1 Koskenniemi, Martti, “National Self-Determination Today: Problems of Legal Theory and Practice”, (1994) 43 Int'l & Comp. L.Q. 241, at 245–9CrossRefGoogle Scholar; see also Ofuatey-Kodjoe, W., The Principle of Self-Determination in International Law (1977) 10–11 Google Scholar.

2 See, e.g., Cassese, Antonio, Self-Determination of Peoples: A Legal Reappraisal (1995) 140 Google Scholar; see also Brownlie, Ian, Principles of Public International Law (1990) 515 Google Scholar; Frowein, Jochen A., “Self-Determination as a Limit to Obligations Under International Law”, in Tomuschat, Christian, ed., Modern Law of Self Determination (1993) 211, at 218 Google Scholar; Espiell, Hector Gros, “Implementation of United Nations Resolutions Relating to the Right of Peoples Under Colonial and Alien Domination to Self-Determination”, (1977)Google Scholar Study for the Sub-commission on Prevention of Discrimination and Protection of Minorities of the Commission on Human Rights, at para. 63, UN Doc. E/CN.4/Sub.2/390 22.

3 See, e.g., Verzijl, J. H. W., International Law in Historical Perspective, vol. 1 (1968) 321–9Google Scholar; see also Emerson, Rupert, “Self-Determination”, (1971) 10 Am. J. Int'l L. 459, at 464–5Google Scholar; Green, L. C., “Self-Determination and Settlement of the Arab-Israeli Conflict”, (1971) 65 Am. Soc'y Int'l L. Proc. 40 CrossRefGoogle Scholar.

4 See, e.g., Schoenberg, Harris O., “Limits of Self-Determination”, (1976) 6 Is. Y.B. Hum. Rts. 91, at 93 Google Scholar; see also Sureda, A. Rigo, The Evolution of the Right of Self-Determination (1973) 26 Google Scholar; Mendelson, Maurice, “Self-Determination in Jamuu and Kashmir”, (1996) 36 Indian J. Int'l L. 1, at 2 Google Scholar.

5 See, e.g., Ofuatey-Kodjoe, supra n. 1, at 149.

6 Blum, Yehuda Z., “Reflections on the Changing Concept of Self-Determination”, (1975) 10 Is. L.R. 509, at 510 Google Scholar.

7 Ibid., at 511.

8 See, e.g., Emerson, supra n. 3, at 464-5; see also Halberstam, Malvina, “Nationalism and Self-Determination: The Arab-Israeli Conflict”, (1994) 24 N.Y.U.J. Int'l L. & Pol. 573 Google Scholar.

9 Koskenniemi, supra n. 1, at 242.

10 Bassiouni, M.C., “‘Self-Determination’ and the Palestinians”, (1971) 65 Am. Soc'y Int'l L. Proc. 30, at 33 Google Scholar; see also Pomerance, Michla, Self-Determination in Law and Practice: The New Doctrine in the United Nations (1982) 74 Google Scholar.

11 Bilder, Richard B., (1996) 90 Am. J. Int'l L. 331 (book review)CrossRefGoogle Scholar.

12 Falk, Richard, “The Content of the Right to Self-Determination”, in Tibet: The Position in International Law (1994) 81, at 82 Google Scholar.

13 Referred to as external self-determination.

14 Referred to as internal self-determination. See Buchheit, Lee C., Secession: The Legitimacy of Self-Determination (1978) 14 Google Scholar.

15 Ibid. This latter form of self-determination is often termed economic self-determination.

16 Cassese, supra n. 2, at 11. Note also the American Declaration of Independence of July 4, 1776, declared that governments derived their power “from the consent of the governed” and that “whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or abolish it”.

17 Rigo Sureda, supra n. 4, at 17.

18 Ibid., at 18. Thus, the French notion of popular sovereignty was often relied upon to justify annexation of territories, such as Alsace and Avignon, on the grounds that the French residents of those territories should not be subject to foreign rule.

19 Cassese, supra n. 2, at 12.

20 Carr, E. H., The Bolshevik Revolution (1969) 416–417 Google Scholar.

21 The socialist doctrine applied equally to ethnic, national and indigenous populations, but emphasized decolonization. See Cassese, supra n. 2, at 16.

22 Thürer, Daniel, “Self-Determination”, in Bernhardt, R., ed., Encyclopedia of International Law (vol. 8, 1981) 470 Google Scholar. Still, the continued Soviet promotion of self-determination, particularly in its anti-colonial form, played a decisive role in the eventual inclusion of self-determination in the Charter of the United Nations and the declarations of its organs. See infra sec. 3.2.

23 Pomerance, supra n. 10, at 1.

24 Cassese, supra n. 2, at 20.

25 See Point 5 of the “Fourteen Points” which states that ‘the interests of the populations concerned must have equal weight with the equitable claims of the Government whose title is to be determined’ reprinted in Baker, R. S. & Dodd, W. E. (eds.), War and Peace: Presidential Messages, Addresses and Public Papers, vol. 1 (1927) 159 Google Scholar.

26 These ideas were foreign to the realpolitik to which Wilson's European counterparts were accustomed. See Kissinger, Henry, Diplomacy (1994) 221–2Google Scholar.

27 Cassese, supra n. 2, at 23.

28 Indeed, Art. 3 of the US draft to the Covenant which endorsed self-determination and territorial integrity as principles to be involved in decisions related to territorial adjustments was not incorporated in the final text. Lansing, Robert, The Peace Negotiations — A Personal Narrative (1921) 283 Google Scholar.

