regarded as the true natives of Kent or Suffolk, with greater titles to these territories than the English who live in those counties.”

the choice to call this blog 'my right word' brought to my mind a sentence of george orwell: it can never miss the word 'peace' when you want to make a war.