29 Though only after the Bolshevik Revolution and after the United States entered the war. See Rigo Sureda, supra n. 4, at 20.

30 In the Treaty of Versailles (28 June 1919), for example, portions of Germany were transferred to the newly established states of Poland and Czechoslovakia without due consideration of the interests of the indigenous populace. See generally Cobban, Alfred, The Nation State and National Self-Determination (1969) 16–23 Google Scholar; see also Rigo Sureda, supra n. 4, at 21; Kissinger, supra n. 26, at 240.

31 See generally Pomerance, supra n. 10, at 1-9.

32 As far as internal self-determination, the allies made no real demands for democratic governance and settled for selective guarantees relating to minority rights in certain states. See Thornberry, Patrick, “Self-Determination, Minorities, Human Rights: A Review of International Instruments”, (1989) 38 Int'l & Comp. L.Q. 867, at 868–9CrossRefGoogle Scholar.

33 Still, the League Mandate System, structured as a compromise between the self-determination ideal and the interests of the occupying powers, reflected both the importance and the variable nature of self-determination as a political principle. See Thürer, supra n. 22, at 471; see also remarks of Nanda, V.P., “Self-Determination: The Case of Palestine”, (1988) 82 Am. Soc'y Int'l L. Proc. 334, at 335 Google Scholar.

34 The Committee was asked to consider whether the inhabitants of the Aaland Islands were free, in accordance with international law, to secede from Finland and be integrated into Sweden.

35 Report of the International Committee of Jurists Entrusted by the Council of the League of Nations with the Task of Giving an Advisory Opinion upon the Legal Aspects of the Aaland Islands Question, League of Nations O.J. Spec. Supp. (1920) 3, at 5.

36 Ibid., at 6.

37 See supra n. 32.

38 The variable content of self-determination was further elaborated by the Committee of Jurists and a Commission of Rapporteurs, subsequently appointed, who suggested that in certain circumstances of minority persecution, secession could be contemplated. See Cassese, supra n. 2, at 31.

39 Ronen, D., The Quest for Self-Determination (1979) 9–12 Google Scholar.

40 These provisions were restated in several instruments during the war, such as the Moscow Declaration of 1943, see Thürer, supra n. 22, at 471.

41 Cassese, supra n. 2, at 37. See Laing, Edward A., “The Norm of Self-determination 1941-1991”, (1991/1992) 22 Cal. W. Int'l L.J. 209 Google Scholar, who argues that self-determination became a customary norm through this Charter.

42 Cristescu, Aureliu, United Nations Sub-commission on Prevention of Discrimination and Protection of Minorities, The Right to Self-Determination: Historical and Current Developments on the Basis of United Nations Instruments, (1981) at para. 16, E/CN.4/Sub.2/404/Rev. 1, (hereinafter Cristescu Report)Google Scholar.

43 Ibid.

44 Among them, Belgium, Colombia and Egypt. Ibid., at para. 17.

45 See e.g. Kirgis, Fredric L., “The Degrees of Self-Determination in the United Nations Era”, (1994) 88 Am. J. Int'l L. 304 CrossRefGoogle Scholar; Mallison, Sally V. & Mallison, W. Thomas Jr., “The Juridical Bases for Palestinian Self-Determination”, (1984) 1 Pal. Y.B. Int'l L. 36, at 39–40 Google Scholar.

46 Pomerance, supra n. 10, at 9; see also Blum, supra n. 6, at 511.

47 While Art. 56 requires members to pledge themselves to the achievement of the purposes of Art. 55, arguably this does not amount to the imposition of any direct duty on U.N. members regarding self-determination.

48 It is clear from these and other provisions of the Charter that the primary subjects of the Charter are states. Self-determination of peoples will only be relevant to the extent that it furthers relations between states. See Thamilmaran, V.T., “What is a Nation? Limits of Self-Determination”, (1995) 7 Sri Lanka J. Int'l L. 165, at 172 Google Scholar; see also Thürer, supra n. 22, at 472. Indeed, it has been suggested by some scholars that, particularly in the beginning phases of the United Nations, the somewhat vague phrase referring to ‘equal rights and self-determination of peoples’ in fact represents a mere affirmation of the sovereign equality of states. See e.g., Kelsen, Hans, The Law of the United Nations (1950) 99–101 Google Scholar; see also Thürer, supra n. 22, at 472.

49 Pomerance, supra n. 10, at 9.

50 Moreover, the lack of any definitional criteria in the Charter of such a varied notion as self-determination serves to confirm the non-binding nature of self-determination in Arts. 1(2) and 55.

51 Mendelson, supra n. 4, at 6.

52 Dinstein, Yoram, “Self-Determination and the Middle East Conflict”, in Alexander, Yonah and Friedlander, Robert, eds., Self-Determination: National, Regional and Global Dimensions (1980) 243, at 245 Google Scholar.

53 See Pomerance, supra n. 10, at 10.

54 See Advisory Opinion on Western Sahara (Morocco v. Spain), (1975) 12 I.C.J. 110 (Oct. 16) (separate opinion of Judge Petrén) (hereinafter Western Sahara case).

55 Cassese, supra n. 2, at 44.

56 GA Res. 1541(XV), U.N. G.A.O.R, 15th Sess., Supp. No. 16, at 29, U.N. Doc. A/4684 (1960); passed by a vote of 69-2 (South Africa, Portugal) with 21 abstentions.

57 Pomerance, supra a. 10, at 11.

58 GA Res. 1514(XV), U.N. GAOR, 15th Sess., Supp. No. 16, at 66, U.N. Doc. A/L323 (1960). There were many other resolution concerning the illegitimacy of colonialism, for example: GA Res 2189(XXI) of December 13, 1966; GA Res. 2326(XXII) of December 16, 1967; GA Res. 2465(XXIII) of December 20, 1968; GA Res. 2708(XXV) of December 14, 1970; and GA Res. 2878(XXVI) of December 20, 1971. However, Resolution 1514 represented the turning point as far as the United Nations position on colonial rule was concerned.

59 Australia, Belgium, Dominican Republic, France, Portugal, Spain, South Africa, UK and US.

60 Cristescu Report, supra n. 42, at para. 149.

61 See Pomerance, supra n. 10, at 11, who states that Resolution 1514 was “the beginning of a revolutionary process within the United Nations and represented, by its terms, an attempt to revise the Charter in a binding manner”.

62 Declaration on Principles of International Law concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, GA Res. 2625(XXV), U.N. GAOR, 25th Sess., Supp. No. 28, at 121 (1970); (hereinafter Friendly Relations Declaration).

63 Pomerance, supra n. 10, at 12.

64 See Buchheit, supra n. 14, at 85. Buchheit argues that in light of the context of Resolution 1514 it is “inescapable that the use of the phrase ‘self-determination’ in the Declaration means ‘colonial self-determination’”, ibid., 87. The use of the term “all” is best explained by the political dynamics that were prevalent at the drafting of the Declaration. See Cassese, supra n. 2, at 52.

65 See infra n. 105 and accompanying text.

66 See supra sec. 2.2.

67 See generally Blay, S.K.N., “Self-Determination Versus Territorial Integrity in Decolonization”, (1988) 18 N.Y.U.J. Int'l L. & Pol. 441 Google Scholar.

68 Resolution 2625, for example, suggests that the distinct status of a non-self-governing territory ceases once the right of self-determination has been exercised by the colonial peoples. It could also be argued that Resolution 2625 in recognizing a right to self-determination “in accordance with the Charter” limits the application of self-determination by other Charter principles.

69 Higgins, Rosalyn, The Development of International Law Through the Political Organs of the United Nations (1963) 5 Google Scholar.

70 Ibid.

71 Military and Paramilitary Activities (Nicaragua v. U.S.) (1986) 4 I.C.J. 100 (June 27); see also Charlesworth, H., “Customary International Law and the Nicaragua Case”, (1991) 11 Aust. Y.B. Int'l L. 1 Google Scholar.

72 Mendelson, supra n. 4, at 11. But see Mallison, supra n. 45, at 40.

73 See generally Espiell, supra n. 2; see generally also Rigo Sureda, supra n. 4.

74 These include, the annexation of West Irian and East Timor by Indonesia and India's annexation of Goa. In addition, the situation in Western Sahara, Gibraltar and the Falklands Islands remain to be resolved, see Cassese, supra n. 2, at 86.

75 Cass, Deborah, “Rethinking Self-Determination: A Critical Analysis of Current International Law Theories”, (1992) 18 Syracuse J. Int'l L. & Com. 21, at 27 Google Scholar; see also Thürer, supra n. 22, at 473. But see Emerson, supra n. 3 at, 461.

76 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), (1971) I.C.J. 16 (Advisory Opinion of June 21) (hereinafter Namibia case).

77 Western Sahara case, supra n. 54.

78 Namibia case, supra n. 76, at 31.

79 Western Sahara case, supra n. 54, at 54-56.

80 Ibid.

81 See supra nn. 67 and 68 and accompanying text.

82 Indeed, the “people”, as far as colonial self-determination is concerned, may have little more in common than their hatred for the colonial power, see Koskenniemi, supra n. 1, at 261.

83 Emerson, supra n. 3, at 463; see also Buchheit, supra n. 14, at 103.

84 Emerson, supra n. 3, at 464. This was clearly illustrated by U.N. approval of Nigeria's opposition to the establishment in Eastern Nigeria in 1967 of the independent Republic of Biafra by the Ibo tribe. Once Nigeria had attained independent status from the British in 1960, resort to self-determination by its ethnic minorities was not accepted.

85 Secretary-General U Thant, 7 U.N. Monthly Chronicle 36 (Feb., 1970). He went on to say: “Regarding the … question of self-determination, I think this concept is not properly understood in many parts of the world. Self-determination of the peoples does not imply self-determination of a section of a population of a particular Member State …” Ibid.

86 This doctrine requires the preservation of territorial boundaries existing under old regimes even after independence is achieved. See generally, Klabbers, J. and Lefeber, R., “Africa: Lost Between Self-Determination and Uti Posseditis”, in Brölman, Catherine, Lefeber, René and Zieck, Marjoleine, eds., Peoples and Minorities in International Law (1993) 37 Google Scholar.

87 Frontier Land Case (Burkino Faso v. Mali) 1986 I.C.J. 554. In this case the court stated that “the essential requirement of stability … has induced African states judiciously to consent to the respecting of colonial frontiers, and to take account of it in the interpretation of the principle of self-determination of peoples”. Ibid., at 566-567.

88 That the exercise of colonial self-determination is subject to existing borders is implicit in the primacy given to territorial integrity not only in the United Nations Charter, but also in the General Assembly resolutions which purport to grant a wholesale right to all peoples to self-determination. See, e.g., Para. 6 of Resolution 1514, supra n. 58.

89 Kirgis, supra n. 45, at 306-307.

90 Western Sahara case, supra n. 54, at 110.

91 It has been suggested that in decolonization what is granted is not a new right to political status but restoration to the colonized people of a right of which they were forcibly deprived by the colonial power. See Bhalla, R.S., “The Right of Self-Determination in International Law”, in Twining, William, ed., Issues of Self-Determination (1991) 91, at 92 Google Scholar; see also Emerson, supra n. 3, at 465.

92 See also Para. 5 of Resolution 1514 which refers to self-determination in “all other territories which have not yet attained independence”, supra n. 58.

93 See generally supra sec. 3.2.

94 See, e.g., U.N. GA Res. 38/16 (1983), reprinted in 1983 U.N. Y.B., at 828 which refer to foreign military intervention, aggression and occupation as infringements on the right to self-determination.

95 See Cassese, supra n. 2, at note 86 and accompanying text, where Cassese questions the doctrine's applicability to the Chinese occupation of Tibet since Tibet never constituted a “foreign country”.

96 Such as the Soviet incursion into Afghanistan or the Iraqi invasion of Kuwait. Ibid., at 96.

97 The right, therefore, will amount to the restoration of the previous sovereign rather than the grant of a new right of peoples to self-determination; it will expire once the occupying forces have withdrawn; and the “people” entitled to it may not be a homogenous group but identifiable only by their subjection to occupation.

98 Cassese, supra n. 2, at 94-99.

99 Emerson, supra n. 3, at 475; see also Buchheit, supra n. 14, at 44.

100 Thürer, supra n. 22, at 474.

101 See generally Maksoud, Clovis, “Autonomy and Minorities: The Status of the Kurds and the Palestinians”, (1994) 16 Loy. L.A. Int'l & Comp. L.J. 291 Google Scholar; Ewald, Gregory J., “The Kurds' Right to Secede Under International Law: Self-Determination Prevails over Political Manipulation”, (1994) 22 Denv. J. Int'l L. & Pol'y 375 Google Scholar. Consider also the political impact on claims of such groups as the Ibos, Armenians and Tibetans.

102 See generally, Buchheit, supra n. 14, at 198-215.

103 Emerson, supra n. 3, at 475; see also Schoenberg, supra n. 4, at 91.

104 See generally, Hannum, Hurst, “Rethinking Self-Determination”, (1993) 34 Va. J. Int'l L. 1, at 41–57 Google Scholar.

105 Buchheit, supra n. 14, at 45; see also Blum, supra n. 6, at 514.

106 Schoenberg, supra n. 4, at 94.

107 Buchheit, supra n. 14, at 222. This proposition is derived primarily from para. 7 of the Friendly Relations Declaration which suggests that self-determination may prevail over territorial integrity where a regime is particularly discriminatory. See supra n. 62 and accompanying text.

108 Buchheit, and other scholars promoting limited rights of secession, concede that any such rights must be carefully balanced. See generally, Kirgis, supra n. 45; Cobban, supra n. 30, at 138.

109 Buchheit, supra n. 14, at 223.

110 Similar references may be found in other non-binding international declarations. See, e.g., Cassese, supra n. 2, at 277-302, who discusses the import of the Helsinki Final Act of 1975 and the Algiers Declaration of 1976. Each declaration includes references to broad rights to self-determination; neither, however, are supported by state practice.

111 Pomerance, supra n. 10, at 74.

112 999 U.N.T.S. 171 (signed 1966, in force since 1976, 131 state parties) (hereinafter ICPR).

113 993 U.N.T.S. 3 (signed 1966, in force since 1976, 132 state parties).

114 GA. Res. 217(III), U.N. GAOR, 3rd Sess., Part I, at 71 (1948).

115 Hannum, supra n. 104, at 29.

116 See generally Pomerance, supra n. 10, at 14-23.

117 Anna Michalska, “Rights of Peoples to Self-Determination in International Law”, in Twining, ed., supra n. 90, at 7. “[T]he notion of peoples is ambiguous and used in different contexts. For instance, it can be related to a community which is organised in its own state: to ‘people’ of a colonial state, to a community which does not have its own state and is not part of any other state. The notion can refer to minorities of various kinds … The meaning of the notion ‘people’ is subject to whom and to what purpose and under what conditions this notion is used”.

118 Hannum, supra n. 104, at 35. It is unclear, however, whether all or only some of these characteristics need to be present, see Dinstein, supra n. 52, at 246, who suggests that the key elements are ethnicity and history.

119 Dinstein, supra n. 52, at 248-250.

120 Emerson, supra n. 3, at 463.

121 Hannum, supra n. 104, at 19.

122 See supra Sec. 3.2.

123 Cassese, supra n. 2, at 48.

124 These states initially argued that self-determination was too nebulous and complex a notion to be translated into legal terms and that it would pose dangers to the territorial integrity of states which harboured minorities; see generally Cassese, supra n. 2, at 50-51.

125 Ibid., at 46.

126 By a vote of 33 to 12 with 13 abstentions; See U.N. G.A.O.R 3rd Comm., 10th Sess., 676th mtg., Agenda Item 28, para. 21, 27.

127 Cassese, supra n. 2, at 52; see also Hannum, supra n. 104, at 24-25.

128 Hannum, supra n. 104, at 19.

129 See Cassese, supra n. 2, at 52.

130 Dinstein, supra n. 52, 247-250. It should be noted that subsequent interpretations of Art. 1 provide little clarification of the scope of the “peoples” covered by these provisions. Interestingly, India has adopted a reservation to Art. 1, stating that it is not to apply to sovereign independent states or to a section of a people or nation. Centre for Human Rights, Human Rights-Status of International Instruments (1987) 9 Google Scholar, U.N. Sales No. E.87.XIV.2. Several states have expressed their objection to this reservation, see Hannum, supra n. 104, at 26. Moreover, the Human Rights Committee, assigned supervisory jurisdiction over the Covenants, has yet to delineate the scope of the right, but its Chairman has suggested that the rights conferred may be narrowly interpreted, see Hannum, supra n. 104, at 27. Still, the plain meaning of the text is not easily dismissed.

131 Emerson, supra n. 3, at 463.

132 Pomerance, supra n. 10, at 2.

133 Halberstam, Malvina, “Self-Determination in the Arab-Israeli Conflict: Meaning Myth, and Politics”, (1989) 21 N.Y.U. J. Int'l L. & Pol. 465, at 466–7Google Scholar. For example, the Ibos' claim to self-determination threatened the rights to territorial integrity of the “people” of Nigeria as a whole.

134 Report of the Human Rights Committee, U.N. GAOR, 42nd Sess., Supp. No. 40, at 106, U.N. Doc. A/42/40 (1987).

135 States in support of its inclusion argued that while self-determination was a collective right, other human rights flowed from it and, thus, its incorporation as the first clause of the Covenants was warranted, see Cristescu Report, supra n. 42, at para. 46.

136 In addition to the factors discussed above, as a human right, self-determination will be subject to the limitations imposed by the Covenants' other provisions. Thus, pursuant to Art. 4 of the ICPR, derogation from the right may be permitted in time of public emergency and under Art. 5 self-determination cannot be implemented in a way that would include activities aimed at the destruction of other rights recognized by the Covenant.

137 McCorquodale, Robert, “Self-Determination: A Human Rights Approach”, (1994) 43 Int'l & Comp. L.Q. 857, at 873 CrossRefGoogle Scholar.

138 Anaya, S. James, “The Capacity of International Law to Advance Ethnic or Nationality Rights Claims”, (1990) 75 Iowa L.R. 837, at 842 Google Scholar.

139 See supra Sec. 4.4 regarding the relevant criteria in weighing the legal merits of a claim.

140 See supra Sec. 3.3 on secession in customary law and Sec. 4.3 for treaty law.

141 Cobban, supra n. 30, at 138.

142 See generally, Lapidoth, Ruth, Autonomy: Flexible Solutions to Ethnic Conflicts (1997)Google Scholar.

143 The Palestine National Charter, reprinted in Laqueur, Walter and Rubin, Barry, eds., The Israel-Arab Reader: A Documentary History of the Middle East Conflict (5th ed., 1995) 218–223 Google Scholar (hereinafter Israel-Arab Reader).

144 Pursuant to Art. 2 of the Charter, “Palestine with the boundaries it had during the British Mandate, is an indivisible territorial unit”.

145 See also Arts. 19, 26, and 29.

146 This is a roof body, governing a variety of Palestinian organizations including, inter alia, the P.L.O., and has the sole jurisdiction to amend the Palestinian Covenant.

147 Palestinian National Council Declaration of Independence, (1988) 27 I.L.M 1668 Google Scholar.

148 See, e.g., Prince, J., “The International Legal Implications of the November 1988 Palestinian Declaration of Statehood”, (1989) 25 Stan. J. Int'l L. 681 Google Scholar; see generally Crawford, J., “The Criteria for Statehood Under International Law”, (1977) 48 Brit. Y.B. Int'l L. 93 Google Scholar.

149 P.L.O. willingness to publicly recognize Israel's right to exist was intimated from 1988 onwards, see Yasser Arafat, Geneva Press Statement (Dec. 15, 1988) reprinted in Lukacs, Yehuda, The Israeli-Palestinian Conflict: A Documentary Record (1992) 434 Google Scholar.

150 These commitments were stated in the Letter from P.L.O. Chairman Arafat to Israeli Prime Minister Rabin (Sept. 9,1993), reprinted in, Israel-Arab Reader, supra n. 142, at 611; and were repeated in the letter from Arafat to Rabin from May 4, 1994, reprinted in “Documents”, (1994) 28 Is. L.R. 430, at 541 Google Scholar. In any event, the obligation exists pursuant to Art. XXXI(9) of the Israeli-Palestinian Interim Agreement, see Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip, Israel-P.L.O., Sept. 28, 1995 (on file with author) (hereinafter IA).

151 It should be noted that on April 24, 1996, the Palestinian National Council convened to amend the P.L.O. Covenant. However, there are both procedural and substantive arguments put forward by various observers to suggest that no amendment actually took place. See, e.g., Watch, Peace, PNC Vote Does Not Fulfil P.L.O. Obligation to Amend Covenant, April 25, 1996 Google Scholar.

152 Israel-Arab Reader, supra n. 142, at 611-612. Up to this point there was no formal recognition by either party of each other's existence. Consequently, these letters were considered necessary preconditions to the signing of the Declaration of Principles, Declaration of Principles on Interim Self-Government Arrangements, Sept. 13, 1993, Israel-P.L.O., (1993) 32 I.L.M 1525 (hereinafter DOP)Google Scholar.

153 In his letter of recognition to Rabin, Arafat affirmed that “The P.L.O. recognizes the right of the State of Israel to exist in peace and security”. Moreover, Security Council Resolutions 242 and 338, the agreed basis for settlement of the conflict, require respect and acknowledgment of the sovereignty, territorial integrity and political independence of every state in the area, see infra Sec. 6.4.2.

154 See, e.g., “Israel Warns Against Palestinian Declaration”, Washington Post, April 27, 1998 at A12 Google Scholar. See also Kusher, Isabel, “Palestine Rising”, Jerusalem Report, July 6, 1998, at 22 Google Scholar.

155 See supra Sec. 4.2.

156 The discussion here centres on whether the Palestinians may be considered an ethnic people. This is because the Palestinian claim to self-determination is based on the general relative right to self-determination and not rights under the categories of decolonization or military occupation which would define the “people” as the population under foreign rule. See infra Sec. 6.3.

157 But see comments of Zuhair Muhsin, Head of P.L.O. Military Operations Department, March 1977, reprinted in Letter from the Permanent Representative of Israel to the U.N. Secretary General Concerning an Israeli-Sponsored Study of the Rights of Palestinians Under International Law, at para. 70, S/14045, U.N. Doc. a/35/316 (1980): (hereinafter Israeli Study on Palestinian Rights). Muhsin is reported to have said “There are no differences between Jordanians, Palestinians, Syrians and Lebanese … We are one people. Only for political reasons do we carefully underline our Palestinian identity”. See also Halberstam, supra n. 133, at 474 who argues that Art. 1 of the Palestinian Covenant stating that “the Palestinian people are an integral part of the Arab nation” confirms that by their own admission Palestinians are not a distinct group. It is submitted, however, that the fact that the Palestinian people belong to a wider nation does not deprive them of the status as a “people”. See Dinstein, Yoram, “Opening Remarks”, (1989) 21 N.Y.U.J. Int'l L. & Pol. 451, at 453 Google Scholar on the distinction between “people” and “nation”.

158 Art. 5 of the Covenant defines Palestinians as Arab nationals who, until 1947, normally resided in Palestine regardless of whether they were evicted from it or stayed there. Anyone born after that date, of a Palestinian father is also Palestinian. Interestingly, Art. 6 provides that Jews residing in Palestine prior to the “Zionist Invasion” will be considered Palestinian. Still, Art. 20 maintains that Jews do not “constitute a single nation with an identity of its own; they are citizens of the states to which they belong”. It is an unfortunate but prevalent characteristic of this long conflict that both Jews and Palestinians have often denied each other's peoplehood.

159 See, e.g., Nakleh, I., “Self-Determination: The Case of Palestine”, (1988) 82 Am. Soc'y Int'l L. Proc. 334, at 336 Google Scholar; see also Bassiouni, supra n. 10, at 34.

160 See Peters, Joan, From Time Immemorial (1984) 13–15 Google Scholar; see also Israeli Study on Palestinian Rights, supra n. 157, at paras. 69-72, where Julius Stone argues that throughout history “Palestine” never referred to a defined cultural entity. A distinct Palestinian self-identity emerged only during the 1960's at the time of the adoption of the Palestinian National Charter; see also Blum, Yehuda, “Self-Determination: The Case of Palestine”, (1988) 82 Am. Soc'y Int'l L. Proc. 334, at 339 Google Scholar.

161 Koskenniemi, supra n. 1, at 262; see also Dinstein, supra n. 157, at 455.

162 Halberstam, supra n. 133, at 474.

163 Canuel, Edward T., “Nationalism, Self-Determination, and Nationalist Movements: Exploring the Palestinian and Quebec Drives for Independence”, (1997) 20 B.C. Int'l & Comp. L.R. 85, at 100 Google Scholar.

164 See e.g. GA Res. 2535B(XXIV), 24 U.N. GAOR, Supp. 30 at 25-26 (1969); GA Res. 2672C(XXV), 25 U.N. GAOR, Supp. 28 at 36 (1970); GA Res. 3236(XXIX), 29 U.N. GAOR, Supp. 30 at 4 (1974); all these resolutions refer to the Palestinians as a people.

165 Thus, for instance, in Prime Minister Begin's Autonomy Plan of 1977, the tarm used to refer to Palestinians was “Arab Residents”; see Prime Minister Menachem Begin, “Autonomy Plan for the Occupied Territories”, Dec. 28, 1977 reprinted in Israel-Arab Reader, supra n. 143, at 400-402. By contrast, only several months later, in the Camp David Frameworks for Peace, the reference is to the “Palestinian people”. See “Camp David Frameworks for Peace”, Sept. 17, 1978, U.S.-Israel, reprinted ibid., 404-409. Though, in a subsequent letter to President Carter, Begin clarified that the term “Palestinian people” was a reference to the Palestinian Arabs. Later, Prime Minister Shamir's Peace Plan reverted back to less definitive language speaking of “Palestinian Arab inhabitants”. See Yitzchak Shamir, “Peace Plan”, May 14, 1989, reprinted ibid., 547-551.

166 At least as far as relations between Israel and the Palestinians are concerned.

167 See e.g. Art. III, Art. V of the DOP and Art. II(9), and Art. III of the IA. There are also references to Palestinian people in the preparatory agreements that preceded the IA but they have been superseded, pursuant to Art. XXXI(2) of that latter agreement.

168 It could be argued that Art. XXXI(6) of the IA and Art. V(4) of the DOP, providing that the agreements should not be construed as a renunciation or waiver of any right, claim or position, would enable Israel to return to a position rejecting Palestinian peoplehood. However, it might be suggested that these clauses do not go to the issue of recognition which was first established by the letters of mutual recognition of Sept. 9, 1993, but rather to agreements reached subsequent to that recognition.

169 Yasser Arafat, U.N. GAOR 29th Sess., 2282 Mtg, A/PV.2282 and Corr.1 paras. 26-28; see also V. Nanda, supra n. 33, at 337.

170 Mandate for Palestine, 1922, (1931) 1 Hudson International Legislation 109.

171 The Mandate for Palestine incorporated in its terms the Balfour Declaration of 1917, see Israel-Arab Reader, supra n. 143, at 16.

172 Cattan, Henry, Palestine and International Law: The Legal Aspects of the Arab-Israeli Conflict (1976) 65–68 Google Scholar.

173 Bassiouni, supra n. 10, at 38.

174 Several authors have cast doubt on the Palestinian argument, see generally Feinberg, Nathan, Studies in International Law (1970) 451–459 Google Scholar; Weiler, J., “Israel and the Creation of a Palestinian State”, (1982) 17 Texas J. Int'l L. 287 Google Scholar.

175 Clearly, the establishment of a state for the Jewish people cannot be classified as a classic case of colonialism. It did not represent the expansion of an empire into territory under the sovereignty of the indigenous population. Jewish self-determination in Palestine was based on the historic, religious and political claim of the Jewish people to territory that had been under Ottoman sovereignty and was later transferred to Britain acting as the mandatory power. Indeed, it should be noted that a native, albeit small, Jewish population had been present in Palestine ever since the destruction of the ancient Jewish state by the Roman empire. See generally Laqueur, Walter, A History of Zionism (1989)Google Scholar.

176 Under the United Nations Charter, mandate powers are not obligated to convert mandate territory into trust territory. See “International Status of South West Africa”, (1950) I.C.J. 128 Google Scholar (Advisory Opinion of July 11). In the case of the Palestine Mandate no trusteeship agreement facilitating such conversion was made. See Harris, D.J., Cases and Materials on International Law (4th ed., 1991) 125 Google Scholar. Similarly, pursuant to Art. 73(e) of the Charter, it is widely accepted that it is the administering power that determines whether a territory will be deemed “non-self-governing”; no such determination was made regarding Palestine. See Crawford, supra n. 148, at 156. Moreover, at the time of the Mandate no legal right to self-determination had been recognized, its terms, therefore, could not have violated operative legal rights to decolonization.

177 Cassese, supra n. 2, at 131.

178 Jordan was not a legitimate sovereign of West Bank territory between 1948 and 1967, having acquired that territory by illegal resort to force. Indeed, only Britain and Pakistan recognized Jordan's annexation of this territory. See generally Schwebel, Stephen, “What Weight to Conquest?”, (1970) 64 Am. J. Int'l L. 345 CrossRefGoogle Scholar. In any event, in 1988, Jordan relinquished any claims of sovereignty over that territory. See King Hussein, “Disengagement From the West Bank”, reprinted in Israel-Arab Reader, supra n. 143, at 527. Similarly, Egypt never claimed sovereignty to the Gaza strip. It is argued, therefore, that sovereignty was in abeyance in these territories when Israel came to occupy them; see generally Blum, Yehuda, “The Missing Reversioner: Reflections on the Status of Judea and Samaria”, (1968) 3 Is. L.R. 279 CrossRefGoogle Scholar.

179 Feinstein, Barry, “Self-Defence and Israel in International Law: A Reappraisal”, (1976) 11 Is. L.R. 516, at 556 Google Scholar; see also Dinstein, Yoram, War, Aggression and Self-Defence (2nd ed., 1994) 190–191 Google Scholar.

180 S.C. Res. 242, U.N. SCOR, 22nd Sess., 1382d mtg., at 8, U.N. Doc. S/INF/22/Rev. 2 (1967) (hereinafter Resolution 242).

181 See, e.g. G.A. Res. 2535B(XXIV), 24 U.N. GAOR, Supp. 30, at 25-26 (1969); G.A. Res. 2672C(XXV), 25 U.N. GAOR, Supp. 28, at 73-74 (1970); G.A. Res. 3089D(XXVIII), 28 U.N. GAOR, Supp. 30, at 27 (1973); G.A. Res. 3236(XXIX), 29 U.N. GAOR, Supp. 31, at 4 (1974); G.A. Res. ES-7/6, 7 E.S. U.N. GAOR Supp. 1, at 9 (1982). These resolutions often affirm Palestinian rights to national independence and sovereignty.

182 To be sure, the Palestinians themselves do not couch their claim for self-determination in terms of a right on the basis of military occupation since the beneficiaries of the right under the Palestinian claim extend beyond Palestinian residents of occupied territory. See generally Weiner, Justus R., “The Palestinian Refugees' ‘Right to Return’ and the Peace Process”, (1997) 20 B.C. Int'l & Comp. L.R. 1 Google Scholar.

183 See supra Sec. 6.3.1, on the inapplicability of decolonization to the Palestinian case.

184 See supra Sec. 4.

185 Israel is a party to the Human Rights Covenants since 1991.

186 See generally Feinberg, Nathan, “The Recognition of the Jewish People in International Law”, (1948) 1 Jewish Y.B. Int'l L. 1 Google Scholar, see also Frankenstein, Ernst, “The Meaning of the Term ‘National Home for the Jewish People’”, (1948) 1 Jewish Y.B. Int'l L. 27 Google Scholar.

187 Halberstam, supra n. 133, at 465.

188 Gerson, Alan, “Self-Determination the Case of Palestine”, (1988) 82 Am. Soc'y Int'l L. Proc. 334, at 349 Google Scholar.

189 It is argued that the decision of Britain, the Mandatory in Palestine, to create an independent Arab state in mandate territory east of the Jordan River represented fulfilment of Palestinian Arab claims to self-determination. Blum, for example, Israel's delegate to the United Nations, stated in 1980: “By virtue of its history, territory, population and culture, Jordan remains the Palestinian Arab state. The Palestinian Arabs have achieved their self-determination there. More than two-thirds of Jordan's citizens are Palestinian Arabs, and, similarly, the vast majority of Palestinian Arabs are Jordanian citizens … It is patently false therefore, to maintain that the Palestinian Arabs do not have a state of their own”. See Yehuda Blum, U.N. GAOR 35th Sess. Plenary Mtgs., 77th mtg., 1318 paras. 108-9. The argument is further supported on the grounds that claims for the establishment of a Palestinian state in the West Bank and the Gaza Strip did not precede 1967. According to this view Israeli proposals for peace are not related to any recognition of Palestinian rights to self-determination but derive from the need to reach political accommodation with the Palestinian residents of the West Bank and Gaza Strip.

190 Moreover, it is submitted that one can discern a Palestinian identity which is distinct from the national identity of Jordan. Jordan is ruled by the Hashemites, and Palestinian inhabitants, while representing a majority in that state, claim a cultural and historical connection to territory west rather than east of the Jordan.

191 Halberstam, supra n. 8, at 581.

192 See ibid. It should be noted that Israeli arguments relating to the extent of further redeployments of Israeli troops from West Bank territory in accordance with the Interim Agreement have been defended, inter alia, on the grounds that some parts of the West Bank are essential to Israel's security interests. See, e.g., Keinon, Herb, “Government Mulls 11 + 4% Pullback Proposal”, Jerusalem Post, May 25, 1998, at 1 Google Scholar.

193 See e.g., Art. XV of the IA.

194 Cassese, supra n. 2, at 240. This may involve limitations on Palestinian security jurisdiction; restriction on immigration to the Palestinian entity; limitations on the territorial boundaries of the Palestinian entity; and a status short of statehood. Arguably, the Israeli government's present position of “autonomy plus or state minus” for the Palestinians is legally defensible on these grounds.

195 According to Art. V(2) of the DOP and XXXI(5) of the IA, such negotiations were to commence no later that May 4, 1996 and indeed formal talks on final status issues between Israeli and Palestinian negotiators were commenced at Taba on this date. The negotiations are to conclude no later than May 4, 1999 — the termination date for the interim self-government arrangements established under present Israeli-Palestinian agreements.

196 Art. XXXI(6) states: “Nothing in this Agreement, shall prejudice or pre-empt the outcome of the negotiations on the permanent status to be conducted pursuant to the DOP. Neither party shall be deemed, by virtue of having entered into this Agreement, to have renounced or waived any of its existing rights, claims or positions”.

197 It is interesting to note that in the Reagan Peace Plan of 1982, President Reagan stipulated that “the United States will not support the establishment of an independent Palestinian state in the West Bank and Gaza, and we will not support annexation or permanent control by Israel”. See “The Reagan Plan”, reprinted in Israel-Arab Reader, supra n. 143, at 439, at 444.

198 See supra n. 180 and accompanying text.

199 S.C. Res. 338, U.N. SCOR, 28th Seas., 1747th mtg., at 10, U.N. Doc. S/INF/29 & Add. 1 (1973).

200 Lapidoth, Ruth, “Security Council Resolution 242 at Twenty Five”, (1992) 26 Is. L.R. 295, at 306–311 Google Scholar.

201 Ibid., at 307-308.

202 Camp David Frameworks for Peace, supra n. 165, at 406.

203 Blum, Yehuda, “From Camp David to Oslo”, (1994) 28 Is. L.R. 211, at 214 Google Scholar.

204 Ibid.; see generally also Cassese, Antonio, “The Israel-P.L.O. Agreement and Self-Determination”, (1993) 4 Eur. J. Int'l L. 564 CrossRefGoogle Scholar.

205 See supra n. 196.

206 See generally Annex III of the Interim Agreement, Protocol Concerning Civil Affairs, supra n. 150, at 128. This Annex lists forty areas of civil affairs where authority has been transferred, to a significant degree, from the Israeli military government to the newly constituted Palestinian Council. Of course, several responsibilities in other areas, such as security, have also been transferred.

207 This may be inferred from the provision that the elections represent “a significant interim measure towards the realization of the legitimate rights of the Palestinian people”. Benvenisti, Eyal, “The Israeli-Palestinian Declaration of Principles: A Framework for Future Settlement”, (1993) 4 European J. Int'l L. 541, at 544 CrossRefGoogle Scholar. Moreover, several of the Palestinian institutions to be established under the Agreement, such as the Port and the Airport, and the transfer of important security responsibilities, suggest that the drafters intended to engage in the necessary preparatory measures for the establishment of a Palestinian state.

208 George Shultz has written, regarding the Middle East, that: “a vision is needed that transcends the boundaries of traditional nation-states … Constructs based on absolute sovereignty and rigid borders cannot provide this vision … A little creativity about new mixes of sovereignty might help move the peace process forward right now. The juxtaposition of territory for peace need not be a matter of where to draw lines but how to divide responsibilities”. Shultz, George P., “A Chance for Some Serious Diplomacy in the Middle East”, Washington Post, March 6, 1990, at 6 Google Scholar.

209 Lapidoth, supra n. 142, at 204.

210 Robert Lansing, U.S. Secretary of State, 30 Dec. 1918, reprinted in Robert Lansing, supra n. 28, at 97.